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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

'01 SEP 13 P33f
"'P0'1 B. Nii:DILSirf
CLERK

LAMONT A., AARON V., JIM M., TYLER C., DAVID P., JAMIE S., and MAIYSHA Y., by their parents and next friends, MAURICE A., KIMBERLY V.,
WILLIAM M., VICKIE S, DORIS T., KENA K. and FLORA Y., on their
own behalf and on behalfof a class of similarly situated persons.
Plaintiffs,

01·0-0928

v.

Case No.,_ _ _ _ __

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, and SPENCE KORTE, Superintendent Milwaukee Public Schools in his official capacity, and the STATE OF WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION and ELIZABETH BURMASTER, State Superintendent ofPublic Instruction, in her official capacity.
Defendants.

COMPLAINT

Plaintiffs allege as follows: INTRODUCTION
1. This is a civil rights action brought on behalf of a class of school-aged children
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with disabilities who are or may be eligible for special education and related · services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C
§§ 1400et seq., and supporting state law§ 115.758 et seq. Wis. Strtts. The purpose ofthis action is to compel the defendants Milwaukee Board of School Directors, Milwaukee Public Schools, Milwaukee Public Schools Superintendent Spence Korte, the State of Wisconsin Department of Public Instruction and the State Superintendent ofPublic Instruction Elizabeth Burmaster to ensure the provision of a free appropriate public education to these children by complying vvith and enforcing the federal and state laws designed to protect children with disabilities. 2. Defendants Milwaukee Board of School Directors, Mihvaukee Public Schools, and Superintendent Spenee Korte have failed to provide free appropriate public education as required by law to students with disabilities in the Milwaukee Public School System. 3. Defendants State of Wisconsin Department of Public Instruction and Superintendent of Public Instruction Elizabeth Burmaster have failed to ensure that children with disabilities who attend schools in the Milwaukee Public Schools receive a free and appropriate public education by failing to adequately monitor Milwaukee Public School's compliance with federal and state laws related to the education ofchildren with disabilities. Contrary to applicable law, complaints filed with the Department of Public Instruction on behalf of children with disabilities in Milwaukee Public Schools have failed to be timely
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investigated, have been inadequately investigated, and the corrective action plans have not been enforced.. By failing to adequately investigate complaints regarding Milwaukee Public Schools' noncompliance with these laws and by failing to enforce these laws and the corrective action plans designed to remedy complaints the Defendants have violated the special education rights ofplaintiffs. 4. The named Plainti:f!S bring this action on behalf ofthemselves and all others similarly situated to assure that they, as well as other children who are or may be eligible for special education and related services, receive tbe free appropriate public education to which they are entitled.

JURISDICTION
5. This Court has jurisdiction over this action pursuant to 20 U.S.C. sec. 1415 (i)(3), 28 U.S.C. sec. 1331,28 U.S.C. 1343(a)(3) and (4), and 42 U.S.C. sec. 12188.

PARTIES 6. The individual plaintiffs who bring this action on their own behalf and as class
representatives are as follows: a.. Plaintiff Lamont A. is seventeen-year-old student with cognitive
disabilities. He is a resident ofthe Milwaukee Public School District and is eligible for special education and related services. He is a Milwaukee Public School student and attends the Milwaukee School ofthe Languages. His father Maurice A. is acting on behalf of Lamont and as his
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next friend and represents him in this action pursuant tu the provisions of Rule 17(c) of the Federal Rilles of Civil Procedure. b. Plaintiff Aaron V. is a sixteen-year-old student with several disabilities including Asperger' s syndrome, oppositional defiant disorder and attention deficit disorder. He is a resident of the Milwaukee Public School District and is eligible for ~-pedal education and related services. He is a Milwaukee Public School student and most recently attended Hamilton High School. His mother Kimberly V. is acting on behalfof Aaron and as his next friend and represents him in this action pursuant to the provisions of Rille l7(c) of the Federal Rules of Civil Procedure. c. Plaintiff Jim M. is a seventeen year old with Asperger's syndrome. He is a resident ofthe Milwaukee Public School District and is eligible for special education and related services. He is a Milwaukee Public School student and attends the Milwaukee School for the Arts. His father William M. is
acting on behalf of Jim as his next friend and represents him in this action
pursuant to the provisions ofRule 17(c) Federal Rilles of Civil Procedure. d. PlaintiffTyler C. is ten year old with learning disabilities and emotional
disturbances. He is a resident ofthc Milwaukee Public School District and is eligible for special education and related services. He is a Milwaukee Public School student and his last placement was at Greenfield Montessori School. His mother Vickie S. is acting on behalfof Tyler as his next
friend and represents him in this action pursuant to the provisions of Rille 4

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17(c) Federal Rules of Civil Procedure. e. PlaintiffDavid P. is a sixteen year old who is deaf and has bipolar and
attention deficit disorders. He is a resident of the Milwaukee Public Schools district and is eligible for special education and related services. He is a Milwaukee Public School Student. His mother Doris T. is acting on behalf ofDavid as his next friend and represents him in this action pursuantto the provisions of Rule 17(c) Federal Rules of Civil Procedure. f. Plaintiff Jamie S., is eight years old and had a cognitive disability. She is a resident ofthe Milwaukee Public Schools district and is eligible for special education and related services. In the school years 1998-2001 she attended Emerson Elementary. Her mother Kena K. is acting on behalf of Jamie as her next friend and represents her in this action pursuant to the provisions of Rule 17(c) Federal Rules of Civil Procedure. g. PlaintiffMaiysha Y. is thirteen years old and has a learning disability. She is a resident ofthe Milwaukee Public School District and is eligible for special education and related services. She is a Milwaukee Public School student and her most recent placement was at Wisconsin Conservatory of Life Long Learning. Her mother Flora Y. is acting on Maiysha's behalf as her next friend and represents her in this action pursuant to the provisions of Rule 17(c) Federal Rules of Civil Procedure. 7. Defendant MILWAUKEE BOARD OF SCHOOL DIRECTORS (MBSD)oversees Defendant MILWAUKEE PUBLIC SCHOOLS (MPS)
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including the provision of special education and related services. ThcMBSD and MPS receive feclcral funds under IDEA and must therefore comply with the requirements of IDEA and Section 504 of the Rehabilitation Act of 1973 (Section 504). The Milwaukee Board of school Directors and Milwaukee Public Schools area local education agency (LEA) within the meaning ofiDEA. 8. Defendant SPENCE KORTE is the Superintendent of Milwaukee Public Schools and is a school district administrator within the meaning of section 118.24 Wis. Stats. As school district administrator he is responsible for the general supervision and management of professional work of the schools and the promotion of students. 9. Defendant STATE OF \VISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION (DPI) supervises the provision of public education including special education and related services to students in Wisconsin. Both federal and state laws (IDEA and section 115. 762 Wis. Stats. respectively) re'J.uire that DPI ensure that students with disabilities in Wisconsin have available a free appropriate public education, including those who arc suspended or expelled from school. DPI is the State Educational Agency (SEA) within the meaning of IDEA As a recipient of federal funds under IDEA, the DPI must also comply with Section 504 of the Rehabilitation Act. 10. Defendant ELIZABETH BURMASTER is the State Superintendent of Public Instruction, whose duties include the supervision of public schools in Wisconsin and assuring compliance with IDEA and Section 504 ofthe Rehabilitation Act.
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CLASS ALLEGATIONS 11. Named Plaintiffs Lamont A.; Aaron V., Jim M., Tyler C., David P., Jamie S., and
Maiysha Y. bring this action for declaratory and injunctive relief on their ovJn behalf and on behalf ofall others similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiff class consists of all school age children with disabilities who reside in the Milwaukee Public School District boundaries and who are or may be eligible for special education and related services under IDEA and Wisconsin law. 12. The plaintiffclass is so numerous that joinder of all plaintiffs is impractical. In this case it is unknown who and how many children fall within the class. However, on information and belief, Plaintiffs allege that the December 2000 count reported by Milwaukee Public Schools to the Department of Public Instruction was 16,113 children with disabilities in the Milwaukee Public School District. Additionally, the class includes children who will be enrolled in Milwaukee Public Schools who are or who will be eligible for special education and related services in the future. 13. There are questions of law and fact common to the class. 14. The claims of the Plaintiffs are typical of the claims of the class. The named plaintiffs' claims offailure to provide a free appropriate public education arise from the same course of conduct that gives rise to the absentee members' claims. 15. The named plaintiffs will fairly and adequately represent the interests ofthe class. They have no interests that are antagonistic to the class and seek relief which will
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benefit all members of the class. 16. The Defendants have acted on gronnds generally applicable to the entire class, and
therefore declaratory and injnnctive relief with respect to the entire class is appropriate.
STATUTORY FRAMEWORK

17. Pursuant to IDEA and its implementing regulations, each child with a disability is
entitled to receive a free appropriate public education consisting of special education and related services provided in the least restrictive environment appropriate to meet the child's unique needs. 20 U.S.C. §§ 1400(d), 1401 (8), and 1412(a)(l) and (5). 18. Section 504 ofthe Rehabilitation Act of 1973 providesin relevant part that "[n]o otherwise qualified individual with a disability in the United States,... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination nnder any program or activity receiving Federal fmancial assistance..." 29 U.S.C. § 794(a). A recipient of federal funds which operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified individual with a disability in the recipient's jurisdiction. 34 C.F.R. § 104.33(a). The provision of an appropriate education is the provision ofregular or special education and related aids and services designed to meet the individual educational needs of individuals with disabilities as adequately as the need of individuals without
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disabilities are met. 34 C.P.R.§ 104.33(b). 19. Under IDEA and its implementing regulations both SEAs and LEAs have
obligations to find and timely evaluate students who are suspected ofbeing a child with a disability. 20 U.S.C. Sec. 1414(a)(l)(A), 34 C.P.R. 300.125, 34 C.F.R. 300.530, Sec. 115.78(3)(a) Wis.Stats. 20. Under IDEA and its implementing regulations, every child with a disability shall be individually assessed by a multi-disciplinary team responsible for developing an Individualized Education Program (IEP) that meets the specific educational needs of the child. 20 U.S.C.§ 1414(d)(l)(A) and (B); 34 C.P.R.§§ 300.343(a) and 300.532(h). The IEP team is to consist at a minimum of the parents of the child, at least one regular education teacher, at least one special education teacher who has extensive and recent training and experiences related to the child's known or suspected disability, and a representative of the LEA. 20 U.S.C. § 1414(d)(l )(B). The IEP developed by the team shall include, inter alia, a statement of the specific educational services to be provided to the child and the extent to which the child will be able to participate in regular education programs. 20 U.S.C. § 1414(d)(l)(A); 34 C.P.R.§ 300.346(c). 21. The IEP team is to meet periodically but not less than annually to determine whether the annual goals of the child are being achieved, and to revise the IEP as appropriate to address any lack of expected progress. 34 C.P.R.§ 300.343(c). 22. The right of children with disabilities to be educated in the least restrictive environment (LRE) is an integral and legally required component of the free
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appropriate public education guaranteed by IDEA and Section 504. TI1e LRE mandate requires that a child with a disability be educated with nondisabled peers
to the maximum extent appropriate to meet the needs of that child. 20 U.S.C. § 1412(a)(5)(A); 29 U.S.C. § 794; and 34 C.P.R.§§ 104.34(a) and 300.550(b)(l).
23. The LEA or the SEA shall ensure that the parents ofeach child with a disability are members of any group that makes a decision on the educational placement of a child, and that the team that makes the placement decision is knowledgeable about the child, the meaning ofthe placement data, and the placement options 34 C.P.R. § 300.552 (a)(1).
24. The provision ofspecial education and related services includes the requirement of planning for and providing transition services for students age 14 and older to transition from secondary school to post-school activities including postsecondary education, vocational training, integrated employment, continuing and adult education, adult services, independent living, or community participation. 20 U.S.C. §§ 1401(30) and 1414(d)(l)(A)(vii).
25. Under IDEA children with disabilities who are subjected to 10 or more days in a school year of disciplinary removal including constructive removal are considered
to have experienced a change in placement. 34 C.P.R. § 300.519. If there is no
behavior intervention plan in place the LEA must convene the IEP team to develop a functional behavioral assessment in order to develop a behavioral intervention plan. Ifthe child already has a behavioral intervention plan the IEP team shall meet to review the plan and review its inlplementation. 34 C.P.R. §
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300.520 (b) (1). 26. Under the IDEA, a state education agency (SEA) must assure (i) that all children
with disabilities have the right to a free appropriate public education, (ii) that all educational programs for children with disabilities are supervised by persons in the State responsible for the educational programs for children with disabilities and meet the SEA educational standards, and (iii) that an adequate supply of qnalified special education and related services personnel, and other personnel necessary to educate children with disabilities, are appropriately and adequately prepared. 20 U.S.C.§§ 1412(a)(l)(A), 1412(a)(ll)(A), 1412 (a) (14) and 1412 (a) 15. 27. Under IDEA, the SEA is responsible for approving or disapproving local educational agency (LEA) applications for IDEA funds. If the SEA determines that the LEA is failing to maintain programs providing free appropriate public education to children with disabilities, the SEA may reduce or halt payments it would have made to the LEA until the SEA is satisfied that the LEA has come into compliance. 34 CFR § 300.197 (a). 28. In order to carry out its responsibilities under the IDEA, the SEA must monitor the LEA for compliance with IDEA requirements, including free and appropriate public education, least restrictive environment, transition, discipline and placement. Ifthe SEA finds that the LEA is not following such requirements, the SEA must take steps to see that corrective action is taken. 34 C.F.R. §§ 300.556, and 300.660.
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STATEMENT OF THE CASE
29. Over 16,000 students in Milwaukee Public Schools are children with disabilities as defined by IDEA or Section 504.
30. Defendants have established a system that fails to provide many ofthese student with the free appropriate public education to which they are entitled.
31. Defendants have adopted practices and procedures which fail to ensure timely, procedurally proper, and adequate evaluations and individualized education plans for children with disabilities.
32. Defendants have failed to ensure that children are provided with educational placements that can meet their individual needs and which have been chosen with the participation ofparents and by a team that is knowledgeable about the child, the meaning ofthe evaluation data and the placement options.
33. Defendants have adopted practices and polices which discourage or prevent children with disabilities from receiving their education in the least restrictive enviromnent.
34. Defendants have failed to ensure that a continuum ofalternative placements, ranging from the least restrictive to the most restrictive is available for students with disabilities. Rather, students with disabilities are routinely placed in overly restrictive environments.
35. Defendants do not determine each child's individual needs and then provide a 12
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program to meet those needs in the least restrictive environment possible along a continuum of placements. Instead, their policy and practice is to make placement decisions based on pre-existing programs, staffing arrangements, and transportation zones or to require the child's parent to fmd a school on his or her own that is willing to admit the child regardless ofthat schools ability to provide the elements ofthe child's IEP. 36. Defendants have tailed to ensure that the limitations on suspensions and constructive suspensions are enforced resulting in many students missing school without being provided functional behavioral assessments and plans, or any alternative educational placements. 37. Defendants have failed to ensure that the full range of transition services are available and provided to transition age students. 38. Defendants have failed to ensure that IEP's , once prepared, are properly distributed and implemented and that required related services are provided. 39. Defendants have failed to ensure that an adequate supply of qualified special education and related service personnel and other personnel necessary to educate children with disabilities are appropriately and adequately prepared.

NAMED PLAINTIFFS
40. Each ofthe named plaintiffs has been injured by the aforesaid practices and policies ofthe defendants.
41. Plaintiff Lamont A. is a seventeen year old with cognitive disabilities. He attends 13

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the Milwaukee School of Languages and is served in a segregated classroom. During the 2000-2001 school year he received virtually no transition services. He has not received training in activities of daily living despite a documented need. An educational consultant observing his classroom noted his academic programing included coloring and watching Tcletubbies on TV. He was denied participation on field trips, participation in a special Olympics program, and work programs. He has made virtually no progress on IEP goals in the last three years and the goals have not been significantly changed during that period. In February 2001 he missed eighteen consecutive days of school and the family received no
contact from the school regarding Lamont's absence. The IEP team was not
reconvened in response to this absence. 42. Plaintiff Aaron V. is a 16 year old with Asperger'syndrome, oppositional defiant
disorder, and attention deficit disorder. He attends Hamilton High School. Proper disciplinary procedures have not been followed with Aaron. He has not had a functional behavioral assessment and he missed more than ten days ofschool during the 2000-2001 school year due to constructive removals. The IEP team was not reconvened in response to this suspension. His IEP does not address his transition needs including behavioral and social skills. His procedural IEP rights have been violated numerous times. His teacher reported at an IEP meeting that there is inadequate staffmg to provide the services Aaron needs. 43. Plaintiff Jim M. is a 17 year old with Asperger's syndrome. He currently is placed "temporarily" in a satellite site classroom at a Milwaukee Public School
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administration building. This "temporary" placement has lasted for over one year. He is completely segregated from regular education students. He has been unnecessarily segregated from his peers and been prohibited from participating in various activities because of his disability. Attempts to return him to his previous placement at Milwaukee School for the Arts have been unsuccessful despite his musical gifts. Additionally, he has been intentionally harassed and provoked by school personnel and told by an administrator that teachers do not want him at their school. 44. Plaintiff Tyler C. is a ten year old with learning disabilities and emotional disturbances. His IEP is not meeting his needs and school personnel have told his mother they are not equipped to meet his needs and they "have nowhere to put him." He has made little or no progress in his IEP goals over the last two years. During the 2000-2001 school year he was constructively suspended from school in fur excess of l 0 days. The IEP team was not convened to develop a functional behavioral assessment. Milwaukee Public Schools suggested an alternative placement for the 2001-2002 school year that wonld have required an hour and a half bus ride one way and wonld require Tyler to get up early which is made exceedingly difficnlt because of his medications. When Tyler's mother objected to this proposed placement she was given a list of twenty three schools and told to fmd one on her own that would take her son. 45. Plaintiff Jamie S. is an eight year old girl with cognitive disabilities. She attended Emerson Elementary for three years starting there in K5. In kindergarten she had
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serious difficulties with learning and behavior. When her mother questioned school personnel she was assured Jamie would outgrow it. Jamie continued to struggle and was required to repeat first grade. It was not until the second semester of her second year in first grade that Jamie was finally evaluated for special education eligibility. She was found to have am IQ of 62 and is eligible for special education services under coguitive disabilities. Jamie's mother did not receive notice ofthe meeting at which Jamie's eligibility was determined, her IEP written and her placement determined. 46. Plaintiff David P. is a sixteen year old who is deaf and emotionally disturbed. In the 2000-2001 school year he was enrolled in a residential treatment program. In the 2001-2002 school year he is attending Marshall High School in Milwaukee Public Schools. He is eligible for special education services and has received them in the past from Milwaukee Public Schools. However, he does not currently have an IEP and no dates to convene an IEP meeting have been set. 47. PlaintiffMaiysha Y. is a thirteen year old with learning disabilities. In the 20002001 school year she attended the Wisconsin Conservatory ofLife Long Learning. According to her IEP she is to be pulled out for special education services four times per week but this service has not been provided. She was removed from school for fifteen days without a functional behavioral assessment being done. When the IEP team was eventually reconvened, it was scheduled at a time that her mother had advised the school that she was not available. The IEP meeting that was conducted without the mother present was additionally missing
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the regular education teacher SUMMARY OF DEFENDANTS' SYSTEMIC FAlLURE TO COMPLY WITH THE IDEA

48. Pursuant to its obligation to adequately monitor the performance of LEAs in Wisconsin, DPI accepts complaints which allege IDEA violations by LEAs.
49. In 1994, a group of parents of children who were eligible to receive special education supports and services from l\1PS filed an IDEA complaint alleging numerous violations of the IDEA committed by l\1PS. DPI numbered this complaint 94-044. (Hereinafter "group IDEA complaint").
50. Under federal law, DPI is obligated to investigate and determine whether or not an IDEA complaint is substantiated within 60 days. If it is substantiated, DPI must order the LEA to correct the substantiated violations of the IDEA.
51. DPI substantiated the group IDEA complaint as to five different issues. Specifically, it found MPS out of compliance with the IDEA in the following areas: failure to complete Multi disciplinary-team (M-team) evaluation process in a timely manner, failure to have Individualized Education Program (IEP) teams develop placements, failure to document consideration ofleast restrictive alternative (LRE) in placement offers, assignment of special education aide to function as general secnrity aide for building, and fuilure to conduct IEP meetings with all the required participants.
52. It took DPI 148 days to investigate the group IDEA complaint and issue its
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findings. MPS did not submit a corrective action plan (CAP) until 95 days later. However, that CAP was not accepted by DPI as DPI did not concur that the CAP would remedy the substantiated IDEA violations. 53. Since that time, DPI has substantiated t 08 violations of the IDEA after investigating further IDEA complaints against MPS. Included in those violations are 15 violations ofiDEA evaluation and reevaluation procedures, 21 violations ofIDEA placement procedures, 8 violations of transportation procedures, 44 violations of IEP procedures, 13 violations of absence and suspension procedures, and 7 miscellaneous other IDEA violations. (See MPS IDEA Substantiated Complaint SUllJ.llliU'Y, 1994, September 2001 attached hereto as Ex. A). 54. As recently as May 11,2001, DPI informed MPS by letter, that MPS had failed to comply with DPI orders regarding issuance and implementation ofcorrective action plans (CAPS) which DPI had ordered pursuant to substantiated IDEA complaints. (See letter from Stephanie Petska to Carol Topinka, dated May 11, 2001, attached hereto as Ex. B). 55. Under the IDEA, DPI also has the obligation to monitor the performance of all LEAs, separate from its dury to investigate complaints. 56. In its 2000 monitoring report DPI found that MPS had systemic IDEA violations in 10 separate areas and ordered MPS to remedy those violations. (See 2000 monitoring report, attached hereto as Ex. C) 57. In its 2001 monitoring report, DPI found that MPS had systemic violations in 19 areas. In 2000 DPI found that MPS had systemic violations in I 0 areas, 4 of
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which were the same as DPI found in its 2001 monitoring report and 3 of which DPI failed to review in the 2001 report. (See 2001 monitoring report, attached hereto as Ex. D, and Summary Comparison of2000 and 2001 DPI monitoring reports, attached hereto as Ex. E). 58. Given the systemic violations of the IDEA which DPI has repeatedly found in MPS, but defendants have failed to remedy, the IDEA violations which the named plaintiffs allege are clearly capable of repetition, but evade systemic review if the named plaintiffs were required to exhaust administrative remedies. FIRST CAUSE OF ACTION-IDEA VIOLATIONS--MPS DEFENDANTS 59. Plaintiffs restate and reallege paragraphs 1- 58, as if fully set forth herein. 60. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools and Spence Korte, have collectively failed, as to each named plaintiffas well as to all children who are residents ofthe Milwaukee Public School district and are eligible for special education and supports and services, to insure compliance with the IDEA. 61. Said failure has denied a free appropriate public education to each named plaintiff, and to children who are residents ofthe Milwaukee Public School district and are eligible for special education supports and services.

SECOND CAUSE OF ACTION-IDEA VIOLATIONS-DPI DEFENDANTS 62. Plaintiffs restate and reallege paragraphs 1- 58, as if fully set forth herein.
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63. Defendants Department of Public Instruction and Elizabeth Burmaster, have failed to adequately insure that DPI has an adequate complaint investigation and monitoring system to insure that MPS complies with the IDEA sufficiently to provide a free appropriate public education to each uamed plaintiff, and to all children who are residents ofthe Milwaukee Public School district and are eligible for special education supports and services.
TIDRD CAUSE OF ACTION-504 VIOLATIONS-MPS DEFENDANTS 64. Plaintiffs restate and reallege paragraphs 1- 58, as if fully set forth herein. 65. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools aud
Spence Korte, have collectively failed to provide a free appropriate public education, as to each uamed plaintiff as well as to all children who are residents of the Milwaukee Public School district aud are eligible for special education aud supports aud services, in violation of Section 504 of the Rehabilitation Act. FOURTH CAUSE OF ACTION-504 VIOLATIONS-DPI DEFENDANTS 66. Plaintiffs restate aud reallege paragraphs 1- 58, as if fully set forth herein. 67. Defendants Department of Public Instruction and Elizabeth Bunnaster, failure to insure that DPI has au adequate complaint investigation aud monitoring system to insure that MPS complies with the IDEA sufficiently to provide a free appropriate public education to each named plaintiff, aud to all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services, violates Section 504 of the Rehabilitation Act. FIFTH CAUSE OF ACTION-SEC. 1983-MPS DEFENDANTS
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66. Plaintiffs restate and reallege paragraphs 1- 58, as iffully set forth hereiiL 67. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools and
Spence Korte, as a result oftheir policies, procedures, practices, acts and omissions have denied each named plaintiff, and all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services their substantive due process rights and have acted intentionally or with deliberate indifference and callous disregard of plaintiffs rights, privileges and immunities under the Fourteenth Amendment of the Constitution of the United States and 42 U.S.C. see. 1983. 68. As a result of the policies, procedures, practices, acts and omissions ofthe defendants, the plaintiffs have suffered emotional and psychological distress, anxiety, injury, pain and suffering due to defendants' misconduct. SIXTH CAUSE OF ACTION-SECTION 1983-DPI DEFENDANTS 69. Plaintiffs restate and reallege paragraphs 1- 58, as if fully set forth herein. 70. Defendants Department of Public Instruction and Elizabeth Burmaster, as a result of their policies, procedures, practices, acts and omissions have denied eaeh named plaintiff, and all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services their substantive due process rights and have acted intentionally or with deliberate indifference and callous disregard ofplaintiffs rights, privileges and immunities under the Fourteenth Amendment ofthe Constitution ofthe United States and 42 U.S.C. see. 1983.
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71. As a result of the policies, procedures, practices, acts and omissions of the defendants, the plaintiffs have suffered damages due to defendants' misconduct. PRAYER FOR RELIEF
Wherefore, plaintiffs, on behalf of themselves, and all other similarly situated children who are, or during the pendency ofthis litigation, will be, residents ofthe Milwaukee Public School district and are, or will be, eligible for special education supports and services, hereby request that the court:
1. Certify a class of children who are, or during the pendency of this litigation, will be, residents of the Milwaukee Public School district and are, or will be, eligible for special education supports and services from Milwaukee Public Schools.
2. Enter a preliminary injunction which orders the Milwaukee Public Schools to provide a free appropriate public education in the least restrictive environment to all named plaintiffs.
3. Enter a preliminary injunction which requires the Department of Public Instruction to pay for a Special Master who vvill oversee the Milwaukee Public School district's implementation of the IDEA as to all children who are, or during the pendency of this litigation, will be, residents of the Milwaukee Public School district and are, or will be, eligible for special education supports and services.
4. Enter a preliminary injunction which requires Milwaukee Public Schools to ensure for each ofthe named plaintiff, and all children who are residents of the Milwaukee Public School district and who are eligible for special education services and supports that their disabilities are evaluated in a timely manner, their 22

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placement is a team decision including parents, that appropriate transition planning and services are provided to all students age 14 and older, that IEP teams are properly composed and procedural safeguards are followed, that children are not removed or constructively removed for ten days or more without a functional behavioral assessment being done and the IEP team reconvened, and that services are provided in the least restrictive environment appropriate to the needs ofthe child. 5. Order compensatory education for any time period when IDEA was found to be violated. 6. Order the defendants to collectively pay for plaintiffs' attorneys' fees and costs. 7. Order any other relief that the court deems necessary and just.

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/3 Dated this

tJ::._,day of September, 2001.

Suite400 Madison, WI 53703 (608) 267-0214

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Monica Murphy Michael Bachhuber Wisconsin Coalition for Advocacy 2040 W. Wisconsin Ave. Suite 678 Milwaukee, WI 53233 (414) 342-8700

Case 2:01-cv-00928-RTR Filed 09/13/01 Page 24 of 24 Document 1

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

LAMONT A., AARON V., JIM M., TYLER C., DAVID P., JAMIE S., and MAIYSHA Y.,

Plaintiffs,
V.

Case No. 01-C-928

MILWAUKEE PUBLIC SCHOOLS, SPENCE KORTE, WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, ELIZABETH BURMASTER, and MILWAUKEE BOARD OF SCHOOL DIRECTORS,

U.S. OIST. COURT EAST DIST. WISC. FILED
MAY - 3 2002

Defendants.

ORDER
On March 20,2002, this court conducted a scheduling conference, pursuant to Rule 16 ofthe Federal Rules of Civil Procedure. In accordance with the briefing schedule established at that conference, the two motions discussed are now briefed and ready for resolution.
First, the Milwaukee Teachers' Education Association (MTEA) has filed a motion to intervene in this action, pursuant to Rule 24(a)(2) and (b) ofthe Federal Rules of Civil Procedure; In addition, in a letter dated March 19, 2002, MTEA requests notice of informal interviews and depositions. Second, the plaintiffs have filed a motion for a declaratory order, and have subsequently filed a motion to compeL I. MTEA's Motion to Intervene
As a preliljllinary matter, the Executive Director ofMTEA, Sam Carmen, represents that it is the duly certified collective bargaining representative, under§ 111.70 Wis. Stat., for MPS regular and special education teachers, including teachers involved in particular aspec~s of diagnosis and special services such as diagnostic teachers, guidance counselors, school social workers, speech pathologists,

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occupational therapists and physical therapists, mobility and orientation specialists, and school nurses. Carmen Affid. ~ 2. In addition, MTEA represents that it is the collective bargaining representative of educational assistants, some ofwhom assist teachers in delivering special education services. Id.
In its motion, MTEA argues that it is entitled to intervene both as ofright and on a permissive basis, pursuant to Rule 24(a) and (b). MTEA seeks limited intervention, specifically in the remedial portion of this litigation as an undesignated intervenor. More particularly, the scope of intervention is to share its insight in addition to input at mediation or remedial phase since any potential remedial plan would affect the wages, hours, and working conditions ofMTEA's members.
As grounds, MTEA submits that relief obtained either by mediation or ordered by this court will directly involve bargaining unit members' wages, hours, and working conditions. MTEA seeks intervention to ensure the collective bargaining rights of its members.
In support ofintervention as ofright, MTEA contends that the organization ofdelivery systems to fulfill the IDEA directly impact wages, hours, and working conditions ofMTEA's bargaining unit members. Since the labor agreements between MPS and MTEA contain provisions in those areas and there is a duty to bargain over changes in educational policy that impact those areas, MTEA argues that it has an interest in the subject-matter of this action. Next, MTEA argues that its interest is not adequately represented by the parties currently involved in this case.
Alternatively, as regards permissive intervention, MTEA argues that it is appropriate because MTEA shares an interest in potential remedial measures. MTEA submits that it seeks an intervention in this case similar to that granted in the Milwaukee school desegregation case of the 1970's. See Armstrong v. O'Connell, 75 F.RD. (E.D. Wis. 1977).

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All of the parties have responded to MTEA's motion. The State defendants, i.e., the Department ofPublic Instruction and Elizabeth Burmaster, do not object to the motion to intervene for purposes of and under the conditions set forth in MTEA 's motion.
Likewise, as to the motion to intervene, defendants Milwaukee Board of School Directors, Milwaukee Public Schools, and Spence Korte (collective the "MPS defendants") do not object to MTEA's motion for the purposes and under the conditions set forth in that motion.
Finally, the plaintiffs contend that MTEA does not have a right of intervention under Rule 24(a), i.e., intervention as ofright. The plaintiffs assert that MTEA' s ability to protect its interests will not be impaired absent its intervention because of the Milwaukee Public Schools' continuing bargaining duty with MTEA. Nonetheless, the plaintiffs believe that it may be expeditious to have MTEA participate in fashioning appropriate remedies. Thus, the plaintiffs agree to stipulate to permissive intervention under Rule 24(b) by MTEA, for the limited purpose of participation in the remedial portion.
At this juncture, intervention is premature for two reasons. First, this litigation is in its nascent stage. The remedial stage, assuming liability is found, is far into the future. At that point, persuasive arguments can be made for intervention. Second, this is a putative class action; i.e., the motion for class certification has not been brought, much less has a class been certified. Class certification, if granted, will change the dynamics ofthe litigation. In other words, at this time there are seven named plaintiffs, assuming liability and no class certification, how many educators would need to be involved in the remedial phase? Certainly, not a substantial portion ofMTEA's members.
· Although the court will deny the motion for intervention without prejudice, this ruling should not foreclose MTEA' s informal involvement in the discovery issues. Now, the court will turn to those issues vis-a-vis MTEA's request for notice.
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II. MTEA's Request for Notice Although MTEA does not take a position with respect to the ethical issues raised by the
plaintiffs motion for declaratory order, it requests specific notice of contemplated discovery, both formal and informaL As the basis for this request, MTEA submits it has a concern that statements given by MPS employees might adversely affect their employment.
More particularly, as regards informal discovery MTEA requests, that any procedures for informal discovery include three working days notice to the MTEA of any interviews plaintiffs seeks with a bargaining unit member and an opportunity for an MTEA representative to be present and provide advice, if necessary at such interview.
MTEALetterto the Court, dated March 19,2002. With respect to formal discovery through depositions, MTEA requests that it receive "notice
of depositions of its members either as intervenor, if that motion is granted, or by arrangements with counsel for the plaintiffs and MPS." Id.
The State defendants do not object the request in MTEA's letterofMarch 19,2002. The MPS defendants respond that if there were an informal discovery program, they would not object to MTEA's involvement as proposed, subject to and conditioned on compliance with both Wisconsin and federal law regarding the confidentiality of pupil records. Finally, the plaintiffs agree to give MTEA three days advance notice of informal in-person interviews and formal depositions of bargaining unit members that they seek to-interview or depose. However, the plaintiffs submit that it is unduly burdensome and time-consuming to give MTEA advance notice ofbriefinitial discussions with bargaining unit members. The plaintiffs point to the situation where bargaining unit members initiate contact with plaintiffs' counsel.

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The matter of notice regarding preliminary informal discovery will have to be worked out between plaintiffs' counsel and MTEA. Of course, nothing precludes MTEA from advising its
.
members in advance that they may be contacted by plaintiffs' attorneys in regard to this litigation and requesting that MTEA attorneys be promptly notified.
As discussed above, MTEA's motion to intervene will be denied without prejudice, as premah1re. III. Plaintiffs' Motion for a Declaratory Order
Pursuant to 28 U.S.C. § 2201(a), the plaintiffs have filed a motion for a declaratory order. In that motion, they seek an order "expressly pennitting plaintiffs counselto contact, interview, meet, or otherwise obtain information from current and former non-managerial employees ofthe defendant Milwaukee Public Schools (MPS), outside the presence of MPS counsel." Pl. Brief in Support of Decl. Mtn. at 11.
As a preliminary matter, the plaintiffs bring their motion pursuant to 28U.S.C. § 2201(a). That statute concerns declaratory judgments, and it provides that any declaration by the court shall have "the force and effect of a final judgment or decree and shall be reviewable as such." § 2201(a). While it is true that the plaintiffs arerequesting that this court provide them with declaratory guidance in order to avoid potential ethical and/or legal complaints, the matters with which they have concern are within the context ofthe management ofdiscovery. As such, the court will entertain the plaintiffs' motion under its general supervision of discovery instead of pursuant to § 2201.
Addressing the underlying subject-matter ofthe motion, this district has adopted Wisconsin's ethical rules as its own rules of professional conduct, subject to modification by this court. General L.R. 83.10. Thus, Wisconsin SCR 20: 4.2 provides the framework for determining whether the contact the plaintiffs seek is permissible.
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The text of that Rule provides,

In representing a client, a lawyer shall not communicate about the

subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the

J.

consent of the other lawyer or is authorized by law to do so.

SCR 20:4.2. Ofimport for the plaintiffs' motion is the second paragraph ofthe Comment to the Rule.

In relevant part, that paragraph provides,

In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part ofthe organization.

SCR 20:4.2, Comment.

Although this court has adopted the Wisconsin rules of professional conduct, "[o]nee the

federal court adopts the text ofthe state rules, it has its own professional responsibility standards, and

any interpretation it may wish to give is not binding in any sense on the [state] courts." Weibrecht

v. Southern Illinois Transfer, Inc., 241 F.3d 875, 878-79 (7th Cir. 2001). In that case, the Seventh

Circuit upheld the district court's interpretation of its local rule of professional responsibility that

adopted the text ofthe Illinois state court rules, finding that the district court was within its discretion.

Id. at 882. The Seventh Circuit noted that "even though in this case the district court has incorporated

Illinois's rules by reference, nothing compelled the district court to adopt the same interpretation of

those mles that has been adopted by an intermediate appellate court." Jd. Moreover, parenthetically,

the Seventh Circuit noted that,

We see no indication in the materials accompanying the professional conduct rules of the Southern District ofillinois that the district court intended to bind itself to follow the Illinois Supreme Court's interpretation of the Illinois rules ...

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II !!PI. Ill I 'it . II I! i1 UlliliilJf I'IJ JQ . ... ! F 11111 'f ''f.
A
"""
Against this background, this court will now examine the plaintiffs' motion vis-a-vis the
Eastern District of Wisconsin's ethical rules. The plaintiffs submit that there are three categories of
individuals who are at issue in their motion, i.e., individuals whom plaintiffs' counsel seeks ex-parte
contact to conduct informal discovery. More particularly these categories consist of: (1) MPS
employees who have children in the putative class; (2) former MPS employees who do not have
children in the putative class; and (3) current non-managerial employees who do not have children in
the putative class.
At the Rule 16 conference, the court suggested a possible way to proceed. That suggestion
was that plaintiffs' counsel may seek through informal discovery basic background information and
also seek to ascertain who should be considered as a candidate for formal discovery procedures. This
suggested informal discovery contained certain limitations regarding its subsequent use during the
course of this litigation.
Despite the court's suggestion, .the parties have been unable to resolve their differences, and
court intervention is necessary. In their. reply brief, the plaintiffs state that they do not object to the
court's suggestion. Rather, they submit that
[D]espite the court's request that the parties discuss the possibility of agreeing to allow the plaintiffs' attorneys to have ex parte communication with current and former MPS employees, but not allowing any statements obtained in such meetings to be used as admission against the MPS defendants, MPS apparently remains adamant about insisting on a blanket prohibition to any ex parte communications. For the record, although the plaintiff's do not think it is necessary to put into an order, the plaintiffs have no difficulty with the concept that they will be unable to use the statements ofcurrent and former MPS employees, obtained in an ex parte manner, as admissions in this litigation. Plaintiffs are well aware of the ethical and evidentiary rules proscribing such use. Plaintiffs are merely seeking through this motion, an expeditious way to obtain preliminary information so they can determine which current and former MPS employees should be deposed.
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Pl. Reply at 2-3. On the other hand, MPS counsel vigorously contest ex parte contact as to all three categories.
As a preliminary matter, the MPS defendants submit that the plaintiffs' counsel has refused to discuss the option ofconducting informal discovery, but with defense counsel present. Plaintiffs reject this proposal out ofhand.
That option aside, in opposition to the plaintiffs' motion, the MPS defendants submit four

reasons for denying the plaintiffs informal discovery. First, the defendants contend that the nature of MPS employees' duties and responsibilities under the IDEA, which is the central subject ofthis case,

places many current and former employees in a position where their acts and/ or omissions may be

used to impute liability to MPS. Second, the defendants submit that a carte blanche ordered permitting ex parte communications with innumerable current and former employees fails to provide MPS with a reasonable opportunity to anticipate or object to any specific ex parte-contact until it is too late. Third, the defendants submit that MPS and its students will suffer irreparable harm if an

employee inadvertently discloses confidential student information, in violation of§ 118.125 Wis. Stat and the Family Educational Rights and Privacy Act (~'FERPA"). Fourth, the defendants assert that the inability to clearly identify appropriate and inappropriate contacts will result in great conflict and copious disputes, all of which could be averted through the use of formal discovery methods.
The MPS defendants contend that the appropriate distinction drawn by the Comment to Wisconsin Supreme Court Rule 20:4.2 is whether an individual's acts or omissions in connection with the issues being litigated may be imputed to MPS or constitute an admission on behalfofMPS. Next, the MPS defendants present four arguments in support of its position that the plaintiffs' counsel

should refrain from engaging in ex parte communications with MPS employees, regardless of status.

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Citing 34 C.F.R. § 300.350, the MPS defendants argue that the full range ofemployees could potentially subject MPS to liability. In addition, the MPS defendants point to the possibility of liability under the theory ofrespondeat superior, citing Terra Int'l Inc. v. Mississippi Chemical Corp., 913 F.Supp 1306, 1322 (N.D. Iowa 1996).
Thus, the MPS defendants propose whatthey characterize as a simple solution to this dispute. In particular, they request that the plaintiffs be held accountable to the ethical rules and be prohibited from ex parte contact with any individuals whose acts or omissions in relation to this case could potentially subject MPS to liability. The defendants' proposed solution is really not so simple, for how would the plaintiffs know in advance of contact which individuals might subject MPS to liability? ·
The dispute between the parties must be resolved with a balanced approach. First, the court recognizes the plaintiffs' need for basic information in order to prosecute their case. Requiring the plaintiffs to proceed solely by means of formal discovery is not practical and is too expensive. It would needlessly disrupt the lives of numerous MPS employees. On the other hand, the defendants' concerns about being potentially exposed to liability without having counsel present when statements are obtained is legitimate. The court's previously proposed solution involves balancing the need for preliminary information that the plaintiffs are seeking against the defendants' liability concerns. It will hopefully provide a balance which will enable the parties to proceed with discovery without the "conflict and copious disputes" the defendants believe will emerge.
More particularly, the court will establish the following procedure. Plaintiffs' counsel may seekinformal discovery, consisting ofinterviewing, meeting with, or otherwise obtaining information, from current and former non-managerial employees of MPS outside the presence of MPS counsel. Such informal discovery is subject to limitations on its subsequent use in this litigation. First,

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information obtained can only be used for the purpose of preliminary discovery; the plaintiffs are precluded from singularly or cumulatively using such information in an attempt to establish the defendants' liability. If the plaintiffs wish to use the information gathered informally in an attempt to impute same to the defendants, they must resort to formal discovery. This limitation does not foreclose plaintiffs' use of the informally gathered information in support of their motion for class certification. Second, plaintiffs' counsel must give adequate warnings to the individuals contacted prior to commencing the interview regarding privacy laws and regulations, i.e., § 118.125 Wis. Stat. and FERPA These warnings should be provided both orally and in writing. Counsel should, of course, maintain copies of all written warnings.
As regards the class ofMPS employees who have children in the putative class, including one of the named plaintiffs, Flora Y., plaintiffs' counsel may have unfettered contact with them in the normal course of the attorney-client relationship. This relationship, however, does not authorize any MPS employee to reveal confidential information relating to students that are not their children or minors over whom they are guardians. IV. Plaintiff's Motion to Compel
As a preliminary matter, the plaintiffs have not complied with the "personal consultation" requirement of Civil Local Rule 37.1. Nonetheless, as the court indicated in its letter, dated AprillO, 2002, the court decided to entertain that motion because it did not foresee the parties reaching an amicable solution on their own. The court's prescience is borne out in the plaintiffs reply brief.
Pursuant to Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure, the plaintiffs seeks an order compelling the MPS defendants, i.e., Milwaukee Board ofSchool Directors, Milwaukee Public Schools, and Spence Korte, to provide the plaintiff with documents responsive to Plaintiffs' First Request for Production of Documents, Request Number 16.
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In particular, that item requests,

All documents within your actual or constructive possession and created or modified on or after 3/1100 and before 12/17/01 created or modified by, directed to or referring to counsel employed by Quarles & Brady LLP, including Gary M. Ruesch.
Pl.'s Mtn. to Compel, Ex. A at~ 16. The MPS defendants have responded,

Object to this request.. The documents described are attorney-client privileged and/or work product.

Pl.'s Mtn to Compel, Ex. Bat,[ 16.

In support of their motion, the plaintiffs submit that they do not seek privileged information.

Although

they

initially

contended '

that

there

was

no

confidential

attorne.y-client

privilege

between

Quarles & Brady and MPS, in reply, the plaintiffs concede that MPS and Quarles & Brady appear to

have entered into an attorney client-relationship as ofSeptember 25, 2001. Accordingly, the plaintiffs

modify their request to exclude documents produced on or after September 25, 2001. Despite this

concession, the plaintiffs continue to argue that no such relationship existed prior to that time. Finally, the plaintiffs contend that even if a privilege exists, it was waived by reports that Quarles & Brady

provide to the Department of Public Instruction ("DPI), one of the co-defendants in this case. Responding, MPS maintains its objection on the basis of attorney-client privilege and/ or

work-product doctrine. In support of this claim, MPS submits that Quarles & Brady and Attorney

Ruesch have represented MPS in the past on various matters and it would have been ludicrous for
I
Attorney Ruesch to have suggested otherwise. This assertion is supported by Ruesch's affidavit in
support ofMPS' response. See Ruesch Affid. at~ 3.
Further review ofRuesch's affidavit reveals that Ruesch told Attorney Jeffrey Spitzer-Resnick,

plaintiffs' counsel, that neither he nor Quarles and Brady "was serving as litigation counsel" in this

case. Id. at '!16. Next, Ruesch avers that he and Quarles & Brady "did engage in legal advising and

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consultation with the City Defendants with the expectation, by all parties involved, that such
consultation and advice was privileged." Id. at~ 7. Finally, Ruesch avers that "[a]t no time did I
indicate to Mr. Spitzer-Resnick that Quarles & Brady LLP would not represent the City Defendants
in this matter, nor did I ever misrepresent the status ofour representation ofthe City Defendants with
regard to this particular case." Id. at~ 9.
Next, MPS responds that the plaintiffs' reliance on DPl's payment of fees to Quarles and
Brady, pointing to a letter attached as Exhibit A to MPS' brief. Specifically, that letter, dated
Decemb.er 4, 2000, from Gary M. Ruesch to Sheila C. Ellefson of the DPI, represents that,
... we have been retained by MPS to assist it in developing, reviewing, and implementing its special education forms and procedures. In the course of our representation, we have been advising MPS regarding the threatened litigation involving the Wisconsin Coalition for Advocacy since it substantially relates to many ofthe procedures followed by MPS in implementing state and federal special education law. As we understand it, the Department of Public Instruction has made an arrangement with MPS to provide discretionary grant money for our services. It has always been the understanding of Quarles & Brady that we represent MPS singularly.
MPS' Resp., Ex. A (emphasis added). Thus, the relationship between DPI and Quarles & Brady is
that DPI is providing the funding for the law firm to represent MPS. Moreover, the letter supports
MPS' position that it had an attorney-client relationship with Quarles & Brady prior to September 25,
2001.
In summary, the court is satisfied that an attorney-client relationship existed prior to September
25, 2001, and covers the period in dispute. Therefore, in response to plaintiffs' discovery requests,
MPS is required to prepare a privilege log, which will specifically indicate what information it
believes is privileged. MPS submits that it is preparing such a log. Ifthere are remaining disputes

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as to what is privileged, the parties should meet in a good faith effort to resolve the disputes; only then, should court intervention be sought.
As regards the plaintiffs' argument that the privilege was waived by sharing information with DPI, MPS contends that the plaintiffs have not submitted evidence regarding the existence of such sharing. Notwithstanding, MPS argues that even if information was shared, it and DPI have related functions and goals, akin to related companies, thus there is no waiver, citing Leybold-Heraes Tech., Inc. v. Midwest Instrument Co., Inc., 118 F.R.D. 609, 613 (E.D. Wis: 1987). In addition, MPS submits that it and DPI are co-defendants in this case, and argues that sharing of information in the course of preparing a joint defense does not constitute a waiver of privilege. In reply, the plaintiffs continue to assert that information was shared.
As a final matter, despite the parties' failure to adequately comply with the Local Rule, both parties imprudently seek sanctions. It is apparent that if the parties had sat down face-to-face, or at least talked by phone, rather than exchanging e-mails and voice mails, the matter in dispute, if not fully resolved, would have been limited at the outset. Thus, the cross-requests for sanctions will be denied. The very nature of this case requires that counsel for the parties work together to avoid needless time and effort, and cost to their respective clients. Counsel have demonstrated that such cooperative efforts are possible, without jeopardizing vigorous representation of their clients' positions, e.g. the joint stipulation for the protective order and their view regarding intervention by MTEA. Therefore, the parties are forewarned that this court will not consider any future discovery related motions that are not in strict compliance with both the Federal and Local Rules. Such motions will be summarily denied.
IT IS THEREFORE ORDERED that MTEA's motion to intervene (Docket #32) in denied without prejudice.

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IT IS FURTHER ORDERED that the plaintiffs' motion for adeclaratory order (Docket #26)

is denied but the court establishes the informal discovery procedure set forth in this order at pages 9-

10.

IT IS FURTHER ORDERED that the plaintiffs' motion to compel (Docket #38) is denied.

M Dated at Milwaukee, Wisconsin, this

day ofMay, 2002.

!
I
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tw!!'tta

77(d) Federal Rules of Civil Procedure, copies of this document were mailed by

W. Stuart Parsons, Attorney at Law Michael Aldana, Attorney at Law Quarles & Brady 411 E. Wisconsin Ave., Ste. 2040 Milwaukee, WI 53202-4497
Bruce A. Olsen Assistant Attorney General Wisconsin Department of Justice P. 0. Box 7857 Madison, WI 53702-7857
Jeffrey D. Spitzer-Resnick, Attorney at Law
Wisconsin Coalition for Advocacy 16 N. Carroll St., Ste. 400 Madison, WI 53703
Barbara Z. Quindel, Attorney at Law Perry Lerner Quindel & Saks 823 N. Cass St. P. 0. Box 514005 Milwaukee, WI 53203-3405
Roxane L Crawford, Assistant City Attorney Susan D. Bickert, Assistant City Attorney Milwaukee City Attorney's Office 200 E. Wells St., Rm. 800 Milwaukee, WI 53202-3551

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

LAMONT A., AARON V., JIM M., TYLER C., DAVID P., JAMIE S., and MAIYSHA Y., by their parents and next friends, MAURICE A., KIMBERLY V., VICKIE S., DORIS T., KENA K., and FLORA Y., on their own behalf and on behalf of similarly situated persons

U.S. OIST. COURT EAST DIST. WISC. !

FILED

1 '

MAY 2 3 2003

AT

O'CLOCK

M

SOFRON B. NEDILSKY

Plaintiffs, v.

Case No. 01-C-928

MILWAUKEE PUBLIC SCHOOLS, WILLIAM ANDREKOPOLOUS, WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, ELIZABETH BURMASTER, and MILWAUKEE BOARD OF SCHOOL DIRECTORS,

Defendants.

DECISION AND ORDER REGARDING CLASS CERTIFICATION

This is an action brought under the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.("IDEA''). The thirteen above-named plaintiffs are bringing this action on their own behalf and on behalf of a class of similarly situated persons to compel the defendants to ensure the provision of a free appropriate public education ("FAPE") to children by complying with and enforcing the federal and state laws designed to protect children with disabilities. The plaintiffs have now moved to certify the class.

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Along with their brief in support of class certification, the plaintiffs filed a motion to file an oversized brief. Given the complex nature ofthe case, the number ofparties potentially involved and
the fact that there was no opposition to the oversized briefby the defendants, the court will grant the plaintiffs' motion to file an oversized brief.
In order to obtain class certification, the plaintiffs must satisfy the four threshold requirements
ofFederal Rules of Civil Procedure 23(a) and establish that the action qualifies under one ofthe subdivisions ofFederal Rules of Civil Procedure 23(b). Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
163 (1974). In this case, the plaintiffs allege that they satisfy all four requirements of Rule 23(a). Rule 23(a) states:
One or more members ofa class may sue or be sued as representative parties on behalf of all only if(1) the class is so numerous that joinder of all members is impracticable, (2) there is a question oflaw or fact common to the class, (3) the claims or defenses ofthe representative parties are typical of the claims or defenses ofthe class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The plaintiffs also allege that they satisfy Rule 23(b)(2), which states: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2). The plaintiffs' motion for class certification is challenged by both the Milwaukee defendants and the Wisconsin defendants, hereinafter referred to as the "defendants." The defendants challenge the numerosity requirement, the commonality requirement and the typicality requirement of Rule 23(a). The defendants, however, have not challenged the adequately protect requirement. The
defendants also challenge the plaintiffs' contention that they satisfied Rule 23(b)(2). Additionally,
the defendants submit that the class certification should be denied because the representative class has

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failed to exhaust its administrative remedies. The court will address the exhaustion claim first and, ifnecessary, the court will address the requirements for class certification.
I. Exhaustion The defendants argue that the plaintiffs' motion for class certification should be denied because the class representatives have not exhausted their administrative remedies as required by 20 U.S.C. § 1415(1). The defendants argue thatthereliefthattheplaintiffs seek is available to them and all members ofthe class through the administrative procedures ofthe IDEA, as instituted by MPS and DPI. The defendants raised exhaustion as an affirmative defense in their answers, as well as a defense to the motion for class certification. (Milwaukee Defendants' Answer at 22, Wisconsin Defendants' Answer at 14.) The plaintiffs respond by contending that exhaustion is not a proper defense to the class certification motion. Further, the plaintiffs argue that the problems they allege are systemic and could not be solved through the administrative process. Consequently, the plaintiffs believe that pursuing any administrative remedies would be futile and therefore, not required under the IDEA. Even though the court agrees with the plaintiffs that exhaustion is not a proper defense to their motion for class certification, the defendants have raised an important threshold question. The statute requires the exhaustion ofadministrative remedies as a prerequisite to federal claim under the IDEA. 20 U.S.C. § 1415(1). However, the failure to exhaust under the IDEA does not deprive the court of subject matterjurisdiction. Charlie F. v. BoardofEducationofSkokie SchoolDist., 98 F.3d989, 991 (7th Cir. 1996)(noting that lack of exhaustion does not deprive a court of jurisdiction because exhaustion is usually waivable). But, because exhaustion is a prerequisite to a federal IDEA claim, the court must determine whether the plaintiffs need to exhaust their administrative remedies before

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it can address the plaintiffs' class certification motion. A plaintiffmust exhaust his or her IDEA remedies before bringing a civil action ifthe plaintiff
is seeking relief that is also available under the IDEA. 20 U.S.C. § 1415(1). The purpose of the exhaustion requirement is to allow the education professionals the first chance to remedy the system's educational shortfalls. Charlie F., 98 F.3d at 992. However, plaintiffs do not need to exhaust their administrative remedies when such exhaustion would be futile or inadequate. Honig v. Doe, 484 U:S. 305, 327 (1988).
The plaintiffs allege that the problems in the MPS are systemic and relief could not be achieved, one student at a time, through the administrative process. "[A] claim is 'systemic'· if it implicates the integrity or reliability ofthe IDEA dispute resolution procedures themselves orrequires restructuring the education system itself in order to comply with the dictates ofthe Act; but that it is not 'systemic' if it involves only a substantive claim having to do with limited components of a program, and if the administrative process is capable of correcting the problem." Doe v. Arizona Dep't. of Ed., 111 F.3d 678, 681 (9th Cir. 1997). Further, the plaintiffs allege that because the problem is systemic, the exhaustion of IDEA remedies would be futile. Complaint at , 58. Notwithstanding the plaintiffs' allegations, the administrative process does not appear to be completely inadequate.
As the court views the situation, there are two overriding areas of alleged failure into which the various problems presented by the plaintiffs can be placed. The first area is where there is a failure in the process to get a student into services. Into this category, the court places the following alleged problems: (1) evaluations and (2) procedural rights in the IEP process. In these cases, the child is not yet in services and the parents or guardians may not be aware ofthe child's procedural rights or how

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to invoke those rights. This sort of pre-determination failure can reasonably be categorized as a systemic failure.
The other area is where there is a failure to provide certain services. Into this category, the court places the following alleged problems: (1) IEP implementation and distribution; (2) transition services; (3) placement, least restrictive environment and continuum of services; (4) disciplinary suspensions withoutrequired interventions; (5) denial ofFAPE due to non-attendance; and (6) lack ofqualified personnel. Although the plaintiffs also characterize the problems in this area as systemic, it appears that each individual child would have a remedy for the problem through the administrative process. Here, it is instructive to note that the plaintiffs are not challenging the due process hearing system in Wisconsin. Reply brief at 23 n.l3. Once a student is in the system, a parent has the opportunity to raise issues that the parent feels are not being addressed. Thus, for example, the fact that a particular student is not getting services, or the services are not sufficient, is not a systemic problem, but an individual problem, which the administrative process is capable of correcting. If a particular problem is not resolved, an administrative remedy should be pursued. This was precisely the case with Lamont A. The court previously denied Lamont A.'s request to amend the complaint to add his individual claim that MPS failed to provide him services pursuant to a settlement agreement. The agreement was a result ofLamont A.'s use of the administrative system. The court denied his request to amend the complaint on the basis that Lamont A. had failed to exhaust his administrative remedies by seekingreliefto enforce the agreement before a Wisconsin hearing officer.
The plaintiffs submit that their investigation during discovery has uncovered numerous violations within the six post-determination areas. The plaintiffs contend that the root cause ofthese problems is a lack of accountability within the system. Whether or not the plaintiffs' assessment is
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H 1!11.1 11... 1.JIJ!flllllf1JPIIHI11 i .... IIJ ...· ''

accurate, the plaintiffs have failed to establish that the structure of the system is such that individual students would be unable to obtain reliefon a case by case basis. Obtaining a favorable federal court order is certainly one way to restore accountability to the system in one blow, but the court cannot opt for judicial expediency by ignoring the legal requirements for the exercise of jurisdiction. It is conceivable that requiring pursuit of individual relief by numerous parents would overwhelm the administrative system. Nonetheless, since the plaintiffs have not established that this is futile, such action is required. Parenthetically, it may be that full utilization ofthe administrative process by those aggrieved will either restore the accountability to the system that plaintiffs contend it lacks, or clearly demonstrate futility; i.e., that the system itself is not capable of correcting the problem.
Consequently, the administrative remedies to these six post-determination problems must be exhausted before the court retains jurisdiction to address these claims. It appears from the pleadings and the briefs that the administrative remedies have not been exhausted by the plaintiffs to the postdetermination claims. If, pursuant to 20 U.S.C. § 1415(1), the court does not have jurisdiction to hear claims regarding the post-determination claims, such claims are not eligible for class certification.
II. Class Certification Because the court has narrowed the scope of the plaintiffs' claims by excluding those that concern the post-determination problems, the class definition must be amended to reflect the change. In addition to amending the class definition, the plaintiffs must designate new class representatives, if necessary. Consequently, the court will permit the plaintiffs to submit an amended class certification motion, in light of the modified class definition. The plaintiffs shall submit their amended class certification motion by no later than June 23, 2003. The defendants shall submit their response regarding the Fed. R. Civ. P. 23(a) and (b) requirements by no later than July 14,2003. The
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plaintiffs' reply, if any, must be filed by no later than July 21,2003. lll. Affidavit of Patricia Yahle The defendants have moved to strike the affidavit of Patricia Yahle because it contains
information outside the scope of Yahle's personal knowledge and none of the exceptions to the hearsay rule apply.
Because the plaintiffs' claims have been narrowed and the relevance ofYahle's affidavit to the amended class certification motion cannot be determined at this time, the defendants'motion to strike the affidavit will be denied without prejudice. If, after submitting the amended class certification motion, the defendants still believe that the affidavit ofYahle is not relevant and violative ofithe Federal Rules of Evidence, they can resubmit their motion to strike Yahle's affidavit.
IT IS THEREFORE ORDERED that the plaintiffs' motion to file an oversized brief is granted.
IT IS FURTHER ORDERED that the plaintiffs shall submit an amended class certification motion by no later than June 23,2003. The defendants shall submit their response by no later than Ju'Iy 14, 2003. The plaintiffs' reply, if any, must be filed by no later than July 21, 2003.
IT IS FURTHER ORDERED that the defendants' motion to strike the affidavit ofPatricia Yahle is denied without prejudice.
JtJl
Dated at Milwaukee, Wisconsin, thisc63 -day ofMay, 2003.

United States Magistrate Judge

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P~odure, 2003, pmo=t to Rulo n(d) Fodml!W"' ofCivH

oop;, ofthio doo=t- =ilo! by

to the following parties:

Monica Murphy, Esq. MichaelJ. Bachhuber, Esq. Wisconsin Coalition for Advocacy 2040 W. Wisconsin Avenue, Suite 678 Milwaukee, WI 53233
W. StuartParsons, Esq. Michael Aldana, Esq. Gary M. Ruesch, Esq. Lafayette L. Crump, Esq. Quarles & Brady 411 E. Wisconsin Avenue, Ste 2040 Milwaukee, WI 53202
Bruce A. Olson Assistant Attorney General Wisconsin Department ofJustice P.O. Box 7857 Madison, WI 53702-7857
Jeffrey D. Spitzer-Resnick, Esq. Wisconsin Coalition for Advocacy 16 N. Carroll Street, Ste 400 Madison, WI 53703
Roxane L. Crawford, Esq. Susan D. Bickert, Esq. Milwaukee City Attorney's Office 200 E. Wells Street, Rm 800 Milwaukee, WI 53202-3551
William P. Croke, Esq. Todd M. Rowe, Esq. Quale Feldbruegge Calvelli Thorn & Croke 710 N. Plankinton Avenue - 9th Fl Milwaukee, WI 53203-2404

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aited to attorneys for

by the Court pursuant

77(d) fedeJal RulesotJNITED STATES DISTRICT COURT

edures.

EASTERN DISTRICT OF WISCONSIN

LAMONT A., AARON V., JIM M., TYLER C., DAVID P., JAMIE S., and MAIYSHA Y., by their parents and next friends, MAURICE A., KIMBEI,{LY V., VICKIE S., DORIS T., KENA K., and FLORA Y., on their own behalf and on behalf of similarly situated persons,

U.S. OIST. COURT EAST OIST. WISC. FILED

AUG 1 2003

AT

O'CLOCK

M

SOFRON B. NEOILSKY

Plaintiffs,
v.

Case No. 01-C-928

MILWAUKEE PUBLIC SCHOOLS, WILLIAM ANDREKOPOLOUS, WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, ELIZABETH BURMASTER, and MILWAUKEE BOARD OF SCHOOL DIRECTORS,

Defendants.

DECISION AND ORDER REGARDING CLASS CERTIFICATION

On May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion. The plaintiffs filed the motion and defendants have responded. In addition to the amended class certification motion, there are a number of other outstanding motions that need to be addressed by the court.
The court, in its May 23, 2003, order, after thoroughly reviewing plaintiffs' submissions, concluded that the plaintiffs'.complaints could be divided into two general areas ofalleged failures: pre-determination and post-determination. The court further concluded that

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the claims falling within the post-determination category were not viable for class certification because they were not systemic in nature, but were individual and therefore subject to the exhaustion requirement under the due process format. In regard to the pre-determination category, the court concluded that this encompassed claims in which there was an alleged failure to get a student into services; to the court, these appeared to be failures in the process and were systemic in nature. As a result, the court ordered that the plaintiff submit an amended class certification motion on the pre-determination claims.
It appears, after reading the parties'amended submissions, that the court's May 23, 2003, order may have suffered from a lack of clarity or specificity when it discussed the predetermination claims and the need for an amended class certification motion. As such, the defendants and the plaintiffs have each opted to interpret the order in a light most favorable to their own causes. Unfortunately, this has not advanced the court's task ofdetermining whether or not a class should be certified. The plaintiffs have construed the court's order in such a way that they are, in effect, seeking reconsideration oftheir first motion for class certification. The plaintiffs are now presenting two subclasses; the second clearly runs afoul ofthe May 23, 2003 order; and the first does little more than reassert the arguments oftheir earlier class certification motion. The defendants, on the other hand, have taken a very narrow reading of the court's order. In fact, the defendants' reading is so narrow that it defines any putative class out of existence. The court's view of the defendants' approach is exemplified by the motion for summary judgment the defendants filed on July 30, 2003. More about that motion later.
More specifically, in the plaintiffs' second proposed subclass, they are, in effect, seeking to revisit the post-determination class by defining it as a class ofstudents who have been denied
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special education rights other than procedural rights. The plaintiffs argue that when looking at the violations, the court should not focus on the due process hearing mechanisms in its exhaustion analysis because the due process system cannot solve systemic problems. But, what are the systemic problems raised by the plaintiffs? As the court previously indicated, all ofthe issues or problems presented by the plaintiffs are individual problems for which a remedy can be sought through the due process hearing system if the system is given a chance to address those alleged problems. The problems alleged are substantive complaints raised by individual children. And, each child has available to him or her, the opportunity to seek a remedy for the complaint through the due process hearing system. Consequently, the court will not revisit what it labeled the post-determination claims as those claims need to be exhausted.
In regard to the plaintiffs' first proposed subclass, this also suffers from the plaintiffs' attempt to reargue their prior submissions. This proposed definition concentrates on the denial ofprocedural rights, but in the examples presented, it clearly encompasses what this court views as post-determination claims, especially those involving complaints after the tE.P. meeting. See, Plaintiffs' BriefinSupportofAmendedMotion for Class Certification atp.3, :fu.3. In other words, even with their first proposed subclass, the plaintiffs have kept the same representative plaintiffs and have not applied the Rule 23(a) and Rule 23(b)(2) analyses to the particular predetermination claims, as defined by the court. As stated above, they have reargued their earlier motion.
On the other side, both the state defendants and the Milwaukee defendants have essentially defined the class out of existence. The Milwaukee defendants look to the court's
wording and would find a pre-determination failure "only when 'the child is not yet in services
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and the parents or guardians may not be aware ofthe child's procedural rights or how to invoke those rights."' Milwaukee Defendants' Brief at 10 (emphasis in original). However, the court did not use an exclusive phrase such as "only when" in its May 23, 2003, order. And, by no means did the court intend to limit pre-determination failures to only situations where (1) the child is not in services and (2) whose parents may not know how to invoke those rights, as suggested by the state defendants. State Defendants' Brief at 16.
Notwithstanding the foregoing criticism of the plaintiffs' amended proposal, this court still believes that a group of claims exists that can be classified as systemic. Those are the claims that the court had previously labeled pre-determination claims. The court is of the opinion that such a putative class reposes in the plaintiffs' submissions, i.e., those students who suffer from deficiencies in the system which hinder, unduly delay or prevent them from being initially served. Such deficiencies do not lend themselves to individualized exhaustion, and even if one person follows through, numerous others will continue to be frustrated.
This is the putative class the court characterized as consisting of pre-determination issues. Because the plaintiffs have not specifically defined the class, and the defendants interpreted the court's language too narrowly, in an effort to advance ultimate resolution ofthis matter, the court will provide its own class definition. ·The class, if one is to be certified, shall be defined as:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a meeting between the I.E.P. team and the parents or guardians of the student. In other words, the class is open to both students currently in services and those who have not
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yet been placed into services so long as those students are, have been or will be denied or delayed access to services because MPS failed to recognize their need for special education services ofsome type. The court's concern in these situations is that the individual students may not have adequate remedies available to them through the due process system because, even despite the procedures that MPS already has in place, parents or guardians may not either be aware at all or adequately informed oftheir rights to have the child evaluated for services. For example, in the declarations the plaintiffs included with their original class certification motion, the parent ofJoseph D. declared that she repeatedly asked teachers for several years, beginning in preschool, to evaluate Joseph D. for special education. However, Joseph D. was not evaluated until third grade. In another case, Aaron F. manifested behavioral problems since the beginning of kindergarten. By the time Aaron F. was in first grade, his mother requested that he be evaluated for special education. However, Aaron F. was not evaluated until the second grade.
To be clear, the court is not extending its definition of the class to the issues that arise beyond the I.E.P. meeting, such as the implementation of the I.E.P. plan and transitional services. In such situations, the risk of uniformed parents is alleviated by the I.E.P. meeting between the I.E.P. team and the parents or guardians. At this face-to-face meeting, the parent or guardian is made aware of the right to challenge the I.E.P. team's determination or raise any other issues the parent or guardian may have with the need for services or the quality ofthose services, as well as the procedures for raising such challenges.
The state defendants note the court's use of the word "eligible" in its May 23, 2003, order. The state defendants use the same definition of eligible as is used in Wis. Stats §
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115.728(3). In the statute, a child is eligible for services if (1) the child has been referred for
evaluation; (2) the child has been evaluated by an I.E.P. team; and (3) a determination was made by the I.E.P. team. Although the court recognizes that this is the definition of eligible used by the State ofWisconsin in the special education setting, it is not what the court meant by eligible. Instead, the court intends to include all children who are not already in services and who are thought to have special needs or otherwise require special services, whether or not they are eventually placed in services.
In regard to their claims against the state defendants, the plaintiffs argue that these do
not need to be exhausted, because exhaustion through the due process hearing system is not a
proper avenue to address claims about the state's monitoring ofMPS. In essence, the plaintiffs
are trying to back-door the substantive claims that the court would otherwise not allow to
constitute a class. In other words, the plaintiffs claim that faulty or inadequate oversight by the
DPI permitted the whole panoply ofMPS violations to occur and, as such, all should be certified as a class against the DPI.
Whether or not a student, or his parents or guardian, would have an individual remedy for the DPI's failure to monitor MPS through the due process hearing system, the underlying alleged violations still do not qualify for a class for reasons previously presented. It is because the underlying claims do not qualify for class certification that the court cannot recognize a class based on the alleged dereliction of the DPI. To repeat, the reason for the exhaustion requirement is to give the system a chance to correct itsel£ If the parents or guardians of a student raise their grievances in a due process hearing, MPS is presented with an opportunity to address those problems. If the problem is addressed and corrected, the DPI can not be
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0 .
charged with the dereliction of the duty to monitor MPS, as to Lamont A. or the other representative plaintiffs. Consequently, only the pre-determination claims, as now defined in this order, can be raised against the state defendants.
Now, the question becomes, who will represent the class and does the class meet the requirements ofRules 23(a) and 23(b)(2)? Ofparticular concern, under Adashunas v. Negley, 626 F.2d 600, 603 (7th Cir. 1980), the class must be identifiable and not merely speculative. In short, the court must be persuaded that a class exists outside ofthe potential plaintiffs listed below. Of the named plaintiffs, it appears that only Jamie S. might represent this class. However, as stated above, there appear to be other potential plaintiffs (Joseph D., LassomerC., Tyrone D., Aaron F. and Michael T.), who are included in the plaintiffs' declarations in support of the motion for class certification.
Because the apparent lack of clarity in the court's language in its May 23, 2003, order may have obscured the issues for class certification, the plaintiffs will be given the opportunity to submit a second amended class certification motion based upon the class as it is defined in this order. The plaintiffs must submit their second amended class certification motion by no later than August 22, 2003. The defendants shall file their response by no later than September 8, 2003. The plaintiffs may file their reply by no later than September 18, 2003. Based upon these final submissions, either a class will be certified, or it will not.
Having dealt with the amended class certification motion, the court turns to the other outstanding motions. The first outstanding motion is the plaintiff Lamont A's motion for a preliminary injunction, dated September 18,2002. That motion was filed in conjunction with the plaintiff Lamont A's motion to file a supplemental complaint. The motion to file a
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supplemental complaint was denied on October 9, 2002. The motion for a preliminary injunction should have been denied at that time as well, but it was overlooked by the court. Consequently, the plaintiffLamont A's motion for a preliminary injunction will now be denied as moot.
The next outstanding motion is the plaintiffs' November 19, 2002, motion to compel and seek responses to additional interrogatories beyond those permitted by rule. In this motion, the plaintiffs seek either an order compelling the defendants to answer the plaintiffs' third set of interrogatories or, in the alternative, if the court finds that, because of the plaintiffs; use of subparts, the plaintiffs have already exceeded their 25-interrogatory limit, the plaintiffs seek leave to file additional interrogatories. The defendants believe that the plaintiffs have exceeded their interrogatory limit and refuse to answer the plaintiffs' third set of interrogatories.
Because it appears that all oftheplaintiffs' requests concern the issues that the court has labeled post-determination, those interrogatories are no longer germane to the class action. Consequently, the plaintiffs' motion will be denied. However, if the plaintiffs feel that some of the interrogatories are germane to the class, as defined in this order, it may resubmit its motion after the class certification motion has been decided. As such, the motion is denied without prejudice.
On July 23,2003, the parties filed a joint motion to seal the affidavit ofPatricia Yahle, along with the documents that were submitted with the affidavit. The parties ask that the motion be granted because the Milwaukee defendants inadvertently included the unredacted names of the seven named plaintiffs. Upon the stipulation ofthe parties and for good cause shown, the motion to seal the affidavit ofPatricia Yahle, along with all of the documents submitted with
8

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Ill 111

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it, shall be granted. Next, the court is in receipt ofthe plaintiffs' Civil Local Rule 7.4 non-dispositive motion
to strike the Milwaukee defendants' brief in opposition to the amended motion for class certification, as well as the Milwaukee defendants' response to that motion. In the plaintiffs' motion, they seek to strike the Milwaukee defendants' briefin opposition to the amended class certification motion because the Milwaukee defendants originally filed a copy oftheir third set of interrogatories to the plaintiffs, separate from their brief in opposition to the amended class certification motion, which violates Fed. R. Civ. P. 5(d). However, the Milwaukee Defendants' response makes it clear that the interrogatories were intended to be filed with the brief and therefore were intended to be used in the proceeding. Consequently, there is no Fed. R. Civ. P. 5(d) violation, and the plaintiffs' motion to strike the Milwaukee defendants' brief will be denied.
Lastly, the court returns to the Milwaukee defendants' motion for summary judgment which was just filed. In fact, the motion was received so recently thatthe plaintiffs have not had an opportunity to respond . Nonetheless, in light of the court's action in this order, it is appropriate to address the Milwaukee defendants' motion now. In the motion, the Milwaukee defendants seek summary judgment because six of the named plaintiffs only assert postdetermination claims and the one plaintiff who asserts a pre-determination claim should have exhausted the available administrative remedies. The defendants' argument is based on their unduly narrow reading of the court's order. Since the court is giving the plaintiffs an opportunity to file a second amended class certification motion, the Milwaukee defendants' motion for summary judgment is premature. The plaintiffs' second motion for class
9

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certification may include both some or all of the named plaintiffs, as well as other potential

plaintiffs who have not yet been named. The Milwaukee defendants' motion for summary

judgment will be dismissed without prejudice.

IT IS THEREFORE ORDERED that the plaintiffs shall submit their second amended

class certification motion by not later than August 22, 2003. The defendants shall file their

response by no later than September 8, 2003. And any reply must be filed by no later than

September 18, 2003.

IT IS FURTHER ORDERED that plaintiffs' motion for a preliminary injunction is

denied as moot.

IT IS FURTHER ORDERED that the plaintiffs' November 19, 2002, motion to

compel is denied without prejudice.

IT IS FURTHER ORDERED that the parties' joint motion to seal the affidavit of

Patricia Yahle, along with all of the supporting documents is granted.

IT IS FURTHER ORDERED that the plaintiffs motion to strike the Milwaukee

defendants' brief in opposition to the amended motion for class certification is denied.

IT IS FURTHER ORDERED that the Milwaukee defendants' motion for summary

judgment is denied with prejudice.

rsr

Dated at Milwaukee, Wisconsin, this - day of August, 2003.

United States Magistrate Judge

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Copy mai ed to attorneys for
parties b · the Court pursuant
to Rule 7 (d) Fed.·eraI Rutesof Civil Pr ures.

UNITED

STATES

DISTRICT

~ttf-'h.e_fURT I:AST FILED

DIST.

WISC.

EASTERN DISTRICT OF WI~ Cd NSIN

AUG 5 2003

LAMONT A., AARON V., JIM M., TYLER C., DAVID P., JAMIE S., and MAIYSHA Y.,
by their parents and next friends, MAURICE A., KIMBERLY V., VICKIE S., DORIS T., KENA K., and FLORA Y., on their own behalf and on behalf of similarly situated persons,

AT

O'CLOCK

M

SOFRON B. NEOILSKY

Case No. 01-C-928

Plaintiffs, v MILWAUKEE PUBLIC SCHOOLS, WILLIAM ANDREKOPOLOUS, WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, ELIZABETH BURMASTER, and MILWAUKEE BOARD OF SCHOOL DIRECTORS,

Defendants.

ORDER AMENDING DECISION AND ORDER REGARDING CLASS CERTIFICATION
Due to an editorial error, that portion ofthe Order ofAugust 1, 2003 which reads as follows: "It is further ordered that the Milwaukee defendants' motion for summary judgment is denied with prejudice" shall be amended to read as follows: IT IS FURTHER ORDERED that the Milwaukee defendants' motion for summary judgment is denied without prejudice.

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• .
In all other respects, the Order of August 1, 2003 remains unchanged.
!::.,.,.
Dated at Milwaukee, Wisconsin this _il_"'_ day ofAugust, 2003.
United States Magistrate Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WIS~h..~·.N;;".ii_r:7a~3"l!!~u~~~e""'""ess_r_o_:sr-.~w1sc. f

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LAMONT A., AARON V., JIM M., .T¥LER C., DAVID P., JAMIE S., and MAIYSHA,Y., by their parents and next friends, MAURI~EA., KIMBERLY V.,
VICKIE S., DORIS T., KENA K., and FLORA Y., on their own behalf .and on behalf of similarly situated persons,

NOV 1 4 2003
,AT ....,_~O'!'!!'CL~o~cK""",-·--
j -"::'SO!P.Fi!!!!!!R"'!!!ON B. NEDILSKY CASE NO. Ol·C·928

Plaintiffs, v

NllLWAUKEE PUBLIC SCHOOLS, WILLIAMANDREKOPOLOUS, WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, ELIZABETH BURMASTER, and MILWAUKEE BOARD OF SCHOOL DIRECTORS,

Defendants.

DECISION AND ORDER REGARDING SECOND AMENDED MOTION FOR CLASS CERTIFICATION

On September 13, 2001, the plaintiffs filed their complaint, alleging violations under the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.("IDEA"). On November 7, 2002, the plaintiffs filed a motion for class certification so that they could proceed on their claims as a class action. On May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion because the court determined that a number of the plaintiffs' claims were subject to the exhaustion of administrative remedies, pursuant to the IDEA. 20 U.S.C. § 1415(1).

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On June 23, 2003, the plaintiffs filed their amended motion for class certification, which sought class certification based upon the claims as narrowed by the court's May 23, 2003 order. On August 1, 2003, the plaintiffs were required to file a second amended motion for class certification because, in the court's opinion, both the plaintiffs and the defendants misconstrued the May 23, 2003, decision and order. On August 22, 2003, the plaintiffs filed their second amended motion for class certification. The motion is fully briefed and ready for resolution. Additionally, the plaintiffs have moved to strike the affidavit of Patricia Yahle, which was submitted in support of the Milwaukee defendants' brief in opposition to the motion for class certification.
In order to obtain class certification, the plaintiffs must satisfy the four threshold requirements
of Federal Rules of Civil Procedure 23(a) and establish that the action qualifies under one of the subdivisions of Federal Rules of Civil Procedure 23(b). Eisen v. Carlisle & Jacguelin, 417 U.S. 156, 163 (1974). Rule 23(a) states:
One or more members of a class may sue or be sued as representative parties on behalf ofallonly if (1) the class is so numerous that joinder of all members is impracticable, (2) there is a question of law or fact common to the class, (3) the claims or defenses ofthe representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The plaintiffs allege that they satisfy Rule 23(b)(2), which states: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2). Before the court can address the class certification requirements, there are still issues with the class definition that must be addressed.

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I. Class Definition
In the plaintiffs' original motion for class certification, they sought to certify a class that they
defined as:
[the named plaintiffs] on behalf of themselves and a class of all school age Wisconsin residents living within the boundaries of the Milwaukee Public School District or otherwise eligible for education from the District who are or may be eligible for special education and related services under IDEA and Wisconsin Law due to their disabilities.

After considering the defendants' objections and the plaintiffs' response, this court determined that this proposed class definition included claims, of which, the exhaustion of administrative remedies would be required. The court thus concluded that some of the plaintiffs' claims were not systemic in nature, identifying these as "post-determination" claims. The court reasoned that were subject to administrative exhaustion because they are individual and substantive in nature and each alleged wrong could be potentially remedied through the administrative process outlined in the IDEA. The court identified the other claims as "pre-determination" claims and concluded that these were systemic or procedural in nature. As such, these claims had the potential for class certification. The plaintiffs were required to file their amended motion for class certification based only upon the predetermination claims.
But, when the plaintiffs filed their amended motion for class certification, they latched onto the "procedural" language in the court's decision and redefined the class broadly so that it actually contained the claims that the court determined were subject to the exhaustion requirement. At the same time, the defendants in their briefs in opposition to the plaintiffs' motion for class certification, latched onto the "pre-determination" language to view any class definition so narrowly as to define

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it out of existence. Because the court felt that parties' proposed and opposing class definitions both
misconstrued the first order on class certification, the court formulated its own definition and directed
the plaintiffs to submit a second motion for class certification. The court defined the putative class
as:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a meeting between the IEP team and the parents or guardians of the student

Now, on the most recent attempt to certify the class, there is still as dispute between the parties as to. which alleged violations should be included in the class definition. The plaintiffs have characterized the class, based upon the court's definition, to include students with claims involving situations where the defendants have failed to evaluate when required, where the defendants have fruled to convene an IEP Team when required, or where the defendants have held an IEP Team meeting without the required people, including the parents and/or child. Plaintiffs Brief at 23. Both the Milwaukee and State defendants object to the plaintiffs' interpretation of the court's class definition. The defendants argue that the language in the court's August, 1, 2003, order clearly indicates that the class definition only applies to situations where the student's parents or guardians have not been to the initial IEP meeting. Not so, argue the plaintiffs in response. The plaintiffs submit that the court in its August 1, 2003, order explicitly rejected the notion that the class not include violations that arise out of, or occur after the initial IEP meeting. Reply Brief at 5-6.
This court believes that its August 1, 2003 order is sufficiently clear in its conclusion of what class ofstudents may have been the victims of systemic violations. Such students can include those who are now in "the system," but allegedly have been denied or delayed entry at an earlier time. In
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other words, the denial or delay of participation in the program must occur prior to the initial IEP

meeting. · But, to qualify as a class representative, a plaintiff does not have to be at the pre-

determination stage during the lawsuit. It is enough that he or she was denied or delayed entry at an

earlier time. The court made this point clear when it stated that "this court still believes that a group

of claims exists that can be classified as systemic...those students who suffer from deficiencies which

hinder, unduly delay or prevent them from being initially served." August 1, 2003, Decision and Order

at 4, emphasis added.

In using the phrase "prevent them from being initially served," the court intended to encompass

those, students whose initial IEP meeting failed to serve its statutory purpose. One example is the

situati~m when the initial IEP meeting, even though conducted, was not properly constituted, such as

when no parent or guardian of the student attended the meeting. In such a case, the parent or guardian

may 1;emain unaware of their IDEA rights and remedies despite the fact that an IEP meeting actually

took place. Another instance would be where the proper MPS officials were not involved in the IEP

meeting. This could occur if aMPS teacher decided to hold an IEP meeting without any other MPS

officials. .In situations like these, a potential class plaintiff would be able to proceed with this "post

IEP meeting'' claim if the plaintiff was able to demonstrate that the IEP meeting, as it was constituted,

failed ,to adequately provide notice of procedural rights. A failure to conduct a properly constituted

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IEP m' eeting is the equivalent of a failure to even have a meeting.

Conversely, any of the plaintiffs' claims which arise out of facts or occurrences that originate

after the initial IEP meeting, are considered post-determination claims, not falling under the class

definition. The class is to only include those students who were, are or will be delayed or denied entry

into the system and whose parents or guardians have not been informed of their procedural rights at

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the initial IEP meeting. Despite the defendants' contentions, the court is concerned that even though there are Child Find procedures in place, parents or guardians may not be adequately aware, or even aware at all, of their remedies for the alleged failure of MPS to get their children into the system. However, once a parent has been informed by the Child Study team of their rights in regard to any problem that arises, a remedy must first be sought through the statutorily established administrative process before it can be addressed in federal court.
The defendants also note that as soon as a child is identified as needing an evaluation or screening and before the initial IEP meeting, the parents or guardians are sent information regarding the students rights 1.mder Wisconsin and federal special education law. And, as a result, the defendants argue that the actual time for a claim to become a post-determination claim, is when the information regarging th~ students' rights is sent to the parents or guardians of the child. The court does not accept the defendants' position that the post-determination period commences from the time that the school syste]in sends the statement of rights to the parents. Even though the parent may be sent some information regarding their rights, the court is not sanguine with the fact that this information is always properly delivered or that the parents have a full understanding of the information. Under such circumstances, the potential of having parties unwittingly forego their rights is too great.
The defendants also challenge the plaintiffs' class certification motion, claiming that the plaintiffs will not succeed on the merits of their claims. However, the court should not make its decision regarding class certification based upon a belief that the claims will or will not succeed on the merits; Szabo v. Bridgeport Machines, 249 F.3d 672, 677 (7th Cir. 2001). This means that judges must be willing to certify classes that have weak claims as well as those that have strong ones. Id. Consequently, the defendants' challenge to the merits of the plaintiffs' claims will have to wait for
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proceedings on the merits, such as a trial or a motion for summary judgment. Therefore, using the court's class definition, as discussed above, the court now turns to the
requirements for class certification under Fed. R. Civ. P. 23. II. Class Certification Requirements
The plaintiffs have alleged that they have satisfied all of the Rule 23(a) requirements as well as Rule 23(b)(2) and therefore class certification is proper. Neither the Milwaukee or Wisconsin defendants challenge the Rule 23(a)(2) commonality or Rule 23(a)(4) adequate representation requirements. Nor do the defendants argue that the plaintiffs have failed to establish the maintainability of their claims under Rule 23(b)(2). Thus, the only class certification requirements in issue are the numerosity and typicality requirements. However, to be thorough, the court will address all of the Rule 23(a) requirements in tum and then address the Rule 23(b) requirement.
A. Numerosity Rule 23(a)(1) requires that the class be so numerous that the joinder of all members of the class is impracticable. Fed. R. Civ. P. 23(a)(l) Joinder has been found to be impracticable when there was a class of· twenty-five. 7A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1762 (2d ed. 1987 & Supp.2003). At the same time, joinder was found to be practicable with a class of three..,hundred-fifty. Id. However, the Seventh Circuit has indicated that a class of at least forty is sufficient to satisfy the numerosity requirement. Swanson v. American consumer Industries. Inc., 415 F.3d 1326, 1333 n.9 (7th Cir. 1969). While the plaintiffs are not required to identify the exact number of members of the class, they cannot rest on mere allegations of the existence of a class. Marical v. Coronet Instruments!, Co., 880 F.2d 954, 957 (7th Cir. 1989). It is well established that a reasonable estimate will suffice, Peterson v. H& R Block Tax Services, Inc., 174 F.R.D. 78, 81 (N.D. Ill. 1997),
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and that courts are entitled to make common sense assumptions in order to support a finding of numerosity,, McCabe v..Crawford & Co., 210 F.R.D. 631, 644 {N.D. lll. 2002).
The plaintiffs a1lege that they have satisfied the numerosity requirement because they have established that MPS has failed to evaluate when required, has failed to convene an IEP Team when required or has held an IEP Team meeting without the required people in approximately 20% of the time, according to DPI monitoring. The defendants argue that the plaintiffs' number includes postdetermination claims and that from the information provided by the plaintiffs, it cannot be determined how many students are in the pre-determination class. Therefore, the defendants submit that the plaintiffs have failed to meet their burden of establishing numerosity. Additionally, the defendants argue that the plaintiffs have not presented any other evidence that would suggest that joinder would be impracticable, such as a lack of geographic proximity.
The defendants are rightly concerned about the plaintiffs' numbers to support the satisfaction of the numerosity requirement, noting that they include claims that the court considers postdetermination. Because the number suggested by the plaintiffs (3200 class members) includes some post,.:determination claims and because the plaintiffs have not identified which of the 3200 class members were'students who were denied or delayed entry into the system, the 20% figure cannot be accepted as the guidepost in the court's determination. However, the plaintiffs do note one statistic in their brief that is clearly applicable to the numerosity determination. The plaintiffs note that DPI found that 1. out of 259 students eligible failed to have any IEP at all. Plaintiffs' Brief at 27 n.13. If that ratio is applied to the 16,000 identified special education students in MPS, at least 62 students would have gone without an IEP, well over the 40 plaintiffs found sufficient to make joinder impracticable by the Seventh Circuit. Swanson 415 F.3d at 1333 n.9. Nevertheless, a question still
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remains as to whether or not these 62 class members actually exist. But when the approximation of 62 potential plaintiffs is considered in light of the fact that, in their declarations, the plaintiffs have identified five non-namedstudents who are potential class members (Joseph D., Lassomer C., Tyrone D. AaronF. and Michael T.), the existence of at least 62 members of the class seems more likely. In any event, it does not seem reasonable that all of the 3200 arguable potential class members should be summarily disqualified from consideration as constituting only post-determination claims. As such, the court finds that the plaintiffs have established that the class is so numerous as to make joinder impracticable. And therefore, the plaintiffs do not need to allege any other facts that would demonstrate that joinder would be impracticable.
B. Commonality Rule 23(a)(2) requires that the plaintiffs prove that the questions of law or fact are common to the proposed class. Fed. R. Civ. P. 23(a)(2). A common nucleus of operative fact is enough to satisfy the commonality requirement. Rosario v. Linvadits, 963 F.3d 1013, 1018 (7th Cir. 1992). However, some factual variation among the grievances will not defeat a class action. Id. at 1017. The plaintiffs allege that this requirement is met because all of the plaintiffs' claims are based upon the defendants' failure to assure that children are not denied or delayed entry into the system. The defendants do not argue that the issues of law or fact are uncommon to the class. The denied or delayed entry into the special education system is the issue of law that will be common to all members of the class. And the defendants do not argue that it is missing. Consequently, the plaintiffs have established the existence of common question of law. C. Typicality Rule 23(a)(3) requires that the claims or defenses of the representative parties are typical of
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the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). A claim is typical if it arises from the same event or practice that gives rise to the claims of other class members and if the named plaintiffs' claims are based upon the same legal theory as the other members' claims. De La Fuente v. StokelyVan Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1989). So, even if there are factual distinctions between the claims of the named plaintiffs and the other class members, the typicality requirement can still be satisfied.
Before the court addresses the issue of typicality, it reiterates that the only claims subject to the motion for class certification are those that allege that a student was denied or delayed entry into the system prior to a properly constituted initial IEP meeting. So, a named plaintiff's individual claims must be typical of that definition.
The plaintiffs allege that they have demonstrated a pattern of practice by the defendants that deny or delaythe proposed class' entry or participation in IEP Team meetings. They further argue that the claims of the named plaintiffs and the class arise from the same practice by the defendants i.e. the failure to assure the evaluation and the placement into special education services of students under state and federal special education law.
The defendants respond that each of the named plaintiffs had an initial IEP meeting or would have otherwise received a statement of their rights, at which point the parents or guardians are aware of their procedural rights. Therefore, the defendants argue, that the named plaintiffs are not typical of the class and as a result, the plaintiffs have not established the typicality requirement.
Specifically, the defendants note that even Jamie S., who the defendants concede would be the most likely proposed plaintiff to represent the class, was provided with her statement of rights on March 21, 2001, and that she did not pursue her administrative remedies as outlined in the statement

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of rights. Therefore, they argue, that Jmnie S. is not typical of the class. In reply, the plaintiffs allege that Jamie S.'s mother made therequest to be evaluated when Jamie S. was in kindergarten, during the 1999-2000 school year, but she was not evaluated until the spring of 2001. The defendants disagree with Jamie S.'s mother's contention, noting that there is no written record of any 1999-2000 schoolyear request for evaluation. The alleged lack of written evidence is not enough to persuade the court that the assertion by Jamie S.'s mother lacks credibility. The parties have raised an evidentiary matter which cannot be resolved on the record before the court. Absent any contradictory direct evidence, the court will accept Jamie S.'s mother's statements as true for the purpose of deciding the class certification motion. Thus, the court concludes that Jamie S. is typical of the class.
The defendants also argue that the other named plaintiffs (Lamont A., Aaron V., Jim M., Tyler C., David P. and Maiysha Y.) are not typical because none of them allege that they were denied or delayed entry into the system prior to the initial IEP meeting.
Based upon the record before the court, the defendants are correct about all of the plaintiffs except forAaron V., who could possibly qualify as a class representative. It is not clear from the plaintiffs' submissions whether the concerns about the IEP meeting that Aaron V. argues is improper was hisinitial IEP meeting or if it is a subsequent one. Declaration of Kim V. at 'l['l[ 2-4. If the IEP meeting referenced here is Aaron V.'s initial IEP meeting, he is also a proper class representative.
However, none of the other named plaintiffs allege that they were denied or delayed entry into the system prior to the initial IEP meeting. Lamont A.'s IEP had been in effect when the alleged violations occurred. Declaration of Maurice A. at 'I[ 3. Jim M. had been diagnosed at an early age with ADD and Asperger's Syndrome and had been eligible for special education because of these impairments. Declaration of Jim M. at 'I[ 2. In addition, the claims that Jim M. allege that are relevant

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here occurred during an IEP meeting that occurred after his initial IPE meeting. Id. at <[19-11, Exhibit A at 4-5. Likewise, it is clear that Tyler C.'s claim that the IEPteam failed to find another school for him occurred after an initial IEP team meeting. Declaration of Vickie S. at 13. And David P., who is deaf, has been a MPS student most of his school years and has been placed by MPS in the Wisconsin School for the Deaf and another specialty school in lllinois. Declaration of Doris T. at 11 2-5. Obviously, an IEP must have been in place before David P. could be sent to a specialty schooL But, David P. ''s claim arises out of the facts that surround his return placement into MPS after he could
no longer attend the school in lllinois. Id. Maiysha Y. was in special education since K5, her her
complaint arises out of an alleged IEP violation that concerns her high school placement. Declaration of FloraY. at fl2-5. Based upon the above facts, these named plaintiffs are not typical of the class.
Because only Jamie S. and possibly Aaron V. are typical of the class, LaMont A., Jim M., Tyler C.,, David P. and Maiysha Y. will be disqualified from representing the class. Jamie S. will remain as a named plaintiff, as will Aaron V., unless or until it is demonstrated that Aaron V. is not a proper class representative.
D. Adequate Representatives of the Class Rule23(a)(4) requires that the plaintiffs establish that the class representative possess the same interest· and suffers the same injury as the class. lJhl v. Thoroughbred Technology & Telecommunications, Inc., 309 F.3d 978, 985 (7th Cir. 2002). This requires that the district court ensure that there is no inconsistency between the named parties and the class that they represent. Id. Additionally, the named plaintiffs be represented by competent counsel.Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977).

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The plaintiffs allege none of the plaintiffs have interests that would conflict with goals of the class. Additionally, the plaintiffs allege that they are represented by adequate counsel, who has previously represented parties in civil rights actions in federal court, both in individual and class actions. The defendants have not responded to the adequacy of representation requirement.
As noted above, the court has limited the named plaintiffs to only include Jamie S. and Aaron V. And there is no evidence that their personal claims would conflict those of the class, which would make them inadequate as the class representatives. Moreover, there is no indication that the plaintiffs' counsel is inadequate. Therefore, the court finds that the plaintiffs have satisfied the adequacy of representation requirement.
E. Rule 23(b)(2) In addition to establishing the requirements of Rule 23(a), the proposed class must establish one of the Rule 23(b) requirements. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163 (1974). The plaintiffs believe thattheiractionismaintainable underFed. R. Civ. P. 23(b)(2). Under Rule 23(b)(2), a class action is maintainable if the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate. Fed. R. Civ. P. 23(b)(2). However a class action is not appropriate under Rule 23(b)(2) if the final relief sought is exclusively or predominately monetary damages. Lemon v. International Union ·Of Operating Engineers, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000). The plaintiffs argue that they have satisfied Rule 23(b)(2) because they have alleged that the defendants have acted in a manner to the class that may be viewed as a pattern and practice and therefore they have acted on grounds generally applicable to the entire class. The defendants do not challenge the plaintiffs' arguments regarding Rule 23(b)(2).

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Here, the plaintiffs have not sought any monetary damages, other than their request to have the defendants pay the plaintiffs' attorney's fees and costs. Complaint at pp. 22-23. Additionally, the plaintiffs have alleged that the defendants have denied or delayed the entire class entry into the special education system, noting the specific examples of Jamie S., Joseph D., Lassomer C., Tyrone D., Aaron F. and Michael T. As a result, the court finds that the plaintiffs have satisfied Rule 23(b)(2). III. Motion to Strike Yahle Affidavit
The plaintiffs move to strike the affidavit of Patricia Yahle, submitted in support of the Milwaukee defendants' brief in opposition to the motion for class certification, on the grounds that most of the affidavit violates the rule against hearsay and that other evidence is not based upon personal information as required by Fed. R. Evid. 602. The defendants acknowledged the evidentiary concern and submitted a supplemental affidavit, in which Yahle indicates how she has personal knowledge of the information and that the records are kept in the course of regularly conducted business activity. The supplemental affidavit corrects the hearsay problem by establishing that the reports and records alluded to fall within the business records exception. Fed. R. Evid. 803(6). The supplemental affidavit also established that the assertions are based upon personal knowledge, satisfying. Fed. R. Evid. 602 problem. Consequently, the plaintiffs' motion to strike the affidavit of Patricia Yahle will be denied. III. Conclusion
Based upon the class definition established by the court in its August 1, 2003, order and as modified above, any alleged violations that occur after a parent or guardian has attended a properly constituted rEP meeting, are post-determination claims and are subject to the exhaustion requirement. Thus, The only viable claims are those that allege that the defendants have denied or delayed a

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student's entry into the special education system before the parent or guardian is initially made aware of their child's procedural rights. Based upon the claims that fall under the class definition, the court has determined that the plaintiffs have satisfied all of the Rule 23(a) requirements, as well as Rule 23(b)(2). However, because of a lack of typicality, of the named plaintiffs, only Jamie S. and Aaron V. can remain as representative plaintiffs. Consequently, the court certifies the class defined above, with Jamie S. and Aaron V. as the representative plaintiffs. Additionally, the plaintiffs' motion to strike the Yahle affidavit will be denied.
IT IS THEREFORE ORDERED that the plaintiffs' motion for class certification is granted in part. The class is defined as follows:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between , theiEP team and the parents or guardians of the student.
IT IS FURTHER ORDERED that the caption shall be changed to reflect the fact that Jamie
S. andAaron V. 3re the only class representatives and named plaintiffs.
IT IS FURTHER ORDERED that the plaintiffs' motion to strike the affidavit of Patricia Yahle is denied.
IT IS FURTHER ORDERED that the court shall conduct a conference on December 1, 2003 at 9:30 a.m., in Courtroom 254, United States Courthouse, to discuss all matters, such as further
scheduling, post-certification discovery and notice to the class members. ~
Dated at Milwaukee, Wisconsin, this fLf,.....day

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT ~~~~RWtIJl~i'.aet\.4F!0~1LSKY

JAMIE S., MELANIE V., BRYAN E., BIAGIO R.. by their parents and next friends, KINA K., JANE P., PETER V., BRIDGET E., and DEBRA W., on their own behalfand on behalfof a class of similarly situated persons.
Plaintiffs,

Cfo16

v.

Case No. 01-C-~

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, and WILLIAM ANDREKOPOLOUS, Superintendent Milwaukee Public Schools in his official capacity, and the STATE OF WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION and ELIZABETH BURMASTER, State Superintendent ofPublic Instruction, in her official capacity.

Defendants.

AMENDED COMPLAINT
Plaintiffs allege as follows: INTRODUCTION
1. This is a civil rights act~on brought on behalf of a class of those students eligible for. special services who are, have been or will be denied or delayed entry into the 1
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special education process which result in a properly constituted initial IEP meeting between the IEP team and the parents or guardians of the student. This includes student with disabilities who are or may be eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C §§ 1400et seq., and supporting state law§ 115.758 et seq. Wis. Stats. and Section 504 of the Rehabilitation Act of 1973. The purpose of this action is to compel the defendants Milwaukee Board of School Directors, Milwaukee Public Schools, Milwaukee Public Schools Superintendent William Andrekopoulos, the State ofWisconsin Department ofPublic Instruction and the State Superintendent of Public Instruction Elizabeth Burmaster to ensure the provision of a free appropriate public education to these children by complying with and enforcing •the federal and state laws designed to protect children with disabilities. 2. : Defendants Milwaukee Board of School Directors, Milwaukee Public Schools, ! and Superintendent William Andrekopoulos have failed to provide free : appropriate public education as required by law to students with disabilities in the Milwaukee Public School System. 3. Defendants State of Wisconsin Department of Public Instruction and Superintendent of Public Instruction Elizabeth Burmaster have failed to ensure that children with disabilities who attend schools in the Milwaukee Public Schools receive a free and appropriate public education by failing to adequately monitor Milwaukee Public School's compliance with federal and state laws related to the education of children with disabilities. Contrary to applicable law,
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complaints filed with the Department of Public Instruction on behalf of children with disabilities in Milwaukee Public Schools have failed to be timely investigated, have been inadequately investigated, and the corrective action plans have not been enforced. By failing to adequately investigate complaints regarding Milwaukee Public Schools' noncompliance with these laws and by failing to enforce these laws and the corrective action plans designed to remedy complaints the Defendants have violated the special education rights ofplaintiffs. 4. The named Plaintiffs bring this action on behalf of themselves and all others similarly situated to assure that they, as well as other children who are or may be eligible for special education and related services, receive the free appropriate public education to which they are entitled.
JURISDICTION 5. This Court has jurisdiction over this action pursuant to 20 U.S.C. sec. 1415 (i)(3),
28 U.S.C. sec. 1331, 28 U.S.C. 1343(a)(3) and (4), and 42 U.S.C. sec. 12188.
PARTIES 6. The individual plaintiffs who bring this action on their own behalf and as class
representatives are as follows: a. At the time this action was originally filed Plaintiff Jamie S., was eight years old and she was a resident of the Milwaukee Public Schools district. Jamie S. has a cognitive disability and is eligible for special education and related services. In
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the school years 1998-2001 she attended Emerson Elementary. Her mother Kina K. is acting on behalf of Jamie as her next friend and represents her in this action pursuant to the provisions ofRule 17 (c) Federal Rules of Civil Procedure. b. Melanie V. is fourteen years old and a resident of the Milwaukee Public School District. Melanie V. has a mental illness and is eligible for special education and related services. Melanie V. currently attends the Milwaukee School of the Languages. Her parents Jane P. and Peter V. are acting on behalf of Melanie as her next friends and represent her in this action pursuant to the provisions of Rule 17 (c) Federal Rules of Civil Procedure. c. Bryan E. is fifteen years old and a resident of the Milwaukee Public School District. Bryan E. has a learning disability and is eligible for special education and related services. Bryan E. attends John Marshall High School. His mother Bridget E. is acting on behalf of Bryan as his next friend and is representing him in this action pursuant to the provisions of Rule 17 ( c ) Federal Rules of Civil Procedure. d. Biagio R. is five years old and a resident of the Milwaukee Public School District. Biagio R. has not yet been determined eligible for special education despite extensive medical documentation of significant mental illness and behavior related problems. These include bi-polar disorder, attention deficit disorder and oppositional defiance disorder. His parent, Debra W. is acting on behalf ofBiagio as his next friend and represents him in this action pursuant to the provisions ofRule 17 (c) Federal Rules ofProcedure.
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7. Defendant MILWAUKEE BOARD OF SCHOOL DIRECTORS (MBSD)oversees Defendant MILWAUKEE PUBLIC SCHOOLS (MPS) including the provision of special education and related services. The MBSD and MPS receive federal funds under IDEA and must therefore comply with the requirements of IDEA and Section 504 of the Rehabilitation Act of 1973 (Section 504). The Milwaukee Board of school Directors and Milwaukee Public Schools area local education agency (LEA) within the meaning ofiDEA.
8. Defendant WILLIAM ANDREKOPOULOS is the Superintendent of Milwaukee Public Schools and is a school district administrator within the meaning of section 118.24 Wis. Stats. As school district administrator he is responsible for the . general supervision and management ofprofessional work of the schools and the promotion of students.
9. . Defendant STATE OF WISCONSIN DEPARTMENT OF PUBLIC •INSTRUCTION (DPI) supervises the provision ofpublic education including special education and related services to students in Wisconsin. Both federal and state laws (IDEA and section 115. 762 Wis. Stats. respectively) require that DPI ensure that students with disabilities in Wisconsin have available a free appropriate public education, including those who are suspended or expelled from school. DPI is the State Educational Agency (SEA) within the meaning of IDEA. As a recipient of federal funds under IDEA, the DPI must also comply with Section 504 of the Rehabilitation Act.
5
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Fill I.
0
10. Defendant ELIZABETH BURMASTER is the State Superintendent ofPublic Instruction, whose duties include the supervision of public schools in Wisconsin and assuring compliance with IDEA and Section 504 of the Rehabilitation Act.
CLASS ALLEGATIONS 11. Named Plaintiffs, Jamie S., Melanie V. Bryan E. and Biagio R. bring this action
for declaratory and injunctive relief on their own behalf and on behalf of all others similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiff class consists of all school age children with disabilities who reside in the Milwaukee Public School District boundaries and who are or may be eligible for special education and related services under IDEA and Wisconsin law. 12. The plaintiff class is so numerous that joinder of all plaintiffs is impractical. In this case it is unknown who and how many children fall within the class. However, on information and belief, Plaintiffs allege that the December 2002 count reported by Milwaukee Public Schools to the Department of Public Instruction was 16,021 children'with disabilities in the Milwaukee Public School District. Additionally, the class includes children who will be enrolled in Milwaukee Public Schools who are or who will be eligible for special education and related services in the future. 13. There are questions oflaw and fact common to the class. 14. The claims of the Plaintiffs are typical of the claims of the class. The named plaintiffs' claims of failure to provide appropriate referral and evaluations
6
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resulting in a failure to provide a free appropriate public education arise from the same course of conduct that gives rise to the absentee members' claims. 15. The named plaintiffs will fairIy and adequately represent the interests of the class. They have no interests that are antagonistic to the class and seek relief which will benefit all members ofthe class. 16. The Defendants have acted on grounds generally applicable to the entire class, and therefore declaratory and injunctive relief with respect to the entire class is appropriate.
STATUTORY FRAMEWORK
17. Pursuant to IDEA and its implementing regulations, each child with a disability is entitled to receive a free appropriate public education consisting of special · education and related services.and the state is obligated to see that all children with disabilities residing in the State, including children with disabilities attending private schools, regardless of severity of their disabilities, and who are in need of special education and related services are identified, located , and evaluated and a practical method is developed and implemented to determine which children with 1 disabilities are currently receiving needed special education and related services. 20 U.S.C. §§ 1400(d), 1401 (8), and 1412(a)(l) and (3).
18. Section 504 of the Rehabilitation Act of 1973 provides in relevant part that "[n]o otherwise qualified individual with a disability in the United States,... shall, solely by reason ofher or his disability, be excluded from the participation in, be denied
7
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0 '
the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance..." 29 U.S.C. § 794(a). A recipient of federal funds which operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified individual with a disability in the recipient's jurisdiction. 34 C.P.R.§ 104.33(a). The provision of an appropriate education is the provision of regular or special education and related aids and services designed to meet the individual educational needs of individuals with disabilities as adequately as the need of individuals without disabilities are met. 34 C.P.R.§ 104.33(b). A recipient of federal funds that operates a public elementary or secondary education program or activity shall annually (a) undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education and (b) take appropriate steps to notify handicapped person and their parents or guardians of the recipient's duty under this subpart. 34 C.F. R. § 104.32. 19. Under IDEA and its implementing regulations both SEAs and LEAs have obligations to find and timely evaluate students who are suspected of being a child with a disability. 20 U.S.C. Sec. 1414(a)(l)(A), 34 C.P.R. 300.125, 34 C.P.R. 300.530, Sec. 115.77 (1m) Wis. Stats. and Sec. 115.78(3)(a) Wis. Stats. 20. Under IDEA and its implementing regulations, every child with a disability shall be individually assessed by a multi-disciplinary team responsible for developing an Individualized Education Program (IEP) that meets the specific educational needs ofthe child. 20 U.S.C. § 1414(d)(l)(A) and (B); 34 C.P.R.§§ 300.343(a)
8
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i.11!flii!O>"I'"llllL·n·u 'II!Mifi ··ii.~Anll i..11J ! l l l f l l '

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and 300.532(h). The IEP team is to consist at a minimum of the parents of the child, at least one regular education teacher, at least one special education teacher who has extensive and recent training and experiences related to the child's known or suspected disability, and a representative of the LEA. 20 U.S.C. § 1414(d)(1 )(B). The IEP developed by the team shall include, inter alia, a statement of the specific educational services to be provided to the child and the extent to which the child will be able to participate in regular education programs. 20 U.S.C. § 1414(d)(1)(A); 34 C.P.R.§ 300.346 (c). 21. Under IDEA, the SEA is responsible for approving or disapproving local educational agency (LEA) applications for IDEA funds. Ifthe SEA determines that the LEA is failing to maintain programs providing free appropriate public education to children with disabilities, the SEA may reduce or halt payments it would have made to the LEA until the SEA is satisfied that the LEA has come into compliance. 34 CPR§ 300.197 (a). 22. In order to carry out its responsibilities under the IDEA, the SEA must monitor the LEA for compliance with IDEA requirements. If the SEA finds that the LEA is not following such requirements, the SEA must take steps to see that corrective action is taken. 34 C.P.R.§§ 300.556, and 300.660.

STATEMENT OF THE CASE

23. Over 16,000 students in Milwaukee Public Schools are children with disabilities 9
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0
as defined by IDEA or Section 504. Approximately 3% of students are referred for special education evaluations each year and more may be eligible for such evaluations. Defendants have established a system that fails to provide many of these student with the free appropriate public education to which they are entitled because they are not effectively and timely evaluated and because the required participants are not included in the initial IEP team meeting. 24. Defendants have adopted practices and procedures which fail to ensure timely, · procedurally proper, and adequate evaluations and individualized education plans for children with disabilities.
NAMED PLAINTIFFS 25. Each of the named plaintiffs has been injured by the aforesaid practices and
policies of the defendants. 26. a.) Plaintiff Jamie S. is an eight year old girl with cognitive disabilities. She
attended Emerson Elementary for three years starting there in K5. In kindergarten she had serious difficulties with learning and behavior. When her mother questioned school personnel she was assured Jamie would outgrow it. Jamie continued to struggle and was required to repeat first grade. It was not until the second semester of her second year in first grade that Jamie was finally evaluated for special education eligibility. She was found to have am IQ of 62 and is eligible for special education services under cognitive disabilities. Jamie's mother did not receive notice of the meeting at which Jamie's eligibility was determined,
10
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0 '
her IEP written and her placement determined.
b.) Melanie V. is a fourteen year old girl with mental illness. She attends the Milwaukee School ofthe Languages. Beginning in sixth grade, 2001-2002. Melanie had great difficulties with depression and failed her classes having to repeat sixth grade again. She was frequently absent and was not able to complete homework. During that year her mother, Jane, was in frequent contact with the school psychologist to try and figure out ways to help Melanie. There was no mention of evaluating Melanie for special education by school staff and her · parents didn't know that type ofhelp might be available to Melanie. Melanie : struggled through her second year of sixth grade with barely passing grades. · In September of 2003, Melanie had progressively more and more problems with · behaviors at school. By October of2003, her mother had been contacted by the : school to say they had called the police to have Melanie taken down to the Milwaukee County Mental health complex. She was kept there on a seventy-two · hour hold then released to her mother with medications for depression. The school had called the police because Melanie had told the school psychologist that Melanie felt like she wanted to kill people. When she returned to school there was no suggestion to her parents to have her evaluated for special education. She had failing grades and never did or turned in homework. By November of 2003, the school called again to say Melanie had been taken by the police to the Milwaukee County Mental Health Complex. This time Melanie had shown the
11
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nt um,
0 '
school Psychologist where she had been "cutting" her ann. Again, nobody suggested to her parents that Melanie be referred for a special education evaluation. In December 2003, Melanie found a piece of glass and a box cutter type razor blade and showed Ms. Kinney and then met with the school psychologist. Melanie admitted to using them to cut her arms. Again the police were contacted and Melanie was brought to the Milwaukee County Mental Health Complex. At this time Melanie was suspended from school for 5 days and a central office hearing was initiated to determine if Melanie should be expelled from school. During the hearing, Jane asked about referring Melanie for special education and asked about the school's obligation for child find. She was directed to the student handbook and was told that was her responsibility. Finally, Melanie was referred for an evaluation by her mother and found eligible in January of2004. c.) Bryan E. is fifteen years old with learning disabilities. He attends John Marshall High School. Bryan has a long history of failing grades and absenteeism from schooL All through Middle School his grades were nearly all failing. When he was in sixth grade Bridget, his mother, frequently contacted the principle of Bell Middle School where he was attending, His mother asked the Principal on several occasions if there was any testing that could be done to help figure out what was going on with Bryan. Bridget was told there was no testing available. Bryan began to be suspended frequently. He was gone from school so often that at one point the school social worker came to Bryan's home to meet with Bridget to
12
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0
see why Bryan was missing so much school. His mother was concerned as well and contacted the Principal again asking about possible testing for Bryan. She was told that the Principal was not aware of any testing that could be done for Bryan. He was passed on to ninth grade and High school. His mother didn't want him to be passed on since he did not have any passing grades. She changed his placement from Washington to John Marshall. His mother contacted the new school staff again for some type of testing to help Bryan. She made a written request and brought it to the school after contacting WCA. Finally Bryan was evaluated and found eligible for Special Education in January of2004. However, Bridget had surgery and was not able to attend the date the first IEP meeting was scheduled. The school offered her no alternative means to participate or find out her concerns. Bryan was not a participant either. The initial IEP was determined and written without their input or participation. d.) Biagio R. has had a long history of mental health problems and associated behaviors related to his mental health. ·These include several hospitalizations and subsequent diagnosis of Bi-polar disorder, attention deficit disorder and oppositional defiance disorder. He is currently involved in an intense day treatment program at Child Dynamics to assist with his behaviors. Biagio had been attending a private school but when behaviors became too problematic his mother removed him and requested a special education evaluation through the Milwaukee Public Schools from Emerson Elementary, his neighborhood school. His mother shared all the medical interventions and mental
13
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1 n ru n lflll 1111'r ;.c
0
health diagnosis with the school staff. Despite this, he was not evaluated for special education needs for emotional disabilities. Instead he was evaluated for Other Health Impairment and Speech and Language Disorder. His mother was told he did not meet eligibility for either of these categories because they were not legally allowed to observe Biagio at Child Dynamics and they were not able to observe him much at school because he wasn't attending at that time.
SUMMARY OF DEFENDANTS' SYSTEMIC FAILURE TO COMPLY WITH THE IDEA
27. Pursuant to its obligation to adequately monitor the performance of LEAs in Wisconsin, DPI accepts complaints which allege IDEA violations by LEAs.
28. In 1994, a group of parents of children who were eligible to receive special
education supports and services from MPS filed an IDEA complaint alleging numerous violations of the IDEA committed by MPS. DPI numbered this complaint 94-044. (Hereinafter "group IDEA complaint"). 29. Under federal law, DPI is obligated to investigate and determine whether or not an IDEA complaint is substantiated within 60 days. If it is substantiated, DPI must order the LEA to correct the substantiated violations of the IDEA. 30. DPI substantiated the group IDEA complaint as to five different issues. Included among those five were findings that MPS was out of compliance with the IDEA due to failure to complete Multi disciplinary-team (M-team) evaluation process in
14
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a timely manner, and failure to conduct IEP meetings with all the required participants. 31. It took DPI 148 days to investigate the group IDEA complaint and issue its findings. MPS did not submit a corrective action plan (CAP) until 95 days later. However, that CAP was not accepted by DPI as DPI did not concur that the CAP would remedy the substantiated IDEA violations. 32. Since that time, DPI has substantiated dozens more violations ofthe IDEA after investigating further IDEA complaints against MPS. Included in those violations of IDEA evaluation and reevaluation procedures, and violations ofiEP procedures. (Wisconsin Department ofPublic Instruction, Special Education IDEA Complaints, <http://www.dpi.state.wi.us/dpi/dlsealeen!complain.html>) 33. Under the IDEA, DPI also has the obligation to monitor the performance of all LEAs, separate from its duty to investigate complaints. 34. In its 2000 monitoring report DPI found that MPS had systemic IDEA violations in 10 separate areas including the lack of LEA representation in the evaluation of the child including a meeting to determine if the child is a child with a disability, (this violation was again found int the 2001 monitoring report) and the failure to have parents participate in the review of the existing evaluation data and in identifying what additional data, if any, are needed to complete the (re)evaluation and contacting parents and affording them the opportunity to participate in the review of the existing evaluation data on the child and ordered MPS to remedy those violations. When those same factors were reviewed again two years later in
15
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0
the 2002 monitoring, MPS was again found to systemic violations in these areas. (See 2000-02 monitoring report summaries, attached hereto as Ex.B) 35. Given the systemic violations of the IDEA which DPI has repeatedly found in MPS, but defendants have failed to r~medy, the IDEA violations which the named plaintiffs allege are clearly capable of repetition, but evade systemic review if the named plaintiffs were required to exhaust administrative remedies. FIRST CAUSE OF ACTION-IDEA VIOLATIONS--MPS DEFENDANTS 36. Plaintiffs restate and reallege paragraphs 1- 35, as if fully set forth herein. 37. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools and William Andrekopoulos, have collectively failed, as to each named plaintiff as well as to all children who are residents of the Milwaukee Public School district and are eligible for special education and supports and services, to insure compliance with the IDEA, including its requirements for timely and effective evaluations and eligibility determinations. 38. Saidfailure has denied a free appropriate public education to each named plaintiff, and to children who are residents ofthe Milwaukee Public School district and are eligible for special education supports and services. SECOND CAUSE OF ACTION-IDEA VIOLATIONS-DPI DEFENDANTS 39. Plaintiffs restate and reallege paragraphs 1- 35, as if fully set forth herein. 40. Defendants Department of Public Instruction and Elizabeth Burmaster, have failed to adequately insure that DPI has an adequate complaint investigation and monitoring system to insure that MPS complies with the IDEA sufficiently to
16
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provide a free appropriate public education to each named plaintiff, and to all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services. THIRD CAUSE OF ACTION-504 VIOLATIONS-MPS DEFENDANTS 41. Plaintiffs restate and reallege paragraphs 1- 35, as if fully set forth herein. 42. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools and William Andrekopoulos, have collectively failed to effectively and timely evaluate children with disabilities in order to provide a free appropriate public education, as to each named plaintiff as well as to all children who are residents of the Milwaukee Public School district and are eligible for special education and supports and services, in violation of Section 504 of the Rehabilitation Act. FOURTH CAUSE OF ACTION-504 VIOLATIONS-DPI DEFENDANTS 43. Plaintiffs restate and reallege paragraphs 1-35, as if fully set forth herein. 44. Defendants Department of Public Instruction and Elizabeth Burmaster, failure to insure that DPI has an adequate complaint investigation and monitoring system to insure that MPS complies with the IDEA sufficiently to provide a free appropriate public education to each named plaintiff, and to all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services, violates Section 504 of the Rehabilitation Act. FIFTH CAUSE OF ACTION-SEC. 1983-MPS DEFENDANTS 45. Plaintiffs restate and reallege paragraphs 1- 35, as if fully set forth herein. 46. Defendants Milwaukee Board of School Directors, Milwaukee Public Schools and
17
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0 ' '
William Andrekopoulos, as a result of their policies, procedures, practices, acts and omissions have denied each named plaintiff, and all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services their substantive due process rights and have acted intentionally or with deliberate indifference and callous disregard of plaintiffs rights, privileges and immunities under the Fourteenth Amendment of the Constitution of the United States and 42 U.S~C. sec. 1983. 47. As a result of the policies, procedures, practices, acts and omissions of the defendants, the plaintiffs have suffered emotional and psychological distress, anxiety, injury, pain and suffering due to defendants' misconduct. SIXTH CAUSE OF ACTION-SECTION 1983-DPI DEFENDANTS 48. Plaintiffs restate and reallege paragraphs 1- 35, as if fully set forth herein. 49. Defendants Department ofPublic Instruction and Elizabeth Burmaster, as a result of their policies, procedures, practices, acts and omissions have denied each named plaintiff, and all children who are residents of the Milwaukee Public School district and are eligible for special education supports and services their substantive due process rights and have acted intentionally or with deliberate indifference and callous disregard of plaintiffs rights, privileges and immunities under the Fourteenth Amendment of the Constitution of the United States and 42 U.S.C. sec. 1983. 50. As a result of the policies, procedures, practices, acts and omissions of the defendants, the plaintiffs have suffered damages due to defendants' misconduct.
18
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PRAYER FOR RELIEF Wherefore, plaintiffs, on behalf of themselves, and all other similarly situated children who are; or during the pendency of this litigation, will be, residents of the Milwaukee Public School district and are, or will be, eligible for special education supports and services, hereby request that the court: 1. CertifY a class of children who are eligible for special services who are, have been
or will be denied or delayed entry into the special education process which result in a properly constituted initial IEP meeting between the IEP team and the parents or guardians of the student. 2. Enter a preliminary injunction which orders the Milwaukee Public Schools to effectively and timely evaluate all children suspected ofhaving a disability and ensure that all the proper participants including parents or gUardians, and LEA representatives, participate in the meeting to review data and determine eligibility for services. 3. Enter a preliminary injunction which requires the Department of Public Instruction to pay for a Special Master who will oversee the Milwaukee Public School district's implementation of the IDEA as to all children who are, or during the pendency ofthis litigation, will be, residents of the Milwaukee Public School district and are, or will be, eligible for special education supports and services. 4. Enter a preliminary injunction which requires Milwaukee Public Schools to ensure for each ofthe named plaintiff, and all children who are residents of the · Milwaukee Public School district and who are eligible for special education
19
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0 '

w A

services and supports that their disabilities are evaluated in a timely manner, and that initial IEP teams are properly composed including participation by parents or guardians and LEA representatives. and procedural safeguards are followed. 5. Order compensatory education for any time period when IDEA was found to be violated. 6. Order the defendants to collectively pay for plaintiffs' attorneys' fees and costs. 7. Order any other relief that the court deems necessary and just.

Dated this ~Ad day of May, 2004.

Monica Murphy Wisconsin Coalition for Advocacy 2040 W. Wisconsin Ave. Suite 678 Milwaukee, WI 53233 (414) 342-8700
Jeff Spitzer-Resnick Wisconsin Coalition for Advocacy 16 N. Carroll St. Suite 400 Madison, WI 53703 (608) 267-0214

20 Case 2:01-cv-00928-RTR Filed 05/03/04 Page 20 of 20 Document 236

 
 0

•

Copy m led to attorneys for
• parties y the Court pursuant
to Rute ·. 7{d) Federal Rules of
Civil Pr edures.

UNITED sTATES DISTRICT cottk;:-;rr::-.:;;.-r.-::::co::::-:u=Rr~EA--s"!"'ro-rs-r.-w-·~s~.·

EASTERN DISTRICT OF WISC~NS N FILED

;

I

JAN 2 4 2005

JAMIE S. et. al.,
Plaintiffs, v.

'· •r" -~~SOOFR'OCNLBO. NCEDKIL.~S-~-KJY.__
Case No. 01-C-928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, et. al.,

Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
On November 14, 2003, this court issued its decision certifying a class in resolution of the · plaintiffs' second amended motion for class certification. Thereafter, the plaintiffs unsuccessfully sought to file an interlocutory appeal with the Seventh Circuit, and also filed a motion to compel disclosure from the United States Department of Justice over an expert report prepared by Dr. Mary Margaret Kerr. The report concerned the findings of her investigation of the delivery of special education in the Milwaukee public school district.
On April 14, 2004, the court met with counsel for the parties to discuss further scheduling. As a result ofthat conference, the plaintiffs were directed to file an amended complaint in accordance with the court's order of certification and the procedures and a schedule for class notification were established. A schedule for lay and expert discovery was also put in place.
The plaintiffs filed their amended complaint in May, the defendants answered, and on June 15, 2004, the plaintiffs filed a motion to reconsider the court's order of class certification. The motion has been fully briefed and following the briefing, plaintiffs submitted additional case citations of

A072A (Rev.S/82)

Case 2:01-cv-00928-RTR Filed 01/24/05 Page 1 of 5 Document 255

II

.<U__ UUUUL_I

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recent decisions from several circuits. The plaintiffs' motion is based on "new evidence" obtained in support of their original claim for class certification. Basically, this new evidence is the report of Dr. Kerr, which the plaintiffs contend that they attempted to obtain with all due diligence, but were finally forced to file the aforementioned motion to compel disclosure. The plaintiffs did not receive Dr. Kerr's report until March, 2004, which was several months after the court issued its decision on class certification.
Both defendants MPS and State of Wisconsin DPI oppose the motion for a variety ofreasons. The defendants submit that the evidence ofDr. Kerr is not admissible since she is not an expert named in this case, that the evidence is no longer reflective ofthe current status and that it is not new. They also contend that since the parties have relied on earlier rulings from the court, reconsideration at this juncture of the case would cause unreaSonable delay, expense and duplication of effort.
According to the plaintiffs, Dr. Kerr's report "verifies plaintiffs' long-standing contention that there is a systemic failure in the delivery of special education services and compliance with the Individuals with Disabilities Education Act (IDEA) in MPS." (Plaintiffs' brief at 4). Plaintiffs thus again ask the court to expand its definition of class to include systemic failures in both the predetermination and post-determination processes. Plaintiffs state that, while the fmdings in Kerr's report are consistent with the findings of plaintiffs' experts, the report is not duplicative and is substantially more in-depth than the expert reports.
Again, the defendants disagree with the plaintiffs' assessment of Kerr's report. They submit that the report's fmdings and conclusions do not disturb the underlying basis of the court's earlier rulings, i.e. that there is an adequate due process mechanism in place to address and remedy postdetermination grievances. In fact, the defendants note that Dr. Kerr declined to offer an opinion on
2

A072A (Rev.B/82)

Case 2:01-cv-00928-RTR Filed 01/24/05 Page 2 of 5 Document 255

G '

the availability or adequacy of the due process hearing system. (See, Kerr report at 91 n. 106). However, Dr. Kerr then goes on to briefly note that based upon her "observations," the MPS complaint system lacks appropriate coordination for receiving and dealing with complaints. ( Id. at 97).
Even though Kerr's report may be more in-depth and may contain some information not previously set forth by plaintiffs' experts, in the opinion ofthis court, it is simply cumulative of what has already been presented by the plaintiffs. Nothing here is new. Even if it offers a "new perspective," as the plaintiffs contend (Plaintiffs' reply brief at 4), that is not a basis for reconsideration. Armed with the Kerr report, the plaintiffs' motion for reconsideration is still shooting at the same target of inclusion of post-termination processes; this time the plaintiffs are just using a different caliber of ammunition. This court has tread this same ground before and the bottom line is that the plaintiffs disagree with the decision as to the extent of challenges that are eligible for class certification. From the outset, it has been the plaintiffs' very forceful position that the alleged systemic failures of MPS permeate the entire scope of its attempt to comply with the requirements of the IDEA. Numerous examples of plaintiffs' position have been presented by its named experts and now by Dr. Kerr. But, for reasons previously set out in its class certification decisions, this court is of the opinion that the category of challenges characterized as "post-determination" are subject to administrative exhaustion because they are individual and substantive in nature, and an adequate due process mechanism is in place to consider and remedy these problems . The court further believes that those challenges characterized as "pre-determination" are, on the other hand, systemic or procedural in nature and not likely to be remedied by administrative exhaustion. Parenthetically, Dr. Kerr's report does make findings that are supportive of plaintiffs' position in the pre-determination area.
3

A072A (Rev.S/82)

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Subsequent to the completion of briefing on the motion to reconsider, plaintiffs submitted copies of decisions in the cases of J.S. v. Attica Central Schools, 386 f.3d 107 (2nd Cir. 2004) and Christopher S. v. Stanislaus County Office of Education, 384 F. 3d 1205 (9th Cir. 2004). Both decisions discuss the requirement for a student to exhaust administrative remedies before bringing a federal court action under the IDEA. The requirement for exhaustion is excused when such efforts would be futile since the administrative procedures do not provide an adequate remedy. With the IDEA, exhaustion of administrative remedies is required so that disputes relating to the education of disabled students can be first addressed by those with expertise in the area.
Both ofthe cited cases arrived at the appellate court on review ofthe district court's ruling on the defendant's motion to dismiss the plaintiffs·complaint for lack of subject matter jurisdiction, i.e. the alleged failure to exhaust administrative remedies. In J.S., the circuit court affirmed the decision ofthe district court in denying the motion to dismiss and, in so doing, discussed a number of different examples of systemic violations precluding the application of exhaustion. In Christopher S., the circuit court reversed the district court's dismissal of the complaint, stating that it had sufficiently alleged subject matter jurisdiction.
Like the Kerr report, neither of these cases presents anything new for the court to consider. Both state the law, which was thoroughly considered by the court when its earlier decisions were issued. There are exceptions to the exhaustion requirement, and this court believes that they exist in the pre-determination challenges. The court has established the scope of this litigation. It is time to move the case forward to its ultimate resolution.

A072A (Rev.S/82)

4 Case 2:01-cv-00928-RTR Filed 01/24/05 Page 4 of 5 Document 255

Accordingly, the plaintiffs' motion for reconsideration is Denied. SO ORDERED.

~

J.lf- Dated at Milwaukee, Wisconsin, this

day of January, 2005.

A072A (Rev.B/82)

5 Case 2:01-cv-00928-RTR Filed 01/24/05 Page 5 of 5 Document 255

 
 JAMIE S, et a!.

''
UNITED STATES DISTRICT COURfl'' EASTERN DISTRICT OF WISCONSIN
·os JUN 24 P2 :30

Plaintiffs,
·-·- '\

v.

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, and WILLIAM G. ANDREKOPOULOS, Superintendent Milwaukee Public Schools, in his official capacity, and the STATE OF WISCONSIN, DEPARTMENT OF PUBLIC INSTRUCTION and ELIZABETH BURMASTER, State Superintendent of Public Instruction, in her official capacity,

Case No. 01-C-0928

Defendants.

JOINT STIPULATED STATEMENT OF FACTS

A. Class Definition

I. PLAINTIFF CLASS

1. The plaintiff class was certified by this Court on November 14, 2003 and consists

of: those students eligible for special services who are, have been or will be denied or delayed

entry into the special education process which results in a properly constituted initial IEP

meeting between the IEP team and the parents or guardians of the student.

B. Named Plaintiffs

2. Jamie S.- Mother Kena K. and Advocate Pat Patterson

a. In June 2001 Pat Patterson was contacted by the parent ofJamie S. At that

time Jamie was attending Emerson Elementary and was aged 8 and in the second grade. Pat

Patterson referred the child for an evaluation in June 2001. It was found then that Jamie's IQ

Case 2:01-cv-00928-RTR Filed 06/24/05 Page 1 of 40 Document 267

was 60. Jamie was found eligible for special education in 2001. Jamie has not lived in the Milwaukee Public Schools' attendance area since 2003.
3. Bryan E.- Mother Bridgette E. a. Since at least 1999, Bryan has had issues with poor attendance. The school
administrators and social workers have offered multiple interventions regarding attendance to Bryan and his mother. In 1998, the school offered interventions due to Bryan's lack of achievement in reading. In 1999-2000, Bryan was retained in the 61h grade at Bell Middle School. In 2001-2002, Bryan had over 22 absences and I 0 suspensions in 71h grade and his grades were poor. His end of the year report cards indicated Bryan was not being promoted, but the next year he was placed in the g'h grade.
b. The school contacted Bridgette in writing twice during that same year to inform her of his absences. Bridgette requested a school with a later starting time because Bryan could not get up to go to school on time at Bell. The social worker and guidance counselor sent her the application for alternative schools on two separate occasions.
c. In 2002-2003, during the 8th grade Bryan's attendance and grades did not Improve. Bryan was promoted to the 9'h grade. In 2003-2004, at Marshall High School Bryan had 52 absences. At the beginning of the school year, Bryan went to special education classes by mistake because there was another child with the same name who was in Special Education. The duplicative name situation with two Bryan/Brian Edwards attending occurred for approximately ten (I 0) days. When it was straightened out Bryan went back to regular education classes.
d. Bridgette referred Bryan for a special education evaluation on December 17,2003. On December 7, 2003 the school sent Bridgette a notice of receipt of referral and scheduled the initia!IEP team meeting for February 26, 2004 at that time. On January 22, 2004
2 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 2 of 40 Document 267

the diagnostic teacher called Bridgette to ask for consent for testing. Bridgette gave consent for

the school to evaluate Bryan on January 26, 2004. Bridgette was sent the first invitation to the

IEP team meeting on February 9, 2004. On February 17, 2004 Bridgette was sent a reminder

letter for the initial IEP meeting and offer of alternative participation. On February 24, 2004 the

diagnostic teacher followed up with a phone call as a reminder and to offer alternative means

participation. The offer of alternative participation letter includes options to schedule the

meeting at a different time, participation by telephone individually or as a conference call,

receipt of draft prior to the meeting for review/input or conferences prior to or after the

scheduled meeting. MPS held the first IEP meeting without Bryan or his mother, Bridgette

present because Bridgette had just had surgery and was physically unable to get to school. The

IEP team did find him eligible for special education. Bryan is currently enrolled at the

Community High School and is making progress towards his IEP goals and is earning credits

towards graduation.

4.

Melanie V. ~Mother Jane P. and Father Peter V.

a. Melanie attended Milwaukee School of the Languages for 6th grade in

2001-2002. Melanie failed the 6th grade that year. During the 2002-2003 school year Melanie

repeated 6th grade. At the start of the 2003-2004 school year Melanie had progressively more

behavior problems. On September 18,2003, the school psychologist met with Melanie's parents

to discuss academic and emotional concerns. A homework plan was implemented. It was

agreed that Melanie would continue to receive school psychological services. The school

remained in contact with Melanie's parents regarding her progress. On November 17, 2003

Melanie's parents and the Milwaukee Police Department (MPD) were called to school because

3 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 3 of 40 Document 267

Melanie was engaging in self-injurious behaviors. MPD escorted her to the Milwaukee County Mental Health Complex.
b. The school remained in contact with Melanie's parents regarding interventions for Melanie. MPS had not evaluated Melanie for a special education disability at this time.
c. The school was informed of her medications for depression. Melanie was failing academically. The school contacted Melanie's parents and MPD on December 5, 2003, and Melanie was taken to the Mental Health Complex with the permission of Melanie's mother, because the school psychologist found that she had been cutting on her arms and made threats to kill others. When Melanie returned to school, no school staff contacted her parents about failing grades or absenteeism. The school contacted Melanie's parents about her psychiatric problems. Between December 5th and 17'h, 2003 MPS did not refer Melanie for a special education evaluation.
d. On December 17, 2003, at the request ofMPS, Melanie was transported to the county mental health center by the MPD for self-injurious behavior with a razor blade and glass, which occurred at school. Melanie's mother gave her permission for this removal and her father came to the school. At this time, Melanie was suspended for five days for possession of a weapon under school district policy prohibiting the possession of a weapon by any student on school grounds.
e. On January 5, 2004, the district held a conference where the facts of the incident were reviewed by staff and Melanie's parents. Prior to this meeting, MPS sent Melanie's parents paperwork for a Section 504 evaluation. At this meeting, Melanie's parents requested a special education evaluation. The IEP team meeting was held in January within the
4 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 4 of 40 Document 267

90 day timeline and Melanie was found eligible for special education. MPS has continued to offer special education and related services that include social worker intervention, counseling and regular home contact. Melanie is on a reduced-day schedule, has regular psychological services at school, and is allowed to utilize other adaptive behavioral strategies. In addition to annual IEP reviews, there have been nine IEP meetings scheduled between August 2004 and March 2005, five of which were cancelled by Melanie's mother with little notice to the school, due to illness of Melanie and/or her mother.
5. Biagio R.- Mother Debra W. a. On April 10, 2002 Biagio was referred for special education evaluation by
his mother. The initial IEP team meeting was scheduled for May 23, 2002. The case was closed on May 20, 2002 due to lack of parental responsiveness in obtaining necessary pre-existing medical records. School staff attempted on no less than twenty-one separate occasions to contact Biagio's parents in order to obtain the necessary information.
b. In September 2003, according to Debra, Biagio's mother, he was aggressive with other kids, didn't listen to teachers and didn't want to participate in school activities. He was attending grade K4 at Corpus Christi parochial school. Because of these problems, his mother kept Biagio out of school for the next year K5 but Biagio's behavior was still bad at home. He was receiving in home therapy by Dr. Shellie Locke from September 2003 to May 2004. He was hospitalized for mental health treatment about one week in December 2003 and again in February 2004. He was given diagnosis of Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Intermittent Explosive Disorder and a Mood DisorderNot Otherwise Specified (NOS). In April 2004, the Mood Disorder diagnosis was changed to Bi-polar Disorder. Biagio was given Resperidal. In March 2004, Biagio's doctor, Dr. Ferguson
5
Case 2:01-cv-00928-RTR Filed 06/24/05 Page 5 of 40 Document 267

recommended that Biagio go to Childynamics a special day treatment program for the treatment of behavioral and psychiatric disorders in children.
c. In January 2004, MPS was first notified by Biagio's mother about her concerns regarding his significant behavior in his non-MPS social work history. Up to and including this point, Biagio was not attending an MPS school/pre-school program. Biagio was attending a therapeutic, non-academic day treatment program at Childynamics. On January 29, 2004 Biagio' smother requested a special education evaluation. The Emerson staff met with him one time at Emerson School but never saw him in a classroom setting. Debra requested that they observe Biagio at Childynamics but they would not, saying they weren't allowed at Childynamics because it was against the law. The IEP meeting was held and Biagio was found ineligible for special education services because MPS staff did not adequately observe him during the brief observation time they had at the school for the testing.
d. A Special Education Leadership Liaison ("SELL") from MPS contacted Debra in June 2004 to state that MPS would like to re-visit the eligibility determination made during Biagio's evaluation. This SELL contacted Debra again in June, July and August 2004 to discuss revisiting the evaluation and setting up a school observation session. Debra declined this offer and asked instead to wait until Biagio started Emerson in the fall to determine whether another evaluation was necessary. Debra did not want Biagio evaluated outside ofthe school setting because previously MPS had not observed him inside of the classroom setting and had found him ineligible.
e. Biagio started at Emerson school in September 2004. He began by attending half of the school day at Emerson; and attended Childynamics the other half of the day for continued mental health treatment and behavior therapy. That same month, his mother
6 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 6 of 40 Document 267

agreed to the SELL's request that the MPS evaluation team reconvene and consider additional information including the records from his K4 experience and medical records from his hospitalizations as well as current treatment records. On September 30, 2004 the entire IEP team convened at the home ofBiagio and his family, including Biagio's Childynamics' therapist who participated by phone, to re-examine the previous evaluation results and new information. Debra agreed that more information was needed for the team to conduct a proper analysis. The team discussed what testing was needed, including observations by the psychologist and diagnostic teacher. The team decided that additional information was needed before evaluating Biagio for an emotional/behavioral disability. The team scheduled the next meeting for November 19, 2004.
f. The team met in November and Biagio's mother brought in more information about his various emotional/behavioral privately diagnosed disabilities. The team made eligibility determinations for Biagio for Other Health Impairment, Speech and Language, Occupational Therapy and Physical Therapy and an Emotional/Behavioral Disability at this meeting.
g. The team determined that Biagio did not qualify for special education services. The Wisconsin emotional behavioral disability eligibility criteria requires a student to have chronic, severe and frequent behavioral problems at school and in one other environment (in addition to other criteria) to qualify as a student with an emotional disability. The team determined that Biagio had serious behavior problems at home and in the Childynamics program (a therapeutic program), but not at school. Biagio's classroom teacher reported that he had two behavioral incidents thus far.
7 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 7 of 40 Document 267

h. Biagio's mother was informed orally and in writing of her right to appeal

the decision of the team and to seek resolution through administrative remedies available to her.

On December 9, 2004 the school convened a Collaborative Support Team that included Biagio's

parent, to review Biagio's progress in school and collaborate on any non-special education

interventions or learning strategies that Biagio may benefit from at Emerson.

C. Other potential class members

6. Jyran J.

a. In 2000-2001, Jyran began having problems with his behavior and school

work in 2"d grade at Lee Elementary School. He was retained in 2"d grade. His mother had him

evaluated for federal Social Security Disability and he was found eligible to receive Social

Security benefits. She informed the school that he was eligible for the Social Security benefits.

No referral was made by school staff for special education at this time. Social Security disability

evaluation process and eligibility criteria is wholly separate from special education evaluations

and disability criteria, but can be considered during evaluations of children to determine if they

meet special education eligibility criteria.

b. During the next two years, his family moved twice. He continued to have problems at 381h St. school, which was his neighborhood school at that time. His mother

continued to be in frequent contact with the school staff. During 2001-2002, Jyran attended third

grade

at

the

38

1 h

Street

School

and

Bryant

Elementary

School

and

he

was

retained

at

the

end

of

this year. During this year, he also had a Central Office hearing for a behavioral incident.

c. Jyran attended Phyllis Wheatley School in 2002-2003, as an II year old

in third grade due to being retained. His mother placed him in Willowglen Day treatment at the

advice of her son's private therapist. She made the request for getting Jyran evaluated for special

education and placed in the right school. The referral was made on November 16, 2004.

8 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 8 of 40 Document 267

d. On February 22"d the building coordinator made contact with Cynthia by

telephone and the two agreed that Cynthia would come to school the next day to sign consent

papers for MPS to evaluate Jyran. On February 23, 2005 Cynthia signed the consent forms.

e. The initial IEP meeting was held on May 5, 2005 and continued on

May 12, 2005. Jyran was found eligible for special education services in the area of

emotional/behavioral disability and specific learning disabilities. The team discussed Jyran's

eligibility for compensatory services because of the delay in his evaluation and 5 days of

suspension which exceeded the statutory limitations for a child with a disability. The team

decided to make the compensatory services determination at a later team meeting.

f.

On May 26, 2005, the team met to develop a Functional Behavioral

Assessment (FBA) and Behavioral Intervention Plan (BIP). In addition, the team discussed the

issue of compensatory services. MPS staff determined that Jyran was owed a total of 57 days.

Based on discussions between Jyran and his mother, and because of a planned trip to Alabama in

July, they agreed to accept one-on-one tutoring for one hour each time, twice ore week for a total

of 57 one hour tutoring sessions to start in fall2005.

7. Shaquille J.

a. Shaquille attended the Head Start program at Clark Street school at age 4.

Shaquille was enrolled in 5 year old kindergarten at Clark Street School the next year. Prior to

admitting him, she met with the principal and the school nurse and informed them of his seizure

disorder and the side effects of the medications he was on. She provided the school with a

printout from the pharmacy about these side effects. Shaquille was retained in the second grade.

b. He was suspended many times resulting in a Central Office hearing.

Shaquille's mother requested a special education evaluation on June 4, 2004. The request was

9 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 9 of 40 Document 267

not followed up on until September 27, 2004 via a note sent home in Shaquille's backpack stating she needed to sign the authorization to evaluate. The IEP was held November 30, 2004 and he was found eligible.
c. Shaquille's mother filed a complaint regarding this issue with the Department of Public Instruction. The DPI found that MPS was out of compliance in complaint Case No. 04-043 for failing to timely evaluate Shaquille for special education. MPS offered Shaquille forty hours of compensatory services for the delay in Shaquille's evaluation process.
II. CHILD FIND A. Prevalence and Demographic Data
8. Milwaukee has a population of approximately 600,000 people, 54% of whom are persons of color. Nearly 16% of households speak a language other than English in the home. Twenty percent of the population are children between the ages of 5 and 17. In addition, 36% of children who live with their family, live with a single mother as the head of the household. Almost one-third of the children live in a household with persons other than their family members as the head of household. Over half of the households earn less than $35,000/year. Over 30% of all children in Milwaukee live below the poverty line. These demographics are not unusual for urban areas across our country. Mobility rates as high as 10,000 students per year and rising (ranging from 8.8 % to 11.7 % from elementary to high school), parent access, parent responsiveness, and high student needs are the reality within MPS.
9. On an annual basis, all school districts, including the MPS, submit data to the DPI regarding overall prevalence of students in special education, numbers of referrals, referral rate, and overall identification rate. This data is reviewed at least annually by both the MPS Division of Special Services ("DSS") and the DPI. As shown in the chart below, MPS data for the 1999-
10 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 10 of 40 Document 267

2000, 2000-2001, 2001-2002, 2002-2003, and 2003-2004 school years shows that overall

prevalence ofMPS students in special education is roughly the same as for the overall State.

Prevalence rate is the total number of children with disabilities divided by the total public and

private school enrollment in grades pre-K through 12. Identification rate is the percentage of

initial referrals resulting in an identification of a disability.

Prevalence of All

Children in Special

Education:

1999-2000 2000-2001

B. SOAP and SEP: Foundations of Oversight

i.

School Education Plans (SEP)

10. MPS requires each individual school to develop a School Educational Plan (SEP)

that outlines how each school will be working towards increasing student achievement

throughout the school year. The foundation of all school based planning and decision making is

guided by the SEP. The SEP is developed at the building level by a team of individuals usually

called the "Learning Team". The SEP is to be developed to incorporate the district's mission and

teaching and learning targets which are aligned with state standards into a working document to

guide the day-to-day activities of each school. School based administrators are trained and

offered in-service opportunities on the development of the SEP throughout the school year. The

SEP is intended to be a roadmap and a working document for each school to use during the

school year to support their efforts in increasing student achievement. The ten sections of the

11 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 11 of 40 Document 267

SEP guide the school's efforts in developing and implementing an effective educational plan.

The development of the plan is supported by the central administration through the provision of

workbooks, electronic support, and personal training seminars to ensure that schools have the

tools available to them to develop a meaningful plan aimed at boosting the achievement of all

students.

11. Each School Education Plan (SEP) is reviewed by a review committee that, at

minimum, consist of an administrative specialist, a leadership coach, and a special education

leadership liaison to determine if the following items specific to special education have been met

in the plan:

a. Description of service delivery model (e.g., continuum of services);

b. Disaggregated special education test scores;

c. Research-based specially designed instructional and behavioral strategies embedded in the plan that addresses students with special needs for the purpose of increasing academic and behavioral achievements;

d. Demographic description of special education population;

e. Representation of special education staff, parent, or student on the learning team;

f.

Professional development for special educators and general educators

specific to the schools, special education, student population instructional

needs (behavioral and academic);

g. Evidence of utilization of related service staff such as psychologist, school social worker, and nurse;

h. Disaggregated suspension, truancy, and attendance rates;

1.

Trainings, workshops, meetings to improve procedural compliance and

other special education needs identified at the school level;

J. Discipline plan that includes school-wide, classroom, and individualized positive behavioral interventions/supports;

k. Include parent of students with special needs in the Family and Community Involvement Plan;

12 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 12 of 40 Document 267

I.

Strategies are developed by the school to monitor procedural compliance

in addition to the district compliance tools;

m. Were all items at 94% accuracy or below addressed in the compliance needs assessment surrunary;

n. Compliance implementation plan developed to address all items at 94% accuracy or below; and

o. A variety of formative data sources are used (e.g., discipline day recorders, progress reports, report cards).

12. In the course of the SEP plan development, the learning team first collects and

analyzes data to determine what their school's strengths and needs are. Following the data

analysis, the team categorizes and prioritizes needs based on the assessment and chooses three to

five areas where there is greatest need to focus on for the school year. Clear, measurable and

sustainable goals are then developed to increase performance in the areas of greatest need which

are supported by the implementation of specific strategies in those areas. Once the SEP is

developed, it is submitted to the office of the Superintendent and a centrally located review team

is assigned to conduct an onsite review of the SEP with the school based learning team. The

purpose of the central office review is to provide support to the individual school in the areas

identified as the greatest need by the school and to provide feedback on the plan to assist in its

implementation. The entire SEP is then reviewed by the school-based learning team on a regular

basis to evaluate the effectiveness of those strategies.

13. Each school is also required to embed strategies of increasing the achievement of

students with disabilities in their SEP. The learning team is required to have at least one special

education stakeholder representative to ensure that the SEP provides oversight of a clearly

articulated philosophy and best practice approach to the provision of special education in a non-

label driven service delivery model. This building level effort is supported by central services

staff through the SELL position as well as other special education administrative staff. SELLs

13 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 13 of 40 Document 267

and special education supervisors work with individual schools to develop service provision models that shift special education service delivery from program driven models to service delivery models based on individual student needs versus individual student labels.
ii. Special Education Action and Oversight Plan ("SOAP") 14. DPI's July 17, 2001letter to MPS summarizing its 2000-2001 on-site monitoring findings observed that MPS needed an effective system of administrative accountability at the school building level in order to resolve the compliance issues DPI had found through on-site monitoring and its other oversight activities. The letter expressed DPI's pleasure that MPS had agreed to develop and implement such a system by September I, 2001. MPS did not develop and implement a system of administrative accountability at the school building level by September 1, 2001. 15. In October 2001, DPI entered into a consulting contract with Lee Greenwald, the former director of special education in the Madison Public Schools. Initially, Dr. Greenwald's role was to serve as DPI's chief negotiator in mediation efforts between the parties shortly after this lawsuit was filed. 16. Shortly after Dr. Greenwald was engaged by DPI, DPI expanded Dr. Greenwald's role to assist MPS in creating a centralized system of special education accountability within MPS 's decentralized educational service delivery system. 17. In April, 2002, Dr. Greenwald completed a written plan for creating a centralized system of special education accountability within MPS 's decentralized service delivery model. The title of Dr. Greenwald's plan is "Milwaukee Public Schools Special Education Oversight Action Plan." The parties and witnesses in this case frequently refer to the plan by its initials--
"SOAP."
14 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 14 of 40 Document 267

18. DPI's 2001-2002 on-site monitoring ofMPS in May, 2002, revealed that MPS had not corrected the implementation errors found in DPI's 2000 on-site monitoring, and had not corrected the implementation errors identified in the five Consolidated Corrective Action Plans (CCAPs) created in 2000 and 2001. CCAPs are corrective action plans centered around broadlydefined themes of placement, non-attendance, discipline, speech and language, and IEP services, identified in monitoring findings and IDEA complaint findings.
19. During the 2002-2003 and 2003-2004 school years, DPI did not conduct on-site monitoring ofMPS using the methodology acknowledged by OSEP in its October 2000 monitoring report; i.e., a combination of student record reviews, staff and parent interviews, and policy reviews. Instead, DPI focused its oversight activities on assisting MPS to build the effective, centrally administered system of special education procedural oversight and accountability mechanisms within MPS, and the mechanisms to be implemented at each school building, that DPI had ordered in its June 18, 2002 monitoring report to MPS.
20. DPI required the Milwaukee Board of School Directors to adopt and implement the essential components of Dr. Greenwald's SOAP plan.
21. With minor modifications, Dr. Greenwald's SOAP plan was adopted by the Milwaukee Board of School Directors on June 27, 2002, with instructions to MPS administrators to implement SOAP as soon as possible.
22. In June of 2002, the Board adopted the Special Education Oversight Action Plan (SOAP) and implemented several other initiatives to improve the provision of special education services within the Milwaukee Public School system. The SOAP is a centralized special education accountability system that provides oversight and evaluation of the delivery of special education services in each school. This system is based on a centrally designed and locally
15 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 15 of 40 Document 267

implemented self-assessment and continuous improvement monitoring process using each school's specific School Education Plan. Highlights of SOAP include provisions for: the appointment of a District Ombudsperson to receive special education complaints if required; the development and implementation of a parent dispute resolution process; increased opportunities for parental involvement and support for parents through the expansion of the centrally located Parent Information Center; greater accountability of building principals in the provision of special education services through an individual evaluation process; greater oversight and evaluation through the requirement that each school include a major special education component in its education plan; additional staff members to provide expertise and guidance to individual schools in special education; implementation of on-site self monitoring activities; and establishment of a Board-level committee on special education to monitor and assess the special education program for the district as a whole.
23. One of the essential features of SOAP is the establishment of direct lines of authority and accountability in the district's special education program. The Director of the DSS, currently Patricia Yahle, has been charged with the accountability for SOAP with the authority equal to the Director of Leadership Services, who provides comparable direction, support, and oversight of the District's general education program.
24. Under SOAP, the Director ofDSS has the responsibility for oversight ofthe special education compliance and monitoring functions ofMPS and supervises the special services administration, including the Special Education Leadership Liaisons (SELLs) established as part of the SOAP and the Special Education Coordinators. Although the original SOAP plan called for six SELLs, MPS and DPI was concerned that six was an insufficient number. Currently MPS employs nine SELLs. DPI provides funding support for the salaries
16 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 16 of 40 Document 267

and fringe benefits of two SELL positions. The Special Education Coordinators have districtwide responsibilities, including Psychological Services, Speech and Language Services, and Allied Health; Social Work Services and Transition and Community Services; Non-Conventional Programs; Coordinator of Compliance Management Services, Equitable Education Opportunities Liaison for Students with Disabilities.
25. Each SELL works with approximately 20-26 schools. The SELLS work under the direction of the DSS director, and have the responsibility to ensure procedural compliance, appropriate resolution of parental disputes, and appropriate educational programming within an inclusive local school building. The SELL serves as a liaison between the schools and the district central office. Within the centralized special education accountability system, the SELLs have the authority, in coordination with the principal, to require a teacher or other staffmember(s) to participate in appropriate meetings. The SELLs have additional district-wide responsibilities, including Child Find, compliance and management services, extended school year, Early Childhood Assessment Team, Wraparound Services, non-conventional programs, home and hospital program, Section 504, residential care centers, partnership schools with MPS, charter schools, and non-instrumentality charter programs.
26. At least one Special Education Supervisor is assigned to each school. Supervisors are assigned to more than one school. Each school has at least one Diagnostic Teacher. The Supervisors are supervised by the SELLs and are responsible for overseeing the compliance monitoring of the building-beginning with the receipt of referral, through diagnosis and evaluation, and IEP development and implementation. The Special Education Supervisors and building principals oversee the Diagnostic Teachers who have the responsibility for calling the parent and setting up the evaluations and the IEP meetings. The Supervisors are responsible to
17 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 17 of 40 Document 267

work with building administration to ensure that the initial IEP meeting takes place in time to complete the evaluation and placement process within 90 days from the initial receipt of referral, and that evaluation data is entered into the MPS Special Services Information Management System.
27. Consistent with SOAP, nine DSS workgroups have been formed by the Director ofDSS as a team approach to lead the efforts in the schools to achieve the goals of SOAP. Each work group is led by a SELL and composed of approximately 5-7 Special Education Supervisors and one special education parent liaison. Each work group member is encouraged in writing, at least twice a year, to submit comments and suggestions for improvement of workgroups or DSS operations.
28. SOAP makes each school principal accountable for the provision of special education services and for the implementation of program improvements in his/her school. Principals are evaluated by both the Director of Special Services and by the Director of Leadership Services.
29. In addition, the DSS Director, the other members ofthe DSS Administrative Team, the nine SELLs, and the five Special Education Coordinators are evaluated as to the performance of SOAP.
iii. SOAP/SEP Interactivity 30. Under SOAP, the building-based oversight and evaluation of the delivery of special education services takes place through the SEP. The SEP is developed each year by a school committee that represents the school's constituents. The content of the SEP is determined, generally, by self-assessment, by data based, outcome focused decision making, and by continuous improvement planning. The SEP addresses general education issues as well as
18 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 18 of 40 Document 267

special education issues. Under SOAP, each SEP contains a self-assessment of the school's special education performance through a review of student outcome data, surveys of parents and staff, and classroom observations. The self-assessment must also contain a rigorous armual selfassessment of special education compliance, developed jointly between MPS and DPI. Under SOAP, the school's special education needs, identified through the self-assessment, must be addressed in the school's school improvement plan. In addition to the school's self-assessment, SOAP requires DPI to annually conduct activities to monitor and evaluate the efficacy of the special education component of the SEP, and to independently assess the district's procedural compliance with special education requirements.
31. SOAP requires that the special education component of each school's SEP be reviewed and approved by the Special Education Supervisor and SELL assigned to that school. Under SOAP, each school's assigned SELL is required to conduct a quarterly review of the school's progress on its school improvement goals using district and school performance data and special education compliance data. The SELLs are required to meet on a monthly basis with the Director ofDSS and with the leadership specialist assigned to the SELL for the purpose of reporting on the status of special education and the SEP process in each building.
32. SOAP also requires MPS to link school and district budgets to the self-assessment and continuous improvement process. Under SOAP, MPS offered assurance that its budgets would support the implementation of SOAP in every building, and required that its schools' budgets provide for the needs identified in each school's SEP. To ensure that identified needs are properly budgeted, SOAP requires that the appropriate leadership specialist and SELL review each school's budget.
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C. MPS Child Find Policies 33. According to MPS policy, all school administrators, teachers, psychologists,
building coordinators, Special Education Leadership Liaisons (SELLs), health professionals, counselors, pupil services central office staff among others in MPS are responsible for meeting the district's Child Find obligations.
34. All MPS staff are trained, to some extent commensurate with their duties, in Child Find. This includes, but is not limited to, teachers, administrators, social workers, Head Start staff, literacy coaches, building coordinators, special education supervisors and leadership liaisons, secretaries, diagnostic teachers, psychologists, guidance counselors, speech pathologists, nurses and occupational and physical therapists. For example, in August 2004, all MPS building coordinators and special education supervisors were trained in Child Find. The special services administration and parent information specialists were trained in Child Find in September and October 2004. The building coordinators and supervisors in-serviced their respective building staff during the opening week of school on Child Find. It is MPS policy that attendance at each of the training sessions is mandatory.
35. Ultimate oversight responsibilities for Child Find rest with the Superintendent, currently William Andrekopolous, and School Board. The Chief of Pupil Services, currently Ada Rivera, is third behind the School Board and the Superintendent in ensuring that Milwaukee Public Schools meet their Child Find obligations. A majority of the oversight duties regarding Child Find activities have been delegated to the Director of Special Education, currently Patricia Yahle, and her office.
36. Because Child Find is an important responsibility, the MPS has assigned a SELL, Charlyn Pozza, to oversee district-wide Child Find activities, even though the responsibilities for referral and evaluation are with the schools.
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37. MPS publishes handbooks which contain the district's policies and procedures relating to special education, and which contain the districts policies and procedures specifically relating to the responsibilities ofiEP teams.
38. Each MPS school identifies a Building Coordinator who receives referrals for evaluation for possible special education support. There is mandatory training at the beginning of each school year and periodically for new Coordinators regarding the special education process and procedures. General and special education teachers also received Child Find training during the opening week of the 2004-05 school year.
39. MPS policy requires any licensed school staff member who reasonably believes a child has a disability to make a special education referral.
40. MPS policy requires every school staff member to accept initial special education referrals from parents or guardians.
41. The MPS Parent/Guardian Rights and Responsibilities Handbook is distributed to the parents and guardians ofMPS students at the beginning of each school year, and is also provided to parents when their students enroll in the district during the school year.
42. The MPS Parent/Guardian Rights and Responsibilities Handbook details the rights of parents of children suspected of having special education needs-with the MPS Child Find telephone number.
43. MPS published Special Education Policies and Procedures manual in 2002. A draft of the publication was reviewed by staff from the DPI special education team prior to publication for the purpose of determining whether the policies and procedures complied with state and federal special education law. As published, the content of the 2002 manual was approved by DPI.
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44. MPS published a revised version of the Special Education Policies and Procedures manual in February 2004. A draft of the publication was reviewed by staff from the DPI special education team prior to publication for the purpose of determining whether the policies and procedures complied with state and federal special education law. As published, the content of the February 2004 Special Education Policies and Procedures manual was approved byDPI.
45. MPS published a revision of the IEP Team Procedural Handbook in September 2004. A draft ofthe publication was reviewed by staff from the DPI special education team prior to publication for the purpose of determining whether the policies and procedures complied with state and federal special education law. As published, the content of the September 2004 IEP Team Procedural Handbook was approved by DPI.
46. MPS policy requires that when a parent requests a special education referral, the district must evaluate the student, develop an IEP for eligible students, and send the student's parent a notice of educational placement, within 90-days of the receipt of the referral.
47. MPS policy requires that any time a parent or other individual inquires, verbally or in writing, about a referral for special education services or expresses concern regarding a possible disability, the parent or individual must be provided with information about how to initiate a referral.
48. MPS policy requires that when the district receives correspondence from any person requesting an evaluation for a student and the correspondence does not state that the reason for the evaluation is a suspected disability, or does not identify the request as a special education referral, the district must determine if the correspondence is a special education
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referral. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
49. MPS policy requires that, in order to make a determination within a reasonable time after receipt of such correspondence, the district must inform the correspondent of their right to make a special education referral and how to make a written referral. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
50. MPS policy requires that, in every case where it is unclear whether the person is requesting a special education referral, the district representative may not discourage, refuse or close out a referral for lack of perceived reasonable cause. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
51. MPS policy assigns responsibility for processing initial referrals for special education to the building coordinator in each school.
52. MPS policy provides that parents and others are not required to use the district's forms when making a special education referral.
53. MPS policy requires that parents who need help making a written referral should first be directed to the building coordinator, but that if the building coordinator is unavailable, another staff member must be prepared to assist the parent. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
54. MPS policy requires that parents be provided with written notice of their procedural rights at the time they are notified that a referral has been received. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
55. MPS policy requires that parents be given the opportunity to participate in the review of existing data on the child, and in identifying what additional data, if any, are needed to
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complete the evaluation. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
56. MPS policy requires that parents be notified that a referral has been received, and that a signed consent to proceed be received before additional testing is administered. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
57. MPS policy requires that IEP Team meetings include the following participants: one or more of the student's parents; at least one regular education teacher familiar with the student; at least one special education teacher; a qualified, knowledgeable representative of the local educational agency (LEA) with authority to commit the district's resources; and under some circumstances, other specified individuals. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
58. MPS policy requires that diagnostic teachers follow and document a protocol of steps to ensure parent participation in IEP Team meetings, and specific actions to take when a parent does not participate in an IEP meeting after the protocol is followed. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
59. MPS policies restrict requests for extensions of time beyond 90 days to complete the IEP Team process and determine placement to a specific set of reasons, require that the reasons be documented, require that the requests be approved by a supervisor, and limit the number of extension requests to two per case. This policy is documented in MPS' IEP Team Procedural Handbook, revised September 2004.
60. When a parent registers their child for school attendance in MPS, they also complete a form that asks whether their child has a disability.
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61. MPS has district-wide screenings when students enter school (i.e., vision, hearing, pre-academic, social, and communication).
62. MPS sends information about special education forums to some community organizations for meetings that are held periodically throughout the year. MPS sends a packet of child find information to clinics and doctors' office upon request. The packet is available in English, Spanish and Hmong languages. The packet includes a referral form, school and district contact information and a booklet on the special education evaluation process, including a statement of parental rights. D. MPS Child Find Procedures
63. Child Find information appears in the MPS calendar and Parent/Student Rights & Responsibilities and Discipline handbook which is mailed annually at the beginning of the school year to every MPS household with school age children and to all MPS schools.
64. At least two Parent Forums and between two and ten Community Resource Fairs are held during the school year. The MPS Special Education Task Force also holds monthly meetings that include administration, teacher, parent and community members.
65. Child Find information is provided in CESA Consortium Child Find Directory, which lists all the Child Finds in the state.
66. Child Find information is listed in the Community Information Data Base of the Milwaukee Public Library.
67. Child Find information is also found in the Archdiocese of Milwaukee Resource Manual.
68. Child Find in-service presentations are done for Public Health nurses, day care centers, (through MPS Early Childhood Assessment Team (ECAT), WIC centers, and community organizations which provide family/parent empowerment assistance. For example,
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on September 14, 2004, a meeting was held with the representatives from various community based Head Start programs.
69. Child Find information is published annually in the December issue of MetroParent resource guide.
70. Various SELLs, special education supervisors and administrators are responsible for outreach and training to private and parochial schools. Dare Boling, an administrator, is the coordinator of non-conventional programs. She coordinates the provision of services for private and parochial schools with MPS. In conjunction with many MPS personnel and private/parochial school representatives, develops the MPS service plan for private and parochial school students in need of special education services. Ms. Boling also coordinates the IEP teams for special education students in court-ordered, residential and other non-traditional education settings. Peggy Holtman coordinates staff development training efforts for the non-traditional sites, which includes training on the referral and evaluation process.
71. The MPS Parent Center staff are located at Central Office in two locations. The parent center was expanded. The parent center staff answer calls and meet in-person with parents. Their role is to direct parents to the proper resource within MPS to have their issues resolved. Parent information specialists coordinate with parents to find the appropriate avenue for resolution. They are trained in Child Find and other special education issues. The parent center staff assist in the summer and district-wide three choice enrollment processes as well, which maybe a parent's first contact with the district. The school application that the parent center staff assists the parents in filling out asks whether a child has special education needs.
72. MPS Parent Center staff are not given protocols or scripts regarding what questions to ask parents or others who call in regards to a child, nor are they told under what
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circumstances they should tell a parent to seek a special education referral. If a parent requests a special education referral, it is MPS policy that the parent center processes that request.
73. The two Parent Information Specialists who were deposed described some ofthe situations in which they suggest parents may consider special education as follows. Georgette Rodriguez may suggest a referral for special education if there is a pattern of retentions or behavior concerns. Monica Lopez stated that if a child is being retained for a second time she suggested the child be evaluated for special education.
74. Rodriguez testified in her deposition that she had been contacted by parents, teachers and an assistant principal who told her that they had not been successful at getting special education referrals processed.
75. A secretary in the Parent Information Center, currently Donna Maras, receives referrals for special education at Central Office. Ms. Maras is housed in the MPS Parent Center, describes her Child Find duties as taking referrals from administrators, nurses, physicians, social service agencies and parents. During the school year she gets on average eight to ten referrals per week. In the summer time that number rises to fifteen to twenty because most school buildings are closed so parents come to central office to initiate referrals.
76. When Ms. Maras gets a referral, she fills out a referral form and then sends it to the child's school or if the child is not in school she sends it to the school closest to the home address. During the summer, the referral is sent to the summer special education team. She enters the referral into the district-wide Encore database. At this point, it is the responsibility of the building coordinator and special education supervisor at that particular school to begin the evaluation process. MPS policy is that the building coordinator and special education supervisor conduct follow-ups to ensure the 90 day time-line from referral to placement is met.
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77. If a parent seems hesitant to make a special education referral Ms. Maras asks them if they want to do a screening instead. It is district policy that she fills out a screening form and sends it to the building coordinator who then contact the parents to set up an interview to discuss their child's issues and if appropriate, conduct an evaluation of their child by the appropriate professionals.
78. Two additional staff members receive and distribute special education referrals submitted to the Milwaukee Public School Support Center, a facility separate from the Central Office where the Parent Center is located. Plaintiffs requested copies ofthe complaint intake cards filled out by Parent Information Specialists in the MPS Parent Center located at MPS Central Office. They fill out blue cards for what they label as special education complaints and yellow cards for what they label as regular education complaints. The use of blue and yellow complaint cards was discontinued in the 2004-05 school year. E. Additional Child Find Practices for Specific Target Groups
i. MPS' Actions to Assist in Identifying Students Who May Have Disabilities Among Students With Behavioral Issues
79. The 2004-2005 MPS district policy regarding disciplinary removal procedures, Duties of the Administrator Responsible for Discipline, requires MPS staff to consider, in situations where a student has been removed for more than ten days in a school year, whether the child should be suspected of having a disability. Paragraph 8 of the policy provides, "if the student does not have an IEP and is not in the referral process but has been removed more than I0 days, the student may be in need of consideration for a special education or Section 504 evaluations. In such cases, the staff will need to consult with the building coordinator or Special Services Supervisor/Administrator regarding possible 'Child Find' obligations under IDEA and Section 504."
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80. The MPS central office provides periodic training for teachers on classroom

behavioral management, accommodations, and modifications to assist nonpublic and private

school teachers with learning strategies to deal with challenging behaviors. Outreach by the

central office also takes the form of meetings with nonpublic and private agencies/programs

regarding special education procedures. For example, during the 2004-05 school year, MPS

provided four staff development opportunities at no cost to staff members ofthe Milwaukee-area

non-public schools. One of these trainings was on Child Find Activities.

ii.

MPS' Actions to Assist in Identifying Stndents Who May Have

Disabilities Among Children Birth -Three Years Old

81. MPS has an Early Childhood Assessment Team ("ECAT"). The ECAT team is

accountable for ensuring that evaluations are completed and IEPs are held in a timely manner

prior to the child transitioning to MPS at age three. The ECAT team receives referrals from

Head Start, Birth to 3 programs, hospitals, physicians, and parents. The ECAT team currently

has two part-time and 1 full-time Special Education Supervisors and four Diagnostic Teachers.

A centralized database manages data for children in birth to 3 (Part C) programs who are

transferring into MPS to assist in evaluation and indicates whether the 90 day timeline is being

met, or whether there is a valid extension for a child-related reason.

82. MPS's data reflects that about 90 percent of the children referred to MPS from the

birth to three agencies qualify for special education.

83. During the school year the Early Childhood Assessment Team (ECAT) gets about

ten referrals from outside the Birth to Three network that come through Child Find at central

office. During the summer months the ECAT gets about 30 cases through the Child Find at

central office for referral.

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84. ECAT gives out Head Start information resources as outreach at IEP meetings. MPS houses a Head Start program office at Central office under the direction of the office of pupil services that coordinates Head Start programs throughout the city.
85. ECAT gives developmental milestone charts that have the MPS and Birth to 3 referral phone numbers on them to day care centers when they go to the centers to do special education evaluations.
86. During the period of April2004-May 2005, the MPS website had inaccurate information as to the age at which children can be referred for a special education evaluation at one location on the website, on one page titled "Special Education Kindergarten." This information has been corrected. The website also contained multiple places where the accurate information was posted, such as the Special Education Parent Information Pages.
iii. MPS' Actions to Assist in Identifying Students Who May Have Disabilities Among Students with Attendance Issues
87. Weekly truancy reports are generated by school and central office administrators, including principals, vice principals, and special services administrators. Each school is required to have a building Truancy Intervention Coordinator (i.e., social worker, psychologist, or another identified person) who is responsible to monitor these weekly reports, contact and meet with the parents, work with regular education teachers, and encourage students to attend school.
88. Jon VanSteckleman, a social worker, is assigned to the community truancy abatement project (the TABS program). Also, it is MPS policy that its social workers work in the community providing training and assessing individual student needs, with the goal of bringing the student back to school and determining what types of services may be needed, including possible referral to special education.
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iv. MPS' Actions to Assist in Identifying Students Who May Have Disabilities Among Students Characterized as "At-Risk"
89. MPS has numerous programs and policies that target at risk students in the general education school population that may need special education or non-special education assistance in order to succeed at school.
90. MPS policy provides that teachers may bring concerns about students who are in danger of being retained to the school learning team, the collaborative support team, or problem solving team to determine what interventions might be needed, including possible referral to special education. It is MPS policy that the teacher or principal also holds conversations with the parents about the child's needs and possible retention.
v. MPS' Actions to Assist in Identifying Students Who May Have Disabilities Among Students Homeless Youth
91. MPS has two liaisons that work with the community to identify homeless children and to provide needed services. These liaisons work in the DSS and inform other DSS staff if they suspect that any homeless child may have a disability and be in need of special services. If so, a special education referral is initiated.
vi. MPS' Actions to Assist in Identifying Students Who May Have Disabilities Among Students Adjudicated Youth
92. MPS employs staff who work with the adjudicated youth programs. 93. It is MPS policy that MPS school psychologists also work with staff from the community mental health programs to provide information regarding the special education process, procedures, and services of the MPS. vii. MPS' Actions to Assist in Identifying Students Who May Have Disabilities
Among those Student Who Drop Out 94. The MPS's computerized Special Education Data Information System provides ongoing data regarding students who drop out of school for the school principals, Leadership
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Specialists, Special Education Supervisors, and SELLS. It is MPS policy that schools are to monitor this data to determine trends and reasons for dropping out. F. Technology/Data Management
95. MPS utilizes new technologies to improve tracking and accessibility of special education related information. For example, since 2001 MPS has been developing and is implementing a web-based data management systems known as the SSIMS/ Encore system. This system allows both building and district level staff to access a student's education records electronically at any time, including behavioral and academic records. This technological improvement will allow MPS staff to review records immediately when MPS students transfer intra-district. MPS expects the IEP viewing and development web-based option to be fully operational by October 2005. As a large urban district, MPS has a high mobility rate.
96. MPS tracks all IDEA complaints and parental special education concerns, as well as their resolutions, are tracked on the Parent Dispute Resolution System (PDRS). PDRS is a web-based database that allows convenient, real-time access at the district and building level of the processing and resolution of special education related complaints. PDRS was functional as of September 1, 2004. Per MPS policy, the use ofPDRS, became mandatory as ofJanuary 1, 2004. Those complaints not logged in PDRS from September !-December 31,2003, were recorded on complaint cards at the Parent Center.
97. Compliance with the 90-day timeline for evaluating students for special education needs is tracked using the SSIMS/Encore system. It is MPS policy that special education supervisors generate and review reports from Encore weekly to determine what progress is being made on each referral and identify and resolve potential issues, should they occur.
98. Referrals for special education evaluation are tracked within the MPS Special Services Information Management System. It is MPS policy that Special Education Supervisors
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work with building administration and are accountable for making sure that the Child Find process is actually being implemented- monitoring timelines and determining whether referrals are being submitted and processed in an appropriate way.
99. One of the elements of the Special Education Oversight Action Plan ("SOAP") adopted by the MPS Board of Directors in June 2002 was the recognition that data management is an important component of any accountability system.
100. MPS is implementing a web-based computerized Special Services Information Management System-that begins with referral and goes through the entire special education process. The electronic Special Services Information Management System has two components-a database system called Encore, which is fully operational, and the web-based development of the IEP document system, which MPS expects to be fully operational in October 2005.
101. The Encore database system has been operational since August I, 2003. It provides information such as demographic information about students with disabilities being served, evaluation timelines, numbers of certified staff, and school discipline actions, including suspensions and expulsions.
102. The web-based IEP document system is live, and provides authorized personnel to have access to the child's IEP-with data that is inputted directly from the child's referral by Building Coordinators and appropriate MPS staff who conduct assessments, send invitations to IEP meetings, document participation in the IEP meetings, and document the content of the IEP development and the IEP process. MPS expects the web-based IEP system to be fully operational in October 2005. In the meantime, MPS is still using a computer-based program to develop and document the IEP process and content.
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103. With both the current IEP computer-based system and the Encore system, it is MPS policy that the Special Education Supervisor, Diagnostic Teachers(s), and SELLS identify when an evaluation is getting close to the 90-day timeline and work proactively to make sure timelines are met. An IEP meeting may be convened to determine ifthere was any harm caused by an exceeded timeline. It is MPS policy that follow-up for staff errors are dealt with during the staff evaluation process.
III. MONITORING AND COMPLIANCE A. MPS Complaint Resolution Process
104. One of the elements of the Special Education Oversight Action Plan ("SOAP") adopted by the MPS Board of Directors in June 2002 with DPI's direction was the creation of a Parental Dispute Resolution System.
105. It is MPS policy that each school principal is responsible for implementing and monitoring a dispute resolution process in their schools. Parents with a complaint may file an MPS complaint with their school principal. Parent complaints are promptly addressed and resolved at the school site, if possible. If a principal cannot resolve a complaint within five school days of the receipt of the written or verbal complaint, immediate intervention is requested from a SELL. The SELL must resolve the matter within five days ofthe request for intervention and may consult with the leadership specialist for that school, if necessary.
106. It is MPS policy that if the SELL determines that a violation of state or federal special education law has occurred, the SELL will consult with the Leadership Specialist, and the school principal will be directed to correct the violation.
107. The Director of the DSS, Patricia Yahle, monitors parent complaints on a regular basis. If she sees a number of complaints in a particular school, she contacts the SELL or the
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Leadership Coach that works with the principal. It is MPS policy that these contacts lead to specific interventions by the principal as well as discussions with the DSS management team to be certain that there is sensitivity and attention to the complaint issues, location ofthese issues, and their resolution. As part of the monthly report to the Board of Directors on the implementation of the SOAP, the Chief of Pupil Services, Ada Rivera, presents a summary ofthe data in the school and Parent Service Center complaint logs, including the number of complaints, the issues, resolutions achieved, and actions to improve the dispute resolution system in any school.
108. It is MPS policy that a parent may also choose to file a complaint with the Parent Information Center. The District's Parent Information Center is currently staffed by nine Parent Information Specialists, who are charged with assisting parents in the resolution of their issues. Each ofthe Parent information Specialists works with 30-40 schools. DPI provides financial support to MPS for some Parent Information Center staffing.
109. It is MPS policy that parents are encouraged, but not required to make their complaint in writing. School principals maintain a log of each complaint at their school. The Parent Information Center also maintains a log of complaints received and referred on to the appropriate school for resolution.
II 0. School principals have ongoing access to information regarding the total number of complaints, complaint issues, and content regarding specific complaints within a recentlydeveloped electronic Special Services Information Management System. The complaint is sent through PDRS to the principal when an IDEA and/or Parent Information Center complaint has been filed.
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Ill. On June 27, 2002, in a companion resolution to the one that created SOAP, the MPS Board of Directors adopted Resolution (0203R-018), which provided for the appointment of an individual to be the District Exceptional Education Ombudsman-in the event that MPS receives complaints that cannot be resolved by the DSS.
112. It is MPS policy that parental complaints must be taken into account by each school, through the Parent and Community Involvement/Partnerships section of each school's SEP. Each school must describe and conduct twice yearly self-assessments of the dispute resolution process within the school. Monitoring ofthe dispute resolution process is carried out in the central office review of all SEPs.
113. The IDEA Complaints Manager (Equitable Education Opportunity Liaison), Richard Brigham, manages a web-based dispute resolution database that is integrated across IDEA complaints to DPI, mediations, and due process hearings. School principals and assistant principals also have access to the database through a password. This integrated data system also tracks informal complaints that are resolved before they become an IDEA complaint. Schools can access this data regularly in order to look across complaints, mediations, and due process issues in order to improve school programs. This integrated dispute resolution data can assist in following up formal complaints resolution, mediation agreements, and due process hearing decisions to determine whether child issues are being resolved.
114. Under Federal law, formal complaints can be filed with DPI, the state educational agency ("SEA"). When an IDEA complaint received by DPI is forwarded to MPS, the Coordinator of the Office of Complaints assigns a citywide Program Support Teacher to promptly gather documents and other information needed by the DPI to investigate the complaint. The SELL assists in the investigation, if necessary, to ensure prompt responses to the
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complaint. A letter over the MPS Superintendent's signature is sent to the appropriate school principal directing him/her to cooperate in investigating and resolving the complaint. If the complaint is substantiated by the DPI, the citywide program support teacher assists the school in implementing the corrective action plan in a timely manner. The SELL may assist, if necessary, in assuring a timely response.
115. In addition to complaints resolution, mediation, and due process hearings as a way to resolve disputes, MPS is currently piloting facilitated IEPs as a less formal dispute resolution system and a way to resolve differences between parents and schools at the IEP level. MPS's goal is to intervene with concerns before they become a formal complaint. B. Development and Implementation of MPS Internal Auditing System
116. On July 12, 2002, DPI sent a letter to the MPS Director of Special Services acknowledging the district's recent adoption of SOAP, offering MPS two additional special education team members to assist MPS with the implementation of SOAP, and directing MPS that the district's continuing procedural implementation errors identified in DPI's on-site monitoring and the issues in the CCAPs had to be among the first issues addressed by the special education oversight process in each school building. The letter advised MPS that DPI would be working with MPS staff during the month of August, 2002, to develop a strategic plan to implement SOAP, with an initial focus on the special education procedural oversight provisions of SOAP.
117. During the 2002-2003 school year, DPI focused its MPS oversight activities on building MPS' compliance capacity through the implementation of SOAP and the development of the MPS Internal Audit Action Plan, later renamed the MPS CIFM Action Plan. During that same school year DPI did not conduct on-site monitoring activities using the on-site monitoring model acknowledged by OSEP in its 2000 monitoring ofDPI's oversight. Where DPI found any
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compliance problems at this time, it ordered corrective action through the mechanism of IDEA complaint decisions and directives, and their modifications to the CCAPs.
118. On September 9, 2002, DPI and MPS agreed on a plan that focused MPS's implementation of SOAP on the correction ofthe implementation errors identified by DPI in its 2001-2002 school year on-site monitoring reports, and identified by DPI in the IDEA complaint CCAPs. These errors were not necessarily the same as the allegations in this lawsuit. The plan, entitled "Milwaukee Public Schools Internal Audit Action Plan," summarized the implementation errors to be corrected, described in detail the corrective activities MPS was obligated to perform, the date by which each corrective activity should be completed, the person or persons responsible for completing the activity, the documentation required as part ofthe activity, and the information that MPS was required to provide to demonstrate that the required corrective activity had corrected the identified errors.
119. Like the SOAP itself, the Internal Audit Action Plan contained two main components. One part of the Plan required each MPS school to address the implementation errors identified by DPI through the process of including compliance improvement in the school's SEP, trained self-assessment of the school's performance, and revision of the SEP based on the results of the school's self-assessment. The other part of the Plan required MPS to establish an ongoing system of internal audit that addresses the implementation errors found by DPI. The Plan required that the system be implemented first in a pilot group of schools, including the nine schools visited during DPI's 2001-2002 school year on-site monitoring, and then be implemented in every MPS school in the 2002-2003 school year. The Plan required the setting of compliance standards, the training ofMPS staff to perform at the identified standards,
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the training of special education supervisory personnel to reliably evaluate staff compliance with the standards, and a feedback mechanism to improve staff performance.
120. In the 2002-2003 school year, MPS used the IEP checklist system in 18 pilot schools. At the completion of the pilot, MPS did not provide DPI with a report on the assessment or the results.
121. The Internal Audit Action Plan was revised in January 2003 to include a total of eighteen schools in the initial phase ofthe district's accountability system. The Plan was revised again in March 2003 to reflect the completion of some of the Plan activities.
122. In November 2003, the plan was renamed "MPS Continuous Improvement and Focused Monitoring Action Plan" ("MPS CIFM Action Plan"), and was revised to reflect the completion of activities during the 2002-2003 school year and to add additional activities for the 2003-2004 school year. The format of the MPS CIFM Action Plan was also changed to specifically identify whether an activity had been completed, and to specify the target dates for DPI's verification of the efficacy of the required corrective activities.
123. The MPS CIFM Action Plan was revised again in February 2004, to reflect the completion of many of the additional activities required by the November 2003 revision.
124. During the 2003-2004 school year, the MPS CIFM Action Plan consisted of five parts: (1) A system for continuous training of staff using the MPS Special Education Record Review Checklist method that summarizes the procedural requirements of special education law that MPS had been erroneously implementing; (2) an annual point-in-time assessment in each school of the school's compliance with the checklist requirements; (3) an annual assessment about the systems and knowledgeable personnel in each school with respect to non-checklist compliance matters such as IEPs, discipline practices, and non-attendance policies; (4) actions
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developed annually for each school and included in each school's School Education Plan, based on the results of the school's annual assessment; and (5) a district-wide support plan for the schools, developed after analyzing the data from the annual building assessments, to identify district-wide actions to support each school's effort to improve its compliance performance on the checklist and non-checklist items.
125. IEP checklist monitoring was implemented as a staff development activity for special education teachers and other IEP team members. This activity was ongoing throughout the 2003-2004 school year. Individual teachers received in-service training or staff development and then the Special Education Supervisors conducted checklist monitoring on their IEPs until they achieved three correct IEPs in a row. After that the Supervisors and/or other building administrators did intermittent checks of each person's completed IEPs, and the SELLs reviewed the Supervisors' work.
126. Implementation of non-checklist requirements not readily assessed via IEP record review alone in a school, including IEP, Discipline, and Non-attendance were more operational in nature. Staff developments on the non-checklist items were provided throughout the school year. These compliance elements were monitored through interviews, and document reviews. At the end of calendar year 2003, each SELL held a conference with the Special Education Supervisor members of his/her team to survey and discuss the status of the non-checklist items. If problem areas were identified, the SELL and the supervisor conferred with the building principal to develop activities within 30 calendar days of the meeting. Another conference among these parties was held within 30 calendar days of initiating the activities. This plan was incorporated into Section 11 of the SEP in each school building.
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127. DPI and the MPS mutually developed the forms, procedures, standards, and guidance to gather self-assessment data for the March 2004 point-in-time assessment in each MPS school. Data gathered through the March school self-assessment was based on a series of samples of student records or personnel, drawn using a published, random sampling table.
128. DPI provided MPS technical assistance in developing the tools for the assessment. This involved working with the SELLs to compile a checklist to evaluate compliance with procedural requirements when checking a student's records. The checklist consisted of issues from past DPI monitoring and from the pre-existing Consolidated Corrective Action Plans (CCAPs).
129. The checklist contained all of the issues from the 2000, 2001 and 2002 on-site reviews that DPI found to be out of compliance.
130. The assessment also used non-checklist items to assess issues related to implementation and to gather more in-depth information.
131. The March 2004 self-assessment within each school was conducted by the Special Education Supervisor(s) assigned to the school, the school principal, the school building coordinator, and other school staff. Special Education Supervisors and building coordinators did the bulk of the assessments in the schools.
132. During the continuous portion of CIFM in 2003-2004, SELLs reviewed actual IEPs and completed the checklist process. During the point-in-time portion of CIFM in March 2004, the SELLs were not required to review IEPs for accuracy of the supervisor's reporting. Beginning in the 2004-2005 school year, MPS policy changed to require all SELLs to check each underlying IEP to determine if the special education supervisor accurately recorded monitoring data.
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133. In April2004, MPS policy required each SELL to review the monitoring work of each of the Special Education Supervisors in the schools in his/her team. It was MPS policy that for each Special Education Supervisor, the SELL reviewed a random sample of the assessment instruments the Supervisor completed for one of the Supervisor's schools.
134. Although the SELLs reviewed some of the underlying student records during the 2003-2004 school year, the focus of SELLs' April 2004 review was whether the assessment methods for checklist and non-checklist items were being implemented appropriately by the Supervisors. It is MPS policy that if a SELL determined that a Special Education Supervisor did not follow the methods given for one or more of the items of the non-checklist elements relating to the still-open CCAPs (IEP, Discipline, Placement, and Nonattendance) or the methods for the checklist items, the SELL checked that particular item in all of the Special Education Supervisor's schools to determine whether the assessment plan's procedures and methods were followed.
135. Once the self-assessments were completed, the Special Education Supervisors and the SELLS scored each of the 62 checklist items measured by the school as requiring one of three levels for monitoring support-periodic review (95% or greater compliance), ongoing review (80-94% compliance), or intensive monitoring (below 80% compliance). Some schools were at different levels of support for different checklist items. This assigned level of support for each of the 62 compliance items was also used as a basis for planning district-wide professional development activities.
136. An average percentage of compliance of all checklist items combined was also assigned to each school and an overall level of required support was assigned to each school. This data was used to plan individual school oversight activities for Special Education
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Supervisors and the SELLs. In addition, this information was provided to the Departments of Administrative Accountability and Principal Leadership Support to assist in planning coaching support activities and evaluation oversight for administrative staff.
137. Each school principal received a summary of their individual rankings for all checklist and non-checklist items. In addition, the school rankings were compared to overall district-wide averages. This data was shared with the SELLs and Special Education Supervisors to help them plan targeted staff development.
138. Following receipt of their school data, the principals were required to develop a plan, including goals and actions, to remediate or address any of the 62 checklist or non-checklist items that were measured below 95% compliance. Principals were not required to develop a remediation plan for compliance items assessed at 95% or higher compliance ("periodic review" level of support), even though the district goal is 100% compliance in all schools. This plan was incorporated into the Special Education Section of each school's overall SEP. The SELLs and the Special Education Supervisors conducted follow-up meetings with school principals and SEP representatives, as needed, for the purpose of amending or strengthening the special education component of the SEP.
139. In August 2004, DSS reported to the MPS Board of Directors the activities each school would be required to complete with respect to the compliance areas assessed at the school, depending on whether the compliance area was assessed as intensive monitoring (less than 80% compliance), ongoing support (80-94% compliance) or periodic review (95% or higher compliance).
140. On August 26, 2004 the Milwaukee Board of School directors directed the administration to adopt the following policy: For items assessed as requiring "intensive
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monitoring," MPS required the individual school's SEP committee to review, revise and implement the SEP's special education continuous improvement plan for each checklist and nonchecklist item assessed to be at the "intensive monitoring" level, with the focus on improving the building's performance. Special education providers and diagnostic teachers who would be returning to the building for the 2004-2005 school year were required to undergo review of their IEPs for all checklist items that were contained in their SEP; i.e., items for which compliance was less than 95%. Special education supervisors who determined that particular returning special education providers and diagnostic teachers required additional support applied the IEP checklist review procedure to those returning staff. Special education providers new to the building were required to undergo review of their IEP's for all items of the IEP checklist procedure. The support plan further required SELLs to apply the activities required by the school's SEP special education improvement plan by December 1, 2004, in anticipation of the March 2005 annual assessment.
141. On August 26, 2004 the Milwaukee Board of School directors directed the administration to adopt the following policy: For items assessed as requiring "ongoing support," MPS required the school's SEP committee, the special education providers, the diagnostic teachers, and the SELLS to conduct the same activities as they conducted for items assessed as "intensive monitoring."
142. On August 26,2004 the Milwaukee Board of School directors directed the administration to adopt the following policy: For items assessed as requiring "periodic review," MPS allowed the school to not include the items in its SEP. For schools with new principals, MPS required the SELLS to complete the pre-measurement activities by December 1, 2004, including non-checklist items and the implementation of the school's SEP Special Education
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Continuous hnprovement Plan. MPS required special education providers and diagnostic teachers returning to the building to use the record review checklist at least once per semester for compliance items at the "periodic review" level. MPS further required those returning personnel who made errors on periodic review checklist items to be subjected to continuous review until three consecutive IEPs are correct. Special education providers who are new to the building are required to undergo review of their IEPs for all items of the IEP checklist procedure. MPS required SELLs to confer, no later than December I, 2004, with the special education supervisor assigned to the building on all non-checklist items assessed at the periodic review level, and to confer with building principals if problem items are identified, and to complete activities to correct the problems within 30 days.
143. After the March 2004 assessment, DPI staff evaluated whether each SELL carried out his/her work consistent with the training DPI had provided the SELLs, by reviewing the forms the SELL had completed for one of the SELL's schools.
144. The results of the overall assessment indicate compliance concerns including the following findings. The following findings are not limited to the allegations in this lawsuit.
a. Half ofMPS schools (50.6%) merit ongoing oversight. b. I0.9% need intensive monitoring, including 25% of high schools and 28%
of middle schools. c. 61.5% ofMPS schools either merit intensive monitoring or ongoing
oversight. 145. As measured by MPS standards, the MPS district as a whole is 90.05% compliant and merits ongoing oversight. 146. The MPS CIFM Action Plan was revised in September, 2004, to reflect activities completed during the 2003-2004 school year, and to include activities for the 2004-2005 school year.
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147. As with the original MPS CIFM Action Plan and subsequent revisions, MPS was required to address IDEA requirements identified as "not implemented" during the DPI May 2000, May 2001 and May 2002 on-site compliance reviews, and was required to address the issues identified in the IDEA complaint CCAPs.
148. The September 2004 MPS CIFM Action Plan required MPS to conduct refresher training for the SELLS and for returning building-level reviewers, on the checklist and nonchecklist requirements, the checklist system, and the support level requirements for noncompliance items. The September 2004 plan also required the SELLs to train new building level and other reviewers on these areas.
149. The September 2004 MPS CIFM Action Plan required MPS to evaluate the same specific checklist and non-checklist items as were in the original September 2002 Internal Audit System Action Plan in its March 2005 annual self-assessment.
150. The September 2004 MPS CIFM Action Plan required MPS to complete a building-level support plan for its buildings.
151. MPS has submitted, and DPI has approved a District-Level Support Plan which identifies MPS's 2004-2005 numerical objectives in 14 specific compliance areas, identifies the specific activities MPS will engage in to reach its numerical objectives, and which identifies the criteria by which DPI will measure MPS's success and identifies the March 2005 point-in-time self-assessment as the process by which MPS's achievement will be evaluated.
152. For the March 2005 self-assessment, DPI required MPS to address the following items related to Child Find:
a. "The child's parent attended the meeting to determine whether the child is or continues to be a child with a disability or participated by other means, such as individual or conference telephone calls; or if the child's parent did not attend or participate by other means in the meeting to determine
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whether the child is a child with a disability, there is a record of attempts to arrange a mutually agreeable time and place." b. "LEA representative attended the meeting(s) to determine whether the child is a child with a disability." 153. With respect to the first item above- whether the parent attends or otherwise participates in initial and/or subsequent IEP team meetings- the 2004-2005 MPS Continuous Improvement Focused Monitoring District-Level Support Plan provides the following objective: "MPS will reach the periodic review level for 100% of the parent participation items." 154. With respect to the second item above- whether the LEA representative attends initial and/or subsequent IEP team meetings- the 2004-2005 MPS Continuous Improvement Focused Monitoring District-Level Support Plan provides the following objectives: (!) "95% of all IEP's (initial and reevaluations) developed between September 2004 and March 24, 2005, will include the participation of a regular education teacher and a representative of the local educational agency (LEA) in the review of data and determination ofthe possible need for additional testing;" and (2) "The District will achieve 99% LEA participation in all IEP team meetings." 155. During fall2004, DPI consultants Elliott Weiman and Janice Duff met with MPS employee Paul Pelzek to revise the annual building assessment for 2005 based upon recommendations from MPS supervisors and SELLs and DPI staffs experience with the 2004 MPS annual building assessment. Changes were made to procedures and the use of information technology was planned. DPI and MPS analysis of the 2004 annual building assessment identified a need for additional training related to discipline requirements. In January 2005, DPI consultants Janice Duff and Brent Odell trained MPS supervisors on annual building assessment items relating to discipline requirements. DPI consultants Janice Duff, Elliott Weiman, Brent Odell and Anita Castro participated in the February 2005 training ofMPS supervisors regarding
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the standards and procedures for the annual building assessment. Also in February 2005, DPI consultants Janice Duff and Elliott Weiman trained DPI consultants Lynn Boreson, Jack Marker, Brent Odell and Teresa Goodier to conduct oversight activities to assess the reliability of the MPS annual building assessment.
156. In March, 2005 DPI completed oversight activities to assess the reliability of the MPS annual building assessments. DPI reviewed individual student records, including IEP team records related to individual students, and interviewed special education supervisors and SELLs about their assessment activities.
157. In March, 2005 the DPI consultants trained in February assessed the reliability of the MPS annual building assessment. One school was selected for each of the nine SELLs. In the schools selected, DPI assessed each item in the MPS annual building assessment to determine whether the item was reliably assessed by the SELL and the special education supervisor. DPI staff selected student records from the sample of student records assessed by MPS. DPI staff reviewed these student records to determine whether DPI staff agreed with the MPS staff about compliance for each item in the annual building assessment. Non-checklist items in the annual building assessment are addressed through interview in addition to or in lieu of records reviewed. To assess items addressed through interviews, DPI staff interviewed the school's SELL and supervisor who conducted the interviews during the annual building assessment. DPI staff determined whether MPS staff obtained relevant information upon which to make a reliable conclusion and whether MPS staff correctly applied the standard for each item. When DPI staff found an item was not reliably assessed, DPI staff provided feedback and training as part of the on-sight activities. After completing on-sight activities in April2005, DPI staff compiled for each SELL a list of items that may not have been reliably assessed. DPI staff
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met with the SELLs as a group and individually in April 2005 to discuss the lists and train them on follow-up procedures. Two SELLs, Claudia Weaver and Jim Lawton assessed all items. Each remaining SELL was provided an individual list of items which they had not reliably assessed in the building visited by DPI. Each of those SELLs was instructed to reassess those items in the school's visited by DPI and to use the new score for those schools. Those SELLs were also trained and instructed to test the reliability of the items on each of their lists in all of their other schools. To test the reliability of those items, the SELL used the same procedure used by DPI to test the reliability of annual building assessments. If the SELL found that an item was not reliably assessed after testing, the SELL was instructed to reassess the item in the building and use the new score. Where the assessment process revealed an error, DPI ordered MPS to correct the error by July I, 2005.
158. The MPS CIFM Action Plan was recently revised in April, 2005, to reflect the completion of many ofthe activities surrounding MPS's second district-wide, building-based assessment of each school's performance with respect to the checklist and non-checklist items; to reflect the completion of many ofDPI's activities to assess the reliability of those assessments, such as the review of IEP team records related to individual students and interviews of special education supervisors and SELLs; and to identify additional activities that will occur. C. MPS Data Regarding Untimely Evaluations
159. MPS provided WCA with two reports pertaining to Initial Referrals to Special Education with Placement occurring after the legally required 90 day time-line. The first report is dated with referral Dates 6/1103-7/8/04. This is the most recent report of over-due evaluations received by WCA from MPS.
160. The first report mentioned in the previous finding, documents 114 IEP placement offer dates that were over the 90 day time-line. Past-due days range between 1 and 267 days. 58
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children had evaluations that were overdue between 1 and 20 days. 44 children had IEP evaluations that were completed between 21-60 days past due. 5 children had evaluations that were completed more than 90 days over due. One child had an initial evaluation that was 267 days past due. No information is provided regarding the reason for the delay in initial evaluation. The average past due number of days was 30 days.
161. The second report is an older report of special education evaluations that are past the legally required 90 day time-line for completion. This report is dated 11118/03. The period of the report is 8/23/95 through 6/30/03.
162. From page 6 through 43 of the report there were 978 past due initial evaluations for the report dates of06/00 through 06/03. Overdue days ranged from I to 579. 68 children had their evaluations completed I 00 or more days past due. Two children had initial evaluations that took 600 or more days to complete. The average days number of past due days is 37.
163. Additionally, in December 2004, the special education supervisory staff was trained again regarding timely evaluations and compensatory services at Central Office. The current MPS IEP Team Procedural Handbook reflects district policy and procedures regarding timely evaluations and compensatory education if those timelines are not met.
164. It is MPS policy that in order to ensure continued compliance with the evaluation timeline, special education supervisors generate IEP activity reports through SSlMS/Encore on a weekly basis. This report gives the supervisor information regarding all upcoming IEP activities in each building which allows them to monitor and comply with the 90-day timeline requirements. It is MPS policy that if an evaluation goes over the timeline without a valid extension, the supervisor must ensure that compensatory services are discussed at the initial IEP
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team meeting if the student is found eligible for special education. It is MPS policy that SELLs also monitor this process. D. Specific IDEA Complaints
165. DPI has ordered MPS to change its policies and procedures for special education referrals when they are found to be deficient; e.g., in 2001, when it directed MPS to eliminate policies that might have required MPS staff to take actions when making a referral that are not required in the law, and ordered MPS to clarify that when persons other than MPS staff request evaluations, the 90-day timeline begins at the time any MPS staff member receives the written request.
166. Part ofDPI's oversight responsibility is to investigate and resolve special education complaints against school districts.
167. Copies ofDPI's complaint investigation decisions from 1995 to the present time can be found on DPI's website, http://www.dpi.state.wi.us/dpi/dlsea/een!complain.html. , except as noted on the web pages for each year's decisions.
168. Between January 1, 1995 and May 24, 2005, DPI has issued decisions in five cases where the issues related to initial referral, initial evaluation and the initial IEP Team meeting.
169. In Case No. 01-001, a parent signed the MPS written request for an extension of the 90-day timeline for completing an initial evaluation, but the district did not clarify her intentions in light of her not having checked one of the boxes on the form either consenting, or refusing to consent, to the extension. On February 19, 2001, DPI ordered MPS to submit a corrective action plan to ensure that the district evaluates children with a suspected disability in a timely manner. The case was closed on June 26, 2002, after DPI found acceptable progress in
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addressing the directives in the complaint decision, after its review ofMPS' corrective action documentation.
170. In Case No. 02-027, MPS convened an IEP team meeting with respect to a child who had previously been determined to be eligible for special education for the purposes of determining whether the child continued to be eligible for special education, developing an annual IEP, and other issues. The parents were present at the meeting. The case did not involve an initial referral, evaluation, or IEP team meeting. At the meeting, the child's mother requested an independent educational evaluation ("lEE"), but the district did not timely respond to the request. On May 15, 2002, DPI directed MPS to notify DPI about the corrective action it would be taking, and further directed MPS to revise its lEE policy to ensure that the district responds without unnecessary delay to a parent's request for an lEE, either by initiating a hearing to show its evaluation is appropriate or by ensuring that an lEE is provided at public expense. The case was closed on October 23,2002, after DPI approved MPS's corrective action measures.
171. In Case No. 02-031, DPI concluded on July 17, 2002, that MPS did not respond timely to a private child welfare agency case manager's request for a special education initial evaluation of a child. The case involved a miscommunication between a case manager and a school psychologist. DPI ordered MPS to carry out a number of corrective actions including the provision of training, evaluation of a child in a timely manner and inclusion of an appropriate item in the Disability Digest on evaluation. This case was closed on November 18, 2002 following receipt ofMPS documentation that the required activities had been completed.
172. In Case No. 02-045, the child's mother requested an lEE following the initial IEP meeting to determine the child's eligibility, develop an initial IEP, and determine an initial placement. MPS failed to respond to the parent's IEP request in a timely manner. The case
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related to a parent request ofMPS made after the initial IEP team meeting. On August 6, 2002, DPI directed MPS to engage in the same remedial activity with respect to lEE requests as it required in Case No. 02-027. The case was closed on October 23, 2002, after DPI approved MPS's corrective action measures.
173. In Case No. 04-43, DPI issued a decision on November 8, 2004, in which it determined that MPS failed to complete the evaluation of a child referred for evaluation within the 90-day timeline provided by state statute. As a part of the corrective action, MPS distributed a copy ofthe October 2004 revision of the "IEP Team Procedural Handbook" to all local education agency representatives, special education providers, school psychologists, building coordinators, special education leadership liaisons, special education supervisors, and student services program administrators no later than December 3, 2004, and to provide DPI with written assurances by that same date that all noted staff were informed about referral procedures and requirements. DPI closed the case on May 2, 2005, following receipt ofMPS documentation that the activities which DPI had ordered, had been carried out. E. DPI On-Site Monitoring of MPS
i. DPI's On-Site Monitoring Of MPS, 1991 To 1997 Re-Authorization OfiDEA 174. In 1991, the Department of Public Instruction ("DPI") established a three-year onsite review cycle to evaluate Wisconsin school districts' compliance with the special education procedural requirements of the Individuals with Disabilities Education Act ("IDEA") and state law. 175. In October 1993, the U.S. Office of Special Education Programs ("OSEP") conducted an on-site review ofDPI's implementation ofthe IDEA. As a result of the review, in which OSEP found DPI to be out of compliance with its obligations to adequately monitor school districts' implementation of the IDEA, and before the second three-year review cycle
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began, OSEP required DPI to redesign its procedures for onsite review of school districts. Reviews of school districts were suspended during the redesign period.
ii. DPI's on-site Monitorinl! ofMPS, 1997-98 throu~:h 1999-2000 School Years. 176. IDEA was re-authorized in the summer of 1997, before the beginning of the third year ofDPI's new six-year on-site review schedule. Because of the numerous changes to special education law, DPI's six-year on-site review process was suspended and compliance review efforts were refocused to assist Wisconsin school districts to understand and implement the new provisions of IDEA. 177. During the 1997-98 school year, the DPI special education team provided statewide in-services to Wisconsin school districts to familiarize themselves with the new law and to assist them to develop and implement an IDEA '97 self-assessment and implementation plan ("SAIP"). During the 1997-98 school year, school districts completed an assessment of their compliance with IDEA '97, and developed their plan to fully implement it. 178. During the summer of 1998, DPI disseminated to all school districts a model special education forms system to assist them in implementing special education procedures correctly and to efficiently document their procedural compliance. With the exception of one school building, MPS adopted DPI's model forms. DPI again reviewed MPS' forms in the summer of2000, and told MPS that its forms would be adequate ifMPS adopted DPI's June 2000 forms updates. DPI reviewed the forms from one MPS school, Milwaukee Education Center, in February 2001. DPI informed MPS that the school's forms failed to include prompts for many items on DPI's forms checklist, and that some of the prompts on the forms were not informative enough to adequately prompt the user.
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179. During the fall of 1998, DPI staff conducted multipurpose statewide regional meetings concerning the refocused compliance review process. All school districts, including MPS, were required to attend the meetings. In preparation for the meetings, school districts were required to complete a SAIP progress report. Included in the reports were a description of the district's progress on each element in the SAIP, parental involvement and empowerment, staff development activities regarding IDEA and the SAIP process, and the results ofDPI's required self-assessment of compliance with several of the new IDEA requirements through a review of student records. The meetings gave DPI the opportunity to provide technical assistance regarding the interpretation of state and federal law, and refinements to the SAIP process to correct the implementation errors found in the record reviews.
180. DPI found in the Spring of 1998 that 17% ofMPS students with disabilities did not have a current IEP in effect. In addition, the evaluation logs MPS submitted to DPI showed that only 81.1% of evaluations during the 1997-98 school year had been timely completed.
181. Throughout the 1998-1999 school year, DPI required MPS to take corrective action with respect to these issues, and required MPS to regularly provide DPI with data that reflected the extent ofMPS's compliance with the requirements to have current IEPs in effect and to timely complete student evaluations.
182. Between 1998 and 1999, DPI continued to receive complaints from individual students regarding MPS's duty to timely evaluate and MPS's duty to have current IEPs in effect.
183. On June 1,1999, DPI notified MPS that 7.4% ofMPS students did not have current IEPs recorded in the district database as of December 1, 1998 and that many of its evaluations were untimely. As a result, DPI notified MPS that the district would not receive $604,206 of its IDEA funds. DPI further informed MPS that it would approve the use of IDEA
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discretionary funds only to resolve outstanding compliance issues. DPI directed MPS to have a current IEP in effect for all children and to eliminate the evaluation backlog prior to the beginning of the 1999-2000 school year.
184. Also in June, 1999, DPI first consolidated its oversight of the corrective actions MPS had been ordered to take in response to substantiated IDEA complaints from individual students on the issue of timely evaluations. On June 28, 1999, DPI sent a letter to MPS, stating: "As you know, the department has five open complaints against MPS regarding timely evaluations (94-044, 98-050, 98-059,99-009, 99-014). The department will consolidate its oversight of necessary corrective action in those complaints and close each of the complaints when MPS documents: (1) compliance with any child-specific directive(s) in the decision, and (2) compliance with the two relevant directives issued in Superintendent Benson's letter of June 1, 1999."
185. On July 7, 1999, DPI consolidated its oversight of the corrective actions MPS had been ordered to take in response to substantiated IDEA complaints from individual students on the issue of current IEPs. DPI's letter stated: "As you know, the department has four open complaints against MPS regarding current IEPs in effect (97-045, 98-009, 98-049, 99-013). The department will consolidate its oversight of necessary corrective action in those complaints and will consider the relevant issue closed when MPS documents: (I) compliance with any childspecific directive(s) in the decision, and (2) compliance with the two relevant directives issued in Superintendent Benson's letter of June 1, 1999."
186. In August 1999, MPS provided DPI with data indicating that 99.7% of eligible students have current IEPs. Also in August 1999, DPI verified that a sample of students all had current IEPs. In September 1999, DPI informed MPS that the district had corrected the violation
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of not having current IEPs in effect, and told MPS that it would continue to work with MPS to maintain its progress. In January 2000, DPI again verified that a sample of students had current IEPs. In May 2000 on-site monitoring, DPI found that 98.3% of students had current IEPs. In May 2001 on-site monitoring, DPI reviewed a larger sample of children, and concluded that 98.9% of students had current IEPs. In May 2002 on-site monitoring, DPI concluded that 99.61% of the reviewed sample of student records had current IEPs. In March 2004, data from MPS' annual building assessment indicated that 98.4% of students had current IEPs.
187. Since June 1999, DPI has also continued to follow up on MPS's duty to timely complete evaluations. In May 2000, DPI on-site monitoring revealed that 95.6% ofMPS's sampled evaluations were completed timely. In July 2000, MPS evaluation logs submitted for DPI's review showed that 98.1% of evaluations initiated in January through March were completed timely. Although DPI informed MPS in July 2000 that the issue of timely evaluations was resolved, DPI has continued to require MPS to submit IEP team evaluation logs since the resolution of the issue.
188. The federal regulations implementing IDEA '97 were finalized in March 1999. 189. OSEP authorized DPI to continue its refocused on-site review process during the 1999-2000 school year. DPI conducted on-site reviews in 96 school districts, chosen to represent 50% of total public school enrollment. MPS was among the school districts chosen. 190. MPS and the other 95 districts performed a review of student records for the purpose of making a self-assessment of its compliance with IDEA requirements related to (a) parent participation in the individualized educational plan ("IEP") process; (b) participation in the general curriculum; (c) IEP team composition, duties and accountability; (d) teacher knowledge of their IEP responsibilities; and (e) transition requirements for 14 year olds.
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191. DPI expanded its 1999-2000 review ofMPS to include a review of IDEA

violations found through DPI's IDEA complaint investigations in MPS. DPI reviewed MPS's (f)

implementation of student IEPs, (g) the completeness ofMPS evaluations and IEPs and the

timeliness ofMPS's notice to parents of their child's placement, and (h) the extent to which MPS

students had IEPs in effect.

192. DPI conducted its 1999-2000 on-site review ofMPS by visiting three elementary

schools, three middle schools and three high schools. Ten student records were reviewed for

each site. DPI reviewers evaluated the soundness ofMPS's self-assessment of its IDEA 1997

compliance, and also interviewed parents, regular education teachers, special education teachers,

the building principal and the special education supervisor for each site.

193. DPI's 1999-2000 on-site monitoring did not find implementation errors with

respect to issues (f), (g), and (h), above, but did find implementation errors in six other areas:

a. Parental participation in the review of existing evaluation data to determine the need for additional testing during initial evaluations andreevaluations;
b. Explanations in IEPs ofthe extent to which students will participate in the regular education enviromnent and curriculum;

c. Proper description in IEPs of students' present level of educational performance;

d. Proper statements in IEPs of students age 14 and older of transition service needs;

e. LEA representative participation in IEP meetings; and

f.

Proper annual goal progress reports for all students.

194. On October 26,2000, DPI approved MPS's CAP regarding the 1999-2000 on-site

review. DPI accepted MPS' written verification of its completion of all corrective activities by

the summer of2001.

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195. As part of the 1999-2000 on-site review process, DPI also reviewed MPS's special education forms. DPI determined that, with the exception of some minor language changes that were not inconsistent with state or federal law, MPS had adopted DPI's sample forms, and that MPS's forms were adequate.
iii. DPI's on-site monitoring of MPS compliance with the requirements of IDEA and state law, 2000-2001 school year.
196. During the 2000-2001 school year, DPI conducted on-site reviews at MPS and 76 other school districts. DPI designed the process to focus on core areas in IDEA '97 that were most related to student outcomes, consistent with the emphasis in OSEP's Continuous Improvement Monitoring Process ("CIMP") which focused on federal, state and local resources on improved results for children with disabilities and their families.
197. The core areas selected for review included those reviewed in the prior year's review, and a review of other procedures related to: (a) annual goal statements; (b) behavior as a special factor; (c) discipline; (d) implementation ofiEPs; (e) children in residential care centers; and (f) educational environment and prevalence rates.
198. DPI expanded its on-site review ofMPS to include (g) MPS's progress in implementing corrective activities resulting from the 1990-2000 review; (h) MPS's progress in implementing corrective activities resulting from six IDEA complaint investigations concerning special education placements; (i) the efficacy ofMPS's corrective actions concerning special education placement procedures and certain IEP team responsibilities of LEA representatives; (j) building leadership staff and special education supervisors' knowledge of the IDEA disciplinary requirements; and (k) the district's system for recording and tracking disciplinary removals of students.
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199. As DPI did in 1999-2000, DPI reviewers reviewed records from three elementary, three middle and three high schools, and interviewed parents, teachers and administrators.
200. DPI's 2000-2001 on-site monitoring ofMPS found implementation errors in six areas:
a. documentation and notice of the review of existing data as part of initial and re-evaluations;
b. IEP content including present levels of educational performance and annual goal statements, documentation of students' participation in statewide assessments, and statements of supplementary aids and services and program modifications and supports for school personnel;
c. placement procedures; d. disciplinary removals of children for more than 10 days in a school year; e. informing teachers with IEP responsibilities oftheir specific
responsibilities; and f. policies and procedures for accepting and processing special education
referrals. 201. DPI required MPS (1) to complete the corrective activities in the district's 19992000 onsite review CAP and the CAPs related to IDEA complaints concerning placement; (2) to take action to ensure that all LEA representatives understand their IEP role and responsibilities; (3) to continue staff development activities concerning special education placement procedures and the disciplinary requirements; and (4) to develop a plan to ensure that the district's methods for documenting and tracking disciplinary removals of special education students from school for more than 10 days in a school year protects their rights to a free and appropriate public education ("F APE"). 202. DPI's July 17, 2001 Jetter to MPS summarizing its 2000-2001 on-site monitoring findings observed that MPS needed an effective centralized system of administrative accountability that reached down to the school building level in order to resolve the compliance
60 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 20 of 39 Document 267-2

issues DPI had found through on-site monitoring and its other oversight activities. DPI stated that it was encouraged that MPS had agreed to develop and implement such a system by September 2001. and expressed its pleasure that the initial focus of the accountability system would be on the unresolved compliance issues DPI and MPS had been discussing.
203. One ofDPI's findings in its 2000-2001 monitoring report specifically related to a MPS policy and procedure that could potentially delay the referral of a student suspected of being a child with a disability. The district's policies in effect at the time might have required district staff to take actions when making a referral that are not required in the law (i.e., a reasonable cause determination). These actions might delay a referral by a staff member or interfere with the duty to make a referral. DPI instructed MPS that the district's policies and procedures must make clear that these actions may not delay the referral when the referring person reasonably believes the child is a child with a disability. While MPS 's policies correctly explained the 90-day evaluation time limit requirement following referrals from parents and others, it did not clarify that the requirement also applies to referrals from district staff. DPI therefore directed MPS to add a clarification that any licensed school staff member who reasonably believes that a child has a disability is required to make a special education referral. In addition, DPI directed MPS to add new policy language clarifying that any physician, nurse, psychologist, social worker, or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability is required to refer the child to MPS. Moreover, DPI directed MPS to add policy language to clarify that when persons other than the school district staff make a written referral to the district, the receipt of the written referral by any MPS staff person marks the beginning of the 90-day timeline. MPS complied with DPI's directives.
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204. DPI approved MPS's CAP regarding the 2000-2001 on-site monitoring findings and directives on October 9, 2001. In April2002, DPI informed MPS that it needed only to demonstrate that the IEP Team Handbook Updates document was delivered to specified MPS personnel in order for DPI to verify that all activities required by the 2000-2001 onsite monitoring CAP were completed.
iv. DPI's on-site monitoring of MPS compliance with the requirements of IDEA and state law, 2001-2002 school year.
205. During the 2001-2002 school year, DPI conducted on-site reviews at MPS and 69 other school districts. DPI reviewers focused their review on three areas. First, the review team looked at the effectiveness ofMPS's activities to correct the implementation errors identified in the 1999-2000 on-site monitoring report. Second, DPI reviewed the areas of procedural noncompliance identified as statewide noncompliance areas in OSEP's October 2000 report. Third, DPI reviewed the procedural compliance issues contained in the five MPS CCAPs.
206. DPI reviewers concluded that, although MPS was correctly implementing the requirements identified by OSEP as statewide compliance issues, MPS continued to make implementation errors with respect to the issues identified in the 2000 on-site monitoring report, and that MPS's activities to implement the CCAPs had not corrected the procedural errors the CCAPs were designed to correct.
207. With respect to the implementation errors identified in the 2000 on-site monitoring report, DPI ordered MPS to collaborate with DPI staff to develop a corrective action plan to ensure correct implementation of each requirement, including timeframes for implementation of the corrective activities, identification of persons responsible for implementation, documentation to verify completion of the corrective activity, and a description of how and when MPS will measure whether the corrective activities had the desired effect.
62 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 22 of 39 Document 267-2

With respect to the procedural errors identified in the CCAPs, DPI ordered MPS to continue working through the CCAP process to correct the implementation errors.
208. In addition to the specific corrective activities ordered above, DPI ordered MPS to establish, by the beginning ofthe 2002-2003 school year, an effective, centrally administered system of special education procedural oversight and accountability mechanisms, with such mechanisms to be implemented at each school building. F. October 2000 Office of Special Education Programs' Evaluation of DPI's
Compliance With Its Oversight Responsibilities 209. During the weeks ofNovember 2, 1998, and February 22, 1999, the Office of Special Education Programs ("OSEP") of the United States Department of Education conducted on-site visits in Wisconsin for the purpose of assessing the state's compliance with the requirements of IDEA '97. OSEP reviewed the state's compliance with both IDEA Part C (services for children aged birth through two) and IDEA Part B (services for children aged three through 21 ). OSEP issued a report detailing its findings and recommendations on October 18, 2000. 210. OSEP's review consisted of two phases. First, OSEP engaged in a planning process to gather information about the state's Part C and Part B programs, using the results of self-studies, surveys of system participants, formally organized steering committees, and public forums in locations around the state, including Milwaukee, focused on the core ideas of IDEA '97. Second, OSEP conducted on-site visits to selected school districts, including MPS, for the purpose of collecting data to address issues identified during the planning phase. For its Part C review, OSEP collected information from the review of children's records, interviewed state personnel county personnel and interviewed parents. For its Part B review, OSEP reviewed student records, and reviewed district policies and procedures relating to the focus issues. OSEP
63 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 23 of 39 Document 267-2

also reviewed state policies, procedures and records, and interviewed DPI personnel, regarding the state's monitoring, complaint, mediation, due process and personnel development systems, technical assistance, and other issues.
211. OSEP's Part C review evaluated five broad areas for compliance with IDEA's requirements:(!) general supervision, (2) Child Find and public awareness, (3) early intervention services in natural environments, (4) family-centered system of services, and (5) early childhood transition.
212. OSEP found no areas of non-compliance with respect to statewide efforts to find children aged birth through three who may be in need of services, or with respect to public awareness of those early childhood services. OSEP found, however, that the Wisconsin Department of Health and Family Services ("DHFS"), the state's lead agency for Part C, did not ensure that in every county a transition planning conference was held at least 90 days before a child's third birthday for those children who might be eligible for Part B, or ensure that in every county a transition conference be convened for children who are not likely to be eligible for Part B services. some school districts.
213. MPS provides outreach to birth to three programs, Head Start programs, and other community early childhood programs regarding MPS referral procedures and special education programs and services. Data shows that about 90 percent of the children referred to MPS from the birth to three agencies qualify for special education.
214. MPS has an Early Childhood Assessment Team (ECAT) that makes certain that evaluations are completed and IEPs are developed in a timely manner prior to the child transitioning to MPS at age three. ECAT referrals are received from Head Start, Birth to 3 programs, hospitals, physicians, and parents. The ECAT has three Special Education Supervisors
64 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 24 of 39 Document 267-2

and four Diagnostic Teachers. A centralized database helps to assure that children in birth to three (Part C) programs who are transferring into MPS are evaluated and that the 90-day timeline is being met, unless there is a valid extension for a child-related reason.
215. If a child is not found to be eligible for special education, MPS staff give information to the parent regarding a placement that the child may be going to and provide other suggestions to the parent regarding their child needs. This information is part oftheir permanent MPS Special Services Information Management System for future tracking, as needed, depending on the progress of the child.
216. OSEP's Part B review evaluated four broad areas for compliance with IDEA's requirements: (1) parent involvement, (2) free appropriate education in the least restrictive environment, (3) secondary transition, and (4) general supervision.
217. OSEP's October 2000 Report states that one of the purposes of IDEA '97 was to expand and promote opportunities for parents and school personnel to work in new partnerships at the state and local levels. Under IDEA '97, parents gained the right to participate in meetings with respect to the identification, evaluation and educational placement of their child, and the provision of a free appropriate education to their child. OSEP found two strengths in the area of parent participation; DPI's Wisconsin Statewide Parent-Educator Initiative ("WSPEI'') to build parent-educator partnerships at the local school district level, and DPI's user-friendly web-site. OSEP encouraged school districts and DPI to support greater training for parents. OSEP found no areas of non-compliance with the parental involvement requirements ofiDEA that it gathered information about- in Milwaukee or in any of the other districts visited.
218. During the planning phase ofOSEP's review ofDPI's general supervision, participants expressed concern regarding the timeliness ofDPI's decisions on IDEA complaints,
65 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 25 of 39 Document 267-2

and concern about DPI's effectiveness in ensuring the timely correction of non-compliance, especially in districts with longstanding histories of noncompliance. OSEP noted that the participants in the planning phase were particularly concerned about longstanding noncompliance in two of the large urban districts OSEP visited in February 1999. At that time, OSEP visited Madison, Milwaukee, Racine, Bloomer, Mount Horeb, and River Falls. MPS was one of the school districts about which planning participants had expressed concern.
219. OSEP's report summarized DPI's on-site and other annual monitoring during the years 1995 through 2000, and DPI's planned monitoring activities for the 2000-2001 school year. OSEP noted no areas of non-compliance regarding this aspect ofDPI's oversight responsibilities.
220. OSEP found that DPI was not in compliance with IDEA's requirement that IDEA complaints be resolved within 60 calendar days.
221. DPI had acknowledged in 1998 that complaint decisions often were not issued within sixty days, and began to make improvements. From September 2000 to June 10, 2005, 77 IDEA complaints were filed against MPS. Two complaints were withdrawn. The issues in three other complaints were held in abeyance pending the outcome of due process hearings. Ofthe remaining 72 complaints, the decisions in all but number 01-067 were issued within 60 days. The decision in 01-067 was issued within 71 days. In that complaint, additional issues were raised after the complaint had been filed.
222. OSEP specifically addressed DPI's actions to ensure MPS's compliance with IDEA's requirements in its October 2000 report. The report summarized DPI's actions with respect to MPS's failure in 1998 to ensure that all students had current IEPs and MPS's failure to ensure that evaluations were completed within 90 days, including the withholding of funds, the
66 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 26 of 39 Document 267-2

direction of funds specifically for improving compliance, and continuing reporting and

verification requirements. OSEP encouraged DPI to continue to use financial and other

sanctions, where necessary, to achieve improved results, and encouraged DPI to evaluate the

effectiveness of the corrective activities it requires, and if necessary, to take more rigorous action

to ensure timely correction of districts' non-compliance.

223. Except for DPI's failure to resolve IDEA complaints within sixty days, OSEP did

not find any areas of non-compliance within Part B, the section of its report relating to DPI's

general supervision responsibility.

G. DPI's Oversight OfMPS' Compliance with IDEA and State Law Through the Development And Enforcement of Consolidated Corrective Action Plans
224. During the years 1998 through 2001, DPI experienced a large rise in the number

of IDEA complaints filed against MPS, alleging that MPS violated a student's rights under IDEA

and state law. A summary of the numbers of substantiated complaint decisions from January

1995 through March 31, 2005, appears in the following chart:

IDEA complaints filed aeainst MPS

Total cases filed

Cases where violation(s) fonnd

1995

4

2

1996

8

2

1997

5

4

1998

19

16

1999

22

14

2000

18

13

2001

39

33

2002

12

9

2003

9

6

2004

9

9

2005

(through Case

3

2

05-004)

67 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 27 of 39 Document 267-2

225. On June 8, 2000, DPI issued a decision in IDEA Complaint No. 00-10, finding that MPS violated IDEA's placement requirements. The directives to MPS noted that DPI had four open complaints where MPS was determined to have violated the law regarding how it selected the building in which services were to be delivered to children with disabilities. DPI informed MPS that it was consolidating its oversight ofthe corrective activities MPS would be required to complete with respect to this area. DPI's consolidated oversight regarding this issue came to be referred to by DPI and MPS as the "Placement Consolidated Corrective Action Plan (CCAP)."
226. On October 2, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in four open complaints where MPS had been directed to take steps to provide children with a free and appropriate public education within a reasonable amount of time after the district learns that a child with a disability is not attending school. DPI's consolidated oversight regarding this issue came to be referred to by DPI and MPS as the "Non-Attendance Consolidated Corrective Action Plan (CCAP)."
227. On October II, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in five complaints where MPS was determined unlawfully failed to provide a free and appropriate public education by repeatedly suspending or excluding children with disabilities. DPI's consolidated oversight regarding this issue came to be referred to by DPI and MPS as the "Discipline Consolidated Corrective Action Plan (CCAP)."
228. On August 10, 2001, DPI informed MPS that it was consolidating its oversight of required corrective action in three open complaints involving speech and language issues. DPI's consolidated oversight regarding this issue came to be referred to by DPI and MPS as the "Speech and Language Consolidated Corrective Action Plan (CCAP)."
68 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 28 of 39 Document 267-2

229. On October 3, 2001, DPI issued a decision in IDEA Complaint No. 01-058, finding that MPS failed to provide services to a student consistent with the requirements of the student's IEP. The decision notified MPS that DPI had seven open complaints regarding MPS's failure to provide services consistent with the IEPs, and notified MPS that DPI was consolidating its oversight of required corrective action in the seven open complaints. DPI's consolidated oversight regarding this issue area came to be referred to by DPI and MPS as the "IEP Consolidated Corrective Action Plan (CCAP)."
230. As DPI substantiated additional complaints on issues under the rubric of the five CCAPs, DPI added the complaint to the CCAP and imposed additional corrective actions that had to be performed by MPS to DPI's satisfaction in order to be closed.
231. By October 19,2001, fourteen complaints had been incorporated into the Placement CCAP. Seven complaints had been incorporated into the Non-Attendance CCAP. Nine complaints had been incorporated into the Discipline CCAP. Three complaints had been incorporated into the Speech and Language CCAP. Seven open complaints were part of the IEP CCAP. H. DPI's Response to the Directives in the 2004 Re-Authorization ofiDEA Regarding
State Oversight of Local School Districts. 232. Under IDEA, states, through their state educational agency ("SEA"), are obligated to ensure that all children with disabilities residing in the State, including children with disabilities attending private schools, regardless of severity of their disabilities, and who are in need of special education and related services are identified, located, and evaluated. 233. Under IDEA, the SEA is responsible for approving or disapproving applications by local educational agencies ("LEAs") for IDEA funds. Within the LEA application, the LEA must assure that it has effective policies and procedures consistent with state and federal legal
69 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 29 of 39 Document 267-2

requirements of IDEA. Within the LEA application and approval process, if the SEA determines that the LEA or State agency is failing to maintain programs providing free appropriate pubic education to children with disabilities through implementation of its policies and procedures, corrective actions will need to be made by the LEA to assure compliance with IDEA.
234. Under IDEA, states must have procedures for resolving special education related complaints, including an independent on-site investigation ofthe allegations within the complaint. In addition, the complainant must be given opportunity to submit additional information, either orally or in writing, and all relevant information must be reviewed prior to making an independent determination of compliance.
235. In order to carry out its responsibilities under the IDEA, the SEA must monitor the LEA for compliance with IDEA requirements. If the SEA finds that the LEA is not following such requirements, the SEA must take steps to see that corrective action is taken. The SEA may reduce or not provide any further payments it would have made to the LEA until the SEA is satisfied that the LEA has come into compliance.
236. The 1997 Amendments of the IDEA and the implementing federal regulations for IDEA are silent on the prescribed type and frequency of procedures that an SEA is to use in assuring that the legal provisions are being met. However, each SEA is responsible for the adoption and use of proper methods to monitor public agencies responsible for carrying out special education programs.
237. Since at least 1993, DPI has received periodic guidance from the United States Department of Education Office of Special Education Programs ("OSEP") about its special education oversight activities.
70 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 30 of 39 Document 267-2

238. In October 2000, OSEP found no errors in DPI's method of ensuring the compliance of Wisconsin school districts with the requirements of IDEA and state special education law. Under that method, DPI made on-site visits to a subset of Wisconsin school districts each year, reviewed a sample of student records, interviewed staff, and reviewed the district's policies and procedures. The principal emphasis in DPI's on-site reviews was on the district's compliance with the procedural requirements of IDEA.
239. DPI completed the sixth year of monitoring under the OSEP-approved model in the 2002-2003 school year.
240. In 2000, OSEP began to focus its monitoring efforts on those requirements most closely related to improving results for children with disabilities and those States most in need of support to improve compliance and performance.
241. In 2003, OSEP moved from a Continuous Improvement Monitoring Process ("CIMP") to the Continuous Improvement and Focused Monitoring System ("CIFMS"), and made a commitment to states to provide technical assistance about that system.
242. In 2003, OSEP funded the National Center for Special Education Accountability Monitoring ("NCSEAM") to assist states in developing monitoring systems using a continuous improvement focused-monitoring approach. In implementing a focused-monitoring, continuous improvement system, it is assumed that the SEAs have limited resources for carrying out state monitoring efforts and, therefore, should strategically focus on some, but not all of the literally hundreds of legal requirements within monitoring systems. Implementation of such a system also assumes that SEAs and LEAs will make monitoring decisions based on data and information and will select school systems to be monitored based on selected outcomes that have been identified to be critical by the state's stakeholders.
71 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 31 of 39 Document 267-2

243. Many states sought NCSEAM's assistance soon after it was created. Because the demand for NCSEAM's services exceeded its ability to effectively provide those services, several states, including Wisconsin, were put on a waiting list.
244. Although DPI did not have NCSEAM's guidance, it piloted a statewide CIFMS Monitoring System during the second semester of the 2003-2004 school year. The purpose of the new system is to achieve positive results for children with disabilities in Wisconsin while ensuring continued procedural compliance with state and federal laws and regulations. The pilots occurred in six school districts and focused on exiting, participation and performance on statewide assessment, disproportionality, and environment. Activities in the pilots included data analysis; parent, student, and staff focus groups, interviews, and surveys; policy reviews; and a self-assessment of procedural requirements. The purpose of the pilots was to test the new protocols. Feedback from participating districts was positive; districts appreciated the collaborative nature of the new system and the focus on improving student outcomes. The results of the pilots were shared with a CIFMS stakeholder group in May, 2004.
245. DPI entered into a partner relationship with NCSEAM in August 2004, for the purpose of getting NCSEAM's technical assistance with the development ofDPI's CIFMS Monitoring System.
246. The Continuous Improvement Focused Monitoring Process articulated by NCSEAM is built around the following themes:
a. Consensual, measurable priorities identified by stakeholders. b. Effective policies and procedures to guide and direct program planning
and implementation. c. Data on program processes and results and use of these results to guide
program improvement.
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d. Targeted training and technical assistance to remedy problems and improve teaching and learning.
e. An effective and responsive dispute resolution system to resolve complaints and differences among school personnel, among school personnel and parents, and among schools and other agencies.
f. Meaningful focused monitoring that measures selected compliance areas and outcomes.
g. Corrective actions to remedy identified problems, incentives to support needed change, and sanctions to insure noncompliance will be corrected.
247. IDEA was reauthorized by the passage ofH.R. 1350, the Individuals With
Disabilities Education Improvement Act of 2004, in December, 2004.
248. The IDEA re-authorization has codified focused monitoring as the primary focus
of both Federal and state monitoring activities. The Act requires those monitoring activities to
primarily focus on:
a. Improving educational results and functional outcomes for all children with disabilities; and
b. Ensuring that IDEA program requirements are met, with particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities.
249. The IDEA re-authorization requires each state to monitor the local educational
agencies located in the state using quantifiable indicators, and using such qualitative indicators as
are needed to adequately measure performance in the following priority areas:
a. Provision of a free appropriate public education in the least restrictive enviromnent;
b. State exercise of general supervisory authority, including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services as defined in sections 602(34) and 637(a)(9); and
c. Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.
73 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 33 of 39 Document 267-2

250. Based on NCSEAM's guidance, DPI has expanded the membership and diversity of the statewide stakeholders group, and has expanded the scope of the subjects on which the group's input is being sought. DPI has involved stakeholders in the development and review of the new CIFMS system by holding meetings to seek stakeholder input. In November 2004, Dr. Alan Coulter and Dr. Sandy Schmitz, Director of Technical Assistance for NCSEAM facilitated a stakeholder meeting to identify priority areas for focused monitoring. After a review of statewide data, the stakeholders group selected graduation rates and gth grade reading performance as focus areas for monitoring.
251. The twenty-two member statewide CIFMS stakeholders group includes attorney Jeffrey Spitzer-Resnick from the Wisconsin Coalition for Advocacy (lead counsel for the class in this lawsuit), MPS Director of Special Services Patricia Yahle, MPS Parent Information Specialist Georgette Rodriguez, and Jan Serak, from the Family Assistance Center for Education, Training and Support, Inc. ("FACETS"), a statewide parent advocacy group based in Milwaukee.
252. The stakeholders also determined a process for selecting districts for on-site monitoring was also outlined. The stakeholders determined that the state should divide the state into monitoring cohorts by enrollment size, and concluded that CIFMS monitoring should be done on the basis of seven enrollment-based cohorts, and an eighth cohort consisting of randomly selected districts. Because MPS's enrollment is approximately four times larger than the enrollment of Wisconsin's next-largest school district, the stakeholders concluded that MPS should be its own cohort. The effect of the stakeholders' decision means that MPS will be subject to statewide CIFMS on-site monitoring every year, beginning with the 2005-2006 school year.
74
Case 2:01-cv-00928-RTR Filed 06/24/05 Page 34 of 39 Document 267-2

253. On January 7, 2005, representatives ofDPI and MPS had a telephone conference with Dr. Coulter to discuss how the state's focused monitoring would be done in MPS schools. DPI and MPS agreed to use the administrative accountability structure of the Special Education Oversight Accountability Plan ("SOAP"), through which MPS is divided into nine groups of schools, each overseen by a Special Education Leadership Liaison ("SELL"), as the within-MPS cohorts for implementing statewide CIFMS monitoring.
254. During the spring semester of the 2004-2005 school year, DPI has conducted pilot focused monitoring and data verification visits in volunteer districts. The pilots consist of data analysis activities with the district, focus forums, individual interviews, surveys, policy reviews, and individualized education program (IEP) record reviews. DPI staff has shared results with the district and has discussed strengths and possible areas for improvement. DPI also shared the results with NCSEAM and the stakeholders group.
255. On May 3-4, 2005, the stakeholders group met with Dr. Coulter to provide stakeholders with an update on the development of Wisconsin's CIFMS System and to develop a plan for completing the Part B State Performance Plan (SPR) and Annual Performance Report (APR) required by IDEA 2004.
256. The stakeholders group is currently scheduled to meet with Dr. Coulter on three future dates. On July 19-20,2005, the stakeholders will continue discussing the differing requirements of state and federal law and how to address those differences; and will get an update on the status of the application(s) for waiver. On October 20-21,2005, and again on February 7-8, 2006, the stakeholders will receive an update in the statewide CIFMS monitoring system.
75 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 35 of 39 Document 267-2

257. The statewide CIFMS System is separate and distinct from DPI's oversight of MPS's implementation of SOAP and the MPS CIFMS Action Plan. The statewide CIFMS System is designed to provide focused monitoring of all state school districts, specifically including MPS, with respect to the statewide graduation rates and gth grade reading performance focus areas selected by the stakeholders group, in accordance with the focused monitoring requirements of IDEA 2004. SOAP is designed to create a centralized special education compliance accountability structure within MPS's decentralized, building-based educational services delivery model. The MPS CIFMS Action Plan is designed to improve MPS's compliance with the procedural requirement deficiencies identified in 2000-2002 monitoring reports and CCAPs, to create continuity between the procedural compliance focus of the state's previous oversight model and the student outcome focus of the new federally mandated continuous improvement focused monitoring model, and to create capacity within MPS to reliably perform the self-assessments required under the continuous improvement focused monitoring model, and to reliably implement district-wide change when necessary.
76 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 36 of 39 Document 267-2

WISCONSIN COALITION FOR ADVOCACY, INC.

Jj -td

Dated this

day of June, 2005.

Monica M. Murphy 6737 W. Washington Street, Suite 3230 Milwaukee, Wisconsin 53233 (414) 773-4646 Attorneys for PlaintiffS

77 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 37 of 39 Document 267-2

QUARLES & BRADY, LLP

[) tftv'
Dated thisa.t- day of June, 2005.

By: ~4&V
GaryM.%SC W. Stuart Parsons Adrienne J. Olson 411 E. Wisconsin Ave, Suite 2040 Milwaukee, WI 53202-4461 (414) 277-5000 Attorneys for MPS defendants

WISCONSIN DEPARTMENT OF JUSTICE

Dated this __ day of June, 2005.

By: ________________________________
Bruce Olsen P.O. Box 7857 Madison, WI 53707-7857 (608) 266-2580 Attorney for DPI defendants

78 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 38 of 39 Document 267-2

Q6/23/2005 18:05 6082672223

WIS DEPT OF JUSTICE

PAGE 02/02

QUAKLb:S & BRADY, LLP

Dated thi~ _ _ rl~y of June, 2005.

_ _ _ _ _ _ _ _ _ _ __ By:
Stuart-~P~ar=s=on_s
Gary Ruesch Adrienne Olson 411 E. Wisconsin Ave, Suite 2040 Milwaukee, WI 532024461 (414) 277-5000 Attorneysfor MPS defendants

Dated thid.ay ofJWle, 2005.

WISCONSIN DEPARTMENT OF JUSTICE
.,/).~\
Brnc.e Jsen
P.O. Box 7857 Madison. WI 53707-7857
(608) 266-2580 Attorneyfor DPI defendants

78
PAGE 212' RCVD AT 612312005 6:03:51 PM !Central Daylight Time]' SVR:MKE-AS-NTRFAX111 'DNIS:8714' CSID:6082672223' DURATION (mm·ss):00-18 Case 2:01-cv-00928-RTR Filed 06/24/05 Page 39 of 39 Document 267-2

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., on behalf of the class,

Plaintiffs,
v.
MILWAUKEE PUBLIC SCHOOLS, et. al.,

Case No. 01-C-928

Defendants.

DECISION AND ORDER

I. CHRONOLOGY On September 13, 2001, the plaintiffs filed their complaint, alleging violations under the
Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) and related state statutes, Wis. Stat. §§ 115.758, et seq. Upon the written consent of the parties to the exercise of jurisdiction by the magistrate judge, the case was reassigned to this court on November 28, 2001. The court then issued its scheduling order establishing a time frame for pretrial discovery and for filing a motion seeking class certification. On November 7, 2002, the plaintiffs filed their motion for class certification seeking to proceed on their claims within the context of a class action. The defendants filed their opposition to the motion, and on May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion because the court determined that a number of the plaintiffs’ claims were subject to the exhaustion of administrative remedies requirement, pursuant to the IDEA. 20 U.S.C. § 1415(l). As

stated in that decision, this court determined that the plaintiffs’ proposed class definition included claims for which exhaustion would be required. The court concluded that some of the plaintiffs’ claims were not systemic in nature, identifying these as “post-determination” claims. The court reasoned that these claims were subject to administrative exhaustion because they are individual and substantive in nature and each alleged wrong could be potentially remedied through the administrative process outlined in the IDEA. The court identified the other claims as “predetermination” claims and concluded that these could be systemic or procedural in nature. As such, these claims had the potential for class certification. The plaintiffs were required to file an amended motion for class certification limited to the pre-determination claims.
On June 23, 2003, the plaintiffs filed their amended motion for class certification, which sought class certification based upon the claims as narrowed by the court’s May 23, 2003 order. On August 1, 2003, the court issued a second Decision and Order, which directed the plaintiffs to file a second amended motion for class certification because, in the court’s opinion, both the plaintiffs and the defendants misconstrued the May 23, 2003, decision and order. Ultimately, on November 14, 2003, this court entered its third Decision and Order, and at that time, defined the class as follows:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student. At this point, a number of other motions were filed, including the defendant MPS’s motion to dismiss certain claims as not typical of the class and the plaintiffs’ motion to compel production of materials from the United States Department of Justice. The court ruled on these motions and
2

then met with the parties to discuss appropriate notice to the class, and a discovery schedule for expert witnesses. After notice to the class was given and expert discovery completed, the court requested that the parties file a joint stipulated statement of facts, together with summaries of their respective expert witnesses. Based upon the submissions, and in an effort to avoid the time consuming process involved in summary judgment motions, the court decided to bifurcate trial proceedings, and first conduct a court trial for expert witnesses. After some rescheduling, the court trial involving expert witnesses (referred to as Phase I ) was commenced on October 18, 2005, and completed on November 2, 2005 (the trial did not run continuously during that period). The court heard from six experts.
On November 28, 2005, the court held a hearing at which time the parties were advised of the court’s initial reaction to the experts’ testimony and conclusions drawn therefrom. The court informed the parties that it would be necessary to proceed to Phase II, which would consist of the factual presentations upon which the experts formed their respective opinions. The trial to the court in Phase II began on April 10, 2006, and was concluded on April 26, 2006. The testimony of 48 witnesses was presented, and numerous documents were received in evidence. Post trial submissions were filed by the parties in June, 2006. The court is now in a position to render its decision. II. FACTUAL SUMMARY
In preparation for the trial in Phase I of this case, the parties submitted a joint stipulated statement of facts. (Docket No. 267). The document contains 257 stipulated facts. In addition to the stipulated facts, the parties also submitted statements of facts in dispute. The agreed upon facts present a thorough foundation for the litigation in this case. The time line under consideration in this litigation is the period from September, 2000 to June, 2005. Following is a modified recitation of
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a portion of the statement of stipulated facts that are germane to the court’s decision. Since not all facts contained in the statement have been reproduced, the numbering that appears herein does not correspond with that found in the statement of the parties. This factual statement applies to the years under consideration in this litigation.
1. All school districts in the State of Wisconsin, including Milwaukee Public Schools (“MPS”) are required annually to submit data to the Wisconsin Department of Public Instruction (“DPI”). This includes data concerning students in special education.
2. As part of its obligations regarding special education, MPS requires each individual school to develop a School Educational Plan (“SEP”) that outlines how each school will be working towards increasing student achievement throughout the school year. The foundation of all school based planning and decision making is guided by the SEP. The SEP is developed at the building level by a team of individuals usually called the “Learning Team”. The SEP is developed to incorporate the district’s mission and teaching and learning targets which are aligned with state standards into a working document to guide the day-to-day activities of each school. School-based administrators are trained and offer in-service opportunities on the development of the SEP throughout the school year. The SEP is intended to be a roadmap and a working document for each school to use during the school year to support its efforts in increasing student achievement. The ten sections of the SEP guide the school’s efforts in developing and implementing an effective educational plan. The development of the plan is supported by the central administration through the provision of workbooks, electronic support, and personal training seminars to ensure that schools have the tools available to them to develop a meaningful plan aimed at boosting the achievement of all students.
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3. As part of its oversight responsibilities regarding special education, DPI monitors school districts for compliance with federal and state law. DPI’s July 17, 2001 letter to MPS summarizing its 2000-2001 on-site monitoring findings observed that MPS needed an effective system of administrative accountability at the school building level in order to resolve the compliance issues DPI had found through on-site monitoring and its other oversight activities. The letter expressed DPI’s pleasure that MPS had agreed to develop and implement such a system by September 1, 2001. MPS did not develop and implement a system of administrative accountability at the school building level by September 1, 2001.
4. In October, 2001, DPI engaged a consultant, Dr. Lee Greenwald, to assist MPS in creating a centralized system of specialized education accountability within the district’s decentralized service delivery system. The plan was completed in April, 2002 and entitled, “Milwaukee Public Schools Special Education Oversight Action Plan.” The parties and witnesses in this case frequently refer to the plan by its initials – “SOAP.”
5. DPI’s 2001-2002 on-site monitoring of MPS in May, 2002, revealed that MPS had not corrected the implementation errors found in DPI’s 2000 on-site monitoring, and had not corrected the implementation errors identified in the five Consolidated Corrective Action Plans (“CCAPs”) created in 2000 and 2001. CCAPs are corrective action plans centered around broadly-defined themes of placement, non-attendance, discipline, speech and language, and individualized education program (“IEP”) services, identified in monitoring findings and IDEA complaint findings.
6. The IEP is a written statement for each child with a disability that is developed, reviewed and revised in accordance with the requirements of the IDEA. 20 U.S.C. § 1414(d).
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7. During the 2002-2003 and 2003-2004 school years, DPI focused its oversight activities on assisting MPS to build the effective, centrally administered system of special education procedural oversight and accountability mechanisms within MPS, and the mechanisms to be implemented at each school building, that DPI had ordered in its June 18, 2002 monitoring report to MPS.
8. With minor modifications, Dr. Greenwald’s SOAP plan was adopted by the Milwaukee Board of School Directors on June 27, 2002, with instructions to MPS administrators to implement SOAP as soon as possible.
9. One of the essential features of SOAP is the establishment of direct lines of authority and accountability in the district’s special education program. The Director of Special Services was charged with the accountability for SOAP with the authority equal to the Director of Leadership Services who provides comparable directions, support, and oversight of the district’s general education program.
10. SOAP makes each school principal accountable for the provision of special education services and for the implementation of program improvements in his/her school. Under SOAP, the building-based oversight and evaluation of the delivery of special education services takes place through the SEP, which is developed each year by a school committee. SOAP requires that the special education component of each school’s SEP be reviewed and approved by the Special Education Supervisor and the Special Education Leadership Liaison (“SELL”) assigned to that school.
11. According to MPS policy, all school administrators, teachers, psychologists, building coordinators, SELLs, health professionals, counselors, pupil services central office staff, among
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others in MPS, are responsible for meeting the district’s Child Find obligations required by the IDEA and related state statutes. Child Find deals with the identification, location and evaluation of children with suspected disabilities, who may be in need of special education.
12. Ultimate oversight responsibilities for Child Find rest with the MPS Superintendent and the School Board. The Chief of Pupil Services is third behind the School Board and the Superintendent in ensuring that MPS meets its Child Find obligations. A majority of the oversight duties regarding Child Find activities have been delegated to the Director of Special Education and that office.
13. Because Child Find is an important responsibility, MPS assigned a specific SELL to oversee district-wide Child Find activities, even though the responsibilities for referral and evaluation are with the schools.
14. MPS publishes a Parent/Guardian Rights and Responsibilities Handbook which is distributed to the parents and guardians of MPS students at the beginning of each school year, and is also provided to parents when their students enroll in the district during the school year.
15. MPS policy requires that when a parent requests a special education referral, the district must evaluate the student, develop an IEP for eligible students, and send the student’s parents a notice of educational placement, within 90 days of the receipt of the referral.
16. MPS policy requires that any time a parent or other individual inquires, verbally or in writing, about a referral for special education services or expresses concern regarding a possible disability, the parent or individual must be provided with information about how to initiate a referral.
17. MPS policy requires that when the district receives correspondence from any person requesting an evaluation for a student and the correspondence does not state that the reason for the
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evaluation is a suspected disability, or does not identify the request as a special education referral, the district must determine if the correspondence is a special education referral. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
18. MPS policy requires that, in order to make a determination within a reasonable time after receipt of such correspondence, the district must inform the correspondent of their right to make a special education referral and how to make a written referral. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
19. MPS policy assigns responsibility for processing initial referrals for special education to the building coordinator at each school.
20. MPS policy requires that parents be provided with written notice of their procedural rights at the time they are notified that a referral has been received. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
21. MPS policy requires that parents be given the opportunity to participate in the review of existing data on the child, and in identifying what additional data, if any, are needed to complete the evaluation. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
22. MPS policy requires that IEP Team meetings include the following participants: one or more of the student’s parents; at least one regular education teacher familiar with the student; at least one special education teacher; a qualified, knowledgeable representative of the local educational agency (“LEA”) with authority to commit the district’s resources; and under some circumstances, other specified individuals. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
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23. MPS policies restrict requests for extensions of time beyond 90 days to complete the IEP Team process and determine placement to a specific set of reasons, require that the reasons be documented, require that the requests be approved by a supervisor, and limit the number of extension requests to two per case. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
24. MPS disseminates Child Find information in a variety of ways throughout the community. MPS sends information about special education forums that are held periodically throughout the year to various community organizations. MPS sends a packet of Child Find information to clinics and doctor’s offices upon request. The packet is available in English, Spanish and Hmong languages. The packet includes a referral form, school and district contact information, and a booklet on the special education process, including a statement of parental rights.
25. MPS has a Parent Center located at its central office. The Parent Center staff answer calls and meet in-person with parents. Their role is to direct parents to the proper resource with MPS to have their issues resolved. The staff is trained in Child Find and other special education issues. The school application that the staff assists the parents in completing asks whether a child has special education needs. If a parent requests a special education referral, it is MPS policy that the Parent Center process that request.
26. The 2004-2005 MPS district policy regarding disciplinary removal procedures requires MPS staff to consider, in situations where a student has been removed for more than ten days in a school year, whether the child should be suspected of having a disability. Paragraph 8 of the policy provides,
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“if the student does not have an IEP and is not in the referral process but has been removed more than 10 days, the student may be in need of consideration for a special education or Section 504 evaluations. In such cases, the staff will need to consult with the building coordinator or Special Services Supervisor/Administrator regarding possible “Child Find” obligations under IDEA and Section 504.” 27. Weekly truancy reports are generated by school and central office administrators, including principals, vice principals, and special services administrators. Each school is required to have a building Truancy Intervention Coordinator (i.e., social worker, psychologist, or another identified person) who is responsible to monitor these weekly reports, contact and meet with the parents, work with regular education teachers, and encourage students to attend school. 28. MPS has numerous programs and policies that target at risk students in the general education school population that may need special education or non-special education assistance in order to succeed at school. 29. It is MPS policy that each school principal is responsible for implementing and monitoring a dispute resolution process in their schools. Parents with a complaint may file an MPS complaint with their school principal. If a principal cannot resolve a complaint within five school days of the receipt of the written or verbal complaint, immediate intervention is requested from a SELL. The SELL must resolve the matter within five days of the request for intervention and may consult with the leadership specialist for that school, if necessary. 30. Under federal law, formal complaints can be filed with DPI. When an IDEA complaint is received by DPI, it is forwarded to MPS and, in accordance with the procedures in place, it is then sent to the appropriate school principal with directions to investigate and resolve the complaint. If the complaint is substantiated by DPI, the citywide program support teacher assists the school in implementing the corrective action plan in a timely manner.
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31. The IDEA was re-authorized in the summer of 1997, before the beginning of the third year of DPI’s new six-year on-site review schedule. Because of the numerous changes to special education law, DPI’s six-year on-site review process was suspended and compliance review efforts were refocused to assist Wisconsin school districts to understand and implement the new provisions of IDEA.
32. DPI found in the Spring of 1998 that 17% of MPS students with disabilities did not have a current IEP in effect. In addition, the evaluation logs MPS submitted to DPI showed that only 81.1% of evaluations during the 1997-98 school year had been timely completed.
33. Throughout the 1998-1999 school year, DPI required MPS to take corrective action with respect to these issues, and required MPS to regularly provide DPI with data that reflected the extent of MPS’s compliance with the requirements to have current IEPs in effect and to timely complete student evaluations.
34. On June 1, 1999, DPI notified MPS that 7.4% of MPS students did not have current IEPs recorded in the district database as of December 1, 1998, and that many of its evaluations were untimely. As a result, DPI notified MPS that the district would not receive $604,206 of its IDEA funds. DPI further informed MPS that it would approve the use of IDEA discretionary funds only to resolve outstanding compliance issues. DPI directed MPS to have a current IEP in effect for all children and to eliminate the evaluation backlog prior to the beginning of the 1999-2000 school year.
35. Also in June, 1999, DPI first consolidated its oversight of the corrective actions MPS had been ordered to take in response to substantiated IDEA complaints from individual students on the issue of timely evaluations. On June 28, 1999, DPI sent a letter to MPS, stating: “As you know, the department has five open complaints against MPS regarding timely evaluations (94-044, 98-050,
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98-059, 99-009, 99-014.) The department will consolidate its oversight of necessary corrective action in those complaints and close each of the complaints when MPS documents: (1) compliance with any child-specific directive(s) in the decision, and (2) compliance with the two relevant directives issued in Superintendent Bensons’ letter of June 1, 1999.”
36. Since June 1999, DPI has also continued to follow up on MPS’s duty to timely complete evaluations. In May 2000, DPI on-site monitoring revealed that 95.6% of MPS sampled evaluations were completed timely. In July 2000, MPS evaluation logs submitted for DPI’s review showed that 98.1% of evaluations initiated in January through March were completed timely. Although DPI informed MPS in July 2000 that the issue of timely evaluations was resolved, DPI has continued to require MPS to submit IEP team evaluation logs since the resolution of the issue.
37. DPI conducted its 1999-2000 on-site review of MPS by visiting three elementary schools, three middle schools and three high schools. Ten student records were reviewed for each site. DPI reviewers evaluated the soundness of MPS’s self-assessment of its IDEA 1997 compliance, and also interviewed parents, regular education teachers, special education teachers, the building principal, and the special education supervisor for each site. Implementation errors were found, and in October, 2000, DPI approved MPS’s CAP regarding the 1999-2000 on-site review.
38. DPI conducted an on-site review during the 2000-2001 school year. DPI’s July 17, 2001 letter to MPS summarizing its on-site monitoring findings observed that MPS needed an effective centralized system of administrative accountability that reached down to the school level in order to resolve the compliance issues DPI had found through on-site monitoring and its other oversight activities. DPI stated that it was encouraged that MPS had agreed to develop and implement such
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a system by September 2001, and expressed its pleasure that the initial focus of the accountability system would be on the unresolved compliance issues DPI and MPS had been discussing.
39. One of DPI’s findings in its 2000-2001 monitoring report specifically related to an MPS policy and procedure that could potentially delay the referral of a student suspected of being a child with a disability. The district’s policies in effect at the time might have required district staff to take actions when making a referral that are not required in the law (i.e., a reasonable cause determination). These actions might delay a referral by a staff member or interfere with the duty to make a referral. DPI instructed MPS that the district’s policies and procedures must make clear that these actions may not delay the referral when the referring person reasonably believes the child is a child with a disability. While MPS policies correctly explained the 90-day evaluation time limit requirement following referrals from parents and others, it did not clarify that the requirement also applies to referrals from district staff. DPI therefore directed MPS to add a clarification that any licensed school staff member who reasonably believes that a child has a disability is required to make a special education referral. In addition, DPI directed MPS to add new policy language clarifying that any physician, nurse, psychologist, social worker, or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability is required to refer the child for an evaluation. Moreover, DPI directed MPS to add policy language to clarify that when persons other than the school district staff make a written referral to the district, the receipt of the written referral by any MPS staff person marks the beginning of the 90-day time line. MPS complied with DPI’s directives.
40. On October 2, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in four open complaints where MPS had been directed to take steps to
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provide children with a free and appropriate public education within a reasonable amount of time after the district learns that a child with a disability is not attending school. DPI’s consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Non-Attendance Consolidated Corrective Action Plan (CCAP).”
41. On October 11, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in five complaints where MPS was determined to have unlawfully failed to provide a free and appropriate public education by repeatedly suspending or excluding children with disabilities. DPI’s consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Discipline Consolidated Corrective Action Plan (CCAP).”
42. On August 10, 2001, DPI informed MPS that it was consolidating its oversight of required corrective action in three open complaints involving speech and language issues. DPI’s consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Speech and Language Consolidated Corrective Action Plan (CCAP).”
43. On October 3, 2001, DPI issued a decision in IDEA Complaint No. 01-058, finding that MPS failed to provide services to a student consistent with the requirements of the student’s IEP.
44. During the 2002-2003 school year, DPI focused its MPS oversight activities on building MPS compliance capacity through the implementation of SOAP and the development of the MPS Internal Audit Action Plan. During that same school year DPI did not conduct on-site monitoring activities using the on-site monitoring model acknowledged by the United States Department of Education Office of Special Education Programs (“OSEP”) in its 2000 monitoring of DPI’s oversight. Where DPI found any compliance problems at this time, it ordered corrective action
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through the mechanism of IDEA complaint decisions and directives, and their modifications to the CCAPs.
45. In the 2002-2003 school year, MPS used the IEP checklist system in 18 pilot schools. At the completion of the pilot, MPS did not provide DPI with a report on the assessment or the results.
46. In November 2003, the internal audit plan was renamed “MPS Continuous Improvement and Focused Monitoring Action Plan” (“MPS CIFM Action Plan”), and was revised to reflect the completion of activities during the 2002-2003 school year and to add additional activities for the 2003-2004 school year. The format of the MPS CIFM Action Plan was also changed to specifically identify whether an activity had been completed, and to specify the target dates for DPI’s verification of the efficacy of the required corrective activities. A self-assessment pursuant to this plan was conducted in each MPS school in March, 2004.
47. Once the March, 2004 self-assessments of each school were completed, the Special Education Supervisors and SELLs scored each of the 62 checklist items measured by the school as requiring one of three levels for monitoring support. Some schools were at different levels of support for different checklist items.
48. Following receipt of their school data, the principals were required to develop a plan, including goals and actions, to remediate or address any of the 62 checklist or non-checklist items that were measured below 95% compliance. Principals were not required to develop a remediation plan for compliance items assessed at 95% or higher compliance (“periodic review” level of support), even though the district goal is 100% compliance in all schools. This plan was incorporated into the Special Education Section of each school’s overall SEP. The SELLs and the Special
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Education Supervisors conducted follow-up meetings with school principals and SEP representatives, as needed, for the purpose of amending or strengthening the special education component of the SEP.
49. The results of the overall assessment indicate compliance concerns including the following findings. The following findings are not limited to the allegations in this lawsuit.
a. Half of MPS schools (50.6%) merit ongoing oversight. b. 10.9% need intensive monitoring, including 25% of high schools and 28% of
middle schools. c. 61.5% of MPS schools either merit intensive monitoring or ongoing oversight. 50. A September 2004 MPS CIFM Action Plan required MPS to evaluate the same specific checklist and non-checklist items as were in the original September, 2002 internal audit system action plan. This was to be done in the March, 2005 self-assessment. 51. In regard to data concerning untimely evaluations, MPS produced two reports. The first report covers referral dates from June 1, 2003 to July 8, 2004. The second report covers a time period from August 23, 1995 to June 30, 2003. 52. The first report documents 114 IEP placement offer dates that were over the 90-day time line. Past-due days range between 1 and 267 days. 58 children had evaluations that were overdue between 1 and 20 days. 44 children had IEP evaluations that were completed between 21-60 days past due. 5 children had evaluations that were completed more than 90 days overdue. One child had an initial evaluation that was 267 days past due. No information is provided regarding the reason for the delay in initial evaluation. The average number of days past due was 30 days.
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53. The second report documents special education evaluations that are past the legally required 90 day time line for completion. This report is dated November 18, 2003, but covers an earlier period from August 23, 1995 through June 30, 2003. This report indicates that there were 978 past due initial evaluations from June, 2000 through June, 2003. Overdue days range from 1 to 579. Sixty eight children had their evaluations completed 100 or more days past due. Two children had initial evaluations that took 600 or more days to complete. The average days past due is 37.
DPI notified MPS that it had seven open complaints regarding MPS’s failure to provide services consistent with the IEPs, and notified MPS that DPI was consolidating its oversight of the required corrective action in the seven open complaints. DPI’s consolidated oversight regarding this issue area came to be referred to by DPI and MPS as the “IEP Consolidated Corrective Action Plan (CCAP).”
54. Nationally, DPI has received periodic guidance from OSEP about its special education oversight activities. In 2003, OSEP moved from a Continuous Improvement Monitoring Process (“CIMP”) to the Continuous Improvement and Focused Monitoring System (“CIFMS”), and provided technical assistance to states.
55. During the second semester of the 2003-2004 school year, DPI established a pilot statewide CIFMS, in order to test new protocols in order to achieve positive results for children with disabilities.
56. The IDEA was reauthorized by the passage of H.R. 1350, the Individuals With Disabilities Education Improvement Act of 2004, in December, 2004.
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III. ANALYSIS
A. CHILD FIND OBLIGATIONS UNDER THE IDEA The parties are not in disagreement over the applicable federal and state law. Nevertheless,
the court will very briefly highlight the provisions which constitute the legal foundation in this case.
In order to be eligible for federal funding under the IDEA, each state must meet Child Find
obligations, which the statute defines as follows:
All children with disabilities residing in the State . . . regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
20 U.S.C. § 1412(a)(3)(A) (1997) (emphasis added). As can be seen, the certified class implicates
the Child Find obligations of the IDEA. The class, as stated earlier, is defined as, Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
The ultimate obligations for ensuring that a state’s obligations, including Child Find, are met
rests with the state education agency. See 20 U.S.C. § 1412(a)(11). In the case of Schaeffer v.
Weast, 546 U.S. 49 (2005), the Supreme Court stated that “[s]tate educational authorities must
identify and evaluate disabled children.” Id. at 53. The state agency in this case is the defendant
Wisconsin Department of Public Instruction. Regulations promulgated pursuant to the IDEA require
each state agency to ensure that each local educational authority establishes and implements the
obligations required under the IDEA. 34 C.F.R. § 300.530. The local educational agency in this
case is the defendant Milwaukee Public Schools. In order to effectuate the requirements of the
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IDEA, state statutes have been enacted to see that these obligations are met. For example, in regard to Child Find, MPS must identify, locate and evaluate “all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age.” Wis. Stat. § 115.77(1m)(a).
Once a child with a disability who may be in need of special education has been located and identified, that child is to be referred for an initial evaluation. The task of locating and identifying the child falls on a number of people, not only those associated with the school administration. Here, the child’s parents play an important role. As acknowledged by the Supreme Court, “[p]arents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. . . .Parents are included as members of the ‘IEP teams.’” Schaeffer, at 53.
When a child has been referred for an evaluation, the law requires that an IEP team be appointed. The team must consist of certain persons, which include the parent or guardian of the child, one regular education teacher of the child, one special education teacher or provider and a knowledgeable representative of the LEA. Other individuals with knowledge of the child can also be members of the IEP. Wis. Stat. § 115.78(1m). Moreover, during the time period being considered in this case, Wisconsin law required that the child’s evaluation be completed, and an IEP placement be offered, within 90 days after the date the school district received the referral. Extensions of the 90 days, under certain conditions, may be granted. Wis. Stat. § 115.78(1m). The IDEA and related state statutes now requires that the evaluation take place within 60 days. 20 U.S.C. § 1414(a)(1)(C)(I) (effective July 1, 2005); Wis. Stat. § 115.78(3)(a) (2005-2006).
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B. POSITIONS OF PARTIES - AN OVERVIEW It is the position of the plaintiffs that MPS has failed to meet its obligations under the IDEA, specifically in regard to Child Find. In particular, the plaintiffs have concentrated on the following areas: 1) the failure to refer children with a suspected disability in a timely manner; 2) the failure to review all relevant data to determine the appropriate needs at the child’s initial evaluation; 3) the pattern of improper extensions of mandated time lines; and 4) the use of suspensions during the prereferral process, which impede the child’s initial evaluation. The plaintiffs contend that MPS, especially during the period in question, systematically delayed and illegally denied special education services for children. In regard to DPI, the plaintiffs cite the IDEA, which places the ultimate implementation and enforcement obligations on the state education agency. Plaintiffs submit that DPI has failed its Child Find obligations in the Milwaukee public schools. In response, MPS first contends that the plaintiffs have failed to establish a systemic violation of the Child Find provisions of the IDEA. MPS submits that any individual alleged violations were susceptible to resolution through the administrative hearing process. MPS also argues that its policies and practices in regard to Child Find comply with the IDEA. DPI acknowledges that the IDEA imposes certain obligations regarding Child Find on the state education agency. It contends that the various oversight procedures it instituted satisfied its obligations under federal law. DPI also joins MPS in its position that the plaintiffs have failed to establish a systemic violation of the law.
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C. SYSTEMIC VIOLATIONS/EXHAUSTION REQUIREMENTS During the lengthy process eventually resulting in class certification, this court dealt with the issue of systemic violations vis-a-vis satisfying the exhaustion requirement of the law. In its several decisions, the court engaged in a discussion of the post-and pre-determination stages. (See Decisions of May 23, 2003, August 1, 2003, and November 14, 2003.) In particular, individual complaints arising after the post determination stage, i.e. after the initial evaluation has been made, are susceptible to resolution through the administrative hearing process. The court stated that no challenge had been raised to the adequacy of the due process procedure itself. For example, if the parents had a complaint regarding the appropriateness of the education being provided to their child, procedures for addressing their complaint are in place. Therefore, the plaintiffs were unable to present challenges of a systemic nature that warranted the creation of a class to address those problems. On the other hand, the court found that the challenges focusing on the pre-determination stage did allege systemic violations, violations that were not amenable to individual exhaustion. These were complaints for which the due process format did not provide an adequate remedy, and they were basically in the area of Child Find. As a result, the court ultimately defined and certified the class as follows: Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student. The defendants now claim that, upon a review of the evidence presented at trial, the court should conclude that MPS has not systemically violated the Child Find provisions of the law. First of all, MPS argues that a claim is not systemic if it deals with only a “limited component” of a
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program. Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 682 (9th Cir. 1997). MPS correctly states that this court did refer to Doe v. Arizona in its initial decision of May 23, 2003, when discussing a systemic violation. This court stated, “[A] claim is ‘systemic’ if it implicates the integrity or reliability of the IDEA dispute resolution procedures themselves or requires restructuring the education system itself in order to comply with the dictates of the Act; but that it is not ‘systemic’ if it involves only a substantive claim having to do with limited components of a program, and if the administrative process is capable of correcting the problem.” (Decision of May 23, 2003 at 4 (quoting Doe, 111 F.3d at 681)).
Addressing the court’s prior statement, the evidence presented at trial clearly established that Child Find functions more than as a limited component of the IDEA; it functions as one of the most important elements in the pre-determination stage. If a child with a disability is not found, that child will not receive any special education. This court thus declines to accept the defendant’s characterization of Child Find as merely a “limited component” of the program.
Next, the evidence established that certain deficiencies existed in the MPS system itself that adversely affected its ability to fully implement the requirements of Child Find. As argued by the plaintiffs, these deficiencies are structural in nature. In other words, whether or not one agrees or disagrees with the professional judgment exercised by an MPS professional in any individual case, and despite policies and procedures that look adequate on paper, during the period under challenge, MPS continually failed to comply with its Child Find obligations. As will be discussed in greater detail, the 90 day time limit to complete evaluations is illustrative of a systemic problem. Exhibit 336 sets forth the non-compliance figures on this issue. The defendants contend that the percentages of non-compliance are small, approximately 3%, and arguably the violations are not pervasive. To
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this court, 3% still represents a significant number of students, but more importantly, the exhibit shows that there was no substantial improvement over time. Even if the defendants submit that this is a minor problem, something is wrong with a system that is unable to correct the problem, despite alleged improvements in procedures to foster compliance.
Returning to the MPS argument that the individual cases presented during Phase II of the trial are precisely the type of cases that can be resolved through the administrative process, as opined by one of the plaintiffs’ experts, Dr. Rogers Adkinson, these cases are simply illustrative of many more. This court is not faced with the factual situation discussed in the case of Hoffman v. East Troy Community School District, 38 F.Supp.2d 750 (E.D.Wis. 1999), wherein Judge Adelman addressed the general policy of trying other interventions before making a special education referral. In that case, the judge agreed with the district that it did not have enough specific information regarding the student to suggest the need for an evaluation, so that there was “no reasonable cause to suspect that Joseph was emotionally disturbed.” Id. at 766. As will be seen from the facts presented in the instant class action, the warning signs in the representative cases discussed were far more severe and occurred over a greater duration of time, all of which belie continuation of any conservative other interventions approach.
The cases presented in this litigation reflect a system that has failed to adequately address its Child Find responsibilities; these situations do not defeat, but support the certification of a class in order to address and hopefully remedy the systemic Child Find problems at MPS.
The court will subsequently discuss the facts and expert testimony upon which its conclusions are based, but at this juncture, it is the opinion of the court that the plaintiffs have satisfied their burden to establish a systemic problem with the MPS program.
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D. PHASE I CONCLUSIONS Phase I of the trial involved the presentation of expert witness testimony, limited to the matters set forth in the respective expert’s report. The subject matter of the experts’ reports were the issues raised by the plaintiffs in this lawsuit. As stated earlier, after the conclusion of the testimony in Phase I, the court held a conference with the parties, advising them of the court’s initial reaction and conclusions from the testimony and exhibits received during Phase I. Briefly, the parties were advised that the court found the conclusions reached by the plaintiffs’ experts more persuasive than those offered by the defendants’ experts. The court indicated that the plaintiffs’ experts identified the following three categories of violations: 1) non-compliance with the 90 day time limit for completing evaluations; 2) failure to identify, or untimely identification, of children with disabilities who were in need of special education, including students who had been subjected to excessive periods of suspension; and 3) potential problems with record keeping. The trial in Phase II has been completed and the court has now had the opportunity to fully consider the testimony of the experts, the testimonial and documentary facts from which the expert opinions were drawn, and the post trial arguments and briefs of counsel. Since the trial presentation was bifurcated, the court believes that it makes sense to follow a similar format with this decision and first analyze and discuss the expert testimony. Experts regarding MPS liability The plaintiffs presented the testimony of Dr. Diana Rogers Adkinson, an expert in the area of special education, with a particular expertise regarding programs for children with emotional disorders. Dr. Rogers Adkinson reviewed records for two categories of children: children whose evaluations extended beyond the 90 day timeline required by federal law; and children experiencing
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high rates of suspension, greater than 10 days. Concentrating on the time period in question, Dr. Rogers Adkinson requested 200 cumulative files of students involving extensions, but received 152. MPS was unable to locate 30 files. For suspensions, she requested 90 cumulative files and received and reviewed 70.
Before discussing the testimony of Dr. Rogers Adkinson, it should be noted that, while the defendants disagree with Dr. Rogers Adkinson’s conclusions, they produced no evidence to rebut her findings of the records she reviewed. In other words, the defendants did not offer the testimony of any expert who stated that he or she reviewed similar records, but reached contrary conclusions. The defendants argue that Dr. Rogers Adkinson only reviewed files; she never spoke to the children involved or their parents; and she never evaluated these children. It is true that Dr. Rogers Adkinson conducted a records review, and from that review, concluded that certain patterns were evident. The court is not persuaded by this challenge to the findings of Dr. Rogers Adkinson. Much of this case is about record keeping. In fact, a primary way in which the defendant DPI attempted to fulfill its duty under the IDEA was by reviewing records, records that were generated from the same type of cumulative files the plaintiff’s expert reviewed. As such, there is no compelling reason not to accept the findings of Dr. Rogers Adkinson concerning the records she reviewed.
The defendants also urge the court to disregard the findings of Dr. Rogers Adkinson because she failed to utilize any recognized scientific method in reaching her conclusions. There is no dispute, not even from the plaintiffs, that Dr. Rogers Adkinson did not use a scientific methodology for her analysis. One of the primary tests for scientific research is that another expert would be able to replicate the results. Dr. Rogers Adkinson used her professional judgment in reviewing the files selected and drew certain conclusions. So, if another expert reviewed the same files and exercised
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his or her professional judgment, the conclusions drawn might be different. As pointed out earlier, no expert on behalf of the defendants was called upon to engage in such an exercise. Instead, the defendants simply argue that the court should not consider the conclusions of Dr. Rogers Adkinson.
Dr. Rogers Adkinson engaged in what has been described as a qualitative analysis. This is a recognized methodology, but it has a different goal than a scientific analysis. The goal of a qualitative analysis is to ascertain certain patterns or trends. That is what Dr. Rogers Adkinson did. Her report and testimony sets forth the patterns she found from the files she reviewed, and she then projected those patterns over the entire MPS district. She testified that she believes that the same trends would appear if a scientific or true random sampling of files had been conducted. In fact, the type of analysis conducted by Dr. Rogers Adkinson is not dissimilar from the analysis engaged in by DPI in monitoring MPS. For example, Jack Frye-Osier, former assistant director of Special Education for DPI testified that for the school years 2000-2001 and 2001-2002, records from a total of nine schools were reviewed. MPS choose three of the schools and DPI chose six. From this review, DPI believed it obtained a representative district-wide sampling, upon which it could determine whether or not MPS was in compliance in certain areas. Furthermore, the schools selected for 2001-2002 were not the same as those selected for the prior school year. And yet, upon this less than scientific methodology, DPI was willing to reach certain conclusions regarding compliance by MPS with IDEA requirements.
The court accepts the qualitative analysis methodology used by Dr. Rogers Adkinson. The court further accepts her Child Find trends or patterns and applies them system wide to MPS. In particular, MPS failed to conduct initial evaluations within the required 90 day period and granted extensions more than once, often without a valid reason being placed in the file. This failure was
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largely the result of not conducting evaluations during the summer months and often waiting until the following October. Even though MPS subsequently remedied this problem in the summer of 2003, until that time, the practice of extending evaluations over the summer and beyond the 90 day time period constituted a violation of the IDEA.
Dr. Rogers Adkinson also found that MPS engaged in a pattern of suspending students as a way of coping with the discipline and behavioral problems of students. However, as established by the Phase II evidence, the more appropriate approach for many of these students who were later found to be suffering from an emotional behavioral disorder, would have been a referral for an evaluation. Here, it should be noted that Dr. Rogers Adkinson utilized more of a random sampling of MPS elementary and middle schools. Phase II evidence established the factual reality of the system wide pattern of violations that Dr. Rogers Adkinson found from a review of the records.
As previously noted, MPS presented no expert witness to directly contradict or refute Dr. Rogers Adkinson’s review of the records. However, MPS did present two experts who attempted to soften the impact of the findings of Dr. Rogers Adkinson. In regard to dealing with behavioral problems, Dr. Eric Hartwig, who specializes in discipline and behavior concerns, testified. Dr. Hartwig visited two schools, one that utilized a “problem solving” approach, and the other that did not. It was Dr. Hartwig’s opinion that the best way to deal with a student who exhibits disciplinary or behavioral traits is the problem solving or intervention approach. In this way, the school might be able to avoid suspending the student. Dr. Hartwig also testified that not all disciplinary problems warrant special education referrals.
No one disputes Dr. Hartwig’s last statement, but his testimony fails to advance the resolution of the issues in this litigation. First of all, Dr. Hartwig limited his testimony to two
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schools, but still attempted to project his findings to the whole of MPS. Looking at two schools out of 160 is of no statistical significance. He also limited his visits to one point in time, NovemberDecember, 2004. More importantly, regardless of the merits of the problem solving approach, it does not obviate the school district’s obligation to locate children in need of special education. The law requires the district to identify children with special education needs and then make a referral. When asked how long a particular child might be subject to the problem solving approach, Dr. Hartwig said this was a qualitative determination. In other words, it is not over until it is over. In the meantime, the referral may be unduly delayed. In the opinion of the court, Dr. Hartwig’s testimony failed to establish that the problem solving approach meets the district’s Child Find obligations.
The second expert called by MPS was Dr. Elise Frattura, a consultant who assisted the district in moving from centralization to decentralization. This is a process whereby the school itself, becomes responsible for the services delivered. According to Dr. Frattura, if the school becomes responsible for the services it delivers, it will become more responsive and implement appropriate and effective changes in the area of special education. Since the principal is in charge of his or her school, the major burden on implementing the decentralization process fell on the principals. This reorganization included an entire hierarchy of support staff and services. The decentralization process began in the 2000-2001 school year. In regard to the delivery of special education services, the process was described in various plans, referred to by their acronyms. For example, there was SEP (“School Education Plan”) and SOAP (“Special Education Oversight Plan”).
Dr. Frattura described the Child Find aspects of the process within the school and how the 90 day period was monitored. She also discussed Child Find when truancy problems are involved.
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She acknowledged that the most difficult thing to do is find a child eligible for special education when no referral has been made. She indicated that since Child Find is a “proactive obligation,” a “broad net” must be cast. In her opinion, MPS was meeting federal and state Child Find standards.
Unfortunately, the underlying refrain of Dr. Frattura’s testimony was that this is “a process.” In other words, nothing happens immediately. Dr. Frattura indicated that SOAP was a “good recipe” to create change. In the opinion of the court, while it may be a good recipe, the proof is in the pudding, and the evidence from reports generated from MPS gathered data show that during the period in question, MPS was not in compliance in regard to its obligations under Child Find. Even Dr. Frattura was unable to adequately support her opinion regarding compliance. For example, when cross examined about a statement in her report that IEP meetings are scheduled jointly with parents, a legal requirement, Dr. Frattura admitted that there was no specific data to support this statement. Or, when presented with statistics that the suspension rate increased between 2002 and 2004, she said that each building must be concerned with this.
Basically, Dr. Frattura relies on the structure of the plan itself. She says the plan strives toward success, and success is improvement toward goals. When asked to give a reasonable time frame for improvement, Dr. Frattura could not answer the question. Now that the school is responsible, she said it depends on the individual school and the particular problem. When pressed, she opined that it usually takes five to seven years for deep change, and at the time of her testimony, MPS was only in year four. However, under the IDEA compliance obligations, “it depends” is not a satisfactory response.
To determine whether or not MPS was in compliance with the law, SOAP included a plan to assess the data, and this was jointly developed by MPS and DPI. This was referred to as the
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building based assessment process which was initially used during the 2002-2003 school year. It continued into the 2003-2004 year. The process used a checklist to measure compliance and involved taking a point-in-time snapshot of the compliance of each school. The plaintiffs presented the testimony of Mark Mlawer, a consultant in special education, with an expertise in the area of monitoring and compliance.
Mr. Mlawer concentrated his attention on the MPS building based assessment process and concluded that, in regard to the IDEA compliance issues raised in this litigation, the process was deficient in many respects. He also concluded that there was no way to measure the accuracy of the data used in the process. For example, Mlawer testified that the only issue in this case measured by the building based assessment process is the 90 day evaluation timeline, and compliance is the only aspect measured. Parenthetically, this fits into the method of analysis conducted by Dr. Rogers Adkinson, since she was only able to select files which indicated that the 90 day timeline was exceeded. Mr. Mlawer said that the assessment process did not monitor the IDEA requirement to identify, locate and evaluate all students with disabilities.
Regardless of the accuracy of the data used by MPS, these are the numbers that DPI used in fulfilling its monitoring and compliance obligations. Based on these numbers, DPI determined that MPS continued to experience compliance problems. As discussed by DPI’s expert witnesses, in school year 2003-2004, it was decided to establish and impose a different type of monitoring process for MPS; this was known as the Continuous Improvement Focused Monitoring System (“CIFMS”). Experts regarding DPI liability
The plaintiffs called Dr. James Tucker to discuss the oversight responsibility of DPI. Dr. Tucker’s report and testimony focused on whether DPI had adequately fulfilled its role regarding
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oversight of MPS in the area of Child Find. In a word, Dr. Tucker’s conclusion was “no.” Dr. Tucker testified that DPI had created a system that only dealt with reporting, but not one that would assure compliance. Dr. Tucker explained that DPI would receive reports from MPS, determine noncompliance, impose a corrective action plan for MPS to implement, but then fail to follow-up. DPI would order many corrective action plans, give deadlines, but if MPS failed to meet the deadline, DPI set another deadline. Dr. Tucker stated that DPI failed to impose any sanctions on noncompliance by MPS, sanctions which could include public reprimand or loss of funds.
According to Dr. Tucker, DPI created a Child Find procedural checklist for MPS to follow, but failed to have a method in place to determine if the checklist was correctly completed. Further, this was only a checklist, rather than a comprehensive screening, which is the only way in which to identify and locate disabled children. Based upon his analysis, Dr. Tucker concluded that DPI does not understand the nature of its oversight role and thus cannot fulfill it.
Dr. Tucker was especially critical of the building based assessment plan. He stated that the building-based assessment plan, as it was used by DPI, was ineffective particularly because different buildings were evaluated each year and there was no year-to-year comparison of the same building. Included in Dr. Tucker’s report are several recommendations for improving DPI’s oversight responsibilities. One is to create a focused monitoring plan. He said that this is the best way to check for compliance, because it is a plan that does not end with the collection of the data, but analyzes it and establishes priorities and action plans. Also, that in creating priorities and action plans, input from a “stakeholders’ group” or advisory council is very important. Interestingly, at the time of his report, DPI was in the initial stages of developing its focused monitoring plan and had just established a stakeholders’ group.
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Directly contrasting Dr. Tucker’s characterization of DPI’s oversight efforts as “all procedure and no substance,” was Dr. Judy Schrag, also an expert in the area of IDEA compliance. She was engaged by the defendant DPI to review its systems, procedures and programs and render her opinion as to whether DPI was complying with its legal oversight responsibilities relating to the issues presented in this case. As part of her analysis, she looked at MPS under the procedures of SOAP, but she did not review any individual student record and offered no opinion as to whether any of the plaintiffs’ rights were violated.
Dr. Schrag stated that each state agency is required to have appropriate practices and procedures in place to assure that the children in the state receive the benefits of FAPE, Child Find and §504. She further stated that, to satisfy these responsibilities, the state system must be a continuous improvement system. Dr. Schrag briefly reviewed the various monitoring systems established by the state agency since the 1997 IDEA. From 1997-2003, there was the Continuous Improvement Monitoring Process (“CIMP”). This was a self-assessment process which involved a records review of a selected sampling, plus interviews with stakeholders. During the 2003-2004 school year, the state agency replaced CIMP with the Continuous Improvement Focused Monitoring System (“CIFMS”). This monitoring process focused on established priorities and involved more targeted data review. It also had broader stakeholder involvement. In instituting both CIMP and CIFMS, the state agency took its cue from the federal agency, OSEP.
Immediately prior to the time period involved in this lawsuit, OSEP found that DPI’s monitoring was in compliance, except for one area, investigating complaints regarding MPS within the required 60 day period. Dr. Schrag says that this deficiency was corrected by DPI. Moving into the time period covered by the lawsuit, DPI would review the data received from MPS, and order
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MPS to take corrective action in the areas of non-compliance. For example, after its review in May 2000, corrective action was ordered for certain items (exhibit 206). The same occurred after the May 2001 review (exhibit 208) and May, 2002 (exhibit 233). These orders were known as corrective action plans, and then, in the spring of 2002, DPI consolidated these corrective action orders (exhibits 277 and 278). Since DPI had been issuing corrective action plans to MPS since 1997-1998, and there were still consolidated corrective action plans unresolved, DPI required SOAP on June 27, 2002.
In the view of Dr. Schrag, SOAP was a significant factor in DPI’s monitoring. The major features of SOAP are detailed in her report (exhibit 11), and they include clearly defined lines of authority, expanded staffing, annual self-assessment of each school, Child Find activities, and 95% accuracy. As a result of the various increased monitoring procedures implemented by DPI, from the corrective action plans, to the consolidated corrective action plans, to SOAP and finally, CIFMS, Dr. Schrag concluded that DPI was fully complying with its oversight responsibilities under the IDEA. Dr. Schrag testified that DPI engaged in a series of increased sanctions in order to give MPS an opportunity to correct specific problems and come into compliance with the law. Dr. Schrag concluded that, as a result of its various efforts, DPI is now in full compliance with its monitoring and oversight duties. She was unable to pinpoint an exact date as to when DPI’s full compliance occurred.
Of course, even if full credence is given to Dr. Schrag’s analysis, there is a flip side. Under the IDEA, the goal is 100% compliance. According to SOAP, if 95% compliance is reached on a particular issue, that issue need not be addressed in the school education plan. So this means that 5% of that area is not in compliance. Under SOAP, if there was 80-94% compliance, the issue
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required “ongoing oversight;” “intensive monitoring” was required for under 70% compliance. As to when MPS might enter the area of 95% across the board compliance, Dr. Schrag opined that it usually takes three years for a plan such as SOAP to work.
The monitoring by DPI and its corrective action plans and SOAP clearly establish that MPS was not in compliance with the IDEA during the years in question. Further, despite the increased sanctions imposed by DPI, MPS failed to correct these areas of non-compliance. In fact, the evidence discloses that DPI’s use of sanctions, and threat of more serious ones, failed to have the desired effect. In 1999, the State Superintendant of Public Instruction wrote to the superintendant of MPS that there were numerous children without IEPs in effect, and the withholding of state funds was possible (exhibit 222). No funds were withheld and, as seen above, various corrective action plans and SOAP were required, but as observed by Dr. Tucker, no deadlines were ever established. Dr. Schrag stated that MPS has shown good faith in implementing a series of strategies, but she also had to acknowledge that good faith does not always equal IDEA compliance.
Based on the experts’ reports and their testimony, the court concludes that both MPS and DPI have failed to comply with their respective obligations under the IDEA during the period from September, 2000 to June, 2005. In regard to its Child Find responsibilities, throughout the entire time frame, the system in place at MPS was inadequate to satisfactorily locate and identify children with special education needs, and, in particular, this was a result of how MPS handled students with emotional problems and suspended students. Also, during a portion of the time, MPS failed to conduct initial IEPs within the required 90 day time frame. Similarly, DPI failed to adequately comply with its oversight responsibilities of MPS. Based on the records it reviewed, it knew that
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MPS was not in compliance in certain areas, but it failed to impose sanctions sufficient enough to bring MPS into prompt compliance.
These are the court’s conclusions based on the testimony from the experts (Phase I). The evidence presented at Phase II will now be addressed to see whether the facts upon which the experts’ conclusions are based have been established. E. PHASE II FACTS and CONCLUSIONS
1. Liability of MPS The testimony elicited from the named plaintiffs present the reality underlying the foregoing conclusions of the experts. The plaintiffs’ post-trial brief sets forth a concise summary of the real life situations of the named plaintiffs. In reviewing the testimony, the court believes that the plaintiffs’ summary accurately captures the testimony received in court. The response of MPS, in its post-trial brief, to the individual plaintiffs, does not take issue with the testimony presented, but rather contends that such testimony illustrates that these are the types of cases that should be handled under the administrative process. MPS further submits that the plaintiffs failed to link these individual cases to the larger MPS student population and therefore, the court should decertify the class. DPI has adopted a response approach similar to MPS. In its post-trial brief, DPI argues that the plaintiffs only produced limited testimony establishing, at best, ten occasions involving just seven MPS schools, where MPS failed to initiate or accept a parents’ request for referral. Therefore, DPI similarly contends that the evidence is insufficient to establish a systemic failure. Since the facts presented regarding the named plaintiffs are basically uncontested, the court will simply summarize. In reviewing the facts, it is important not to lose track of the ultimate inquiry, i.e. did the defendants systemically violate the IDEA, and, in particular, the Child Find
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provisions? The testimony discloses two overarching aspects in Child Find. The first is to identify those children who may be eligible for special education. According to the parties, the standard or guideline used by educators is whether there is a “reasonable belief” that special education “may be appropriate” for the child. (Stipulated Fact 39.) A second aspect is that once this reasonable belief exists, how long does it take to make the initial determination that the child is eligible for special education, i.e. the length of time from the request or referral to the IEP.
Regarding the initial identification aspect, the plaintiffs presented testimony regarding certain children. The plaintiffs first presented testimony regarding Melanie V. Melanie was a good student until the fourth or fifth grade. Her fourth grade report card characterized her as “bright and capable” with “clever ideas.” In the fifth grade, she started missing school (42 days); she said she was not feeling well, had difficulty sleeping, and was not herself. Melanie attended the Milwaukee School of Languages for sixth grade in 2001-2002. She failed sixth grade and repeated in 2002-2003. She failed to improve during her repeat year. The school implemented a homework plan and maintained contact with her parents regarding Melanie’s progress. The situation got worse, and Melanie wrote notes about killing herself. The school psychologist met with her parents and worked with Melanie regarding mental health concerns. Nevertheless, Melanie’s mental health deteriorated and she started being sent to the Milwaukee County Mental Health Complex. She was sent there three times in the first semester of 2003. In December, 2003, Melanie was found in possession of a razor blade, in violation of the MPS weapon’s policy and was suspended for five days. A hearing was conducted at the MPS central office, at which time the school principal stated that an alternative placement would have to be found; it was determined that Melanie should not return to her current school, the Milwaukee School of Languages.
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Up until this time, no-one from MPS suggested that Melanie may be a child with a special education need. No referral for this purpose was made. According to the testimony of the school psychologist, this was a mental health issue that required medical treatment. Even though Melanie was receiving poor grades, the school psychologist did not feel a special education referral was warranted. She testified that the standard was a “reasonable suspicion” that a child qualifies. At the central office hearing, the school principal recommended an assignment to another school, not a referral for an evaluation.
Finally, in January, 2004, almost two years after Melanie started having problems, a request for a special evaluation was made by Melanie’s mother. This was after she made contact with the Wisconsin Coalition for Advocacy. Her mother testified that she had never heard of Child Find and believed that special education was only for children with learning and physical disabilities, not emotional disabilities. An evaluation was completed and Melanie was found eligible for special education. Melanie continues to receive special education and related counseling services.
Ryan O’s problems began in the sixth grade at the Lincoln School of the Arts during the 2002-2003 school year. He started having behavioral problems and was suspended frequently. He was privately hospitalized for mental health problems. Ryan’s mother met with the school’s assistant principal to discuss her concerns, especially regarding her son’s suicidal thoughts. She was of the opinion that the assistant principal was not interested and so she went to the principal. No suggestions were made. Ryan started the seventh grade at Lincoln School of the Arts but continued to have problems. His mother made a school visit and then had Ryan transferred to Bell Middle School in February, 2004. She advised the Bell assistant principal of Ryan’s problems. Ryan’s mental health problems continued and his grades dropped dramatically, from the honor roll in the
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fall of 2003 to failing grades in June, 2004. The principal at Bell testified that students who transfer into the school are given an opportunity to improve, and she was advised that Ryan had good academic skills. At the start of the 2004-2005 year, Ryan’s behavior had not improved. There was an incident on September 3, 2004, and he was suspended from school. The principal did not suggest a special education referral.
Ryan’s mother went to the MPS Parent Center, but a special education evaluation was not suggested. Finally, she met with a child advocate who suggested that she request a special education evaluation. She made the request, Ryan was evaluated and found eligible for special education based on an emotional behavior disorder. According to the mother’s testimony, despite her involvement and numerous meetings with MPS, no one from MPS suggested special education.
Nathan L. moved to Milwaukee from Florida in June, 2001. While attending school in Florida, Nathan had been receiving services under a §504 (Rehabilitation Act) plan. He was registered at Fritsche Middle School. His mother testified that at the time she registered Nathan, she advised school authorities that her son had a §504 plan in Florida and was diagnosed with ADHD and OHI. Nathan immediately started experiencing problems in school and he became very disruptive. His mother met with his teachers and mentioned the prior §504 plan. Nathan was eventually arrested for felony assault on a teacher. He hit his teacher in the head with a planner, and at age 13, was handcuffed and taken into custody. His mother then learned that no §504 plan had been put into effect; she was told that “they don’t transfer.”
In January 2002, Nathan’s mother requested a special education referral, and only then, did MPS request Nathan’s records from Florida. An IEP meeting was held on May 9, 2002.
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The cognitive problems of Jamie S. began in kindergarten. Her mother asked Jamie’s teacher in grade K-5 about certain problems in school and at home, but the response was to see what transpired during the year. At age nine, she was unable to multi-task and needed help with hygiene and dressing. She repeated first grade. According to the testimony, her mother repeatedly requested that Jamie be tested. An IEP was finally held, but Jamie’s mother was not present. Her mother says she was working and not notified of the meeting. Jamie was found to have a low IQ and to be eligible for special education. MPS states that it attempted to contact Jamie’s mother by phone calls and in writing on three occasions.
The academic and truancy struggles for Bryan E. began in the fifth grade. He was struggling with reading and repeated the fifth grade at Clement Avenue School. He then attended Bell Middle School in 1999-2000 for sixth grade, and despite the fact that his report card indicates “not promoted,” he proceeded on to seventh grade. The same scenario occurred upon his “promotion” to eighth grade. His eighth grade report card in 2002-2003, shows a final grade point average of 0.821, but he was passed on to the ninth grade. In other words, even though he was consistently not receiving passing grades to qualify for a promotion, he was nevertheless passed along to the next grade.
Bryan’s problems included numerous absences from school. His mother would place him on the bus, but he failed to attend school. Also, he would do his homework, but would fail to turn it in. His mother discussed her son’s academic failures with the assistant principal, who suggested that she meet with an MPS social worker. Bryan’s mother did this, raising a concern of ADHD and asking what tests were available. The social worker made no specific suggestions and no mention of a special education referral. Then Bryan went to Marshall High School and, apparently because
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of a name mix up, was mistakenly placed in a special education classroom. Academically, Bryan started to do well. Then, the mistake was recognized, Bryan was returned to the regular classroom, and his poor performance returned. At this point, his parents went to the Parent Center for help and it was suggested that they request a special education referral. Bryan’s mother then wrote a letter to the school principal requesting an IEP, but received no response. A second letter also failed to obtain a response. A third request was successful and an IEP was scheduled for February 26, 2004. Due to health problems, Bryan’s mother said she would be unable to attend, but requested that she be provided alternate participation by telephone. Her alternate attendance at the IEP was not arranged, but Bryan was found eligible for special education.
As seen in Melanie’s situation, the issue of suspension has an effect on the timely identification of children in need of special education. It also had an effect on the timeliness of providing services. These were areas reviewed by Dr. Rogers Adkinson. She requested 90 cumulative files, but was only provided with 70. Based on her study of those files, she concluded that certain patterns of conduct emerged. She found that the suspension rate was higher in the MPS schools than the state average, especially at the elementary school level. Parenthetically, she only analyzed elementary schools, because the MPS high school suspension rate was so much higher than the state average that she did not believe a review was feasible.
In her opinion, many of the suspension were the result of emotional behavioral problems, which can constitute a disorder eligible for special education if it impacts on the child’s ability to learn. Dr. Rogers Adkinson testified that she reviewed the files with an eye toward academic failure correlating to suspension, and whether, in her opinion, the child would qualify for special education. Even though this involves a subjective analysis, none of the defendants’ experts conducted a similar
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review of individual files. According to Dr. Rogers Adkinson, suspensions not only delayed the identification of children with a disability, but also delayed their referral for an evaluation. The evidence introduced by way of exhibits 322 and 321 indicates that the suspension rate percentage increased from the 2002-2003 to the 2003-2004 school years, and the district wide SEP for 20042005 indicates that these rates have gotten worse.
The foregoing students are representative of the class. Testimony regarding other children was presented, and the pattern was similar to that described above was presented. For example, Jyran J. had received mental health treatment. Jyran’s problems started at age 4, his twin sister had similar problems and was found eligible for special education, but Jyran’s IEP was not held until age 13 in May, 2005. This was despite the fact that when Jyran was suspended in 2003, the notice stated, “Jyran is totally uncooperative! This has been going on for many weeks. He has become a danger to himself and others. Jyran is not responding to any of our interventions.” (Exhibit 320.)
These children, the named plaintiffs and the other children for whom the court received evidence, exhibited behavioral and academic problems in school and often had diagnosed psychological conditions. But referrals were not made in a timely manner. What is interesting in the response of the witnesses for MPS is that MPS did not argue these were children who “slipped through the cracks,” or that the plaintiffs selected the most severe examples, but rather the educators steadfastly stuck by their decisions not to refer. Witnesses spoke of use of other interventions before referral, or attempting to avoid the stigma of the special education label.
Turning to the responses of MPS, several approaches were presented. First, MPS established that it disseminates a substantial amount of material in an attempt to alert parents to the special education services it provides. It distributes a Parent/Guardian Handbook to parents and guardians
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at the beginning of each school year. This handbook has a section that includes the MPS Child Find telephone number if a parent suspects his or her child may have special education needs. MPS sends Child Find information to community organizations, and to clinics and doctors’s offices upon request. The MPS special education liaisons are responsible for outreach and training to private and parochial schools. The MPS Parent Center is also a source of special education referrals and information.
Even though MPS tries to get the word out about its special education programs, it is still missing too many children with needs. It certainly missed the individual children about whom testimony was taken at trial. And, it missed the hundreds more found as a result of Dr. Rogers Adkinson’s record review. The dissemination of information is obviously required to comply with the IDEA, and it no doubt triggers a number of requests for referral. However, under the law, the obligation of MPS goes beyond a self-identification process, which is all that the dissemination of these materials does. When the parent or guardian fails to request a referral, it is incumbent upon MPS to initiate the process when appropriate.
Notwithstanding the stipulated MPS policy that requires any licensed school staff member who reasonably believes a child has a disability to make a special education referral, the evidence shows a delay in triggering the referral. Is that delay reasonable? In response to many of the individual situations, the testimony shows that MPS goes to great alternative lengths before it reaches the “reasonably believes” point that triggers the special education referral.
Illustrative of this point, is the testimony of Sandra Schroeder, who was assistant principal at Bell Middle School. She testified regarding Ryan O. In February, 2004, Schroeder met with Ryan’s mother about having her son transfer to the sixth grade at Bell. His mother said that Ryan
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was a good student, but picked on by his peers due to his gothic dress. According to Schroeder, initial problems with Ryan were new school adjustment issues. Bell had a behavior modification workroom where students who were acting out could be sent, and a variety of incidents resulted in Ryan’s referral to the workroom. In March, 2004, Ryan met with the school psychologist, and Schroeder testified that the school psychologist observed Ryan for the balance of that semester. Schroeder testified that Ryan was seen by the Collaborative Support Team, but the MPS records do not substantiate this. As far as Ryan’s grades, he entered with a 2.2 grade point average and ended the semester with at 0.88 grade point average. Ryan would also refuse to go to some classes and failed to turn in homework. Ryan also engaged in self-mutilation; after his dog was hit by a car, he carved the dog’s name in his arm. When asked whether or not Ryan should have been referred for special education, Schroeder emphatically said “no.” She believed that the school had sufficient interventions in place, such as a guidance counselor, a social worker, and an outside counselor to work through the issues. When cross-examined about Ryan’s behavior, Schroeder acknowledged that she was concerned, but not alarmed.
Schroeder also encountered Bryan E. at Bell. A number of truancy letters were sent and Schroeder had a number of conversations about the problem with his mother. Bryan consistently had poor grades, often below 1.0 for a final grade point average. Schroeder testified that this was not a case for a special education referral because a student’s grades will not be good if he is absent from class so often.
Therefore, in regard to this first aspect of initially identifying a child who may be eligible for special education services, MPS contends that referral decisions are individual and subjective. Since the educators have been trained in dealing with these issues, persons like Sandra Schroeder should
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be accorded great deference. Another important consideration that came into play in reaching the “when appropriate” guideline, was illustrated in the testimony of Lynn Boreson, who is a DPI consultant for emotional behavioral disability (“EBD”). Boreson had also been a special education teacher for 17 years, but not in MPS. She has prepared an EBD worksheet for school staff to follow. For the student exhibiting unusual behavior to be eligible for special education on the basis of EBD, the IEP team must answer each of the four questions in the affirmative. For example, the behavior must significantly depart from the ethnic or cultural norm; it must be severe, chronic and frequent; it must occur at school and at least one other setting; and the student must display any of the behaviors on an enumerated list.
The consideration involved here, as indicated by Boreson, is to avoid “labeling” the child. In other words, once the school staff proceeds to the EBD checklist, the process of stigmatizing the child as an individual with a disability in need of special education begins. Boreson testified that many view special education in negative terms and this label may stay with the child for years. Therefore, Boreson testified that other interventions should be tried first, but she also acknowledged that sometimes these alternates take too long and it is not reasonable to continue the child in regular education.
Although Boreson did not review the records of the plaintiffs, she was examined about their particular situations in a hypothetical context. Basically, she stated that she did not want to second guess any of the decisions since they are subjective, but she did acknowledge that the facts do disclose reasonable suspicion for an earlier referral. Boreson’s testimony clearly indicates that the educators responsible for making a referral are very reluctant to do so because of what they believe it will do to the child, i.e. place an adverse label on the child. Thus, they will go to great lengths in
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attempting alternate methods of intervention, and in doing so, will not suggest a special education referral to the parent. As can be seen in the cases of the named plaintiffs, the extreme hesitancy of educators to pull the special education referral trigger, even if done in good faith, did a disservice to the educational and other needs of the child.
The IDEA, of course, does not contain a “stigma exception.” Further, a child can be referred, evaluated, and have a disability identified, all without changing the child’s academic situation. It is only after the disability is identified, that the IEP process will determine what changes, if any, major or minor, will be needed in the child’s education plan. Finally, the stigma argument is illogical, because a worse stigma is going to attach to a child who is not referred and ends up being constantly disciplined, suspended, or too old for the grade he or she is in. In retrospect, and in the opinion of the court, it would have been better to make the referral and go forward with the IEP, since this only commences the process of determining whether or not there is a need for special education. Then, if the IEP team determines that alternative interventions are more appropriate in lieu of special education, if the parents disagree, there are sufficient due process administrative procedures in place to challenge that decision. To the contrary, as this litigation has clearly illustrated, when special education is not suggested, too often the parents default to the subjective judgment of the educators.
The second overarching aspect in Child Find, and one also reviewed by Dr. Rogers Adkinson was the delay during the years under consideration in conducting the IEP after the referral or request had been made. The determination as to whether the child is eligible for special education is made at this initial team meeting. Dr. Rogers Adkinson reviewed records in which the timing of the initial evaluation took longer than 90 days after the referral. This covered the period from June 1, 2000 to
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June 30, 2005. Exhibit 336 shows that for the period from June 1, 2000 to June 30, 2003, a total of 853 (9.9%) of all initial evaluations exceeded 90 days; for the period from July 1, 2003 to June 30, 2005, the total was 778, which represents 8.4% of all referrals. The exhibit also discloses that numerous cases were marked closed, but the records fail to disclose the reasons for this action. Based upon her review of these records, Dr. Rogers Adkinson concluded that certain patterns emerged. She identified eight separate patterns of conduct engaged in by MPS in regard to these extensions of time. She testified as to these patterns, a summary of which is attached to her expert report, (exhibit 8, appendix A). They include extensions due to the fact that a referral was made between March and May and no evaluations were conducted during the summer, and extensions in order to obtain medical information. The patterns also include a category in which the MPS file was too incomplete for Dr. Rogers Adkinson to determine the reason for extension.
To demonstrate the various patterns observed by Dr. Rogers Adkinson, she testifed during Phase I of her review of cumulative files for specific students. Some of the files on which Dr. Rogers Adkinson offered testimony were of the named plaintiffs, but others were not. The stated purpose of this testimony was to illustrate the typicality of the files she reviewed, the files that underlie her conclusion regarding the systemic delay of IDEA services by MPS during the years in question.
By way of example, she noted the file of Xavier, (exhibit 191). The file shows that a special education referral was requested by Xavier’s mother on November 5, 2002; the time within which to conduct the evaluation was extended until January 30, 2003; and the IEP was held April 29, 2003. The file also shows that the parent refused to consent to any extension, and no authorization was obtained from DPI. The only “justification” in the file for the extension is “additional testing and
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observation,” but Dr. Rogers Adkinson questions this reason because a language proficiency was conducted on December 2, 2002. Special education services did not commence until September, 2003.
Another example was Joseph, a first grader who had an existing IEP for ADHD at West Bend and transferred to MPS, (exhibit 260). After transfering, Joseph experienced many suspensions, including one occasion when the police were called. His mother requested a referral upon his transfer in July, 2002, but it was extended until October, 2002. At that time, the IEP team determined that his problem was “environmental,” and did not qualify for special education. Despite the fact that Dr. Rogers Adkinson opined that this child qualifies for special education, there was no reason for the delay in evaluation.
Desmond, (exhibit 255), received 16 suspensions in first grade and 28 in second grade. In addition, he failed to complete his work at school. Psychological testing was suggested, but no special education referral was generated. Dr. Rogers Adkinson testified that examples like Desmond and others, as well as named plaintiff Melanie, students who exhibit extreme emotional behavior and are performing poorly academically, are subject to discipline and suspensions instead of being promptly referred for special education.
Finally, in regard to the adverse effect suspensions have on children who may qualify for special education is that, under the law, if a child has a suspected disability, the maximum suspension that can be imposed is 10 days. However, before a referral is made of a child suspected of having a disability, there is no such maximum. So, for example, if Dr. Rogers Adkinson’s opinion regarding Desmond is correct, that he should have been referred for special education early on, the
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excessive period of suspension would not have occurred, unless he was determined not to be disabled.
The court finds that the plaintiffs have proven by a preponderance of the evidence that, during the years in question, MPS violated the Child Find provisions of the IDEA. The evidence establishes that, system wide, MPS failed to refer children with suspected disabilities in a timely fashion, improperly extended the initial evaluation of children with suspected disabilities, and inappropriately used suspensions in a manner that adversely affected both the identification and evaluation of children with suspected disabilities. The plaintiffs have also claimed that MPS violated the Child Find provisions of the law by failing to review all data to determine the appropriate needs within the child’s initial evaluation of a suspected disability, and by not having parents or all appropriate persons at the initial IEP.
The court previously discussed the defendants’ challenge to finding systemic violations in regard to their arguments that this case is dealing with just limited components of the IDEA and that the plaintiffs have failed to exhaust their administrative remedies. As this court stated at the time it certified the class,
[A] claim is ‘systemic’ if it implicates the integrity or reliability of the IDEA dispute resolution procedures themselves, or requires restructuring the education system itself in order to comply with the dictates of the Act. Doe, 111 F.3d at 682. At this point, the court will address the defendants’ arguments that the plaintiffs have presented only individual cases and have failed to establish that these situations are examples of system wide problems. First of all, the actions of the defendant DPI lend support to the conclusion that the Child Find problems at MPS were in need of restructuring. These problems have been the subject of
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continual monitoring by DPI during the years in question and resulted in a forced remaking of the special education system at MPS in order to comply with the requirements of the IDEA, in more areas than just Child Find. DPI began issuing corrective action plans (“CAPs”) which turned into consolidated corrective action plans (“CCAPs”). DPI altered its monitoring of MPS in an attempt to bring the district into compliance. Finally, at the beginning of the 2002-2003 school year, DPI required MPS to establish a Special Education Oversight Action Plan (“SOAP”). This was followed by the CIFM Action Plan. Notwithstanding these multiple corrective actions, Child Find violations continued to occur at MPS, even at the end of the period under scrutiny in this litigation. As noted earlier, even MPS’s expert Dr. Elise Frattura opined that it may take five to seven years following the latest corrective action for MPS to come into compliance in regard to Child Find. Based on this history, it would simply be counterintuitive to view DPI’s continual oversight as merely attempts to require MPS to correct sporadic individual complaints. If that were the case, it would be akin to using a shotgun to kill a fly. MPS was in need of system wide restructuring, DPI knew this and therefore required it. What has been presented in this litigation is evidence of systemic violations.
Turning to the discrete areas of challenge raised by the plaintiffs, finding a systemic violation in regard to failing to conduct IEPs within the required 90 days is not difficult. The evidence establishes that MPS failed to conduct IEPs over the summer months, and as a result, improperly extended the 90 day period. Until this particular problem was corrected by having IEP teams available during the summer, this was obviously a district wide practice. In other words, no evaluations during the summer means just that, i.e. none were performed. Therefore, in those cases in which the referral was made during the spring, waiting until the following October to conduct the IEP violated the IDEA. The fact that this problem has now been corrected is something that can be
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considered when discussing appropriate remedies, but the eventual corrective action does not nullify the violation.
In regard to other reasons for delay, as noted above in exhibit 336, MPS records disclose that from June 1, 2000 to June 30, 2005, hundreds of referrals were not evaluated within the 90 day period. Adequate reasons to support the extensions are not found in the records. Referrals were closed without explanation. The evidence presented is more than sufficient to support the conclusion that MPS systemically violated the 90 day requirement.
During Phase II, plaintiffs presented evidence concerning individual situations in which the referral should have been made at an earlier point in time. In Phase I, Dr. Rogers Adkinson concluded from her review of over 200 files that this failure to refer was a system wide problem. In addition to the testimony offered during Phase II, she testified about other particular students. Again, while it was only her subjective analysis that a referral should have been made sooner, her opinion based on a review of MPS files was not contradicted. Hers was a qualitative analysis to ascertain certain trends. However, these were not trends that were limited simply to the files being reviewed; they are trends that Dr. Rogers Adkinson opines should be projected over the entire district.
Based on the totality of the evidence presented, which includes testimony regarding the individual situations, the experts’ opinions, together with the fact that DPI found MPS in noncompliance with Child Find issues, this court concludes that the plaintiffs have established systemic violations during the years in question. As discussed earlier, one reason for the delay in referral was that MPS preferred to utilize alternate intervention methods. These pre-referral interventions, while well-intended, do not excuse the Child Find violations. The evidence
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establishes that alternate intervention was always MPS’s preferred choice, when in fact, a referral for special education was the more appropriate route to choose.
The court’s conclusion regarding failure to refer on a timely basis applies equally to the improper use of suspensions. Although suspensions were not the subject of any noncompliance orders from DPI, here the evidence submitted by the plaintiffs, including from Dr. Rogers Adkinson provides a sufficient basis for projection system wide. The evidence presented indicates that the suspension rates at MPS were not only greater than the state average, but were increasing during some of the school years in question. The comparison between school years 2002-2003 (exhibit 322) and 2003-2004 (exhibit 321) shows an increase. Suspensions alone do not qualify a child for special education, but such disciplinary action is indicative of a child with a disability, when combined with the other signs exhibited by the child pointing to that same conclusion. Each of the representative plaintiffs in the class exhibited, not just one, but many warning signs pointing to the need for a referral for an evaluation.
Turning to the plaintiffs’ claim regarding the failure of MPS to review all data to determine a child’s appropriate needs at the initial evaluation, the proof presented to establish that this is a systemic violation is not as persuasive as that regarding other claims. First of all, Dr. Rogers Adkinson discussed this issue in regard to one of her several categories of improper reasons for extension from the referral to the IEP. Here, she provided specific examples wherein she contended that MPS ignored existing data of an emotional disorder and extended the time in order to seek evidence for a referral under a different disability. Although her analysis is supportive of ways in which MPS misused extensions, that conclusion does not establish a systemic failure to consider all data to determine a child’s appropriate needs for an initial evaluation.
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In each of the examples in this category, she reviewed the child’s cumulative file and disagreed with the way in which MPS discerned the child’s disability. By way of illustration, she testified regarding Marquita, (exhibit 256), who was qualified as OHI, but Dr. Rogers Adkinson said she should have qualified under EBD; she said that based on the nature of the child’s problems, EBD was the appropriate diagnosis. Primarily, she used this file as an example of improper use of several extensions, but the plaintiffs now seek to expand its significance. For Dr. Rogers Adkinson to make a diagnosis of a specific disability on a paper record, without seeing the child, is troubling to this court. This is not the same as reviewing the paper record and concluding that MPS should have suspected such a disability earlier and made a referral, as in the case of Tennessee, (exhibit 257), a child who was diagnosed with schizophrenia and depression, had behavior problems at school, was suspended, changed schools five times, but was never referred for an IEP. This claim appears more related to the exercise of individual professional judgment in each case, and not a violation that is inherent in the system. The plaintiffs on this issue have failed to persuade the court that the specific failure to consider all of the available data in attempting to ascertain whether the child has a disability, or the nature of same, is a systemic problem.
The evidence presented at Phase II demonstrated that there were other problems in regard to Child Find, such as not having the parent at the IEP. The law requires that parents are to be involved in the initial evaluation process and the IEP should be scheduled at a time that is mutually convenient to educators and parents. Wis. Stat. § 115.78. The plaintiffs presented evidence that this was not always done. Without going into detail, the plaintiffs presented testimony from certain parents that they were not in attendance at the IEP. The argument is that MPS failed to make adequate attempts
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to secure the presence of these parents. In response, MPS offered testimony to demonstrate the efforts made in an attempt to secure the presence of the parent or parents.
In order to get a better grasp on whether or not MPS was complying with certain Child Find requirements, both a checklist and non-checklist of items was established. Checklist items #1, #2 and #4 pertain to parent participation in the evaluation process. ( See exhibit 195 (2003-2004 report)). The results vary. For example, for the school year 2003-2004, for checklist item #1, which is whether the child’s parents are provided with a notice of the evaluation, the district wide average was 87.8%. Exhibit 353 is a comparison between school years 2003-2004 and 2004-2005 for district wide compliance with Child Find checklist items. This exhibit shows that the district wide average for checklist item #1 for 2004-2005 was 87.7%. On the other hand, checklist item #4 covers whether the child’s parents attended the meeting to determine whether their child is, or continues to be, a child with a disability. This item includes whether attempts were made to find a mutually agreeable time for the meeting. The compliance rate for 2003-2004 is 95.2% and for 2004- 2005 is 95.5%.
Checklist item #2 covers whether the child’s parents were contacted and afforded an opportunity to participate in the review of existing evaluation data. For 2003-2004, the compliance rate was 92% and for the following year, 89.9%. What should be made of these statistics is the question asked by the court. Of significance in answering that question is the fact that the creation of the checklist was a result of DPI’s continued efforts to bring MPS into compliance in these areas. It was in 2002, when DPI recognized that its many corrective action plans were not accomplishing their goal that it felt sufficiently motivated to require a system of internal accountability. MPS was unable to translate corrective action plans into compliance and apparently, in some areas, the more rigorous accountability plan was able to move MPS toward better compliance.
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The fact that MPS has improved its compliance rate in some of these Child Find areas does not alter this court’s conclusion that the violations of the IDEA are nevertheless systemic in nature. The testimony and the data lead this court to only one conclusion, which is that the inability of MPS to reach full compliance with the law in the area of Child Find is not the result of numerous isolated and unrelated cases, but stems from systemic inadequacies.
2. Liability of DPI Plaintiffs’ experts, and in particular, Dr. Tucker testified that the actions of DPI to fulfill its obligation to assure compliance with the IDEA were all procedural, but lacked substance. In other words, DPI engaged in substantial efforts to obtain reports from MPS, but not compliance. As just discussed, the court has concluded that MPS failed to comply with the law in regard to Child Find. Like MPS, DPI also contends that the plaintiffs have failed to establish any systemic violations, and that they should not be excused from the law’s exhaustion requirement. Since DPI does not raise any new arguments on these points, it is not necessary for the court to reiterate what it has previously stated in rejecting the defendants’ positions. Instead, the court will address the issue of whether DPI is also liable for the failures to comply with the IDEA. Here, the court recognizes that the state agency is in a difficult position since it has the overall duty to ensure IDEA compliance. The state is responsible for success, but in this case, the Child Find efforts of MPS were not successful, in that they failed to comply with the law. Of course, DPI knew MPS was not in compliance, and attempted to bring about a change by issuing continual procedural requirements. DPI argues that its constant oversight satisfied its obligations under the law. Unfortunately, a similar argument, that a state’s duty is satisfied by general oversight and supervision, was rejected in the case of Corey H. v. Board of Education of the City of Chicago,
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995 F. Supp. 900 (N.D. Ill. 1998). As with MPS, this court is not saying that DPI did not act in good faith and did not try, but it efforts were not able to bring about the required compliance.
The evidence, as it is relevant to this case, details the efforts of DPI to bring about compliance starting in 1999. In June, 1999, the State superintendent wrote a letter to the MPS superintendent raising serious concerns regarding the district’s failure to ensure timely IEP evaluations. The letter states, in part, “The second compliance issue of major concern is MPS’s failure over a four- and- one-half year period to ensure timely evaluation of children with suspected or known disabilities . . . Data submitted by MPS continue to demonstrate a significant number of children are not evaluated in a timely manner.” (Exhibit 222.) In an effort to obtain a change in direction, DPI insisted upon specific corrective actions and cautioned MPS that DPI might withhold $1.84 million in IDEA discretionary funds, or would permit use of such funds only for correcting MPS deficiencies. At that time, there were five open corrective action plans which DPI decided to consolidate, so it issued consolidated corrective action plans (“CCAPs”) in an effort to tighten up its oversight. Nevertheless, Child Find problems continued at MPS.
Then, with the 1999-2000 school year, DPI started increased on-site monitoring. In May, 2000, it visited three elementary, three middle, and three high schools, and ten student records were reviewed at each school. DPI found a number of errors in implementation of Child Find, including a failure to complete timely evaluations in 4.4% of the sampled records. As a result, a directive requiring corrective action was issued to deal with the compliance problems. (Exhibit 206.)
The next annual on-site monitoring was conducted in May, 2001, but it did not focus on the compliance problems of the prior year. This review found additional compliance problems, which included documentation of data for initial evaluations. Additional directives requiring corrective
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action were issued, (exhibit 208), and in May, 2002, DPI conducted its third annual on-site review. More problems were found. The annual on-site monitoring by DPI did not effectively correct implementation problems previously identified within the district. By letter dated July 18, 2002, (exhibit 29), the assistant state superintendent wrote the MPS Superintendent as follows: “With respect to the implementation errors identified in the May 2000 onsite compliance report, the current report documents that MPS has not yet corrected these errors. These implementation errors must be corrected without undue delay.” The letter goes on to state that with respect to the CCAP issues reviewed, these have not been corrected, and “the district must establish oversight and accountability mechanisms at each building to ensure that these continuing implementation errors are corrected.”
As a result, DPI ordered MPS to establish for the 2002-2003 school year, a special education oversight and accountability plan, one which would provide an effective centralized system that would hopefully resolve the compliance problems at the individual school level. This plan, which was established by school board resolution in June, 2002, became known as SOAP (Special Education Oversight Action Plan). During the district’s transition to SOAP, DPI did not continue its on-site monitoring, but instead worked with MPS in implementing the plan’s protocols. SOAP required MPS to develop an internal auditing system that would address the implementation errors found by DPI. School staff were also trained in the self-assessment program. In November, 2003, the internal audit plan became known as CIFM The CIFM plan was subsequently revised and additional forms, procedures and standards were developed by MPS, with the assistance of DPI. Finally, a checklist which contained all of the out of compliance issues from the 2000-2002 on-site monitoring was created, as was a list of non checklist items which related to implementation issues.
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In March, 2004, MPS conducted a self-assessment in each of its schools, with a focus on both the checklist and non-checklist items. During the 2004-2005 school year, MPS changed its policy in order to check the accuracy of its underlying data. Parenthetically, one of the concerns raised by plaintiff’s expert Mark Mlawer was that there was an absence of any meaningful verification or validation by either MPS or DPI of the recorded results. (Exhibit 9.) However, even if the numbers reported by MPS were not valid, they were relied on by DPI, and they showed that MPS was not in compliance.
In any event, the March 2004 self-assessment found a varying range of compliance levels, and still showed compliance concerns. Under SOAP, different levels of compliance were to be slated for different degrees of monitoring. The higher the compliance, the less monitoring was required. If there was 95% or higher compliance, only periodic review was required; ongoing support was required for 80-94% compliance; and intensive monitoring was needed for less than 80% compliance. Therefore, in August, 2004, the Milwaukee School Board directed that each school review its checklist and non-checklist items to see which type of monitoring was required for the following school year.
The March, 2004 self-assessment disclosed that one half (50.6%) of MPS schools required ongoing oversight, and 10.9% needed intensive monitoring. In other words, 61.5% warranted either intensive monitoring or ongoing oversight. The district, as a whole, required ongoing oversight (90.5% compliant). Based on this assessment, Mr. Mlawer concluded that MPS “paint[s] a picture of a district with significant compliance concerns. . .” (Exhibit 9 at 9.)
The foregoing simply highlights some of the key evidence, but having fully considered all of the evidence presented, this court concludes that DPI did not satisfactorily fulfill its oversight
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obligation under the IDEA. MPS was in non-compliance, but DPI only had to encounter the situation every six years. Then, during the start of the period involved in this lawsuit, DPI commenced annual on-site monitoring in an effort to pressure compliance. This tool was not successful so DPI armed itself with SOAP and CIFM. The procedures changed, but the compliance picture remained unsatisfactory.
Despite its continuing supervisory efforts, the compliance by MPS, while improved in some areas, was still inadequate under the law. For example, the failure of MPS to comply with the 90 day time limit is one of the major issues in this litigation, but the district had no adequate method to track compliance. Kim Brizendine, the MPS supervisor of special services information, testified that the system for tracking the 90 day time line for evaluations was not satisfactory until the second semester of the 2004-2005 school year. Her testimony corroborates the findings of Mr. Mlawer, who indicated that, in his opinion, there was only one self-assessment item that even tangentially related to the 90 day time limit, and that was non-checklist item #1, which is notification to parents. (Exhibit 195.) This item, however, does not check whether everything required is completed within the 90 day period. Brizendine testified that it was necessary to manually track extensions. The defendants did not present any witnesses who were able to point to any checklist or non-checklist item that monitored each school’s compliance in this area. Mr. Mlawer, in his report, concludes that the building based self-assessment process “is manifestly inadequate to monitor compliance with the requirements at issue [in this litigation].”
Maybe the lack of an adequate system is a partial explanation for the data contained in the “Over Ninety Day” report, (exhibit 336). This summary shows that from the period from July 1, 2000 to June 30, 2003, MPS had 853 cases over 90 days, with extensions granted in 603 and no
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extensions in 250. For the period from July 1, 2003 to June 30, 2005, 778 cases were over 90 days, with extensions in 529 and no extensions in 249. As a percentage of the total referred in the district, the over 90 day percentage decreased from 9.95% to 8.47% during these two periods. In the latter period, the summary shows a total of 622 closed cases, i.e. cases which never reached an evaluation. Parenthetically, there are no standards for closing cases.
Regardless of the reasons for the non-compliance of MPS, as concerns DPI, the question is did it do all that was reasonably required to assure compliance, even at the 95% level? It appears to this court, that the underlying problem was the failure of DPI to put any teeth into its bite. DPI required new procedures, but failed to impose appropriate sanctions when the acronym programs did not produce satisfactory compliance. As Donna Hart-Tervalon, assistant director of special education for DPI, acknowledged, no time line for compliance by use of SOAP was imposed. She was not aware of any deadline being established by DPI for MPS to remedy non-compliance items. Or, as Elliot Weiman, consultant to DPI on school administration and one of the monitoring co-leaders during the 2000-2005 period, was asked, were there specific consequences for MPS failing to improve? His answer was that the consequences would be non-resolution of the items and more intensive work would continue.
In other words, after the on-site monitoring, in which DPI failed to conduct year-to-year comparisons of non-compliance items, more intensive monitoring was established by way of SOAP and CIFM, but no deadlines were ever imposed on MPS. No consequences were ever imposed. The IDEA gives the supervising state agency a substantial sanction for non- compliance: reduction or withholding of federal funds until compliance is met. 20 U.S.C. § 1413(d)(1). However, according to Stephanie Petska, state director of special education, there were never any monetary sanctions of
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withholding funds imposed. In her opinion, DPI would rather “direct the use” of funds than withhold, the latter which requires a public hearing. She also acknowledged that DPI also could impose a sanction of decertifying a district, although that has never been done during her tenure.
DPI has urged this court to find that throughout the entire period of this lawsuit, it has fulfilled its supervision responsibilities over MPS as they relate to the issues in this litigation. For the reasons set forth in this decision, the court cannot reach that conclusion. It finds that DPI during the period in question, and in regard to the issues raised in this lawsuit, has failed to fulfill its oversight responsibilities over MPS. IV. CONCLUSIONS
Based on the evidence presented at both Phase I and Phase II of the trial, and for the reasons stated above, the court reaches the following conclusions of law:
A. The court confirms its certification of the class in this action as, Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
B. The court concludes that during the time period from September, 2000 to June, 2005, the group of defendants identified as the Milwaukee Public Schools violated the Individuals with Disabilities Education Act and related state statutes. These violations consisted of the failure of MPS to comply with the provisions of the IDEA known as Child Find. Pursuant to the requirements of the IDEA and related state statutes, MPS failed to adequately identify, locate and evaluate children with disabilities in need of special education and related services. The court further concludes that
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the violations of MPS during this period of time not only violated the rights of the individual plaintiffs, but were systemic in nature and thus violated the rights of the plaintiff class .
C. In particular, the court concludes that the systemic violations of the Child Find provisions established during the trial consisted of the following: MPS failed to refer children with a suspected disability in a timely manner for an initial evaluation, i.e. the 90 day requirement; MPS improperly extended the 90 day time requirement; MPS imposed suspensions in a manner that improperly impeded its ability to refer children with suspected disabilities for an initial evaluation; and MPS failed to insure that the child’s parents or guardians attend the initial evaluation. The court further concludes that the actions of MPS in not reviewing all data to determine the exact nature of the child’s disability, while violations in individual cases, did not constitute systemic violations of the IDEA.
D. The court concludes that during the time period from September, 2000 to June, 2005, the group of defendants identified as the Department of Public Instruction violated the Individuals with Disabilities Education Act and related state statutes. The violation of DPI consisted of its failure to adequately discharge its oversight and supervisory obligations in regard to the compliance by MPS with the IDEA and related state statutes, as that compliance relates to the systemic violations found by the court.
In reaching the foregoing conclusions, the court notes that the period in question spanned five years and the situation did not remain static. The evidence established that, throughout this period, both MPS and DPI were aware of their respective responsibilities to comply with the Child Find provisions of the law, and they made efforts to discharge these responsibilities. As discussed in this decision, their respective efforts, while taken in good faith, were not adequate to bring MPS into
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satisfactory compliance. As further discussed, as DPI continued to insist upon more thorough internal accountability procedures, compliance by MPS did improve in some areas, but overall, remained uneven. However, the evidence established that by the end of the time period under analysis, June, 2005, the situation regarding Child Find was in a much better position than it was at the start of the period, September, 2000. Furthermore, according to the testimony of one of the defendant’s experts, Dr. Judy Schrag, it takes time for the internal accountability procedures to work and things are improving. The court would hope that Dr. Schrag’s assessment is accurate; if not, no lessons have been learned by the parties as a result of this protracted litigation.
Nevertheless, even though the court has determined liability, before judgment can be entered, the court must address the issue of what sanctions/remedies are appropriate to be imposed. As for individual members of the class, since these students with disabilities may have suffered educationally as a result of Child Find failures, are they entitled to some form of compensatory education?
Next, since the violations were systemic in nature, what sanctions should be imposed to bring MPS into satisfactory compliance with the IDEA? Is satisfactory compliance considered something less than the 100% required by law? In order to address these questions, the present level of compliance for MPS must be determined. How much improvement has occurred since the latest internal accountability procedures were put into place and since the CIFMS approach has been implemented? One of the plaintiff’s experts, Dr. James Tucker testified that a number of things can be done to bring a school district into compliance. One of his recommendations is for the state supervisory agency to establish a “stakeholders group,” which would consist of representatives of every organization that has a stake in seeing that children receive a free appropriate public education.
62

DPI recently instituted such a group, and it includes participation by plaintiffs’ counsel. Dr. Tucker also recommended that an outside monitor be appointed to oversee full and appropriate development and implementation of Child Find strategies.
To resolve the issues raised in this next step of the litigation, the court will need to receive input from the parties. In an effort to avoid a fully litigated Phase III, it would be appropriate for the parties to again attempt to resolve this case by mutual agreement. The court knows the parties have made prior efforts to settle this case, but those efforts were unsuccessful. In the court’s opinion, now is the time to renew such efforts. It seems that a mutually agreeable solution would be more satisfactory than a court-imposed resolution. Also, it would have the effect of terminating the litigation, except for a possible supervisory role by the court. An agreement between the parties would expedite remedies and curtail continuing litigation costs, especially if either or both parties contemplate an appeal.
However, the court can only suggest, but the parties must act. This court must proceed with the case and to that end, the court will schedule a status conference with the parties to discuss the sanction/remedy phase of this case. This conference will be conducted on September 27, 2007 at 10:00 a.m., in Room 254, United States Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin.
Dated at Milwaukee, Wisconsin, this 11th day of September, 2007.
s/AARON E. GOODSTEIN U.S. Magistrate Judge
63

APPENDIX: Table of Acronyms ADHD: Attention Deficit Hyperactivity Disorder CAP: Corrective Action Plan CCAP: Consolidated Corrective Action Plan CIFM: Continuous Improvement and Focused Monitoring CIFMS: Continuous Improvement Focused Monitoring System CIMP: Continuous Improvement Monitoring Process DPI: Wisconsin Department of Public Instruction EBD: Emotional Behavioral Disorder FAPE: Free Appropriate Public Education IDEA: Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. IEP: Individualized Education Program LEA: Local Educational Agency MPS CIFM: MPS Continuous Improvement and Focused Monitoring Action Plan MPS: Milwaukee Public Schools OHI: Other Health Impairment OSEP: United States Department of Education Office of Special Education Programs SELL: Special Education Leadership Liaison SEP: School Educational Plan SOAP: Milwaukee Public Schools Special Education Oversight Action Plan
64

 
 JAMIE S. et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
Plaintiffs,

V.

Case No.: 01 -C-0928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, et al.

Defendants.

MEMORANDUM OF UNDERSTANDING BETWEEN PLAINTIFFS AND STATE DEFENDANTS

Plaintiffs, represented by Disability Rights Wisconsin (DRW) and State Defendants, Wisconsin Department of Public Instruction (DPI) and Elizabeth Burmaster, hereby agree as follows:
1. Once counsel for plaintiffs and DPI have signed their settlement agreement, they shall jointly convey the settlement agreement to the MPS defendants with an offer to join the agreement, without changes to said agreement.
2. MPS shall be given until March 14, 2008, to either join the settlement agreement between DPI and plaintiffs, or to reject it.
3. Regardless of whether or not MPS joins the settlement agreement between DPI and plaintiffs, DPI and plaintiffs agree to file a Motion to Approve the Settlement Agreement and Issue a Consent Decree with the court, as set forth in said settlement agreement, no later than April 8, 2008.
4. If the court does not issue a consent decree or otherwise approve the settlement agreement between DPI and the plaintiffs, and DPI remains in the case as a party

1
Case 2:01-cv-00928-RTR Filed 04/29/08 Page 1 of 4 Document 448

defendant at any time subsequent to the date of the court's order denying the motion to approve the settlement agreement, DRW and DPI agree to jointly offer the substantive terms of the settlement agreement as their joint litigation position at trial and on any subsequent appeal as to the appropriate prospective, compensatory and attorneys' fees and costs relief to be ordered against DPI. Neither DRW nor DPI will assert a litigation position at trial or on appeal regarding the appropriate prospective remedy, DPI's liability for compensation for individual named plaintiffs and class members, or DPI's liability for attorneys' fees and costs that is inconsistent with the terms of the settlement agreement. 5. If this matter proceeds to trial in November, 2008, DPI and plaintiffs agree to jointly retain one (1) expert to support the resolutipn described in their settlement agreement. DPI and plaintiffs agree to split the costs of said expert evenly. 6. Subject to paragraph 7 of this Memorandum of Understanding, if after trial or any subsequent appeal the court determines that DPI is liable for a greater amount of attorneys fees and costs than the amount required by the settlement agreement, DRW agrees to accept the amount of fees and costs required by the settlement agreement as full payment of DRW's liability, notwithstanding the court's determination. Subject to paragraph 7 of this Memorandum of Understanding, if after trial or any subsequent appeal the court determines that DPI is liable for a lesser amount of attorneys fees and costs than the amount required by the settlement agreement, DPI agrees to pay DRW the full amount of fees and costs required by the settlement agreement, notwithstanding the court's determination.
2
Case 2:01-cv-00928-RTR Filed 04/29/08 Page 2 of 4 Document 448

7. The provisions in paragraph 6 of this Memorandum of Understanding shall not prevent plaintiffs' counsel from petitioning the Court for an award of reasonable attorney's fees and costs against DPI in connection with a motion to enforce the Settlement Agreement.
8. DPI agrees not to assert any objection to any fee petition which DRW has filed or will file against the MPS defendants in this matter.
9. DPI agrees not to oppose any compensation which DRW seeks from the MPS defendants for the named plaintiffs and class members in this matter, either before, during or after trial.
10. DRW shall not publicly release the settlement agreement until it is filed with the court, unless DPI publicly releases the settlement agreement prior to filing in response to a public records request. DPI may publicly release the settlement agreement before it is filed with the court only in response to a public records request, and only with reasonable prior notice to plaintiffs' counsel. Counsel for DRW, DPI and DOJ agree that they will not make any public comment about the settlement agreement, until it is filed with the court. At the time the settlement agreement is filed with the court, DRW and DPI will issue a joint statement regarding the settlement agreement containing mutually agreed language. DRW and DPI agree that no agent or employee of either party will make public statements regarding the settlement agreement or the other party that is inconsistent with the joint statement.
11. Discovery shall proceed according to the court's order and the Federal Rules of
3
Case 2:01-cv-00928-RTR Filed 04/29/08 Page 3 of 4 Document 448

Civil Procedure unless and until the court issues an order dismissing DPI from this case. However, DPI shall not charge DRW for any copying costs which may arise from DRW's discovery requests ofDPI.

1 Dated this )

fl...--

I" 1..11).1....--,

day of_}'_J1_T', 2008.

DISABILITY RIGHTS WISCONSIN, INC.

131 West Wilson Street, Suite 700 Madison, WJ 53703 (608) 267-0214
Dated this -~ ,~9 day of Met.M'-~'-2008.

6737 W. Washington Street Milwaukee, Wisconsin 53214 (414) 773-4646

State Bar # 1005145 Attorney for plaintiff class

Dated thi. s~~ day of~·~,{V, 2-0~08.
Wisconsin Dept of Justice P.O. Box 7857 Madison, WI 53707-7857 (608) 266-2580

J.B. VAN HOLLEN ATTORNEY GENERAL
Assistant Attorney General State Bar #1009157 Attorney for Dept of Public Instruction and Elizabeth Burmaster

4 Case 2:01-cv-00928-RTR Filed 04/29/08 Page 4 of 4 Document 448

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., on behalf of the class, Plaintiffs,
v.
MILWAUKEE PUBLIC SCHOOLS, et. al.,
Defendants.

Case No. 01-C-928

ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT

I. PROCEDURAL HISTORY On September 13, 2001, the plaint iffs filed their com plaint, alleging violations under the
Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et s eq. (“IDEA”) and related state statutes, Wis. Stat. §§ 115.758, et seq. Upon the written consent of the partie s to the exercise of jurisdiction by the m agistrate judge, the case was reassigned to this court on November 28, 2001. The court then issued its scheduling order establishing a tim e frame for pretrial discovery and for filing a motion seeking class certification. On November 7, 2002, the plaintiffs filed their m otion for class certification seeking to proceed on their claim s within the context of a class action. T he defendants filed their opposition to the m otion, and on May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion because the court determined that a number of the plaintiffs’ claim s were subject to the exhaustion of administrative remedies requirement, pursuant to the IDEA. 20 U.S.C. § 1415(l). As stated in that decision, this cour t determined that the plaintiffs ’ proposed class definition included claims for which exhaustion would be required. Th e court concluded that some of the plaintiffs’

claims were not systemic in natu re, identifying these as “p ost-determination” claims. The court reasoned that these claims were subject to administrative exhaustion because they are individual and substantive in natu re and each alleged wrong could be poten tially remedied through the administrative process outlin ed in the IDEA. Th e court identif ied the othe r claims as “predetermination” claims and concluded that these could be systemic or procedural in nature. As such, these claims had the potential for class certificat ion. The plaintiffs we re required to file an amended motion for class certification limited to the pre-determination claims.
On June 23, 2003, the plaintiffs filed their amended motion for class certification, which sought class certification based upon the claims as narrowed by the court’s May 23, 2003 order. On August 1, 2003, the court issued a second Decision and Or der, which directed the plaintiffs to file a second amended motion for class certification because, in the cou rt’s opinion, bo th the p laintiffs and the defendants misconstrued the May 23, 2003, deci sion and order. Ultim ately, on November 14, 2003, this court entered its third Decision and Order, and at that tim e, defined the class as follows:
Those students eligible for special educat ion services from the Milwaukee Public School System who are, have been or will be either denied or delay ed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student. At this point, a num ber of other m otions were filed, including the defendant MPS’s motion to dismiss certain claims as not typical of the class and the plai ntiffs’ motion to compel production of materials from the United States Departm ent of Justice. The court ruled on these m otions and then met with the par ties to discuss appropriate notice to the class, and a discovery schedule for expert witnesses. Af ter notice to the cla ss was given and expert discovery com pleted, the court requested that the parties file a joint stipulated statement of facts, togeth er with summaries of their respective expert witnesse s. Based upon the subm issions, and in an effort to avoid the time consuming process involved in summary judgm ent motions, the court decided to bifurcate trial
2

proceedings, and first conduct a court trial for ex pert witnesses. After some rescheduling, the court trial involving expert w itnesses (referred to as Phase I) was commenced on October 18, 2005, and completed on November 2, 2005 (the trial did not r un continuously during that period). The court heard from six experts.
On November 28, 2005, the court held a hearing at which time the parties were advised of the court’s initial reacti on to the experts’ testimony and conclu sions drawn therefrom. The court informed the parties that it woul d be necessary to proceed to Phase II, which would consis t of the factual presentations upon which the experts form ed their r espective opinions. The trial to the court in Phase II began on April 10, 2006, and wa s concluded on April 26, 2006. The testim ony of 48 witnesses was presented, and num erous documents were rec eived in evidenc e. Post tr ial submissions were filed by the parties in June, 2006.
On September 11, 2007, the court issued its Phase II Decision and Order finding that MPS violated the IDEA’s Child Find req uirements. This violation was not lim ited to the represen tative plaintiffs but was system ic in nature and violated the rights of the plaintiff class. Specifically, the court held that MPS f ailed to refer children with a suspected disability in a timely manner for an initial evaluation, i.e. the 90 day requirem ent; MPS improperly extended the 90 day tim e requirement; MPS i mposed suspensions in a manner that improperly impeded its ability to r efer children with suspected disabilities for an initia l evaluation; and MP S failed to insure that the child’s parents or guardians atte nd the initial evalua tion. The court furthe r concluded that the actions of MPS in not reviewing all d ata to dete rmine the exac t nature of the c hild’s disability, while violations in individual cases, did not constitute systemic violations of the IDEA.
Finally, the court concluded that during th e time period from September, 2000 to June , 2005, DPI violated the IDEA and related state stat utes by failing to adequately discharge its
3

oversight and supervisory obligations in regard to the com pliance by MP S with the IDEA and related state statutes, as that compliance related to the systemic violations found by the court.
In light of this court’s finding of liability, the court p roceeded towards Phase III, the remedies phase of this m atter. (See Docket No. 415.) A court trial is scheduled to commence on November 3, 2008.
On April 7, 2008, the plaintiffs and DPI filed a joint motion seeking the court to approve a settlement agreement between the plaintiffs and DPI. (Docket Nos. 431, 432, 433, 435.) Following a status conference on Ap ril 17, 2008, (Docket No. 441), the court ordered MPS to respond with any objections to the proposed settlem ent agreement between the plaintiffs and defendant DPI no later than May 1, 200 8, and the p laintiffs and DPI were perm itted until May 15, 2008 to reply. (Docket No. 441.) The pleadings on the plaintiffs’ and DP I’s motion to approve settlement are now closed and the matter is ready for resolution.
Also pending before this court is the plainti ffs’ motion for interim attorneys’ fees. (Docket Nos. 392, 393, 394, 395, 397; DPI / MPS resp. 400, 404, 405; Plaint. reply 408, 409, 411.) II. SUMMARY OF PROPOSED SETTLEMENT
The settlement agreement between the plainti ffs and DPI ad dresses the three sp ecific areas of systemic violations found by the court in Phase II, namely, MPS’ failure to conduct timely initial evaluations, MPS’ f ailure to insur e that a child’ s parent or guardian participated in an in itial IEP meeting, and the fact that MPS utilized suspens ions in a manner that impeded its ability to refer children who may be suffering from a disability for an initial evaluation. (Docket No. 431-2 at 4-7.)
The settlement agreem ent provides that MPS shall conduct 95% of its initial evaluations within the required tim e period or the tim e period shall be properly extended, for two consecutive years. (Docket No. 431-2 at 4-5.) Similarly, the settlement agreement calls for MPS to have a parent or guardian present f or an initial IEP meeting or for MPS to m ake reasonable efforts to ensure the
4

parent or guardian’s participation, in 95% of its initial IEP meetings for a period of two consecutive years. (Docket No. 431-2 at 5-6.) F inally, the settlement calls for MPS, in two consecutive years, to refer 95% of students in kinderg arten through fifth grade who ar e suspended ten or m ore days during a school year and 95% of students in sixth through twelfth grades who are suspended twenty or more days in a school year to a “system of early intervention services . . . designed to address the students’ behavior issues that resulted in suspen sions and which shall incl ude the possibility of referral of the student for an evaluation to determ ine if the student is a student with a disability.” (Docket No. 431-2 at 6-7.)
Compliance with these agreed-upon benchm arks shall be evaluated by a court-appointed independent expert, whom the parties agree should be Alan Coulter. (D ocket No. 431-2 at 7-12.) This independent expert shall be paid for by DPI. (Docket No. 431-2 at 8.) The 95% com pliance rate shall be measured in each individual MPS school for the timeliness of initial evaluations, parent or guardian participation in in itial IEP m eetings, and with respect to compliance regarding suspended students.
Further, the settlement agreement calls for MPS, in two consecutiv e years, to refer 95% of MPS students who are retained in a given school year and are not identified as suf fering from a disability shall be “referred to a system of early intervention services approved by the Independent Expert designed to timely address the students’ academic or beh avior issues that resulted in retention and which shall in clude the possibility of referral of the student for an evaluation to determine if the student is a student with a disability.” (D ocket No. 431-2 at 7.) The 95% compliance is not referenced to “each school,” and programs for the referred students will be implemented with an 80% degree of integrity. Unlike the three issues discussed above, the court has not found any systemic IDEA violation related to the retention of students.
5

The settlement agreem ent calls for MPS to ha ve four years to achieve the required two consecutive years of com pliance regarding tim ely initial evaluations and parent or guardian participation in initia l IEP meetings and eight years to com ply with the agreement regarding suspended and retained students. (Docket No. 431-2 at 14-15.) N on-compliance shall result in a hearing before this court for a determ ination of the remedy. (Docket No. 431-2 at 15.) Com pliance shall result in term ination of the agreem ent and di smissal with prejud ice of the plaintiffs’ claims against DPI.
Further, the agreem ent calls for DPI to o rder MPS to pro vide training to MPS’ staff, as deemed necessary by the Independent Expert, on indi cators of special edu cation needs, referral procedures, and Child Find obligations. (Docket No. 431-2 at 13.) Finally, DPI agrees to provide for a fulltime professional to train and support parents and MPS staff re garding provisions of the IDEA and Child Find obligations for the length of this agreement, or until DPI’s paym ents for this professional meets $300,000.00. (Docket No. 431-2 at 13.)
Finally, DPI agrees to pay to the plain tiffs $475,000.00 in attorneys’ fees and costs to Disability Rights Wisconsin. (Docket No. 431-2 at 18.) III. MPS’ OBJECTIONS TO CLASS SETTLEMENT
MPS primarily argues that the court should reject the proposed settlem ent because the settlement will strip M PS of its leg al rights. (Docket No. 452 at 3-22.) Spec ifically, MPS contends that (1) the settlement strips MPS of the right to argue whether prospective relief is necessary and/or appropriate, (Docket No. 425 at 4-12 ); (2) the proposed settlem ent strips MPS of its right to make decisions regarding which students shall be reta ined, (Docket No. 452 at 12-13); (3) the proposed settlement strips MPS of its right to appeal a DPI directive to the Department of Education, (Docket No. 452 at 13-14); (4) and the proposed settlement agreement strips MPS of its right to discipline its students, (Docket No. 452 at 14-22).Further, MPS objects to the proposed settlement on the grounds
6

that it includes a class that it broader than that determined by the court, (Docket No. 452 at 23), the

proposed settlement relieves DPI of liability for any potential compensatory education, (Docket No.

452 at 24-2 5), and the proposed settlem ent agreement exceeds DPI’s authority un der the IDE A,

(Docket No. 452 at 25-27).

IV. ANALYSIS

A court in this district, some time ago in another class action involving MPS had this to say:

It is axiomatic that the federal courts look with great favor upon the voluntary resolution of litigation through settlement. United States v. McInnes , 556 F.2d 436, 441 (9th Cir. 1977); Du Puy v. Director, Office of Workers' Compensation Programs, 519 F.2d 536, 541 (7th Cir. 1975). In the class action context in particular, “there is an overriding public inte rest in favor of settlem ent.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Settlement of the com plex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources. Id.

Settlement of a class action is not, howeve r, an unmixed blessing. Balanced against the “overriding public interest in f avor of settlement” are strong countervailing public policies which counsel against auto matic judicial acceptance of such agreements. First and foremost is the fact that most of those whose rights are affected by a class action settlem ent the mem bers of the class are not involved in its negotiation nor ar e they present to voice th eir views in co urt. The class m embers must rely upon the representa tion of the class representa tives and class counsel to protect their interests. While this representation is no doubt vigorous in m ost cases, on occasion the negotiating parties may find that their individual interests can best be served by a settlem ent which is not in the bes t interests of the class as a whole. Similarly, class counsel m ay be persuaded by the prospect of a substantial fee to accept a settlement proposal which leaves the class with less relief than could have been procured through more vigorous negotiation. In such cases, the class m embers may find that substantial rights have been bargained away in exchan ge for relief which inures primarily to the benefit of a few class members or class counsel. See In re General Motors Cor p. Engine Interch ange Litigation, 594 F.2d 1106, 1120 (7th Cir. 1979); Moreland v. Rucker Pharmacal Co., 63 F.R.D. 611, 615 (W.D.La.1974).

In addition to this con cern with the interests of class m embers, there is a concern

with the interests of the public as a whole. The substantiv e issues involved in many

class actions reflect a broad public interest in the rights to be vindicated or the social

or economic policies to be established. In such cases, the ram

ifications of a

settlement can extend far beyond the rights of individual class members. This public

interest is present not only in civil rights suits such as the one now before us, but also

in such eco nomic litigation as antitrust and co nsumers' rights actions . Uncritical

acceptance of a class action settlem ent can, therefore, disturb im portant national

7

policies beyond the immediate impact upon the rights of class m embers. See Developments in the Law Class Actions, 89 Harv.L.Rev. 1318, 1536-39 (1976).
To safeguard the rights of class mem bers and allow consideration of the broader implications of a class acti on settlement, Rule 23(e) of the Federal Ru les of Civil Procedure requires that notice of a proposed settlement be sent to all class m embers and that judicial approval of settlement offers be procured prior to dism issal of a class action. Rule 23(e) does not specify any particular standard which a settlement must satisfy nor does it provide for a pr ocedure within which settlem ent proposals should be reviewed. The courts of appeals have required that di strict court approval of a settlement pursuant to Rule 23(e) be given only where the district court finds the settlement fair, reasonable and adequate. See, e.g., Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975).
Armstrong v. Board of School Directors, 616 F.2d 305, 313-14 (7th Cir. 1980) . Thus, the threshold
question presented to this court is whether the proposed settlement is fair, reasonable, and adequate.
Only if this court determines that the settlement crosses this threshold does the court proceed to the
first step in the se ttlement process; that b eing notification of the clas s members and a f ormal
fairness hearing. See, e.g., id. at 314.
“Generally, a non-settling defenda nt lacks standing to object to approval of a settlem ent
because the non-settling defendant is not affected by that settlement. Zupnick v. Fogel, 989 F.2d 93,
98 (2d Cir. 1993) (citing cases). Standing exists only where the non-settling defendant can show
that it will ‘ sustain some formal legal prejudice as a result o f the settlement.’ Id. (citing Waller v.
Financial Corp. of Am erica, 828 F.2d 579, 583 (9th Cir. 1987)).” In re NASDAQ Market-Ma kers
Antitrust Litig., 176 F.R.D. 99, 103-04 (S.D.N.Y. 1997). The question of MPS’ standing to object to
the proposed settlement is essentially subsumed into the analysis of the merits of MPS’ objections;
MPS has standing only if the proposed settlem ent only if it affects MP S’ rights and MPS objects
largely because it allege s that the settlement adversely affects its legal rights. The c ourt does not
accept the concession of the plain tiffs and DPI that MPS necessarily has standing to challeng e the
proposed settlement, (Docket No. 456 at 2), and ther efore rejects MPS’ argum ent raised in its sur-
8

reply that the plaintiffs and DPI have conced ed that MP S shall be legally prejudiced by the proposed settlement, (Docket No. 468 at 1).
The proposed settlement is between the plaintif fs and defendant DPI. Nonetheless, m any of the provisions set f orth in the p roposed settlement agreement create benchm arks that are to be achieved by the non-settling defendant MPS. Howeve r, the establishment of such be nchmarks per se does not m ean that MPS’ legal rights are affected by the settlement. This is b ecause all of the obligations that would be im posed upon MPS as a result of the enforcem ent of this proposed settlement could independently be imposed by DPI pursuant to its auth ority as a supervising state educational agency (“S EA”) under the IDEA. See 20 U.S.C. § 1412(a)(11); see also 20 U.S.C. § 1413(d). Therefore, in analyzing MPS’ objections, the court turns to the question of whether DP I has the authority to order MPS to take the actions called for in the proposed settlement agreement.
In relevant part, the IDEA provides: State educational agency responsible for general supervision. (A) In general. The State educational agency is responsible for ensuring that—
(i) the requirements of this part [20 USCS §§ 1411 et seq.] are met; (ii) all educational programs for children with disab ilities in the State, including all such program s administered by any other State agency or lo cal agency—
(I) are under the general supervis ion of individuals in the State who are responsible for educational programs for children with disabilities; and (II) meet the educational standards of the State educational agency; 20 U.S.C. § 1412(a)(11). Similarly, Wisconsin Statute § 115.90, the provi sion outlining what m ay occur if a local educational agency fails to com ply with W isconsin law relating to the education of disabled students, provides:
9

(1) If, as the result of a monitoring procedure or a complaint investigation, the state superintendent finds that a local educationa l agency has violated this subchapter, the state superintendent may require the local educational agency to subm it a corrective plan addressing the violation.
(2) If the state superintendent, after r easonable notice and an opportunity for a hearing, finds that a local educational agency has failed to com ply with any requirement in this subchapter, the state superintendent shall reduce or elim inate special education aid to the loca l educational agency until he or she is s atisfied that the local educational agency is complying with that requirement.
(3) If the state superintendent finds that a corrective plan under sub. (1) has not been implemented, or that withholding aid under su b. (2) has been inadequate to ensure compliance with this su bchapter, the state superintendent shall request the attorney general to proceed ag ainst the lo cal educational agency for injunctive or oth er appropriate relief.
In exercising its authority over MPS, DPI’s ultimate sanction is controlling the purse strings;
in other words, its available enforcement mechanism is primarily the actual or threat of withholding
funds. See id.; see also 20 U.S.C. § 1413(d)(1). W hen it com es to funding, MPS retains certain
procedural rights to challenge DP I’s withholding of funds, i ncluding an appeal to th e Secretary of
Education. See 34 C.F.R. § 76.401. MPS argues that proposed settlem ent unfairly infringes upon its
legal rights by foreclosing its opportunity to seek review of DPI’s orders.
The plaintiffs and DPI are explic it in their reply in stating th at the proposed settlement does
not expand DPI’s authority to withhold funds from MPS and would not foreclose MPS’ procedural
rights to challenge any withholding of funds by DPI. (Docket No. 456 at 19.) From the court’s own
review of the proposed settlem ent, there is nothing in the docum ent that affects MPS’ right to
challenge DPI’s withholding of funds; MPS’ pr ocedural right to challenge any action by DPI
remains unaffected by this se ttlement. The settle ment could be viewed as essentially another
corrective action, sim ilar to any one of the num erous other corrective action plans previously
established by DPI.
Another objection raised by MPS i s that it has com e into compliance with the IDEA, thus
negating the need for prospective relief. MPS ar gues that the proposed set tlement takes away its 10

ability to challenge prospective relief in Phase III. The correction of th e systemic problems found by the court in Phase II would be an issue for this court to resolve in Phase III, but the question of compliance with the IDEA is not solely for the court. Rather, compliance with the IDEA is first and foremost the responsibility of DPI. This court’s authority regarding compliance exists by virtue of the plaintiffs’ suit and the determination of DPI’s violations. This action in no way limits the ability of DPI to address the failures within MPS to co mply with its obligations under the IDEA. By doing so, as evidenced in the proposed settlement agreement, DPI relieves this court of the time consuming task of receiving evidence and making prospective relief determinations in Phase III.
Looking at the obligations imposed upon MPS within the context of being pursuant to DPI’s supervisory authority, the proposed settlem ent is not challengeable by MPS for i mproperly infringing upon MPS’ legal rights. MPS retains its procedural rights to object to any action by DPI, and, in particular, the withholding of funds, if it should come to that. Even though DPI has statutory authority to im pose corrective ac tion upon MPS, the court by virtue of approving the settlem ent does give its im primatur and independent authority to same. But, for the reason s stated, the court finds that by exercising its authority in approving the proposed settlement, it has not diminished the legal rights of MPS.
As for MPS’ distinct but related arguments that the proposed settlement agreement infringes upon MPS’ rights to discipline students and to determine which students should be retained, the court does not find that these argum ents are su fficient to warrant rejection of the propose d settlement agreement.
It appears that MPS’ objection to the se ttlement on the basis of its impact upon MPS’ responsibilities regarding suspended students is based upon a misunderstanding of the nature and consequences of the proposed settlem ent agreement. MPS argues, “Pursuant to the proposed class settlement, however, the school could not suspend the [hypothetical disruptive fourth grade] student
11

for longer than [10 days], even if it had no reasonable suspicion whatsoever that the student m ight have a disability.” (Do cket No. 452 at 18.) L ater, after citing num erous examples of students suspended for more than the threshold number of days, MPS alleges it “would not have been able to suspend or refer for ex pulsion either student as they had accum ulated the th reshold number of suspension days in a school year – accord ing to the class settlement – and instead would have to be referred to a ‘system of early in tervention services.’” (Docket No. 452 at 21.) Parenthetically, the court notes that m any of the suspens ions cited by MPS as exam ples that “occur with frequency in the District,” involve suspensions for truancy and tardiness. (See Docket No. 452 at 20.) As pointed out by DPI and the plaintiffs in reply, state law explicitly prohib its MPS from suspending students for truancy or tardiness. See Wis. Stat. § 120.13(1)(d); see also Wis. Stat. § 118.16(c). However, MPS’ compliance or non-compliance with state law regarding suspending students for truancy and tardiness is an issue beyond the scope of this litigation.
In no way does the settlem ent agreement prohibit MPS from suspending or otherwise disciplining students to the full extent authorized by law. Quite the contrary, the effectiveness of the settlement agreement in identifying students whose discipline problems m ay be caused by an undetected disability depends largely upon MPS utiliz ing suspensions in much the sam e way that it has in the past. It says that students who are suspended ten days or more during a school year “shall be referred to a sys tem of early intervention services.” (Docket No. 431-2 at 6.) The court fails to see how this abrogates the ability of MPS to discipline students. It simply establishes a threshold for taking a closer look at the disciplined student.
Granted, to some degree, the costs or time likely to be incurred by MPS in making a referral “to a syste m of early intervention services” may act to dissuade MPS from surpass ing the suspension threshold of ten days, but the court is una ble to conclude that this subtle disincentive constitutes an infringement upon MPS’ statutory right to discipline students.
12

Further, MPS argues that the proposed settlem ent agreement should be rejected because it would provide the Independent E xpert with th e “authority to overturn MPS’ suspension and expulsion decisions.” (Docket N o. 452 at 22.) W isconsin law provides that decisions regarding the suspension or expulsion of student s are within the authority of lo cal school boards. W is. Stat. §§ 119.04, 120.13(1)(b)(2); see also Wis. Stat. § 119.18(21).
The court finds nothing in the proposed settlem ent agreement that would e mpower the Independent Expert to overturn a disciplinary decision of MPS. There is nothing in the proposed settlement agreement to suggest that the referral to early intervention services is designed to replace a suspension imposed by MPS, but rather referral is an additional step that DPI has determined MPS must undertake to comply with the IDEA’s Child Find obligations.
As for MPS’ objection to the proposed settlem ent agreement with regards to the retention of students, MPS objects on the basis that the retention of students was not a basis for liability in Phase II and that the agreem ent would strip MPS of its au thority to make rules regarding the retention of students. The court finds that, for m any of t he same reasons discussed above with respect to suspension of students, the proposed settlem ent does not improperly infri nge upon MPS’ authority to make retention decisions for its students.
Although the court did not m ake any finding of MPS’ retention policies being a source of systemic IDEA violations in MPS, the fact that this matter was not at issue in this litigation does not preclude DPI from exercising its supervisory authority under the ID EA and determining that MPS must undertake corrective action. In the give-and-tak e of settlement discussions, the parties are free to include matters beyond those befo re the court. For example, a c ourt cannot order a tortfeasor to apologize to a plaintiff, but an ap ology can certainly be a term of a private settlement. It is pursuant to its supe rvisory authority that DPI m ay order the changes called f or in proposed settlement
13

agreement, and thus the court does not find that MPS’ arguments merit rejection of the proposed settlement agreement.
Having addressed and rejected many of MPS’ specific objections to the proposed settlement agreement, the court shall turn to the m ore general questions of whether the proposed settlement is fair, reasonable, and adequate and in doing so the court shall addre ss the remaining concerns raised by MPS.
DPI’s failure to superv ise MPS’ c ompliance with the IDEA contributed to the s ystemic failures the court found in the Phase II. Therefor e, any remedy im posed, whether as a result of a settlement agreement or an order of this court, must address these system ic failings and DPI’s lax oversight.
The remedies called for in the prop osed settlement agreement are entirely prospective and thus do not directly compensate any class member for any injury suffered by the class member. For example, the settlem ent does not call for any cl ass member to receive com pensatory education. MPS objects to the se ttlement on the basis tha t it leaves it entirely liable for any com pensation sought by the class. (Docket No. 452 at 24-25.)
The fact that the settlement does not provide any direct benef it for the members of the class does not ren der the proposed settlement ag reement unfair, unreasonable, or inadequ ate. This case has always involved much m ore than sim ply obtaining relief for each class m ember; creating comprehensive change in the m anner in which sp ecial education is addressed by MP S has formed the foundation of this litigation fr om the plaintiffs’ perspective. And this proposed settlem ent does much to accomplish this goal. In fact, it accom plishes more than what m ight have been achiev ed had this case fully continued th rough Phase III. For example, as discussed above, the proposed settlement addresses MPS’ retention of students, a m atter that was not a basis f or this cou rt’s liability determination and would not have been the subject of remedial relief.
14

Similarly, the court did not explicitly find that DPI and MPS violated the IDEA by failing to provide parents with adequate support and infor mation to eff ectively navigate MPS’ special education bureaucracy, but nonethel ess, as was m ade clear by the numerous stories told by the representative plaintiffs’ parents during Phase II, there was substa ntial room for improvement. The proposed settlement agreement addresses this concern by requiring DPI to fund a fulltim e position to coordinate and facilitate parents’ involvement in MPS’ special education system. This settlement provision, although again not a direct benefit to the class members, should prove to be a substantial asset for other parents who face the sam e or similar struggles, as did the represen tative plaintiffs’ parents. Thus, this provision shall serve to aid in remedying the systemic Child Find f ailures that formed the basis for MPS and DPI’s liability, at least until MPS meets the goals established by the proposed settlement agreement and DPI’s obligation to fund the position terminates.
Further, this agreement is not merely a corrective action plan by which DPI promises to do a better job monitoring MPS’ compliance with the IDEA. Rather, the proposed settlem ent agreement represents a truly differe nt approach by having the Independe nt Expert undertake the substantive role in ensuring MPS’ compliance, a responsibility that DPI failed to effectively discharge during the years in question.
At the April 17, 2008, conference with the parties, the court raised a significant concern with the proposed settlement agreement, that being the 95% compliance rate. The IDEA does not call for some percentage of compliance, but rather calls for full com pliance, i.e. a 100% com pliance rate. However, when dealing with a larg e urban school district with thousands of di sabled students, the absence of 100% com pliance does not necessaril y constitute system ic noncompliance with the IDEA.
Certainly, if 95% compliance is attained, violations of the ID EA are still occurring. E ven if MPS were to m eet the standards set forth in the proposed settlement agreement, the rights of as
15

many as 5% of MPS’ disabled students m ay be violated. Of course, the la w provides each one of these students with the right to pursue an indivi dual claim against MPS. But this litigation was not contesting a failure of procedural rights, it was addressing system ic failures. Based upon what has been presented in Phases I and II of this litigation, the court is of the opinion that a 95% compliance rate in these key areas is sufficient and appropria te to remedy the systemic failures the court found in Phase II. This is particularly true because the 95% co mpliance rate is to be m easured by individual school, rather than district-wide. Th erefore, because one could assum e that certain schools would exceed the 95% m inimum compliance rate, while others m ay just squeak by, the district’s overall compliance rate will necessarily be higher than 95%.
MPS argues that m easurement by s chool is inappropriate b ecause certain schools are too small to perm it for a meaningful sample. For ex ample, certain MPS schools have fewer than 5 initial referrals for evaluation in each school year, (Aff. Patricia A. Yahle, Docket No. 453 at 7, ¶30), and thus a single untim ely initial evaluation in a school with few disabled students m ay result in MPS failing to meet the standards established in the proposed settlement agreement for a given year. However, because special education services are administered largely at the individual school level in MPS, the court finds that m easuring compliance by school is not only appropriate, but will be more effective. Based on the ev idence presented at Phases I and II, district-wide com pliance measuring was very in adequate in the challen ged areas. Further, the cour t finds that the higher standard established by m easuring compliance by school rather than district-wide is appropriate to remedy MPS’ systemic failures.
With respect to the 95% compliance rate, the court notes a different standard in regard to the measurement for retained students. It is clear th at the 95% com pliance rate is to be m easured by each school for timely initial evaluations, (Docket No. 431-2 at 4), p arental participation in initial IEP team meetings, (Docket No. 431-2 at 5), and referrals of suspended students who surpass a
16

threshold number of suspension days, (Docket No. 431-2). In contrast, the proposed settlem ent in regard to retained students states, “As m easured during a twelve (12) month period as designed within the Compliance Plan, ninety-five percent (95%) of MPS students who are retained in a grade shall be referred to a sy stem of early intervention services . . . .” (Docket No. 431-2 at 7.) Thus, unless the court is misreading or misinterpreting this statement, it appears that compliance with this provision shall be measured on a district-wide basis.
Unlike the parental par ticipation and timely evaluation requirements, the IDEA does not require a re ferral to ea rly intervention services for students who are retained. Rather, the IDEA simply requires appropriate system s be in place to ensure that a lo cal school district is identifying students with disabilities, and DPI has determined that this referral system is necessary for MPS to comply with its Child Find obligations. Becau se the referral pro cess set forth in the proposed settlement agreement is not requ ired by the IDEA, the court finds evalua ting compliance with the requirement that MPS refer retained students to a system of early intervention services on a districtwide rather than individual school basis is appropriate.
The court notes that the proposed settlement agreement does not define what shall constitute “a system of early intervention services,” other than to say that this system shall be approved by the Independent Expert and “designed to timely address the students’ [academic or] behavior issues that resulted in suspension [or retention] and which shall include the possibility of referral of the student for an evaluation to determ ine if the student is a student with a di sability.” (Docket No. 431-2 at 6, 7.) It appears that all parties are deferring to the judgment of the Independent Expert for a determination of what s orts of services shall be sufficient, and thus it appears that the pa rties are asking the court to likewise defer to the Independent Expert. Havi ng reviewed the curriculum vitae of proposed Independent Expert Alan Coulter, the court finds him amply qualified to make
17

appropriate judgments as to the na ture of the early intervention serv ices that shall be provided, and therefore the court finds that deferring to the Independent Expert in this respect is appropriate.
Finally, the proposed settlem ent provides for a paym ent of atto rney’s fees to plaintiffs’ counsel by DPI in the am ount of $475,000. Currently pe nding before the court is the plaintiffs’ petition for interim attorney’s fees and costs in the amount of $1,319,898.89. That motion was filed on October 12, 2007. The court recognizes that the plain tiffs are prevailing parties in this action by virtue of its Septem ber 11, 2007 decision, but the tota l interim amount of attorney’s fees and costs which should be awarded pursuant to the fee shifti ng provision of the IDEA and W isconsin statutes has not been decided.
20 U.S.C. § 1415(i)(3)(B) provides for an interim award of fees. The court is of the opinion that plaintiffs are entitled to an award of inter im fees. Thi s litigation has been protracted and all parties have incurred substantial legal expense. The court need not resolve the plaintiffs’ petition for interim fees at this tim e to r each the conclusion that the sum of $475,000 is fair and reason able. From the court’s review of the petition and supporting documentation, and having considered the defendants’ objection, the court would have awarded at least that amount as an interim award. Thus, the court will approve the attorneys’ fees provision of the proposed settlement. V. CONCLUSION
Therefore, for the reasons set forth above, th e court rejects MPS’ objections and finds the proposed settlement fair, reasonable, and adequate. Thus, the court grants its preliminary approval of the proposed settlement agreement.
However, the court has certain questions with some of the language of the proposed class notice. Therefore, the court will defer its approv al of the proposed class n otice, (Docket No. 431-2 at 19-21), until it has an opportunity to dis cuss its concerns with the parties. In addition, the court wishes to know the procedures the parties intend to utilize in disseminating the class notice.
18

IT IS THEREFORE ORDERED that th e court grants its prelim inary approval of the proposed class settlement between the plaintiffs and the DPI defendants.
IT IS FURTHER ORDERED that the court will conduct a telephone conf erence with counsel for the parties to discuss the content of the class notice and the procedures for its dissemination. The conference shall be held on June 20, 2008 at 10:00 AM. The court shall initiate the call.
Dated at Milwaukee, Wisconsin this 6th day of June 2008.

s/AARON E. GOODSTEIN

U.S.

Magistrate Judge

19

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., et al., Plaintiffs,
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants.

Case No. 01-C-928

ORDER APPROVING CLASS NOTICE OF SETTLEMENT

The court hereby approves the attached class notice of settlement between the plaintiffs and the Department of Public Instruction. A hearing shall be held in Courtroom 254, United States Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin at 10:00 A.M. on July 28, 2008, to consider whether the settlement should be given final approval of the court.
The plaintiffs are directed to have the notice published in the Milwaukee Journal/Sentinel newspaper. Publication shall occur on one day during the week of July 7, 2008.
SO ORDERED.

Dated at Milwaukee, Wisconsin this 1st day of July, 2008.
s/AARON E. GOODSTEIN U.S. Magistrate Judge

Case 2:01-cv-00928-AEG Filed 07/01/2008 Page 1 of 1 Document 505

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JAMIE S., MELANIE V., BRYAN E., BIAGIO R. by their parents and next friends, KINA K., JANE P., PETER V., BRIDGET E., AND DEBRA W., on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

v.

Case

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, and WILLIAM ANDREKOPOLOUS, Superintendent of Milwaukee Public Schools in his official capacity, and the STATE OF WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION and ELIZABETH BURMASTER, State Superintendent of Public Instruction, in her official capacity,

Defendants.

No. 01-C-0928

NOTICE OF CLASS ACTION SETTLEMENT HEARING

The case is called Jamie S., et al., v. Milwaukee Public Schools, et al. Magistrate Judge Aaron Goodstein is overseeing this class action in the U.S. District Court, Eastern District of Wisconsin, Civil Case Number 01-C-0928.
A hearing on the proposed partial settlem ent of the above captioned m atter shall be held before United States Magistrate Judge Aaron Goodstein commencing at 10:00 AM on the 28th day of July, 2008 in Room 254 of the United States Court House, 517 E. W isconsin Ave., Milwaukee, WI 53202.
All interested class members are invited to attend to address the fairness of this proposed partial settlement between th e plaintiffs and the W isconsin Department of Public Instruction (DPI). Any cla ss members who wish to obj ect to the proposed partial settlement must state their objections in writ ing and send them to Judge Goodstein at the address listed above no later than July 21, 2008.
The Plaintiffs are askin g for declarat ory and injunctive relief. They are not seeking money damages.

1 Case 2:01-cv-00928-AEG Filed 07/01/2008 Page 1 of 3 Document 505-2

The court has decided that th e class of plaintiffs in this lawsuit consists of: from the date of September 13, 2000 to the present, those studen ts eligible for special services who are, have been o r will be denied or de layed entry into the sp ecial education process wh ich result in a properly constituted initial IEP meeting between the IEP team and the parents or guardians of the student.
Examples may include: • Parents who requested that their children b e evaluated for specia l education
services, and MPS either never evaluated their children, or failed to do so within the legally permissible time period (60 or 90 days from the referral depending on when the referral was submitted); • Students who had an Individualized Educat ion Plan (IEP) meeting to determine whether they should begin receiving special education services, but MPS did not have all the right people at the IEP meeting, in order to make such a decision; • Students, on w hose behalf teachers or ot her professionals, such as doctors or psychologists, suggested to MPS that they should receive special educatio n supports or services, but MPS failed to e valuate those children, or failed to do so within the legally per missible time p eriod (60 or 90 days from the referra l depending on when the referral was submitted); • Students who have been suspended more th an 10 days in a school year, but MPS failed to hold a special education evalua tion in order to de termine whether or not those children needed special education services.
If you are a member of the class, you are re presented by attorneys from Disability Rights Wisconsin (DRW), through the class representatives. If you want to find out whether you may be a class member, please contact DRW. The defendants are the Milwaukee Public School District and the W isconsin Department of Public In struction. They also have attorneys working on their respective sides.
On September 11, 2007, Magistrate Judge Aaron Goodstein issued an order finding that between September 2000 to June 2005, Milwauk ee Public Schools systemically violated the Child Find provisions of the Individuals with Disabilities Educatio n Act (IDEA) in the following ways: (1 ) MPS f ailed to ref er children with a susp ected disability in a timely manner for an initial evaluation, i.e., the 90 day requirement; (2) MPS improperly extended the 90 day tim e requirement; (3) M PS imposed suspensions in a m anner that improperly impeded its ability to re fer children with suspected disabilities for an initial evaluation; and (4) MP S failed to insure that the child’s parents or guardians attend the initial evaluation. The Court also found that between September 2000 and June 2005, the Wisconsin Department of Public Instruct ion (DPI) violated the IDEA by failing to adequately discharge its ove rsight and supervisory obli gations in regard to the compliance by MPS with the IDEA and related state statutes, as that co mpliance relates to the systemic violations found by the Court. The Court ordered the matter to proceed to a remedy stage. DRW and the DPI have reached an agreement of resolution of the matter as it pertains to the claims against DPI. No remedy has been agreed upon with Milwaukee Public Schools and that matter is still pending.
In summary the terms of the agreement include the following:
2 Case 2:01-cv-00928-AEG Filed 07/01/2008 Page 2 of 3 Document 505-2

1) Appointment of an independent outsid e expert to m onitor the Milwaukee Public Schools’ state and federal speci al education law obligations, and the establishment of measurable standards for MPS’s f uture performance with respect to a ) timely initial ev aluations of children for special educa tion; b) parental participation in initial IEP meetings; c) referral of students who reach a set num ber of suspensions in a given school year to a system of early intervention services to address the student’s academic or behavior issues that resulted in suspensions; d) referral of students who are retained in a given school year to the system of early intervention services.

2) The independent expert shall conduct a review of policy and procedures in Milwaukee Public Schools and conduc t a needs assessm ent regarding finding children who m ay be eligible for sp ecial education (also known as Child Find). The expert will oversee the crea tion of a com pliance plan to achieve agreed upon performance standards in the Milwaukee Public Schools District and have the authority to see that those standards are met.

3) The creation of a parent trainer pos ition housed at W isconsin Family Assistance Center for Education T raining and Support (F ACETS) to provide training and support to MPS parents and others for 4 years.

4) The payment of attorney’s fees to plaintiff’s counsel in the am ount of $475,000.

5) All class members will release or give up all claims against DPI that arose out of or were related to the litigation, between Se ptember 13, 2000, and the date on which the Court approves the settlement agreement.

6) Class members do not release or give up any rights to seek relief from MPS with respect to claims that arise out of or are related to the litig ation between September 13, 2000, and the date on which the Court approves the settlem ent agreement, including but not lim ited to claims for compensatory services for injured class members, and claims for additional attorneys fees and costs.

7) Dismissal of DPI as a party defendant in further proceedings in th e lawsuit, subject to the Court’s retention of jurisdiction to enf orce the term s of the agreement.

For a detailed copy of the settlement agreement, contact Disability Rights Wisconsin (DRW) at: 414-773-4646, or see its website www.disabilityrightswi.org .

Jon

W. Sanfilippo

Clerk of Court

United States District Court

Eastern District of Wisconsin

3 Case 2:01-cv-00928-AEG Filed 07/01/2008 Page 3 of 3 Document 505-2

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., on behalf of the class, Plaintiffs,
v.

Case No. 01-C-928

MILWAUKEE PUBLIC SCHOOLS, et. al., Defendants.

ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT

On June 6, 2008, the court granted preliminary approval of the proposed class settlement agreement between the plaintiff class and defendants Wisconsin Department of Public Instruction and State Superintendent of Public Instruction Elizabeth Burmaster. (Docket No. 471.) The court subsequently approved a notice of class action settlement, (Docket No. 505), and notice was published in the Milwaukee Journal/Sentinel on July 8, 2008. The court has received no written objection to the proposed class settlement, and no objector appeared at the final fairness hearing held before this court on July 28, 2008.
In accordance with Rule 23 Federal Rule of Civil Procedure, and for the reasons set forth in its prior order granting preliminary approval of the proposed class settlement, (Docket No. 471), the court finds that the terms of the settlement are fair, reasonable, and adequate, and therefore grants its approval thereof.
Defendants Wisconsin Department of Public Instruction and State Superintendent of Public Instruction Elizabeth Burmaster are hereby dismissed from this action, but the court retains jurisdiction to enforce the terms of the settlement agreement.
SO ORDERED. Dated at Milwaukee, Wisconsin this 28th day of July 2008.
s/AARON E. GOODSTEIN U.S. Magistrate Judge Case 2:01-cv-00928-RTR Filed 07/28/08 Page 1 of 1 Document 509

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S. et. al.,

Plaintiffs,

v.

Case No. 01-C-928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, et. al.,

Defendants.

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR INTERIM ATTORNEYS’ FEES
Currently pending before the court is the p laintiffs’ motion for interim attorneys’ fees. (Docket No. 392.) The defendants have filed a joint response. (Docket No. 400.) The plaintif fs’ have replied, (Docket No. 408), and after obtaining perm ission of the court, ( see Docket No. 416), the defendants filed a joint sur-reply, (Docket No. 418).
While this motion was pending, th e plaintiffs entered into a cl ass settlement agreement with the Department of Public Instruc tion (“DPI”) defendants, (Docket No. 431), which was subsequently approved by the court, (Docket No. 509), after a final fairness hearing, (Docket No. 510). DPI agreed to pay $475,000.00 in attorneys’ fees and costs to the plaintiffs a s a part of this class settlement agreement and was subsequently di smissed from this case. (Docket No. 431-2 at 18.) Therefore, the present dispute over attorney s’ fees now involves onl y the Milwaukee Public Schools (“MPS”) defendants.

PREVAILING PARTY The Individuals with Disabilities Education Act (“IDEA”) permits a prevailing party to
recover reasonable attorneys’ fees. Specifically, 20 U.S.C. § 1415(i)(3)(B) states: In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs— (I) to a prevailing party who is the parent of a child with a disability. MPS objects to the p laintiffs’ request for interim attorneys’ fees on the basis th at the
plaintiffs are not yet a prevailing party. So far, this case has pro ceeded through two phases of court trial; a final rem edies phase is
scheduled to begin Novem ber 3, 2008. In a deci sion and order following the second phase of the court trial dated September 11, 2007, the court determ ined that the defendants systemically violated the IDEA. (Docket No. 389.) Nonetheless, MPS argues that since the plaintiffs have not obtained an enforceable legal judgment against the defendant and there has been no judicially sanctioned change in the legal relationship between the parties, the plaintiffs are not a prevailing party. (Docket N o. 404 at 14-15.)
With respect to a reque st for interim attorneys’ fees, the Seventh Circ uit held that “once a plaintiff obtains substantive relief that is not defeasible by further proceedings, he can seek interim fees and the district court has the power to award them.” Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir. 2005) (quoting Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir. 1990)).
The only matter left to be decided in this cas e is the rem edy; the question of liability was determined by the court in its Septem ber 11, 2007 Decision and Order. The plaintiffs have prevailed. There is nothing that could be reasonab ly expected to o ccur in Phase III that would remove such status from the plaintiffs. Even if th e court completely rejected the plaintiffs’ requests for relief, the plaintiffs would nonetheless be th e prevailing party, having prevailed in the crucial
2

question of liability. Thus, the court finds that an aw ard of interim attorneys’ fees is appropriate in this case. ATTORNEYS’ FEES
Turning to the content of the plaintiffs’ clai m for in terim attorneys’ fees, MPS ob jects to certain fees requested, such as fees related to unsuccessful efforts to certify the class, unsuccessful mediation, media contacts, attendan ce at IEP m eetings, experts, a nd travel. Further, MPS argues that the fees claimed are vague. (Docket No. 404 at 5.)
The plaintiffs seek $1,200,891.32 in attorneys’ fees and $119,007.57 in costs incurred through the end of Septem ber 2007. (Docket No. 392 at 3.) In support of this claim, the plaintiffs submitted a 104-page exhibit detailing the co sts and fees incurred. (Docket No. 393- 2.) This document sets forth roughly 7,400 hours of work on th is case covering m ore than six years. The hours include the tim e of four attorneys (totaling alm ost 3,700 hou rs of attorney tim e), five paralegals (totaling roughly 2,600 h ours of paralegal tim e), and seven law clerks (totaling roughly 1,200 hours of law clerk time).
The most useful starting point for determ ining the amount of a reasonable fee is the number of hours reaso nably expended on the litig ation multiplied by a reasonable hourly rate. This calculation provides an objec tive basis on which to make an initial estimate of the value of a lawyer' s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. W here the documentation of hour s is inadequate, th e district court m ay reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Beginning with the question of a reasonable hourly rate, atto rneys Jeffrey Spitzer-Resnick and Monica Murphy each request compensation at an hourly rate of $265.00. Patrick Berigan seeks compensation at an hourly rate of $250.00, and Michael Bachhuber seeks compensation at $215.00 per hour. For paralegal time, plaintiffs seek compensation at the rate of $80.00 per hour and for l aw clerks at the rate of $40.00 per hour. MPS objects to these hourly rates on the basis that the
3

plaintiffs have failed to present adequate ev idence to support the conclusion that they are
reasonable.
In determining whether an hourly rate is re asonable, a court should evaluate what is a
prevailing market rate in the relevant community for an a ttorney of comparable experience, skill,
and reputation. Blum v. Stenson , 465 U.S. 886, 895-96 n.11 (1984). “[ T]he burden is on the fee
applicant to produce s atisfactory evidence -- in additi on to the attorney' s own affidavits -- that the
requested rates are in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Id. at 896 n.11.
In support of the fees requested is attorney Spitzer-Resnick’s affidavit in which he outlin es
the experience of the attorneys and support staff at Disability Rights Wisconsin (“DRW”) for whom
he seeks compensation as follows:
I [Attorney Spitzer-Resnick] have been a practicing attorney for 22 years. I have litigated complex cases in both state and fe deral court both at th e trial and appellate levels. I have been an attorney at DRW for over 12 years, during which tim e I have become an expert in special education matters.
Attorney Monica Murphy has been a pract icing attorney for 21 years. She has litigated complex cases in both state and fe deral court both at th e trial and appellate levels. She has been an attorney at DRW for over 13 years, during which tim e she has become an expert in special education matters.
Attorney Patrick Berigan was e mployed at DRW from November, 2000-August, 2006, as a Supervising Attorney. A t the time he left DRW , he had over 22 years of experience practicing as an attorney.
Attorney Mike Bachhuber was employed at DRW from June, 1997-November, 2003. At the tim e he left DRW, he had over 18 years of experience practicing as an attorney, including litigating complex class action and special education matters.
Paralegal Terri Fuller was em ployed at DRW from September, 1995-August, 2007. At the time she left DRW, she had over 16 years of paralegal equivalent experience. She had significant expertise in special education matters.
Paralegal Cathy Steffke has been employe d at DRW since February, 2004. To date, she has nearly 23 years of paralegal equi valent experience. She has significant expertise in special education matters.
4

Paralegal Jo Cauley has been e mployed at DRW since January, 2000. To date, she has over 12 years of paralegal equivalent e xperience. She has significant expertise in special education matters. Paralegal Susan Tess has been employe d at D RW since Nove mber 1986. Her 21 years of paraleg al experience at DRW has given her significant disability law experience. Paralegal Catherine Krieps was employe d at DRW from J une, 2000-December, 2002. During this period, she gained significant special education experience. Law Clerks Melanie Cairns, Vanessa Carroll, Jonathan Kinkel, Kathryn Peacock, Erin Parks and De mian Casey were all la w students while working at DRW on this case. Law Clerk Krystal Thomas was trained by DRW legal professionals to investigate and conduct research in this case. (Docket No. 393-1 at ¶¶4a-k.) The other evidence provided by the plaintiffs in support of the proposed hourly rate is the affidavit of Lynn Novotnak. (Docket No. 394.) Attorney Novotnak, a shareholder at the law firm of Hawks, Quindel, Ehlke & Perry, SC in Milwaukee, has been a practicing attorney for 26 years an d has spent the last 15 years focusing upon “representing plaintiffs in a variety of civil rights m atters, including cases involving state and federal special education law, the Americans with Disabilities Act, and Sec. 504 of the Rehabilitation Act.” (Docket No. 394 at 1.) Depending upon the nature and complexity of the case, she charges clients $200.00 per hour in specia l education cases and the firm charges $50.00 per hour for paralegal work. (D ocket No. 394 at 1.) Attorn ey Novotnak also avers that the rates charged requested by the plaintiffs are reasonable. (Docket No. 394 at 2.) MPS argues that the affidavit of plaintiffs’ c ounsel is insufficient to support the requested fees and that the only com petent evidence provided by the plaintiffs establishes that the preva iling market rate in the Milwaukee area is no more than $200 per hour for attorney time and $50 per hour for paralegal time. (Docket No. 404 at 31.)
5

The court disagrees with MPS in part regard ing the reasonableness of the hourly rates for plaintiff’s attorneys. Even though attorney Novotnak is very experienced and bills at a lower rate than plaintiffs’ counsel, the present class action has been exceptionally complex and has required an extra degree of expertise and ski ll in its prosecution. As such, the court finds that the hourly rates charged by plaintiffs’ lead counsel, attorneys Spitzer-Resnick and Murphy, are reasonable.
As for attorneys Patrick Berigan and Mich ael Bachhuber, based upon their experience in relation to attorneys Sp itzer-Resnick and Murphy, and in view of attorney Novotnak’s rate, the court finds that a rate of $200.00 per hour is reasonable.
On the other hand, turning to the requested hourly rate for paralegals, the court finds that the plaintiffs have failed to dem onstrate that $80.00 per hou r is a reasonable prev ailing market rate. Rather, the court finds that the $50.00 per hour rate set forth in the affidavit of attorney Novotnak is an appropriate prevailing market rate.
Finally, there is the question of a reasonable hourly rate for law cl erks. It is unclear if these law clerks were paid or volunteers. In any event, in light of the fact that DRW acknowledges that the value of the work of temporary law clerks, the majority of whom were law students, is half that of an experienced paralegal, the court finds a rate of $25.00 per hour is appropriate for these law clerks.
Having determined reasonable hourly rates, the second step in the formula is a determination of a reasonable num ber of hours expended by the plai ntiffs in this litigation. MPS argues that the court should substantially reduce the hours claim ed by the plaintiffs because th e plaintiffs are seeking compensation for m atters on which they did not prevail. For exam ple, there were several unsuccessful efforts to certify the class; m any time entries are vague and thus do not perm it the court to de termine whether the time claim ed was reasonably expended; and the plaintiffs seek
6

compensation for non-com pensable activities such as attending IEP meetings, contacts with the media, or attending unsuccessful mediation.
The court agrees with the defendants that some reduction of the total hours claim ed is warranted. A line-by-line analys is of the more than 100 pages of b illing records submitted in this case is impractical and not required. Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000). Rather, a review ing court may, if appropriate, strike the unacceptabl e entry or reduce the requested hours by a reasonable percentage. Id. “Whichever option the dist rict court chooses, it is required to ‘provide a concise but clear explanation of its reasons for the fee award’ that is sufficient to permit appellate review.” Id. (quoting Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc. , 776 F.2d 646, 658 (7th Cir. 1985) (in turn quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983))).
MPS argues that the plain tiffs are inappropriately s eeking compensation for 291.55 hours spent at IEP meetings. (See Docket No. 405-2.) 20 U.S.C. § 1415(i)(3)(D)(ii) prohibits the award for attorneys fees relating to a ny IEP meeting “unless such m eeting is convened as a result of an administrative proceeding or judi cial action.” The plaintif fs respond to MPS’ objection by stating simply, “It goes without saying that every IEP meeting which was include d in the plaintiffs’ submission was an IEP m eeting which was conv ened as a re sult of this litigation.” (Docket No. 48 at 14.)
The court is not persuaded by the plaintiffs’ pe rfunctory explanation. This court declines to accept a co nclusory statement that every IEP meeting convened during the p endency of this litigation was as a result of judicial action. While the court recognizes that both defendants took certain remedial action during the pendency of this litigation, none of it was in response to any court order. Therefore, sim ply because a particular IEP was c onvened during the pendency of t his litigation does not support the conclusion that it was as a result of this action. Accordingly, the court finds that the plaintiffs have failed in their bu rden to demonstrate that the IEP meetings for which
7

they seek compensable time were convened as a resu lt of judicial action. Si nce the plaintiffs do not challenge MPS’ allocation of the time it alleges was improperly charged for IEP meetings, the court shall accept the figures set forth in MPS’ Exhibit F, (Docket No. 405-2. ) Therefore, the court sh all subtract the following hours: Attorney Murphy – 87.10 hours; Attorney Bachhuber – 66.00 hours; Attorney Berigan – 33.45 hours; paralegal Fuller – 52.50 hours; and paralegal Steffke – 52.50 hours.
As for t he plaintiffs’ request for co mpensation for time spent in con tact with the m edia, courts have differed on whether or not su ch time is com pensable. See Roger Whitmore’s Auto. Servs., Inc. v. Lake County, 2004 U.S. Dist. LEXIS 21626, 27-29 (N.D. Ill. 2004) (citing cases); see also Mercier v. City of La Crosse , 2004 U.S. Dist. LEXIS 11106, 3-5 (W.D. Wis. 2004). The court finds that under certain circum stances, media contacts may be compensable time, provided that the time spent was “reasonably expended on the litigation.” Hensley, 461 U.S. at 433. For example, in a complex class action case such as this, a certa in amount of m edia contact m ay be a reasonably expected responsibility of class counsel as a m eans to ensure that the class m embers are notified of the pendency of this action and their respective rights.
However, plaintiffs’ counsel do not allege th at this was the reason for the m edia contacts. Rather, in support of their request for fees related to media contacts, the plaintiffs state:
The instant case that is bei ng litigated by plaintiffs ag ainst governmental entities which are clearly subject to the influence of the democratic process, which is, in turn, subject to influence by the m edia. Indeed, DRW’s media contacts have been consistent with th is court’s efforts to tr y to encourage the parties to resolve this matter through settlement. (Docket No. 408 at 14.) Settlement is to be encouraged, and this cour t has been a proponent of such a resolution. Nevertheless, the court finds that a party’s attempts to use the m edia in an effort to create ex ternal pressure upon the opposing parties is not tim e for which com pensation should be awarded from
8

such parties. When cases such as this are of public im portance, the court certainly hopes that the media would fully inform the public. But if one pa rty attempts to use the m edia as a m eans to manipulate public opinion against an opponent, in an e ffort to either engender settlem ent or further its own aims, this is not an expenditure of tim e this court believes is reasonably necessary to the litigation. Therefore, such tim e is not com pensable. The plaintiffs do not challenge MPS’ calculation of hours spent on non-com pensable media work and therefore the court shall deduct 5.10 hours from the hours of attorney Spitzer-Resnick, (Docket Nos. 400-6, 400-10), and 5.60 hours from the hours of attorney Monica Murphy, (Docket No. 400-10).
MPS also subm its that time spent during unsuccessful mediation sessions should be compensated. The court disagrees. As stated above, settlement should be encouraged. However, not every attempt to resolve the case by the parties m ay be successful, but they should not be dissuaded from making the effort. The court finds that m ediation effort, even if unsuccessful, is time reasonably expended o n the litigation. An unsu ccessful mediation if p ursued in g ood faith is not time wasted, and therefore the court rejects MPS’ position that this time should not be compensated.
Next, MPS contends that the plaintiffs should not be compensated for tim e related to the plaintiffs’ unsuccessful effort to have this court reconsider its class determination and for time spent on an appeal of the court’s class certification. In response, the plaintiffs acknowledge they are not entitled to be compensated for this time and withdraw their claims for these fees and costs.
MPS alleges that this tim e amounts to 82.00 hours, (Docket No. 405-3), and again the plaintiffs do not challenge MPS’ accounting. A review of the affi davit exhibit cited by MPS in support of this claim indicates that attorney Sp itzer-Resnick spent 32.00 hours, attorney Bachhuber spent 2.5 hours and law clerk Peacock spend 47.5 hours for a total of 82.00 hours, (Docket No. 4053.) Therefore, the court shall reduce these hours from those claimed by the plaintiffs.
9

MPS raises num erous other specific objectio ns to the fees claim ed, most significantly arguing that the hours expended be fore November 13, 2003, the date the court finally certified the class, should be exclud ed because they were expe nded in an unsuccessful effort to certify a f ar broader class than the one the court eventually ce rtified. (Docket No. 19-20.) The plaintiffs respond that this time should be fully co mpensable because, although they had to try num erous times before they finally obtained class certif ication, this effort was nonethel ess necessary to their eventual success. (Docket No. 408 at 5-11.) MPS also seeks reductions for tim e spent related to the plaintiffs’ efforts to obtain docum ents prepared by the Department of Justice relating to the subject matter of this action.
The court finds som e reduction of tim e is appropr iate in light of the plain tiffs’ failure to obtain as broad a class certification as they had originally desired. In other words, certain amounts of time devoted to plaintiffs’ num erous unsuccessful efforts of cl ass certification are not compensable, but this adjustment should be considered in the final step of th e lodestar analysis, i.e. an adjustment based upon the degree of success obtained.
“The Supreme Court has said that ‘the mo st critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’” Linda T. v. Rice Lake Area Sch. Dist., 417 F.3d 704, 708 (7th Cir. 2005) (quoting Hensley, 461 U.S. at 436). If a plaintiff fails to prevail on claims that are distinguishable from those that he prevailed upon, the fee award should be appropriately reduced. Hensley, 461 U.S. at 440.
In the present case, as a result of several rulings, the court n arrowed the scope of the class substantially from that sought by plaintiffs. Undoubt edly, many of the hours th e plaintiffs spent in these early stages of th e case involved issues on wh ich the plaintiffs did not prevail. Although the plaintiffs attempt to argue that all o f this time was nonetheless related to the prevailing claims, the court rejects this contention. The class eventually certified, and thus the scope of this case is
10

substantially narrower than that which the plai ntiffs initially sought. Much tim e and effort was expended by plaintiffs’ counsel in an attem pt to in itially persuade this c ourt to adopt plaintiffs’ position on the class, an d then to seek a reconsiderat ion. It is sim ply illogical to co nclude that all time relating to matters beyond the eventual scope of this litigation was reasonably related to this litigation. Additionally, the plaintiffs were not fully successful on other issues such as their efforts related to the Department of Justice.
However, once the class was certified by the court, the plaintiffs were largely successful. A comparison of the unsuccessful portions of the case with the portions on which the plaintiffs prevailed indicates that the former constitutes a small percentage. Transposing that small percent to the hours expended, the court finds that a minimal reduction of 5% is appropriate.
Finally, MPS argues th at the court should red uce the fees claim ed by 40% becau se the entries on the billing statements are vague and do not permit the court to analyze whether the stated activity was reasonably expended in furtherance of the present liti gation. The plaintiffs’ attorneys respond that their billin g records have been accepted by ot her courts without any reduction f or vagueness. (Docket No. 408 at 14-15.)
In this court’s opin ion, the bi lling records sub mitted are filled with v ague entries, which makes it impossible to evaluate whether the hours were reasonably related to the plaintiffs’ success. For example, the billing records repeatedly provide only terse explanations of the work perform ed, such as “E mail to . . .,” Telephone Conversation with . . .,” or “Meeting with . . . .” For certain persons, particularly the law clerks, the tim e records are even m ore vague, often tim es providing only a single word such as “Research” or “Drafti ng” to describe the work perform ed. However, the court acknowledges that the to tal hours alleged are not, on their face, unreasonab le. This is an exceptionally complex and time consuming case and the court would expect thousands of hours to
11

be expended. But even acknowledgi ng this, the court is not able to look past the vague billing entries.
Having already concluded that the plainti ffs have included num erous non-compensable activities on the th eir billing sta tements, the court finds it like ly that buried within these v ague entries is tim e that was not reaso nably related to the plaintiffs’ success in this case. Howe ver, neither the court nor MPS is able to neatly discern which entries are not compensable, in light of the fact that the entries are so vague . Therefore, the court finds it appropriate to make a reduction for this vagueness. But, s imilar to the unsucce ssful/successful comparative analysis, the co urt concludes that any vagueness redu ction should also be m inimal. See J. v. Board of Educ. , 98 F. Supp. 2d 226, 243 (D. C onn. 2000). Therefore, the court concludes that an additional 5% reduction is appropriate.
For the reasons set forth above, it is the conclu sion of this court th at the total interim attorneys’ fees through September 30, 2007 appropriate in this case is $934.123.96. See Appendix. After subtracting from this fi gure the $475,000.00 that D PI has agre ed to pay as part of its settlement with the plaintiffs, MPS’ obligation is $459,123.96. COSTS
The plaintiffs seek $119,007.57 in costs pursuan t to 28 U.S.C. § 1920. (Docket N o. 392.) This District’s Local Rules are explicit that c osts are not recoverable unt il after the en try of judgment. Civil L.R. 54.1. The Rule further explains that the party seeking to recover costs m ust serve on the adverse party and serve with the Clerk of Court the party’s bill of costs. Judgment has not yet been entered and the plaintiffs have not complied with this procedure.
In light of this District’s Local Rule requ iring judgment be entere d before the award of taxable costs, the cou rt finds that an award o f costs, unlike an award for atto rneys’ fees, is premature at this point. Therefore, the plaintiffs’ request for costs shall be denied without prejudice.
12

IT IS THEREFORE ORDERED that the plaintif fs’ motion for interim attorneys’ fees, (Docket No. 392), is granted as modified . The MPS defendants shall pay to the plaintiffs ’ attorneys, Disability R ights Wisconsin, the amount of $459,123.96. The plaintiffs’ m otion for interim costs is denied without prejudice.
IT IS FURTHER ORDERED that defendants’ m otion for leave to file excess pages, (Docket No. 399), is granted.
Dated at Milwaukee, Wisconsin this 15th day of August 2008.

s/AARON E. GOODSTEIN

U.S.

Magistrate Judge

13

APPENDIX Person Jeffrey Spitzer-Resnick Monica Murphy Patrick Berigan Mike Bachhuber Terri Fuller Cathy Steffke Jo Cauley Susan Tess Catherine Krieps Melanie Cairns Vanessa Carroll Jonathan Kinkel Kathryn Peacock Erin Parks Demian Casey Krystal Thomas

Rate claimed

$ 265.00

$ 265.00

$ 250.00

$ 215.00

$

80.00

$

80.00

$

80.00

$

80.00

$

80.00

$

40.00

$

40.00

$

40.00

$

40.00

$

40.00

$

40.00

$

40.00

Rate approved

$

265.00

$

265.00

$

200.00

$

200.00

$

50.00

$

50.00

$

50.00

$

50.00

$

50.00

$

25.00

$

25.00

$

25.00

$

25.00

$

25.00

$

25.00

$

25.00

Hours claimed 1,351.14 1,817.67 64.3 426.57 1,367.90 753.6 12.5 8.5 417.25 215 173.5 118.5 317.25 98 133 159.5

REDUCTIONS

IEP Media Appeal

5.1

32

87.1 5.6

33.5

66

2.5

52.5

52.5

47.5

Adjusted Hours 1,314.04 1,724.97 30.85 358.07 1,315.40 701.10 12.50 8.50 417.25 215.00 173.50 118.50 269.75 98.00 133.00 159.50

Adjusted fees

$ 348,220.60

$ 457,117.05

$ 6,170.00

$ 71,614.00

$ 65,770.00

$ 35,055.00

$

625.00

$

425.00

$ 20,862.50

$ 5,375.00

$ 4,337.50

$ 2,962.50

$ 6,743.75

$ 2,450.00

$ 3,325.00

$ 3,987.50

SUBTOTAL Reduction for limited success (5%) Reduction for vagueness (5%) TOTAL ATTORNEYS' FEES DPI's agreed payment amount Attorneys' fees owed by MPS to DRW

$ 1,035,040.40 $ 51,752.02 $ 49,164.42 $ 934,123.96 $ 475,000.00 $ 459,123.96

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., et. al. individually and on behalf of the class, Plaintiffs, v.
MILWAUKEE PUBLIC SCHOOLS, et. al., Defendants.

Case No. 01-C-928

DECISION AND ORDER FOLLOWING PHASE III
I. PROCEDURAL HISTORY .......................................................................................................... 3 II. SUMMARY OF PHASE III......................................................................................................... 8
A. Patricia Yahle ............................................................................................................................ 8 B. Kina K. ..................................................................................................................................... 11 C. Jamie S. .................................................................................................................................... 12 D. Erin Goff .................................................................................................................................. 13 E. Claudia Weaver Hendrickson ................................................................................................ 14 F. Audrey Potter........................................................................................................................... 15 G. Kim Brizendine ....................................................................................................................... 15 H. Christine Shafer ...................................................................................................................... 15 I. Cynthia J. .................................................................................................................................. 16 J. Georgette Rodriguez ................................................................................................................ 17 K. Melanie V. ................................................................................................................................ 18 L. Bryan E..................................................................................................................................... 19

M. Dr. Diana Rogers-Adkinson .................................................................................................. 20 N. Jyran J...................................................................................................................................... 25 M. Dr. Eric Hartwig..................................................................................................................... 26 N. Patricia Hall............................................................................................................................. 29 O. Roxanne Mayeur ..................................................................................................................... 30 P. Sara Janacek ............................................................................................................................ 31 Q. Dr. Barbara Van Haren ......................................................................................................... 32 R. Dr. Cindy Walker.................................................................................................................... 34 S. Patricia Gill .............................................................................................................................. 35 T. Stephanie Petska...................................................................................................................... 36 III. PLAINTIFFS’ PROPOSED REMEDY .................................................................................. 37 IV. MPS’ PROPOSED REMEDY .................................................................................................. 40 V. ANALYSIS................................................................................................................................... 42 A. Evaluation of Class Members ................................................................................................ 44
i. Independent Monitor............................................................................................................... 44 ii. Hybrid IEP Team ................................................................................................................... 47 iii. Determination if Purported Class Member is a Class Member ........................................... 49 iv. Determination if Class Member is Entitled to Compensatory Services................................ 52 B. Eligibility .................................................................................................................................. 58 C. Parent Advocates..................................................................................................................... 61 D. Segregated Fund...................................................................................................................... 62 E. Dispute Resolution................................................................................................................... 62 F. Named Plaintiffs ...................................................................................................................... 67 VI. DPI’S MOTION......................................................................................................................... 69
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VII. CONCLUSION......................................................................................................................... 70 VIII. APPENDIX ............................................................................................................................. 72 I. PROCEDURAL HISTORY
On September 13, 2001, the plaint iffs filed their com plaint, alleging violations under the Individuals with Disabilities E ducation Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) and related state statutes, Wis. Stat. §§ 115.758, et seq. Upon the written consent of the parties to the exercise of jurisdiction by the m agistrate judge, the case was reassigned to this court on November 28, 2001. The court then issued its scheduling order establishing a tim e frame for pretrial discovery and for filing a motion seeking class cer tification. On Nove mber 7, 2002, the plaintiffs filed their m otion for class certification seeking to proceed on their claim s within the context of a class action. Th e defendants filed their opposition to the m otion, and on May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion because the court determined that a number of the plaintiffs’ claim s were subject to the exhaustion of administrative remedies requirement, pursuant to the IDEA. 20 U.S.C. § 1415(l). The court concluded that some of the plaintiffs’ claims were not systemic in nature, identifying these as “post-determination” claims. The court reasoned that th ese claims were subject to adm inistrative exhaustion because they are indiv idual and substantive in nature and each alleged wrong could be potentially remedied through the adm inistrative process outlined in the IDEA. The c ourt identified the other claims as “pre-determ ination” claims and concluded that these could be system ic or procedural in nature. As such, th ese claims had the potential for cl ass certification. The plaintiffs were required to f ile an am ended motion f or class ce rtification limited to the pre-determ ination claims.
On June 23, 2003, the plaintiffs filed their amended motion for class certification, which sought class certification based upon the claim s as narrowed by the court’s May 23, 2003 order. On
3

August 1, 2003, the court issued a second Decision and Or der, which directed the plaintiffs to file a second amended motion for class certification because, in the cou rt’s opinion, bo th the p laintiffs and the defendants m isconstrued the May 23, 2003, d ecision and order. Ultim ately, on November 14, 2003, this court entered its third Decision and Order, and at that tim e, defined the class as follows:
Those students eligible for special educat ion services from the Milwaukee Public School System who are, have been or will be either denied or delay ed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student. At this point, a number of other motions were filed, including the Milwaukee Public Schools (“MPS”) defendants’ motion to dism iss certain claims as not typical of the class an d the plaintiffs’ motion to compel production of materials from the United States Department of Justice. The court ruled on these motions and then met with the parties to discuss appropriate notice to the class, and a discovery schedule for expert witn esses. After notice to the class was g iven and expert discovery completed, the court requested that the parties file a joint stipulated statement of facts, together with summaries of their res pective expert witnesses. Based upon the subm issions, and in an effort to avoid the tim e consuming process involved in summary judgm ent motions, the cour t decided to bifurcate trial pro ceedings, and first condu ct a court trial for exp ert witnesses. After some rescheduling, the cour t trial i nvolving expert witne sses (referred to as Phase I) commenced on October 18, 2005, and com pleted on November 2, 2005 (the trial did not run continuously during that period). The court heard from six experts. On November 28, 2005, the court held a hearing at which time the parties were advised of the court’s initial reaction to the experts’ tes timony and conclusions drawn therefrom . The court informed the parties that it woul d be necessary to proceed to Phase II, which would consis t of the factual presentations upon which the experts formed their respective opinions. The trial to the court in Phase II began on April 10, 2006, and was concluded on Ap ril 26, 2006. The testim ony of 48
4

witnesses was presen ted, and numerous documents were received in evidence. Post-trial submissions were filed by the parties in June, 2006.
On September 11, 2007, the court issued its Phase II Decision and Order finding that MPS violated the IDEA’s Child Find req uirements. This violation was not lim ited to the represen tative plaintiffs but was system ic in nature and violated the rights of the plaintiff class. Specifically, the court held that MPS f ailed to refer children with a suspected disability in a timely manner for an initial evaluation, i.e. the 90-day requirement; MPS impr operly extended the 90-day time requirement; MPS i mposed suspensions in a manner that improperly impeded its ability to r efer children with suspec ted disabilities for an in itial evaluation; and MPS failed to e nsure that the child’s parents or guardi ans attend the initial evaluation. The court f urther concluded that the actions of MPS in not reviewing all d ata to dete rmine the exac t nature of the c hild’s disability, while violations in individual cases, did not constitute systemic violations of the IDEA.
Finally, the court concluded that during th e time period from September, 2000 to June , 2005, the Wisconsin Department of Public Instruc tion defendants (“DPI”) violated the IDE A and related state statutes by failing to adequately discharge its oversight and supervisory obligations in regard to th e compliance by MPS with the ID EA and related state statutes, as that com pliance related to the systemic violations found by the court.
In light of this court’s finding of liability, the court p roceeded towards Phase III, the remedies phase of this matter.
On April 7, 2008, the plaintiffs and DPI filed a joint motion seeking the court to approve a settlement agreement between the plaintiffs and DPI. Following a period of briefing in which MPS voiced its objections to the proposed settlem ent, on June 6, 2008, this court granted its prelim inary approval of the proposed class settlem ent. On July 1, 2008 this court approved the proposed class notice, and a final fairness heari ng was held before this court Ju ly 28, 2008. The court received no
5

written objection and no objector appeared at the final fairness hearing. Therefore, on July 28, 2008, the court approved the class settlement and dismissed DPI from this case.
The settlement agreement between the plainti ffs and DPI ad dresses the three sp ecific areas of systemic violations found by the court in Phase II, namely, MPS’ failure to conduct timely initial evaluations, MPS’ f ailure to ensure that a child’s parent or guardian participated in an initial IEP meeting, and the utilization of suspensions in a m anner that im peded the ability of MPS to refer children who may be suffering from a disability for an initial evaluation. (Docket No. 431-2 at 4-7.)
The settlement agreem ent provides that MPS shall conduct 95% of its initial evaluations within the required tim e period or the tim e period shall be properly extended, for two consecutive years. (Docket No. 431-2 at 4-5.) Similarly, the settlement agreement calls for MPS to have a parent or guardian present f or an initial IEP meeting or for MPS to m ake reasonable efforts to ensure the parent or guardian’s participation, in 95% of its initial IEP meetings for a period of two consecutive years. (Docket No. 431-2 at 5-6.) F inally, the settlement calls for MPS, in two consecutive years, to refer 95% of students in kinderg arten through fifth grade who ar e suspended ten or m ore days during a school year and 95% of students in sixth through twelfth grades who are suspended twenty or more days in a school year to a “system of early intervention services . . . designed to address the students’ behavior issues that resulted in suspen sions and which shall incl ude the possibility of referral of the student for an evaluation to determ ine if the student is a student with a disability.” (Docket No. 431-2 at 6-7.)
Compliance with these agreed-upon benchm arks shall be evaluated by a court-appointed independent expert, whom the parties agreed shoul d be Alan Coulter. (Docket No. 431-2 at 7-12.) This independent expert shall be paid for by DPI. (Docket No. 431-2 at 8.) The 95% com pliance rate shall be measured in each individual MPS school for the timeliness of initial evaluations, parent
6

or guardian participation in in itial IEP m eetings, and with respect to compliance regarding suspended students.
Further, the settlement agreement calls for M PS, in two consecutive years, to refer 95% of MPS students who are retained in a given school year and are not identified as suf fering from a disability “to a system of early intervention services approved by the Independent Expert designed to timely address the students’ academic or behavior issues that resulted in retention and which shall include the possibility o f referral of the student for an evaluation to determine if the studen t is a student with a disability.” (Doc ket No. 431-2 at 7.) The 95% com pliance is not referenced to “each school,” and programs for the referred s tudents will b e implemented with an 80% degree of integrity. Unlike the three issues discussed above, the court has not found any systemic deficiencies related to the retention of students.
The settlement agreem ent calls for MPS to ha ve four years to achieve the required two consecutive years of com pliance regarding tim ely initial evaluations and parent or guardian participation in initia l IEP meetings and eight years to com ply with the agreement regarding suspended and retained students. (Docket No. 431-2 at 14-15.) N on-compliance shall result in a hearing before this court for a determ ination of the remedy. (Docket No. 431-2 at 15.) Com pliance shall result in term ination of the agreem ent and di smissal with prejud ice of the plaintiffs’ claims against DPI.
Further, the agreem ent calls for DPI to o rder MPS to provide training to MPS’ staff, as deemed necessary by the Independent Expert, on indi cators of special edu cation needs, referral procedures, and Child Find obligations. (Docket No. 431-2 at 13.) Finally, DPI agrees to provide for a fulltime professional to train and support parents and MPS staff re garding provisions of the IDEA and Child Find obligations for the length of this agreement, or until DPI’s paym ents for this professional meets $300,000.00. (Docket No. 431-2 at 13.)
7

Finally, DPI agrees to pa y $475,000.00 in attorneys’ fees and costs to class counsel, Disability Rights Wisconsin. (Docket No. 431-2 at 18.)
On August 15, 2008, this court granted the plain tiffs’ motion for interim attorneys’ fees and ordered MPS to pay to the plaintiffs’ attorney s an additional $459,123.96 in attorneys’ fees. T he court denied without prejudice the plaintiffs’ request for interim costs.
On November 6, 2008, a court tr ial, referred to as Phase I II, commenced to determine the appropriate remedy for the system ic violations the court found in Phase II. Following the trial, the court ordered the parties to subm it simultaneous post-trial briefs no later than January 16, 2009 and simultaneous replies no later than January 30, 2009. The court also provided the parties with certain questions the court sought the parties to addr ess in their p ost-trial briefs. (Docket No. 566.) The matter is now ready for resolution.
During Phase III, DPI filed a m otion seeking a d eclaration that it is no t responsible for any further remedy that the court may order in Phase III. (Docket No. 559.) The court permitted MPS to respond and DPI to reply. The pleadings on this motion are closed and the m atter is ready for resolution. II. SUMMARY OF PHASE III
A. Patricia Yahle Patricia Yahle (“Yahle”), MPS’ Director of Special Services, was called adversely by the plaintiffs and directly by MPS, testifying as both the f irst and last witness in this phase of trial. Set forth here is a summary of all of her testimony in Phase III. Yahle’s responsibilities are largely the same as those she had when she last testified in 2006 although the No Child Left Behind legislation has added additional responsibilities for her. Under No Child Left Behind, MPS has been identified as a “District Identified for Improvement,” and this has imposed additional requirements for the district.
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Yahle testified that according to MPS’ IEP Team Procedural Handbook, Revised September, 2007, (Ex. 402), the IEP team has a responsibility to determine whether compensatory education or services are appropriate “[a]ny ti me any school st aff member becomes aware that a student wit h special education needs has receiv ed inappropriate or insufficien t education serv ices.” (Ex. 402.) Ultimately, it is a complex decision left to the professionals on the IEP team to determine what type of service is needed to bring the child to the place he would be if appropriate education had not been denied, but one that is regularly conducted by MPS’ IEP teams. For example, all students identified in Exhibit 197 (2003-2004 school year) whose evaluations occurr ed beyond the 90-day deadline were evaluated for compensatory education; she directed that all students, from 2000 forward, who were identified late for special education, be evaluated for compensatory education. However, when presented with Exhibit 401, (for 2000-2005 school years), a list of students whose evaluations occurred beyond the 90-day deadline, she could offe r no explanation as to why very few of the se students had a “Y” in the column titled “Discussed Comp Ed.” Yahle testified she had not seen this exhibit in a while.
When a student is referred late to special education, MPS’ existing procedures require the IEP team to make a determination if that individual was denied FAPE as a re sult of that delay. T he compensatory services that might be awarded may be equivalent in duration to the tim e the student was denied FAPE but a 1:1 equivalence would not be appropriate in every case. Each compensatory education determination, like each referral or special education determ ination, must be individualized.
As for the roughly 11,000 students who were suspended ten or more days in any school year between 2000 and 2005, (Ex. 400), Yahle does not know if any of these students were evaluated for special education, but testified that Child Find is an ongoing pr ocess. The only way MPS coul d
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learn if these studen ts were referred for spec ial education would be the exceptionally time consuming process of physically reviewing all 11,000 student file folders.
With respect to MPS’ proposed remedy, Yahle te stified that it was craf ted so as to enable MPS to best utilize its lim ited resources. For example, students who are no longer enrolled in MPS who have a history of suspensi ons, students whose IEP was delayed less than 10 days beyond the 90-day deadline, or students olde r than 22 years of age, would be excluded from any potential remedy. If a student w as found to be eligible fo r compensatory education, the nature of the compensatory education determined to be appropriate would determine where that service would be provided.
Yahle believes that MP S has the staf f and resources to be able to ef fectively monitor the implementation of any court ordered rem edy and to as sist parents in the pro cess, and therefore an outside monitor or parent advoc ate, as are called for under the plaintiffs’ proposed remedy, would be unnecessary. Further, Yahle testified that th e plaintiffs’ proposed rem edy of giving all class members their first choice of school would be unworkable for MPS.
In April of 2004, MPS im plemented a protocol for automatically considering compensatory education at the tim e of the init ial IEP team m eeting for each case in which the m eeting did not occur within the statutory timeline. For students whose IEP team meetings were delayed before the implementation of this new protocol, MPS review ed a list of students whose IEP team meetings were delayed more than 10 days and identified 221 students who were current students who were eligible for special education or wh ose eligibility had not yet been determ ined. A worksheet wa s developed for auditors to rely upon in conducting a review of these 221 student files. These auditors, all of whom were experienced IEP team leaders, were tasked with determining whether the information in the da tabase regarding the de lay was accurate and to gather so me preliminary information for the next step of the evaluation. Th is audit, (Ex. 461), reve aled that of the 221
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students, 48 required an additional IEP team meeting to assess th e need for com pensatory education. Of these 48 students, the IEP team determined that compensatory education was appropriate for 7. As part of th is process, it was neces sary for the IEP team to determine at what point the student was denied FAPE. Yahle ackno wledged that MPS has not conducted any review of students whose initial review was delayed after April of 2004.
Since this court’s September 11, 2007 decision, MPS has upgraded its technology to make it easier to calculate and track th e relevant dates in the spe cial education referral process and track IEPs, increased its Child Find training of staff m embers, and strengthened parent participation, among many other things.
B. Kina K. Kina K. is the m other of Jam ie S. Jam ie’s problems began when she was in K-4 in the Wauwatosa School District. She wa s referred for special education but was not identified because Wauwatosa was not her hom e district and thus , she was told MPS was required to conduct the evaluation. MPS told her that they would monitor Jamie. In May of 2001, after Jam ie was required to re peat the 1st grade for the third time, she was evaluated, found eligible for special education, and an IEP put in place. Jamie has had an IEP in place every year since 2001, including years Jamie was not enrolled in MPS, and Kina has regularly participated in Jamie’s IEP meetings. Frequently, Jamie was unable to m eet her IEP goals. At no point was com pensatory education ever discu ssed with Kina, and Jam ie has never received compensatory education. However, during an April 16, 2007 IEP m eeting, a meeting attended by Kina, Jamie, and a representative from DRW, MPS recommended that Jamie attend summer school. Jamie declined because she prefers to spend the summers in Chicago with her grandmother. Currently, Jamie is 15 years old and in the 9th grade at Wisconsin Career Academy. This is Jamie’s second year in 9th grade. According to her more than three-inch thick file, (Ex. 215A),
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Jamie reads at an early 2nd grade level, writes at a beginning 3rd grade level, and has 4th grade math skills, (Ex 215A at 94807). Jam ie also has a long history of signif icant attendance problems. For example, as of October 7, 2008, Jamie attended her 1st hour class only once, and had missed 14 full days of school so far this school year; however some of these full-day absences were due to a psychiatric hospitalization. (Ex. 215A at 94808.) Sometimes Jamie misses school intentionally or as a result of suspensions. (Ex. 215A at 87549). However, Kina is fre quently unaware of Jamie being truant or suspended because Jam ie destroys correspondence from the school. (Ex. 215A at 87549.) Jamie was offered the opportunity to participate in a career program but was required to m aintain perfect attendance to be eligible for the program. Jamie continued to frequently miss school.
According to her IEP, Jam ie is able to perf orm ordinary household chores, estimate money, baby-sit, but should continue to work on skills such as reading a menu, measurements skills, and math and budgeting. (Ex. 215A at 94808.)
C. Jamie S. Jamie does not like go ing to school because she is teased by other students for doing easier work and she has only one friend. S he gets frustrated. Her special education m ath class consists of copying a checkbook, and doing worksheets on multiplication, addition, and subtraction. She is in a regular education biology class but her teacher is hard to follow because she speaks Spanish. Jamie’s special edu cation teacher gives her add itional science ass ignments, such as looking up science pictures on the internet and writing a description of the picture. In her reading class, she is supposed to read silently to herself for about 10 minutes, but she does not understand what she is sup posed to be reading so she stops reading and just sits there. The teacher then will read to the class but the teacher does not offer any explanations. And then sh e is supposed to write in her journal but she does not do this because sh e once wrote personal information in her journal that was reported back to her mother.
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Jamie likes her his tory class because the teach er provides explanations. However, on crossexamination, Jamie admitted she had been to history class only once in the last six weeks.
In the special education room she goes on the computer to “Blink” and meets people. Some of the males she has met online she has met in person.
Jamie has not been taught job skills and she is not involved in any school activities. One day she would like to become a nursi ng assistant like her mother. She believes she needs more help and if she received more help, she would attend more.
In an effort to accomm odate Jamie, MPS permitted her to b egin her school day at 1 0 AM but she still failed to attend. Teachers have come to her home to discuss her atten dance problems. When she was told that she would fail 9th grade if she did not attend that last two days, she still did not attend. Although her teachers offe red to help her after school, she refused to stay late because she had “other things to do” at hom e. Similarly, she refused to attend summer school because she spends summers with family in Chicago.
D. Erin Goff Erin Goff (“Goff”) is the Program Director for Creative Employment Opportunities, a forprofit company that contracts w ith various governm ental organizations to provide em ployment services for persons with disabilities and other employment barriers. The com pany at tim es does receive school district referrals as part of a student’s IEP. Client s receive individualized services tailored to their un ique needs. An internsh ip might be appropriate for a person such as Jam ie and unlike Wisconsin Career Academ y, Goff woul d not condition eligibility fo r the internship upon school attendance. Creative Em ployment Opportunities has contracts with school districts, but not with MPS.
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E. Claudia Weaver Hendrickson Claudia Weaver Hendrickson (“Hendrickson”) is a MPS Special Education Leadership Liaison (“SELL”), and has been since 2003. She is a m ember of Ya hle’s management team in charge of special education training including issues relating to compensatory education. She testified that compensatory education must be viewed on an individualized basis, first determining whether the student was denied FAPE. She acknowledged that in determining whether FAPE was denied as a result of a delay, or whethe r the student had no prior IEP, it is nece ssary to rely upon the best judgm ent of professionals to determine where the student would be had FAPE been provided on a tim ely basis. Determining whether or not a student was de nied FAPE and if so, what type of compensatory services are necessary will require an evaluation of a variety of factors, including how long was the delay, what are the child ’s needs, and what services the child receiv ed in the past. Com pensatory education m ust be a bove and beyond what the child is now receiving; otherwise, it is not compensatory. Hendrickson supervised an au dit of files for students whos e initial evaluations occurred beyond the 90-day deadline without a valid extension betw een September of 2000 and April of 2004. (See Ex. 461.) As Yahle also testified, MPS id entified 487 students who m et these criteria and determined that 221 of these student files needed to be reviewed. (Ex. 461.) MPS excluded students who were no longer enrolled in MPS or who were not initially reviewed by MPS. (Ex. 461.) As a result of this review, it was determ ined that it was necessary to reconvene the IEP teams for 48 students. As a result, the IEP teams determined that compensatory education was appropriate for 7 of these 48 students. (Ex. 461.) Since 2004, IEP teams have been required to re port whether or not compensatory education is discussed during an initial IEP meeting. Hendri ckson said that Exhibit 336 indicates whether or not compensatory education was discussed in a pa rticular case. She, however, acknowledged that
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this record may not be entirely acc urate since some educators turned in the proper data and others

did not.

Finally, she testified that only on rare

occasion will she question an IEP team ’s

compensatory education determination; on less than 10 occasions has she asked for an IEP to

convene specifically to consider compensatory education.

F. Audrey Potter

Audrey Potter (“Potter”) is MPS’ Coordi nator of Psychological, Speech, Language, and

Health Services, and is also a part of Yahle’s m anagement team. Potter supe rvises 150 school

psychologists in the district.

Potter testified that compensatory education is viewed as p art of the IEP process. In regard

to this cas e the MPS s taff has not received a ny specific training regarding how to determ ine

compensatory education for class members who should have been evaluated earlier.

G. Kim Brizendine

Kim Brizendine (“Brizendine”) is a Special Services Inform ation Management Systems

supervisor for MPS. Her responsibilities include data tracking and m anaging software to com ply

with the IDEA’s 2004 amendments. She discussed Exhibits 401 and 336 and stated that if there is a

“Y” (“Yes”) in the compensatory education colu mn, it shows that compensatory education was

discussed. However, the absence of a “Y” does not m ean that compensatory education was never

discussed because the report simply documents an isolated point in time.

H. Christine Shaver

Christine Shaver (“Shaver”) is a s elf-employed special ed ucation advocate living in Eas t

Troy, Wisconsin. She is generally contracted by county hum an services departments or hired by

private clients. She has been doing this contra ct work since May of 2003. The children she works

with have serious em otional or mental health needs. Not all are in spe cial education. Nearly all of

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these children attend MPS. She refe rred 7-8 of thes e students to special education and she went to IEP team meetings for these 7-8 students. At none of these meetings was the issue of compensatory education raised by MPS. On the other hand, neither did Shaver raise the issue. She testified that she did not raise the issue of com pensatory education because she was concerned about m oving forward.
Shaver testified that in her e xperience, advocates are able to assist parents in navigating the special education process because, although district s provide parents with infor mation, the parents are often not able to understand the inform ation they receive. Even though the plaintiffs are proposing requiring MPS to fund a dvocates as part of their proposed rem edy, she knows that the IDEA does not require a school district to provide parent advocates.
I. Cynthia J. Cynthia J. is the m other of Jyran J., a 17- year-old MPS student who was identified for special education when he was 13 or 14. He was found eligible for special education in May of 2005 on the basis of an emotional disorder and a lear ning disability. Since that time, he was in MPS for all years, except for one. P rior to being found eligible for specia l education, Jyran was repeatedly retained in 3rd grade so that he was eventually 12-years-old and still in the 3rd grade. He then transferred schools and was placed into the 7th grade. Therefore, Jyran never attended 4th, 5th, or 6th grades. Jyran has a significant truancy problem ; he rarely goes to school. Although Cynthia acknowledges that Jyran has a significant problem, she believes that the attendance records included in Jyran’s file, (Ex. 317A), were f abricated and he was at school m ore often than the records indicate. Jyran reports to his mother that he does not go to school because he does not feel like MPS can help him anymore. Jyran has a twin sister who was found eligible for special education in 1999. She does not have a similar truancy problem.
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At an IEP team meeting on November 30, 200 5, the IEP team concluded that Jyran should undergo an hour of “[t]utoring in all academ ic areas” twice a week from December 1, 2005 to March 31, 2006 “to address com pensatory time.” (Ex. 317A at 95173.) Cynt hia did not request a due process hearing or otherwise object to this finding. Immediately after this IEP team meeting, Jyran transferred to another school and was truant for nearly the entire period he was supposed to be receiving tutoring. (Ex. 317A at 94897.) Jyran’s trua ncy has continued. From July of 2005 through October 22, 2008, Jyran was truant for 61 partial days and 330 full days.
MPS attempted to accomm odate Jyran by, for example, providing him with a shortened school day, an altered school sche dule, and offering door-to-door bus service. (Ex. 317A at 94991, 95013.) However, Jyran refuses to take the bus and Cynthia told this to MPS.
J. Georgette Rodriguez Georgette Rodriguez (“Rodriguez”), herself di sabled, serves as a volu nteer assistant for parents of children with disabilities. She worke d for 26 ye ars as an advocate for families with special needs, and in 2001 she began working for MPS to assist parents as a Parent Inform ation Specialist. She worked for MPS until March of 2007 when she was discharged for violating M PS’ leave of abs ence policy. (See Ex. 465.) After two years of a ssisting parents and attending IEP meetings, Rodriguez’s duties were lim ited so that she no longer attended IEP meetings and her work related to advising families regarding disability questions became just one subset of the wider duties she was tasked with as an employee of MPS’ Parent Education Center. Rodriguez testified as to her disagreem ent with the policy implemented by the new Director of Student Services, which lim ited her ability to in form parents of their ri ghts regarding disability services. She continued to attempt to inform parents who called the Parent Education Center of their rights regarding disability matters but she did so in a “low tone” so as to not let her supervisor know
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what she was doing. She filed a grievance with

the district contending that her supervisor

inappropriately restricted her ability to discuss matters with parents.

Sometimes when she wrote up Parental Dispu te Resolution Forms, she would write “com p.

ed.” on the for m followed by a question m ark when she thought the dispute m ight lead to an

evaluation for compensatory education, but she is not aware what, if anything, happened as a result

of these forms. Sometimes she would contact sta ff members to make inquiries, and som etimes she

felt that she was encountering resistance from staff and administrators. Rodriguez got the

impression that they felt she was over-stepping her bounds.

As part of her duties, Rodriguez would attend disciplinary hearings. When she encountered a

student with a history of suspensions, she may have suggested a special education referral.

Based upon her experience, parents are in need of assistance from advocates in order to

navigate the special education system, and if th e court ordered MPS to provide parent advocates,

she would like to be one of them.

K. Melanie V.

Melanie’s problems, which included depression, self-injury, and hallucinations, began in 5th

grade and she repeatedly m issed school in 6th grad e. Melanie also has a longstanding history of

excessive absences that continued until she lef t MPS. (See Ex. 214A at 88132.) She was referred

and found eligible for special educ ation in January of 2004 when sh e was in 7th grade. (Ex. 293 at

46.) Neither at this initial m eeting nor at any s ubsequent meeting, including those attended by her,

her mother, and advocates, was compensatory education discussed.

Once she was placed in special education, m atters improved slightly for Melanie. While she

was in high school, Melanie and her mother requested that she be rem oved from special education

and be given a Section 504 plan instead. (See Ex. 214A at 88131.) This 504 plan was put in place in

Melanie’s junior year and Melanie was provide d with acco mmodations similar to those she was

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provided when in special education. Melanie never made it to her senior year. She no longer wanted to go to sch ool; when she did go, she would leave mid-day because she no longer wanted to b e at school. Her depression worsened. And so she arranged to obtain her GED.
When she alerted MPS of her intent to withdr aw from school, her principal wrote Melanie a letter informing her that although she was age 18 and thus MPS could not com pel her to attend, MPS encouraged her to continue attending and offered to provide Melanie with additional services under her 504 plan. (Ex. 214A at 94552.) The letter closed, “The dist rict is prepared to provide any necessary accommodations to ensure that you rece ive appropriate educational services.” (Ex. 214A at 94552.)
While at MPS, she was not provided inform ation on how to create a resum e or how to look for a job, but was given career exploration opportuni ties in her junior year . Right now, at age 19, Melanie is not interested in looking for a job, and does no t have any ideas as to what she m ight like to do for a career in the future, although she is interested in forensic science.
L. Bryan E. Bryan is currently 20 years old. He was not fou nd eligible for special education until the 9th grade. Prior to that he was required to repeat the 5th and 7th grades a nd at other tim es he was promoted although he did not m eet requirements. Beginning in about 5th grade, Bryan was frequently truant because he di d not like going to school. When he was at Marshall High School, Bryan was mistakenly placed in a special education class. When the mistake was discovered, he was placed back into regular education and the work was harder. After three requests by his mother, he was placed into special education and Bryan came to like school better and did not m iss as often, alt hough he did continue to have problem s with attendance. He appreciated the one-on-one support he received and the extra tim e to complete assignments that he received as part of his IE P. The issu e of com pensatory education was nev er
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brought up at any of his IEP m eetings, although he was frequently assisted by an advocate from DRW. In November of 2006, Bryan was determined to be no longer eligible for special education. He later contested this determination and was placed back into special education.
Bryan graduated from Community High School with a regular education diplom a in June of 2007 despite testing at the academ ic level of a stude nt in 6th or 7th grade. Since graduation, Bry an has had various unskilled jobs, but is currently unemployed and acts as the primary caretaker for his daughter. Prior to graduation, Co mmunity High School assisted Br yan in searching for college scholarships, filling out college applications, and took him on a co llege visit. However, Bryan did not receive training on filling out job applications or job sha dowing opportunities, but h e was provided with an internship at the Milwaukee Art Museum and at a local ba rber shop. Bryan would like to continue with his education in order to become an electrician.
M. Dr. Diana Rogers-Adkinson Dr. Diana Rogers-Adkinson, chair of the special education department at the University of Wisconsin-Whitewater testified as an expert f or the plaintiffs. Dr. R ogers-Adkinson previously served as an independent educational evaluator fo r New Berlin public schools as part of a 6-m onth IEP process, and has been part of a compensatory education determination for a student in Kenosha. She was also an expert witness in a case in Kansas w here summer school was ordered as compensatory education. Dr. Rogers-Adkinson described special education as being distinct from general education because special education provides a very specialized service that is geared towards the ind ividual student and is tailored in a m anner to be m ost beneficial to that student. A student is required to have a disability and a n eed for special edu cation services in order to q ualify; in other words; it is possible to have a disability that does not translate into a need for special education. It is not
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uncommon for schools to utilize a sy stem of pre-referral interven tions as part of the general education process, before deciding to refer a student to special education.
Students who are in special education at age 14 under W isconsin law, or age 16 under federal law, may also be provided with transitional services geared towards enabling the student to develop the necessary skills to be a productive m ember of soci ety. These m ay include a wide variety of services such as job coaching or shadowing, recreation and leisure skills, or assisting the student in obtaining vocational rehabilitation. Thes e services may be provided by the school or an outside community organization.
Turning to the issues in Phase III of this case, the age of the child when the denial of FAPE occurs is significant in determining the impact of such denial. The im pact of denial of FAPE early in a student’s educational career, for exam ple between ages 5 and 8 when the ch ild is learn ing primary literacy skills, may be more signifi cant. A lag in early skills can com pound later deficiencies. The impact of being denied FAPE m ay have an impact even after a child’s e ligibility for special education is determ ined, as it m ay be more difficult to r e-engage the child in the educational process. T his can lead to the stud ent being frustrated, which m ay lead to increased truancy or disruptive classroom behavior.
Compensatory education is the remedy for a child who has been denied FAPE. Determining the level of compensatory education that is appropriate for a de nial of FAPE requires a determination of where the student would be had he received appropriate special education services. Compensatory education services can cover a b road spectrum. Dr. Rogers-Adkinson testified that compensatory education services can be provided to students who graduated from high school with a special education diplom a or even to pers ons over age 22. She does not have any personal experience in providing compensatory services to students who either gra duated from, or dropped out of, high school.
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Addressing the question of whether MPS provided compensatory education to the class, Dr. Rogers-Adkinson updated her prior analysis built upon the records and m ethodology that she relied upon in Phase II. ( See Expert Report, Ex. 445.) In regard to the 96 student files she reviewed, she now identified a pattern for the students who were suspended m ore than 10 days of not being provided compensatory services, even though some of these students were found eligible for special education. (Ex. 445, Appendix A.) Tables 1-8 in her report were crea ted by an independent statistician; Dr. Rogers-Adkinson did not independently verify the statistician’s work.
Dr. Rogers-Adkinson also reviewed 316 file s of students who were considered for compensatory services in MPS. As a resu lt of this qualitative analysis, Dr. Rogers-Adkinson was not able to identify any pattern regarding the deci sion to award or deny compensatory services. Dr. Rogers-Adkinson did not find any clear rationale for the failure to provide compensatory services for 80% of the students. For the students she could determine the rationale for denial, 4 were denied because the IEP team felt that significant harm did not result from the delay, and others were denied because the IEP team felt the student was making adequate progress.
In Dr. Rogers-Adkinso n’s opinion it is n ecessary to ev aluate whether a stud ent needs compensatory services every time there is a denial of FAPE.
To support her conclusions, Dr. Rogers-Adkins on provided examples from various student files, which in her opinion, contained deficient compensatory education determinations. She pointed to a student who was denied com pensatory services because h e was receiving double the services called for in his IEP. ( See Ex. 411.) D r. Rogers-Adkinson te stified that simply doubling special education is not necessarily an appropriate means to compensate for a prior d enial of FAPE because it is not necessarily providing the student with what was lost. Additionally, it may result in further deficiencies because it requires a decrease in regular education services.
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Dr. Rogers-Adkinson also noted that MPS in appropriately planned for suspensions in advance for a special education student by stating in his IEP that he should receive one hour of services after school for every day the student was suspended. (See Ex. 421.)
Another student was determ ined not to need compensatory services because, although his evaluation was delayed, he went th rough the problem solving m odel. (See Ex. 408.) Dr. RogersAdkinson regarded this approach as inappropriate because the probl em solving m odel is part of regular education and regular education cannot substitute for special education.
Dr. Rogers-Adkinson also testified that she review ed the files of the named plaintiffs in this action, Jamie S., Melanie, and Byran, and determ ined that com pensatory services were never discussed for any of these students.
In the opinion of Dr. Rogers-Adkinson, MPS’ co mpensatory education guidelines, as set forth in its IEP Team Procedural Handbook, (Ex. 402), are deficient because, although they provide a variety of exam ples, they do not provide very specific guidelines for helping the IEP team m ake its decision. She pointed to the fact that, for ex ample, IEP teams were finding that com pensatory services were not necessary because the student was receiving twice the services called for unde r the IEP, as evidence that there was a general misunderstanding of compensatory education among IEP teams.
As a remedy for the class, Dr. Rogers-Adkinson testified that, in he r opinion, compensatory services must be delivered on a 1:1 basis where th e amount of compensatory services received is equivalent to the tim e period the student was denied FAPE. She tes tified that this approach would be necessary because of the size of the class. It should be n oted that her 1:1 recom mendation was offered for the first time at trial and did not a ppear in her report. It appears that Dr. RogersAdkinson’s opinion that com pensatory services on a 1:1 basis are app ropriate originates from a single sentence in a single article. In “Puniti ve Damages in Special Education,” by Antonis
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Katsiyannis and Maria Herbst, published in 2004 in the Journal of Disability Policy Studies , in discussing the Supreme Court’s decision in Barnes v. Gorman, 536 U.S. 181 (2002), a case brought under the Americans with Disabilities Act, 42 U.S.C. § 12132, and th e Rehabilitation Act of 1973, 29 U.S.C. § 794(a), the authors st ated, “Using a contract law analogy—when a contract is broken, the promise should be enforced to p ut the parties in a good position, as they would have been h ad the contract been fulfilled—the court [sic] held that punitive damages are not compensatory and are therefore not embraced by that rule. ” (Ex. 460A at 11.) From this sentence, Dr. Rogers-Adkinson concluded that compensatory services must be provided on a 1:1 basis.
However, on cross-exam ination, Dr. Rogers -Adkinson acknowledged that not all students progress at the sam e rate and the age at which a student was denied FAPE may be significant in determining what, if any, deficiencies the student m ay have as a result of th at denial. Further, Dr. Rogers-Adkinson acknowledged that special e ducation does not resolve every student’s deficiencies, even if the IEP is appropriate.
In order to implem ent remedies, Dr. Rogers-Adkinson recommended an oversight monitor be put into place, a checklis t be developed to assi st the IEP team s in their com pensatory education determinations, additional training for IEP team s members, and m ethods be developed to ensure that regular education did not suffe r as a result of compensatory education. She also recommended increased alternative interventions to address the continuing problem of suspensions.
In regard to the category of suspended students, Dr. Roge rs-Adkinson recommended that students who have never been evaluated for specia l education should be autom atically referred for special education evaluation if th ey were suspended m ore than 10 days in a school year. This should be done even if the student is perform ing at grade level and there are no other indicators, because 10 days of suspensions sign als a child m ay be in need of special support and services. On cross-examination, she did acknowledge that it is neces sary to determine in every case if there is a
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link between the suspension and the potential speci al education need. Further, she acknowledged that if there is no t a reasonable suspicion of disability it would be “unfair” to force the ch ild to undergo the experience of a special education evaluation.
MPS provided num erous examples to whic h Dr. Rogers-Adkinson acknowledged that a variety of factors would affect whether any of those exemplar st udents would be entitled to compensatory services. Dr. Rogers-Adkinson acknowle dged that the student’s specific disability, current life situation, external stressors, rate of learning, progre ss on IEPs, behavior, attitude, and tolerance for programming would all be factors that would need to be considered in determ ining what, if any, compensatory services are necessary for a student who was denied FAPE.
Dr. Rogers-Adkinson emphasized th at not being provided FAPE is a substantive denial. This means that a stud ent’s willingness to pa rticipate should not be considered in determ ining whether compensatory education is needed.
N. Jyran J. Jyran’s behavior problems began in elementary school. He acted out to get attention. He was frequently suspended and receiv ed bad grades. He repeated 3r d grade three tim es and b ecame embarrassed because h e was older than the o ther students. He felt his failu res were not his fault because teachers refused to help him and instead chose to suspend him . When he transferred schools and was placed into 7th grade, he was pl aced into special education. School was difficul t because he missed out on the thing s he shou ld have learned in 4 th, 5th and 6 th grades, bu t the teachers were helpful. Jyran transferred schools again and at this ne w school his prim ary teacher took the tim e to work with him one-on-one, and this was helpful. He got into a fight at this school and transferred to another school. Coincidentally, the teacher who was particularly helpful to Jyran transferred with him and continued to work with him.
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Jyran is now in 9th grade at yet another school. He is 17 years old, and he continues to miss a lot of school. He feels that the school does not care about him and so he does not go. For example, he felt he worked hard and should have passed th e 9th grade but nonetheless was retained. When he does go, he does not understand certain elem entary matters in subjects such as m ath. He is embarrassed to ask questions in cl ass and so instead walks out of the classroom . Jyran feels he needs one-on-one attention.
Jyran likes to work on com puters and believes that an online school might be beneficial. He wants to graduate and would be willing to accept one-on-one tutoring at home.
M. Dr. Eric Hartwig Dr. Eric Hartwig, Marathon County’s Administrator for Pupil Services, testified as an expert for MPS. He supervises 110 employees who work in special education in six rural school districts in Marathon County, W isconsin. The largest distri ct he oversees, Marat hon School District, has approximately 80 special education students. He regularly participates in IEP meetings. In preparation for his testimony, Dr. Ha rtwig met with Melanie and reviewed various student files. He also reviewed the professional lite rature for discussions of the issu e of compensatory education but realized that there is a derth of information. Therefore, his opi nions regarding special education were shaped, in large part, by prior court cases. None of the cases he relied upon were class actions. His expert report was received as Exhibit 455. In reviewing Dr. Rogers-Adkinson’s report, Dr. Hartwig found it remarkable that it had only a single citation and that citation was to an op inion piece. An opinion piece is not subjec t to the same sort of rigorous scrutiny to which a peer-rev iewed article is subjected. Dr. Hartwig also noted the limitations of a reco rds review, such as the one conducte d by Dr. Rogers-Adkinson. It is onedimensional, capturing only the opinion of the writer at an isolated point in tim e, the records are frequently incomplete, and the records often times focus prim arily upon problem s rather than
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presenting the entire port rait of the student. In Dr. Hartwig’s opinion, it would be inappropriate to conclude that any student needed compensatory education based so lely on a review of record s, as conducted by Dr. Rogers-Adkinson.
According to Dr. Hartwig, the process for m aking a compensatory education determination is identical to that necessary for crafting the IE P, and it is necess ary to evaluate the s tudent’s individual needs. Ultimately, the goal of compensatory education is to put the student in the position he would have been had he not been denied FAPE. (Ex. 455 at 7.) Dr. Hartwig noted that the idea of compensation underlies m any special education dete rminations; for exam ple, frequently an IEP team is initially convened only after a student has failed over a period of time, and thus every initial IEP seeks to remedy this lack of services and thus special education is inherently compensatory. He emphasized that compensatory education must look forward; after determining the child’s present level of performance, it must be determ ined what is needed prospectivel y by way of com pensatory education.
Dr. Hartwig dismisses any formulaic approach. In other words, in determ ining the level of compensatory services a student m ay receive for a denial o f FAPE, it is inappropriate to sim ply provide a student with one m inute of addition al instruction for every minute lost because one minute of instructional tim e does not necess arily equal one minute of enga ged instructional time. Rather, when determ ining the level of com pensatory services, it is necessary to consider m any variables, including the student’s level of engagem ent. A for mulaic approach m ay be useful in establishing a fram ework for determ ining compensatory services but i ndividual tailoring rem ains necessary.
In his own review of the professional literature on the subject, Dr. Hartwig found no s upport for Dr. Rogers-Adkinson’s conclusion that compensatory services should be provided on a 1:1 basis
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or any support for the plaintiffs’ contention that compensatory services provided should be rounded up to the next semester on a 1:1 basis for every semester for which a student was denied FAPE.
Dr. Hartwig noted that Dr. R ogers-Adkinson’s failed to rely upon scholarly research for her conclusions and this impeded her ability to m ake a recomm endation. Dr. Ha rtwig said that often times her s tatements lacked foun dation or were counter-intuitive; he described Dr. RogersAdkinson’s method of analysis as “like shooting at a barn and th en drawing a bull’s eye around it after it was over.”
Dr. Hartwig testified that only the IEP team can determine whether compensatory education is appropriate for a stu dent, and if so, what sort of services are app ropriate. A com pensatory education determination for a member of the class would be uniquely challenging because so much time has passed since the denial of FAPE. As for the pro cess to be implem ented to m eet this challenge, Dr. Hartwig did not reje ct plaintiffs’ recommendation for an outside monitor, but opined that this is often a cumbersome procedure.
Further, Dr. Hartwig testified that Dr. Rogers-Adkinson’s recommendation that all students who were suspended 10 or m ore days a year s hould be autom atically referred for an evaluation totally misconstrues the notion of individual analysis that underlies special education. Misconduct is not synonymous with disability.
In his review of Melanie’s records, discussion with staff who interacted with Melanie, and his meeting with Mela nie, it is Dr . Hartwig’s opinion that Melanie does not need com pensatory education because she was provid ed with a pro gram that met her educational needs. Of particular importance to Dr. Hartwig was the fact that Me lanie was dism issed from special education. Dr. Hartwig also offered his impression regarding various other students based upon his review of their records, but acknowledged that this was no substitu te for an IEP team meeting. In this regard, the
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court finds that Hartwig’s records review “impressions” do not advance the issues being considered. They are no more than random comments. (See Ex. 455 at 30-42.)
N. Patricia Hall Patricia Hall (“Hall”) is in her third y ear as a special education teacher at Wisconsin Career Academy. Overall, she has 10 years of teaching experience. She first met Jamie S. last school year, which was Jam ie’s first year in high school. Sin ce then, she has been Jam ie’s special education teacher, except for the second semester of last year when Hall was o n medical leave. Jam ie is currently repeating 9th grade; she failed 9th grade because of attendance issues. Her attendance problems have continued this year. So far, Jamie was at school only three full days. Hall has talked to Jam ie about the things going on in Jam ie’s life including discussions about problems at home and about Jamie’s group of friends at school with whom she socializes on the weekends. Jamie has never discussed being teased with Hall, nor has Hall witnessed or heard of such incidents from other staff m embers. Hall speaks with Jam ie’s mother roughly once a month and would frequently contact her by sending written information to her. As for Jam ie’s post-high school plans, Jam ie used to want to go in to child care but has recently expressed interest in becoming a certified nursing assistant like her m other. When Jamie was still interested in working in child care, Hall did a class with her ex ploring issues relating to working with young children. Jam ie was also given the opportunity to work at Boston Store, an opportunity usually limited to 11th and 12th graders, but Jamie failed to appropriately attend school, which was a requirement to take advantage of this opportunity. Hall has participated in Jamie’s IEP team meetings and describes Jamie as a very verbal and active participant in thes e meetings. Jamie’s mother was also present and partic ipating. In part, Jamie’s IEP calls for her to get one -on-one assistance and Hall is the one to provide that assistance. Jamie is given the opportunity to work on a computer in the special education room but her activity
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is monitored and Hall has never observed Jam ie on websites such as Facebook or Blink. In Hall’s opinion, Jamie has made good progress when considering her cognitive disability. In fact, she m ay be nearing her cognitive level, although there are still some goals to reach.
Jamie has received various other accommodations such as a later start time and a community awareness class where Jamie was very involved in a project raising money and purchasing toiletries for a community organization. Jam ie was also give n the opportunity to participate in group and individual counseling; Jamie chose not to. No one has ever objected to the services Jam ie receives. Further, no one has raised the i ssue of compensatory education or suggested that she pursue online education or home tutoring.
O. Roxanne Mayeur Roxanne Mayeur is em ployed at Commun ity High School as its Special S ervices Administrator. Community High S chool is a charter school within MPS that is run by its teachers rather than a single adm inistrator and em phasizes social justice and community involvem ent. Students are required to pa rticipate in some sort of community service at least once a week. This component is design ed to build skills that will enable the s tudent to transition into a profession al environment. Community High Sc hool helps all its students in gaining vocational training, completing job applications, writing resum es, exploring career interests, completing college applications, and visiting colleges. Mayeur has known Bryan E. since 2004, when Community High School opened. Mayeur describes their relationship as a good one and he discusses with her the problem s he is having. Bryan has an interest in art and Mayeur’s teach ing background is in art; therefore, she has had several classes with him. Bryan has done well in these classes, including an advanced art class where he designed clothes and developed an art portfolio. In light of Bryan’s interests, he was given the opportunity to complete his community service at the Milwaukee Art Museum. He later
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expressed interest in working at a local barbershop and the school approved a placement arranged by Bryan’s family.
Mayeur has attended B ryan’s IEP m eetings, and Bryan has been an active participant in these meetings. In November of 2006, the IEP team concluded that Bryan was on par with his peers and on pace to graduate. The team recomm ended that Bryan was no longer eligible for special education, and neither Bryan nor his advocate from DRW objected. Subsequently, Bryan stated that he wanted to return to special education. Another meeting was convened, and Bryan was returned to special education; there was no lapse in services . At no point was the issue of com pensatory education ever raised.
Bryan was found to be eligible for graduation, but was not at a 12t h grade level in any subject when he graduated. According to Mayeur, such deficiency in grade level is not uncommon for a regular education student at Community High School. So even though his IEP goals did not require Bryan to be at a 12th grade level, he was on par with his regular education peers.
P. Sara Janacek Sara Janacek (“Janacek”) is the school psychologist at th e Milwaukee School of Languages where she has known Melan ie since 2002. Janacek a ttended all of Melan ie’s IEP m eetings. In Melanie’s November 2006 IEP m eeting, the team, which included Melanie, her m other, and her attorney, concluded that Melanie should be dismissed from special education and a Section 504 plan be put in place. This Section 504 plan included accommodations similar to those provided under the IEP. During the 11th grade, Melani e began having significant pr oblems completing assignments and her grades declined. She expressed her frustration with school to Janacek and discussed plans of dropping out and pursuing her GED. Melanie had frequent problems with attendance throughout her
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time in special education and under the Section 504 plan. At som e point after she turned 18 years

old and MPS was no longer able to compel her to attend, she completely stopped coming to school.

Melanie never requested that the IEP team be reconvened following her dism issal from

special education. At no point did she or her attorneys request a due process hearing.

Q. Dr. Barbara Van Haren

Dr. Barbara Van Haren is the Director of Special Education Services for Cooperative

Educational Service Agency (“CESA”) #1 in Brookf ield, Wisconsin, (Ex. 451), and testified as an

expert on behalf of MPS. CESA #1 provides servi ces for 45 school district s, including MPS, and

acts as an interm ediary between DPI and the local school districts, providing the districts with the

special education services and support they might not be able to provide on their own. Previously,

Dr. Van Haren worked as a m iddle school special education teacher and a director of special

education services and an assistan t superintendent of pupil services. Her expert report was received

as Exhibit 454.

Dr. Van Haren was asked to review Dr.

Rogers-Adkinson’s conclusions regarding

compensatory education. Dr. Van Haren concluded that Dr. Rogers-Adkinson relied upon numerous

erroneous assumptions. For example, Dr. R ogers-Adkinson erroneously concluded that post-

secondary education may be appropriate com pensatory education. Dr. Van Hare n testified that it is

a school dis trict’s responsibility to provide tran sitional services that may lead to p ost-secondary

education, but the district is not responsible for providing that education. Dr. Van Haren has never

seen post-secondary education ordered as compen satory education. She is not aware whether

Chapter 118 of the Wisconsin Statutes provides for tuition to technical colleges for at risk students.

Further, Dr. Van Haren disagrees with Dr. Rogers-A dkinson’s conclusion that special education is

the only remedy for students who ar e not successful; many students may struggle for reasons other

than a disability and there are programs and interventions available to assist those students.

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As for Dr. Rogers-Adkinson’s conclusion that co mpensatory services should be provided to students with a history of susp ensions, Dr. Van Haren found this conclusion overbroad. Students may be suspended for a wide variety of reasons that have nothing to do with a disability.
In Dr. Van Haren’s opinion, an IEP team asked to determ ine whether com pensatory education is appropriate must consider numerous factors including, whether the student was denied FAPE, the type of services the stud ent received, the services the student was denied, the students academic and attend ance records, the tim e between th e denial of FAPE and the rem edy, opportunities and participation in additional services such as summer school, after school programs, or other compensatory services, and the student’s progress on IEP goa ls. (Ex. 454 at 8.) Further, in her opinion, Dr. Rogers-Adkinson’s conclusion that compensatory services should be provided on a 1:1 basis fails to consider the student as an individual.
Dr. Van Haren also reviewed individual stud ent records as well as interviewing those students and key staff involved in the students’ education. In her opi nion, Bryan is not eligible for compensatory education because she saw no tim eline violations in his referral process. Even if there was a denial of FAPE, compensatory education is not appropriate because he made appropriate progress on his IEP goals and graduated. Further, Dr . Van Haren disagreed with Dr. Rogers-Adkinson’s conclusion that Bryan was s ubjected to “excessiv e” suspensions; Bryan was suspended only twice. In her interview with Brya n, he reported that he fe lt he needed special education once he got into high school; however, Dr. Van Haren acknowledged that it is unusual for a learning d isability to first app ear at age 15. Ultimately, she conced ed that she d oes not kno w whether Bryan should have been referred earlier.
As for Jamie, Dr. Van Haren believes that Jam ie may be eligible for compensatory services based upon a delay in her referral. In Dr. Van Ha ren’s opinion, Jam ie should have been referred after testing indicated she might have a mild cognitive disability; the referral occurred roughly two
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months later. She believes that Jam ie might receive a benefit if she participated. She recognized that Jamie’s truancy is severe a nd frequent and conceded that a func tional behavioral assessment in regard to this problem might be warranted.
In regard to Dr. Rogers-Adkinson’s conclusion that Jam ie should receive three years of compensatory education, Dr. Van Haren disagr eed since there was only a two-m onth delay in referral. In Dr. Van Haren’s inte rview with Jamie, she discussed summer school and Jam ie stated that she did not feel summer school was necessary and sh e preferred to spend her summers in Chicago. Further, although Jamie continued to have significant acad emic problems, in Dr. Van Haren’s opinion, this did not indicate that the IE P was inappropriate, especi ally in view of her significant absences.
Based upon her review of these and other stud ent records, she was unable to discern any pattern within MPS with respect to handling compensatory education determinations.
R. Dr. Cindy Walker Dr. Cindy Walker is a professor at the Univ ersity of W isconsin – Milwaukee where she teaches numerous courses includ ing Educational Statistics, Techniques of Education al and Psychological Measurement, and Techniques of Educational Research. (Ex. 450.) She testified as an expert on behalf of MPS. Her expert report was received as Exhibit 453. Dr. Walker reviewed Dr. Rogers-Adkinson’s repo rt to determine whether her analy sis was sound from a m ethodological point of view. Dr. W alker pointed to numerous deficiencies in Dr. Rogers-Adkinson’s methodology. As an initial m atter, Dr. Rogers-Adkinson failed to explain her methodology in a manner that would allow a subsequent researcher to replicate her work. Dr. Walker described qualitative research as intended to discern on a micro level what is happening in a specific situation. This is distinguished from quantitative research, which is typically utilized when the researcher seeks to generalize the research to a larger population and is conducted
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on a much larger scale. The only way that a research finding can be generalized to the population as a whole is if the population studied was selected as the result of random sampling.
Random sampling is distinguished from purposive sampling, which is utilized when a researcher is attempting to answer a specific research question that might not lend itself to the use of a random sample. For exam ple, if the target populat ion is sm all, it m ight not be appropriate to utilize a random sample.
Given the size of the sample, Dr. Rogers-Adkinson utilized purposive sampling and engaged in quantitative analysis but then attem pted to call it qualitative. Dr . Walker also found it inappropriate that Dr. R ogers-Adkinson relied upon sta tistical data that she did not verify. Further, Dr. Walker considered it inapprop riate for Dr. Rogers-Adkinson to utilize in Phase III the s ame research design she utilized in Phase II because the res earch questions being asked in these respective phases were very different.
In Dr. Walker’s opinion, the question being presented in Phase III, whether all members of the class should receive compensatory education, is not the type of question that could be answered through a review of a few select files and then generalized to the entire population. It is not a question that lends itself to generalizations but rather would require a review of each individual file.
S. Patricia Gill Patricia Gill (“Gill”) is a Student S ervices Coordinator at MPS and works particularly on matters involving student discipline and expulsi on. On a daily basis, sc hools provide her with records of disciplinary actions, and if it appears that an expulsion hearing is forthcoming, she begins the expulsion process. The first step is to revi ew the student’s computer records to determ ine whether the student is in regular or special education. If the student is in special education, a separate process at the school le vel occurs. If the student is in regular educati on, the expulsion process continues with the scheduling of an investigative interview.
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At times, a student who was previously in re gular education may be identified as possibly being eligible for special educa tion during the expulsion process. If this were to happen, the expulsion process is either returned to the school or the student is p laced into an interim placement while the referral is completed.
Gill discussed Pheng, a student wh o received As and Bs, and received report cards stating that he was never a problem in class, but wh o was suspended for 15 days pending an expulsion hearing for possession o f marijuana. Prior to th at, he was suspended on two other o ccasions for 2 days each. (Ex. 449.) Gill also d iscussed Greg, a student who was suspended for 13 days pendin g his referral for expulsion for possession of marijuana. Years earlier, he had been suspended for three days. At the tim e of his referral for expulsion, Gr eg’s grades ranged from a B to two Us. Neither Greg nor Pheng were expelled and both graduated from MPS.
Although Pheng and Greg were suspended m ore than 10 days during the period purportedly covered by Exhibit 400, inexplicably, neither of these students were listed on Exhibit 400.
T. Stephanie Petska Stephanie Petska (“Petska”), DPI’s Director of Special Education, testified that DPI does not have any guidelines regarding the delivery of com pensatory education. It is f or the IEP team to analyze each case on an indiv idual basis to determine whether c ompensatory education is appropriate and if so, what form that compensatory education should take. The use of a for mula to determine compensatory education would be inappr opriate. The student’s ag e and health, severity of disability, the specific services the student d id not receive, the studen t’s pre-referral progress, early intervention services provided, and the length of the delay ar e just some of the factors that the IEP team should consider in m aking any compensa tory education determ ination. In determ ining whether compensatory education is appropriate, the IEP team must determine whether the student
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should have been referred for special education earli er than he was. The IEP team should try and

ascertain this date because FAPE was not being received during this period.

A referral to special education is appropriate when there is reasonab le cause to believe that

the student has a d isability. In cer tain situations, a single factor might be suf ficient to war rant a

referral. However, simply because a s tudent was suspended for 10 days, alon e, would not be

sufficient to warrant a referral. Rather, suspensions should be one factor to be considered am ong

others in determ ining whether a referral is appropr iate. This could be a difficult determ ination to

make.

DPI does not have any guidelines relating to

providing post-secondary education as

compensatory education. However, although post-sec ondary education is not re quired, it also is not

prohibited. It might be provided in the appropriate situation.

DPI has never reviewed MPS to assess its compensatory education determinations. It has no

opinion as to whether MPS has e ffectively provided compensatory education for students betwee n

2000 and 2005.

III. PLAINTIFFS’ PROPOSED REMEDY

Plaintiffs seek the appointm ent of a n independent monitor, in addition to the independent

monitor called for under the settlement with DPI, who will be paid for by MPS. (Docket No. 540-2.)

The monitor will be able to ord er MPS to tak e corrective action and to report to the court any

failures of MPS to comply. (Docket No. 540-2.) Th is independent monitor will provide both parties

with monthly reports indicating the class m embers that have received compensatory education, the

amount of com pensatory education received, and th e results of all in itial evaluations of class

members. (Docket No. 540-2.)

The plaintiffs seek a written notice to be provided directly to the last known address of each

potential class member

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including all students whose initial eval uation for special educatio n exceeded statutory guidelines anytime during the period Septem ber 2000 through June 2005, all students who were initially found eligible for special education since that time, all students who were suspended 10 or m ore times in any one school year between September 2000 and June 2005, and were not evaluated for special education eligibility. (Docket No. 540-2.) Further, the plai ntiffs seek the creation of a se parate fund, in the am ount to be
determined by the parties and the outside monitor, to be used to fund compensatory education.
(Docket No. 540-2.)
As for class m embers who have aged out of MPS or are no longer resi dents of the district,
the plaintiffs seek compensatory services de pending upon the length of ti me they were denied
appropriate services, which may include:
1. Tuition and support for post secondary technical college or university
2. Provision of functional comm unity based assessments to determine current needs, recommendations for employment, benefits analyses, community participation.
3. Training on self-determ ination and self-a dvocacy from providers such as People First.
4. Passport to Employment program at Creative Employment Opportunities.
5. Job Internship series- 3 internships of 40-60 hours each, minimum of 10 hours per week in multiple areas of interest such as retail, office, construction, factory, etc.
6. Job placement and training.
7. Job coaching.
8. Life skills training such as budgeti ng, money management, food planning an d preparation, shopping, transportation, self-advocacy, etc.
9. Life planning assistance- includes employment, independent living, life skills, etc.
10. Provision of technology such as com puters, internet access, software program s, and assistive technology.
(Docket No. 540-2.)
As for clas s members who are cu rrent MPS st udents, the plaintiffs seek com pensatory
services that may include: 38

1. Any of the services mentioned . . . above especially with regard to transition ag e students. 2. Tutoring through outside programs such as Sylvan, Huntington’s Learning Center, Marquette, possibly Boys and Girls Clubs, including transportation. 3. Summer Ca mps, such as Easter Seals, YMCA, UW Whitewater, etc. including transportation if necessary. 4. Tuition for private schools such as Cradwe ll, Wisconsin Lutheran, or St. Francis Children’s Center. 5. Mentoring services-such as Running Rebels. 6. Community based specialized services such as occupational therapy, physical therapy, or speech and language therapy. Additionally, all class members shall be assu red of their 1st Choi ce of 3 Choice list after parents are provided with inform ation of the school’s perform ance, its special education performance and the nature of special ed service offered at that school. (Docket No. 540-2.) The plaintiffs also seek that MPS “fund the services of at least 5 new community based (independent of MPS) parent ad vocates to assis t at all com pensatory service determination meetings, all initial IEP m eetings for newly refe rred class m embers . . .” and that “[a]ll students receiving compensatory services under this agreement shall be assigned an expediter (paid for by MPS) whose duty and authority is to ensure that the compensatory services are delivered in a timely and appropriate manner.” (Docket No. 540-2.) As for the s tudents who have not yet been found eligible for special education, MPS shall evaluate for special education all students who were suspended 10 or m ore times in any one school year between September 2000 and June 2005 who have not yet been evaluated for special education eligibility. (Docket No. 540-2.) “A parent advocate . . . will be provided for all initial IEP evaluation meetings and the record shall contain com plete information about all efforts including adjusting times and locations to ensure parental involve ment.” (Docket No. 540-2.) Students who becom e
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eligible as a result of this identification process shall be entitled to receive compensatory education in accordance with the terms set forth above. (Docket No. 540-2.)
As for the named plaintiffs, the plaintiffs seek compensatory education services that include, for example, the provision of laptop com puters with software and a high sp eed internet connection, YMCA membership, educational aides to work with the named plaintiff at home, school, and during extracurricular programs, college ed ucation at th e school of the plaintiff’s choice, job placem ent, and life skills training. (Docket No. 540-2.)
As part of their po st-trial briefing, the pl aintiffs submitted an am ended proposed remedy. (Docket No. 585-2.) In th is revised p roposed remedy, the p laintiffs outline additional responsibilities for the outside monitor, whic h would include developing screening tools to determine whether students who were suspended 10 or more days during a school year or respond to the class notice contending th at they should have received special education should be provided with a full special education evaluation, to determ ine when students who we re delayed entry into special education should have been referred for special education, and a tool for IEP teams to utilize in determining what sorts of compensatory services a student should receive. (Docket No. 585-2 at 1-2.)
Further, in its revised proposed remedy, the plaintiffs “clarif y that not all students who had extensive suspensions are eligible for compensatory education. Students must first be found eligible for special education b efore they could be con sidered for com pensatory education.” (Docket No. 584 at 2.) Finally, the plaintiffs acknowledge “that th ere may be situations in which the denial of FAPE was de minimis and compensatory education is no longer necessary.” (Docket No. 584 at 2.) IV. MPS’ PROPOSED REMEDY
Under MPS’ proposed rem edy, (Docket N o. 552), MPS divides those eligible for compensatory services into three distinct categories:
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1. Students enrolled in MPS on the date of the remedy is approved by the court who, while

in Kindergarten through Grade 5 who were suspended at least 15 days or while in

Grades 6-12 were suspended at least 25 days between September 13, 2000 and June 30,

2005 “[w]ho are eligible for special education services on the date on which” the remedy

is approved by the court, whose IEP team

has no t previously determined that

compensatory services were necessary due to a delay in a referral for special education.

2. Students enrolled in MPS on the date of the remedy is approved by the court whose

initial evaluations took longer than ten da ys beyond the statutor y time limit without a

valid extension who are eligible for special education services on th e date th e court

approves the proposed rem edy, whose initial evaluations o ccurred between September

13, 2000 and June 30, 2005, and whose IEP has not previously made determinations as

to whether compensatory services were necessary due to a delay in a referral for special

education.

a. If the stude nt’s initial evaluation was delayed between 10 and 30 days, the

student shall receive a ge neral notice, which sha ll include, for exam ple,

publication on party websites, posting in MPS’s buildings, and distribution to

local media.

b. If the student’s initial evaluation was delayed more than 30 days, the student

shall receive an individualized notice sent to the student or parent.

3. Students who were found to be initially eligible for special education by MPS between

September 13, 2000 and June 30, 2005 but w hose initial evaluation was im properly

delayed more than 30 days, and who reside within the geographic boundaries of MPS

and are not yet 22-years-old on the date the remedy is approved by the court, and did not

graduate, shall receive an individualized notice.

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For each of these studen ts, an IEP Team shall be convened to determ ine if the student was denied FAPE as a result of his or her delayed referral to specia l education and to determine if compensatory services are necessary to rem edy any deficiency. If the IEP Tea m cannot agree as to whether compensatory services are necessary or the type of compensatory services that are necessary, the parties shall go to binding arbitration.
MPS and DPI shall establish a fund to ensure that funds are available for com pensatory services with DPI and MPS contributing equally. V. ANALYSIS
All told, this case has been pending for roughl y 7½ years, consisted of 28 days of trial, generated a transcript that is nearly 5,000 page s long, involved tens of thousands of pages of exhibits, and, as is outlined, in part, above, resulted in m any, many, motions by the parties and consequently decisions and orders by this court. No w, the court is in a position to take a f inal step towards resolving this case.
Upon reviewing and considering the evidence presented, remedial intervention by the court is required. Although Director of Special Services Yahle’s testim ony indicates that MPS is now paying more attention to the issue of compensatory education when there is a delay in com pleting an evaluation, the evidence demonstrates that MPS has a long way to go.
MPS’ own procedural handbook calls for the IEP team to consider w hether compensatory services are appropriate whenever “a student has received inappropriate or insufficient serv ices,” (Ex. 402 at 247), but the evidence dem onstrates that this infrequently occurs. Exhibit 401 identif ies hundreds of students whose initial evaluations we re delayed beyond the statutory deadline between September of 2000 and June of 2005, but there is a “Y” in the “Discussed Com p Ed” colum n in only a miniscule percentage of cases. Further, a “Y ” in a column on a spreadsheet offers no insig ht into the nature of the discussion or if compensatory services were provided.
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Even now, after this case has been pending for years, and near ly two years since this court determined that MPS was liable for its systemic violations of the IDEA, MPS has not demonstrated that it h as taken s teps to evaluate whether com pensatory services f or a den ial of FAPE are appropriate for all the mem bers of class. Although MPS conducted an audit of the files of students whose initial special education evaluations occurred more than 90-d ays after the initial ref erral without a valid extension between September 1, 2000 and April 1, 2004, to determine whether there was a need for com pensatory services, (Ex. 46 1), this audit was signif icantly narrower than the entire class. Further, Potter, MPS’ Coordina tor of Psychological, Speech, Language, and Health Services, testified that following this court’s P hase II ruling, M PS did not provide any specific training as to how IEP teams should assess whether compensatory services are appropriate for class members. (See Docket No. 567 at 195-96.) Thus, MPS has fa iled to dem onstrate that it is taking appropriate steps to comply w ith its obligations under the IDEA to rem edy a denial of FAPE suffered by class members. MPS has had more than ample time to provide a remedy on its own; the only option left is a court ordered remedy.
As demonstrated by the testimony and the parties’ proposals, this will not be an easy task. It is one that involves m any considerations. In stru cturing the appropriate rem edy in this case, the court must resolve many issues, both logistical a nd substantive. The former includes the method of notification and the latter includ es the m ethod to be used for evaluating whether those class members whose entry into special education was dela yed are in need of compensatory services, and if so, what sort of co mpensatory services are required. For those who have not as yet been determined to be eligible for sp ecial education, what type of addi tional evaluation will be required? The remedy proposed by the plaintiffs is broad and comprehensive whereas the remedy proposed by MPS far more limited. It is the conclusion of the court that the app ropriate remedy lies within the two extremes proposed by the parties.
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In broad ter ms, it is th e conclusion of this co urt that the establishment of an a dditional special education system providing relief to class members is not necessary. Such a system would, in a sense, piggyback the existing st ructure and plaintiffs have failed to dem onstrate such a broad framework is warranted. Instead, th e court believes that developm ent of a rem edy structure that to the extent practical parallels the well-established existing structure for determining eligibility and a student’s special education plan under the IDEA is a more workable approach. Moreover, the cour t finds that a deviation from the IDEA’s procedural requirements would be incon sistent with the spirit if not the letter of the Act. Thus, for example, the court finds it inappropriate to im pose a condition of binding arbitration as a class m ember’s exclusive means of remedying a dispute. T he IDEA sets f orth a com prehensive and well- established procedural framework that is f amiliar to participants in the special education system and provides a practical foundation upon which to base the court’s remedy in this ca se. In essence, this court’s conclusion that M PS systemically violated the IDEA during the class period “resets the cloc k” for class m embers, and thus perm its class members to pursue relief through the court ordered remedy set forth here that m ight be otherwise time barred.
A. Evaluation of Class Members All persons who shall receive or respond to a notice may not be class members. Even if they are determined to be class m embers, compensatory services m ay not be appropriate. And finally, even if they are class members and are entitled to compensatory services, not all class members are entitled to the sam e compensatory servic es. Thus, it is nec essary for this court to establish the framework for a system whereby these difficult individualized questions may be answered.
i. Independent Monitor As a preliminary matter, the cour t must addres s the question of whether it is necessary to appoint an independent monitor to oversee the c ourt ordered rem edy. The court does not believe
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that MPS will accomplish the task required without outside intervention. Throughout this litigation, MPS had an opportunity to correct the alleged and la ter established systemic deficiencies in Child Find. Self-correction would have been the best way for MPS to avoid the inte rventions that it has fought so vigorously to avoid. W hile MPS has m ade certain improvements, its efforts have fallen short of the mark. As just one example, if the conduct outlined in Exhibit 401, which includes many pages of late initial referrals w ithout valid extensions and indicati ons that compensatory education was considered in few such cases, constitutes MPS’ “best efforts,” the court finds it unreasonable to expect that MPS is capable of implementing any court ordered re medy without either the court’s direct oversight of every step or the direct oversight of an independent monitor.
Not only would the utilization of judicial resources to undertake the detailed monitoring that shall be necessary to implement this remedy be inefficient, the interests of the class members would be best served if this monitoring is completed by a person with professional expertise in the field of special education, knowledge that even after thes e many years addressing these issues, this court does not possess, see Mather v. Hartford Sch. Dist. , 928 F. Supp. 437, 445 (D. Vt. 1996) (citing Board of Education v. R owley, 458 U.S. 176, 206 (1982)). This is an exceptional case where the unique requirement of conducting i ndividual evaluations of a poten tially large numb er of class members warrants the appointment of an independent m onitor to oversee this rem edy. See Thomas S. v. Flaherty, 902 F.2d 250, 255-56 (4th Cir. 1990); see also Amos v. Board of Sc hool Directors, 408 F. Supp. 765, 822-24 (E.D. W is. 1976). Accordingly, pursuant to Federal Rule of Civil Procedure 53, the court shall appo int an independent monitor to oversee the implementation of the court ordered rem edy, attempt to resolve issues th at may arise between the parties, and to report back to the court as necessary. (R ule 53 refers to “masters.” The court uses the term “monitor” here because it is the term used by the parties, and it better conn otes the role envisioned by the court. Substantively, the distinction is one without consequence.)
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Pursuant to Rule 53(g)(2)(A) and in accordance with Rule 53(g)(3), MPS shall pay all cos ts associated with the independent monitor. The independent monitor shall be empowered to “regulate all proceedings” necessary to effectuate the co urt ordered remedy and to “tak e all approp riate measures to perform the assigned duties fairly and efficiently.” Rule 53(c)(1). The independent monitor shall have the p rimary authority to f ill in the details to the f ramework the court constru cts here regarding the m eans by which purported clas s members shall be evaluated to determ ine whether they are entitled to com pensatory services. A primary concern for the independent m onitor shall be ensuring that this remedy is implemented in an expe ditious manner, including establishing deadlines for com pleting all phases of this reme dy, so as to not unnecessarily further delay any relief for class members.
In accordance with Rule 53(d), th e independent monitor shall issue o rders necessary to effect the rem edy the court discusses in m ore detail below, including, for example, orders appointing permanent members to the hybrid IEP t eam, and establishing the guidelines that the hybrid IEP team shall apply in m aking the indi vidualized determinations necessary for each purported class m ember. Further, in accordance with the A ppendix to this De cision and Orde r, which is incorporated herein by reference, the independent monitor shall be tasked with establishing firm deadlines to com plete all tasks necessary to implement this remedy. The independent m onitor is authorized to issue orders establishing such deadlines throughout the implementation process.
Although the plaintiffs contend th at this independent m onitor must be separate from Alan Coulter, the m onitor appointed und er the s ettlement with DPI, th e court, at this point, m akes no determination on the selection. There m ay be a ny number of reasons why Dr. Coulter is not an appropriate person to appoint as the independent monitor to oversee the court ordered rem edy, but the court shall not disqualify Dr. Coulter ab initio.
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The parties shall engage in a good faith effort to agree upon an independent m onitor. If the

parties are n ot able to agree, th e plaintiffs a nd MPS shall e ach submit to the cou rt the nam e and

curriculum vitae of up to two proposed independent monitors for the court to consider. Regardless

of whether the independent monitor is proposed by the parties individually or jointly, in addition to

providing the curriculum vitae of any proposed i ndependent monitor, the parties shall also subm it

an affidavit of any proposed independent m onitor in accordance with Rule 53(b)(3)(A), as well as

information regarding the proposed monitor’s rates of com pensation for services rendered. Upon

receipt of the parties’ recommenda tion, the court shall then issue an order in accordance with Rule

53 appointing an independent monitor.

ii.

Hybrid IEP Team

The plaintiffs contend that e ligibility determinations should be conducted by “a tea m

appointed by the Monitor that includes special educators from outside of MPS and an independent

Parent Advocate” utilizing a “tool” developed by an outside monitor. (Docket No. 585-2 at 1.) MPS

contends that these determinations should be conducted by the IEP team. (See Docket No. 552 at 2.)

Again, similar to many issues presented in this li tigation, the court finds that the acceptable answ er

lies somewhere in-between the parties’ proposals.

It is th e conclusion of the cou rt that all questions related to a purported class m ember’s

status as a class member, eligibility for compensatory services, and the natu re of any compensatory

services awarded, shall be reso lved by a team that the court shall re fer to as a “hybrid IEP team.”

This hybrid IEP team shall consist of certain “perm anent” members, consisting of MPS personnel,

approved by the independent m onitor, and at late r stages of the evaluati on, as explained below,

“rotating” members who shall be best suited to address the unique needs of the individual class

member.

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A traditional IEP team is composed of members who are generally unique to each student. In the present cas e, an entirely unique IEP te am for each purported class m ember may lead to disparate analysis among class members. Further, the questions that this hybrid IEP team will be asked to resolve are different from those an IEP t eam is traditionally tasked with resolving. Proper resolution will require an understanding of this litigation and this court’s orders. It would be grossly inefficient to require each person who m ay serve on an IEP team to become familiar with this sizable amount of information. Thus, the court finds it appropriate to utilize an IEP team composed of certain permanent members.
Therefore, MPS shall nom inate individuals to serve as pe rmanent members of the hybrid IEP team. Then, in consultation and cooperation with the parties, in accordance with the requirements set forth herein and subject to the procedures set forth below, the independent monitor shall enter an order appointing th e permanent members of the hybrid IEP team. There shall be, at a minimum, four permanent members of the hybrid IEP team and, to the extent practicable, the hybrid IEP team should be com posed of individuals fr om diverse professional backgrounds, thereby avoiding any potential predisposition to a m onolithic perspective and placing the team in the best position to address th e wide varie ty of issues with which it will be faced. For exam ple, the independent monitor may find it appropriate to in clude on the hybrid IEP team elem entary and secondary general and special education teachers, professionals with backgrounds in psychology or social work, as well adm inistrators, as opposed to, for example, only administrators. At least one permanent member shall meet the qualifications set forth in 20 U.S.C. § 1414(d)(1)(B)(iv) and (v). However, the hybrid IE P team need not m eet all the formal requirem ents set forth in 20 U.S.C. § 1414(d). At all phases of the in dividualized evaluation process, parents and, where appropriate, students should be provided the opportunity to participate, see 20 U.S.C. § 1415( b)(1), and the independent monitor shall establish procedures for ensuring the opportunity for such participation.
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The court rejects the plaintiffs’ contention that this evaluative team must be com posed of persons independent of MPS. A certain degree of familiarity with MPS is a virtue, not a vice, in this situation. The oversight that sha ll be provided by the independent m onitor is sufficient to alleviate any “fox guarding the henhouse” concerns.
iii. Determination if Purported Class Member is a Class Member The court anticipates that the response to the notice to the class will cover a broad spectrum . At one end will be the obvious ex clusion from the class, e. g., the purported class member had no association with MPS during the class period. At the other end will be the obvious in clusion, e.g., it is undisputed that during the cl ass period the initial IEP team meeting was delayed beyond the statutory deadline with out a valid reason. The court exp ects that many respons es will fall inbetween, and it will be f ar more difficult to determine whether or not a person is to be included in the class. Because an in dividual is eligible for compensatory services only if he or she was denied FAPE during the class peri od, as a threshold matter, that person must have been eligible for special education during the class period. The permanent members of the hybrid IEP team shall hav e the prim ary responsibility for making this determination. However, in cer tain limited cases, for example when a purported class member seeks m embership based o n a failure to be referred for a special education evaluation during the class period, the perm anent members of the hybrid IEP team may find it necessary to incorporate into the hybrid IEP team individuals who had personal knowledge of the purported class member during the class period in order to determ ine if MPS had a reasonable basis to suspect the purported class member was in need of special education. See Wis. Stat. § 115.777. The independent monitor, in consultation a nd cooperation with the permanent members of the hybrid IEP team , shall develop guidelines for making the determ ination of whether the purported class member was, between Septem ber of 2000 through June of 2005, a student eligible
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for special education services from MPS who was eith er denied or delayed en try or participation in the processes which result in a properly constituted meeting between the IEP team and the pa rents of the student. The hybrid IEP team shall then apply these guidelines to each purported class member and determine whether the purported class m ember is a clas s member. In the even t that a purported class m ember presents is sues that are not adequ ately addressed by the pre-es tablished guidelines, the hybrid IEP shall promptly notify the independent monitor of this deficiency, and the independent monitor, in consu ltation and cooperation with the perm anent members of the hybrid IEP team, shall formulate additional guidelines for addressing the un-anticipated situation.
These guidelines to eva luate class eligibility sha ll include the type of information that the hybrid IEP team shall consider in m aking its determination. The court envisi ons that the eligibility review by the hybrid IEP team will be prim arily, if not exclusively, pape r-based and rely upon MPS’ records. Should records be m issing, as may lik ely be the case in light of MPS’ repeatedl y demonstrated deficiencies in record keeping, the following procedure shall apply. To the extent that MPS had a duty to retain particular records, the absence of such records shall permit the hybrid IEP team to draw an inference that the docum ent would be adverse to MPS and favorable to a finding that there was a reasonable basis fo r MPS to su spect that the purported class m ember may have been in need of special educa tion during the class period. The guide lines shall furt her outline the circumstances under which a purported class m ember or MPS m ay be perm itted to subm it additional information or when professionals outside of the permanent IEP team members should be consulted.
Certain situations may present m ore difficult questions of eligibility as a class m ember. Examples of this will likely involve purported class m embers who contend MPS failed to identify them as students in need of special education du ring the class period, or cu rrent special education students who contend that MPS failed to m ake an early referral. In both examples, the first question
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that must be answered is whether MPS had a reasonable basis to suspect the student was in need of special education during the cla ss period. The independent monitor in consultation and cooperation with the perm anent members of the hybrid IE P team shall establish guidelines for m aking this determination. However, this is only the first of three questions that must be answered to determine whether such a purported class member is a class member.
Once the hybrid IEP team determines that there was a reaso nable basis for MPS to suspect the purported class m ember was in need of s pecial education during the class period, the next question is whether the purported class m ember was actually eligible for special education during the class period. Obviously, not all students that m ay be suspected as bei ng in need of special education are, in fact, eligible for special educ ation. Again, the independent monitor in consultation and cooperation with the permanent members of the hybrid IEP team shall establish guidelines for making this determination. Although the fact that a purported class member might have been later determined to be elig ible for special educatio n will be probative of a prior ne ed for special education, it certainly is not dispositive. Like the hybrid IE P team’s determination as to whether there was a reasonable basis to s uspect the pur ported class m ember was in need of special education, when determ ining whether the purported class m ember was eligible for special education, the focus must be on the class period; only if the purported class member was eligible for special education during the class period must the analysis continue.
The final step in the analysis as to whether the purported class member is a class member is a determination of whether the purported class member was denied or delayed entry or participation in the proce ss which resulted in a properly co nstituted meeting between the IEP team and the parents of the student. Not all st udents who were found eligible for special education during the class period are clas s members. For m any students, the C hild Find process worked as required. Rather, the student m ust have been eligible for special education and had been denied or delayed
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participation in the process which resulted in a properly constituted IEP team. Therefore, it shall be necessary for the independent m onitor, in co nsultation and cooperation with the perm anent members of the hybrid IEP team, to establish guidelines for making this determination.
If the hybrid IEP team determines that the pu rported class member is not a member of the class, the hybrid IEP team shall n otify the purported class m ember of its decision. Further, the hybrid IEP team shall inform the purported class member of the right to object to its determ ination, in accordance with the provisions the court sets forth below.
iv. Determination if Class Member is Entitled to Compensatory Services In regard to class m embers who should have be en referred for, or were delayed in m eeting with a properly constituted IEP team, during that period of delay, because the class member was not provided services in accordance with an IEP, by definition, that student was denied FAPE. See 20 U.S.C. § 1401(9)(D). Although not explicitly m entioned in the st atute, “[c]ompensatory services are wellestablished as a remedy under the IDEA” when a student is denied FAPE. Evanston Cmty. Consol. Sch. Dist. No. 65 v. Michael M. , 356 F.3d 798, 803 (7th Cir. 2004). This m ight include “adult compensatory education if necessary to cure a violation .” Id. (citing Parents of Student W . v. Puyallup School District, 31 F.3d 1489, 1497 (9th Cir. 1994); Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187-89 (1st Cir. 1993)). Not every denial of F APE mandates the provision of com pensatory services. Id. For example, following the Phase I II trial, the plaintiffs now clearly acknowledge that de minimis violations do not warrant an aw ard of compensatory education. (Docket No. 584 at 2.) Further, in certain cases, such as cases involving cognitive disabilities where the student’s educational potential has plateaued, ( see, e.g., Docket No. 569 at 145, Test. of Dr . Rogers-Adkinson), com pensatory services would not be appropriate . Regardless of any denial of FA PE, if a student has reach ed the
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maximum of his or her educational potential, providing compensatory services would not serve its purpose as an equitable remedy. Thus, in determining whether compensatory services are necessary, the question for the hybrid IEP team m ust be, if the student had not been denied F APE, would the student be in a better educationa l position than he is now? It is not s imply a matter of whether the student would have been in a different position. As an equitable rem edy, it would be inappropriate to require compensatory services to place the student in the identical place he would have been had he not been denied FAPE. Rather, com pensatory services are aim ed at rem edying wrongs, not undoing or correcting every potential variable. If the hybrid IEP team determines that the student would not be in any better of a position had FAPE not been denied, no com pensatory services are appropriate.
If the denial of FAPE resulted in a deficien cy, compensatory services must be aim ed at placing the student in the position he would have been had he not been denied FAPE. Under the IDEA, an “appropriate” education is not the best possible education o r everything that a loving parent may wish was provided for a child. See, e.g., San Rafael Elem . Sch. Dist. v. Cal. Special Educ. Hearing Office , 482 F. Supp. 2d 1152, 1156 (N.D. Cal. 2007). Rather, an appropriate education is one that provides a “basic floor of opportunity” and is “reasonably calculated to enable the child to rece ive educational benefits.” Rowley, 458 U.S. at 201, 207; see also Michael M., 356 F.3d at 802 (citing Board of Educ. v. Illinois State Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994)). And accordingly, it is not appropriate to require MPS to provide compensatory services aimed at placing a student in the best possible or ideal position. Rather, co mpensatory services m ust be aim ed at elevating that student to that “basic floor of opportunity ” by providing the student with the educational benefits lost during th e denial of FAPE. Thus, com pensatory services must be aimed at remedying MPS’ failure to provide FAPE, but need not rem edy every deficiency of a disabled student.
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With respect to th e type of compensatory services a class mem ber may receive, there is no

“one size fits all” remedy under the IDEA. The IDEA mandates determinations be made based upon

the unique circum stances of each st udent and the pr ovision of compensatory services pursuant to

this court’s order shall be no different. Thus, it shall be the re sponsibility of the hybrid IEP team,

subject to the oversight by the independent monitor, to make individualized determinations as to the

needs of each class member.

Just as there is no “one size fits all” remedy regarding the type of compensatory services, the

length of tim e a class m ember shall receive comp ensatory services will vary depending upon the

unique circumstances of each class m ember. Thus, the court finds that it is inappropriate to

conclude that any class m ember who is found to be eligible for com pensatory services is

automatically entitled to receive co mpensatory services for a tim e period e quivalent to the time

period that person was denied special educa

tion. Special education services, including

compensatory services, and even when those compensatory services are ordered for a class, must be

determined on an individualized case-by-case basis. For example, a class member whose delay in an

initial evaluation was minimal, or a class member whose special education needs are comparatively

limited, may not need com pensatory services. Furt her, any num ber of va riables may affect the

length of any compensatory services that are ap propriate. For example, a class m ember may suffer

from certain limitations for which a full time program of compensatory services would not be most

beneficial; or ano ther class member may benefit from an accele rated and focused program of

compensatory services. For either class m ember, the result would not necessarily be sem ester by

semester equivalence between the period of delay and the length of the compensatory services.

In the opinion of the pl aintiffs’ expert Dr. Rogers-Adkinson, the duration of compensatory

education provided m ust be equivalent to th e time the student was denied FAPE. During her

testimony, Dr. Rogers-Adkinson explaine d that this 1:1 approach is necessary because of the large

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size of the class. Individualized determ inations underlie the IDEA. Undoubtedly, when large numbers of students are i nvolved, it becom es more difficult to comply with this requirem ent of individualized attention. But difficulties, whether in complying with Child Find, or in executing an appropriate remedy for a system atic violation of Child Find, does not perm it a deviation from the requirements of the IDEA.
Further, the court finds that Dr. Rogers-A dkinson’s opinion that a 1:1 equivalence is necessary to remedy MPS’ violation of its Child Find obligations is not adequately supported within the professional literature to b e entitled to cons ideration by this cou rt. As was m ade clear during cross-examination, Dr. Rogers-Adkinson’s conclusion that 1:1 equivalence is appropriate was based upon what was, at a minimum, an exceptionally strained interpretation of a single article. In fact, on cross-examination, Dr. Rogers-Adkinson effec tively abandoned her prio r contention that 1:1 compensation as opposed to an individualized appro ach was always appropriate. The fact that Dr. Rogers-Adkinson offered as an expert opinion a c onclusion for which she could not m uster any degree of appropriate support, and in fact departed her own conclusion, causes this court to question this conclusion Dr. Rogers-Adkinson offered in this Phase of this case.
On this issue, the court finds persuasive the ex pert opinion of Dr. Hartwi g that it is not the quantity but rath er the quality of compensatory services that is th e most important factor in determining the level of compensatory services that should be provided and this determination must be made on an individual basis.
The independent monitor, in consultation a nd cooperation with the permanent members of the hybrid IEP team, shall develop guidelines for the hybrid IEP team to apply to determine whether a class m ember is in need of compensatory se rvices and, if so, determ ine the nature of the compensatory services that are appropriate. As for the nature of the compensatory services that shall be provided, the plaintiffs outline a var iety of services that they b elieve should be cons idered,
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including, for exam ple, post-secondary education, job placement and training, provision of computers with internet access, private tutoring, mentors, and summer camps. (Docket No. 582-2 at 3-4.)
The specific nature of the com pensatory services offered for any class member is a question that it is not appropriate for this court to resolve. Compensatory education in the form of traditional educational services might be appropriate for one class member, whereas for another class m ember the best form of com pensatory education based upon the class m ember’s current situation m ay be services aimed at provid ing the clas s member with transitional skills o r job tra ining necessary to sustain himself later in life. Thus, the question of what compensatory services are appropriate for an individual class member must be resolved by the hybrid IEP team based upon the unique needs and circumstances of that class member.
Except in instances where it is clear th at compensatory services are not approp riate, for example where the d enial of FAPE was de minimis or where, as discussed below, MPS has previously unequivocally evaluated and determinined the need for compensatory services, it shall be necessary at this point for the hybrid IEP team to include additional revolving members who have direct knowledge of the particular class m ember. The independent m onitor, in consultation and cooperation with the perm anent members of the hybr id IEP team, shall develop guidelines for the selection of the educational professionals wh o shall serve as the revolving m embers on an individual class member’s hybrid IEP team.
If MPS had previously unequivocally determ ined whether com pensatory services were appropriate for the denial of FAPE to a class member, (see Ex. 402 at 247-49), it is u nnecessary for this matter to be reconsidered. The student ha d an opportunity to utilize the full panoply of procedural rights provided under the IDEA and challenge any disagreement with that prior decision. In other words, although the student is a class member, he has been provided his rem edy through
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means independent of this class ac tion and therefore is not elig ible to receive any benefit through this class rem edy. Thus, if MPS previously de termined that compensa tory services were unnecessary, or the s tudent now alleges th at the compensatory services were insufficien t, or, for whatever reason, the student did not take adva ntage of the com pensatory services offered, reconsideration within the context of the court ordered remedy is inappropriate.
However, to preclude further analysis, the record must be unequivocal that a class member’s need for compensatory services as a result of a denial of FAPE dur ing the class period was evaluated and determ ined by the IEP team at a properly constituted IEP team meeting. The guidelines developed by the independent m onitor for the hybrid IEP team to apply to determ ine whether a student m ay be eligible for compensa tory services shall include g uidelines for ascertaining whether the class member is barred from seeking relief under this court ordered remedy as a result of a prior unequivocal evaluation and determination.
It shall be MPS’ burden to dem onstrate that the student w as unequivocally evaluated for a potential need for compensatory s ervices and that a determ ination was m ade. A “Y” in the “Discussed Comp Ed” column of a spreadsheet, (see Ex. 401), by itself, is insufficient. Or take the example of a student whose entry into special education was inappropriately delayed and whose IEP provided 2 hours of individualized instruction in addition to what would ordinarily b e provided by the IEP. However, this additional instru ctional time was never ref erred to as “compensatory services” or something substantively identical. ( C.f. Docket No. 569 a t 58, Test. of Dr. RogersAdkinson.) In such an exam ple, the consideration of compensatory services was not unequivocal; the analysis by the hybrid IEP team must continue to determine whether the class member is in need of compensatory services to rem edy the denial of FAPE. Nonetheless, the provision of any additional instructional services beyond the minimum required by the IEP will certainly be relev ant
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to the question of whether the class m ember has a present deficiency caused by a d enial of FAPE during the class period for which compensatory services are necessary.
Further, a subsequent determination that a student is no longer eligible for special education or a student having graduated with a general edu cation diploma does not neces sarily preclude the provision of com pensatory services for a denial of FAPE during the cla ss period. Nonetheless, again, these facts shall be relevant in determ ining what, if any, compensatory services are appropriate and should be addressed in the guidelines developed by the independent monitor.
In the event that the evaluation of the class m ember presents issues that are not adeq uately addressed in the pre-established guidelines, the hybrid IEP shall prom ptly notify the independent monitor of this deficiency and the hybrid IEP team and the independent monitor shall cooperatively attempt to formulate guidelines for addressing the un-anticipated situation.
B. Eligibility MPS proposes that a group of people significantly narrower than the entire class should be considered for compensatory services. For exam ple, under MPS’ proposal, any person who would otherwise be within the class but who has attained 22-years-of-age or has moved out of Milwaukee should not be provided with any remedy. The class is defined as: Those students eligible for special educat ion services from the Milwaukee Public School System who are, have been or will be either denied or delay ed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student. The time period for this class spans from September of 2000 through June of 2005. The court finds that the scope of M PS’ proposed remedy casts too narrow of a net. MPS’ proposal is limited to persons who are currently eligible to receive special education services from the district. However, this case is no t so limited. Simply because a person is no longer eligible to receive special education services from the district does not absolve th e district of responsibility for
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any harm it may have caused by violating the student’s rights to special education in the past. The district may not avoid its remedial responsibility because the studen t moved outside the district or turned 22 years old. Class m embers, regardless of age or current residence, are entitled to equitable relief from MPS that, to the extent possible, pl aces the individual in the position th ey would have been had it not been for MPS’ failure to com ply with the IDEA. Further, it is the conclusion of the court that a class member being removed from special education or a student’s graduation from the district, even if that graduation resulted in the o btainment of a regular education diploma does not necessarily preclude an individual from being eligible for compensatory services as a class member. Thus, the appropriate group that should be evaluated to determine whether each person is entitled to compensatory education is the entire class, regardless of a member’s current age or residence.
Integral with the question of who m ay be eligible for compensatory services is the question of how these class members will be informed of their potential eligibility. The plaintiffs seek to cast a very wide net by requ iring that “[w]ritten no tice will be mailed to the last known address of all potential class members . . . .” (D ocket No. 585-2 at 2-3.) It seems to the cou rt that “all potential class members” would necessarily include all general education students who were enrolled in MPS during the class p eriod, because any student may have an undiagnosed disability that should have caused MPS to refer the student to be evaluated for special education eligibility. MPS proposes the use of both an individualized notice mailed to the last known address of students identified as being potential class m embers due to an untim ely initial evaluation or a history of suspensions and a general notice posted at certain locations around MPS. (Docket No. 552 at 6-8.)
On the question of notice, a com bination of general and individualized notice must be used. Students who are readily identifiable as bei ng potential class m embers based upon certain documented facts, such as an evaluation having been conducted beyond the statutory deadline or a history of suspensions, are entitled to receive notice mailed to their last known addresses.
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The court finds a general notice is also necess ary because any student enrolled in MPS during the class period m ight be a class m ember. However, requiring an individualized m ailed notice to each of these students’ last known addresses would be incredibly inefficient and a waste of money. A general notice certainly should be posted in areas of th e schools and district buildings where parents are likely to see it.
The court shall not establish here the precise details regarding the m anner that notice m ust be provided or the contents of that notice; thes e are issues that the p arties must work towards resolving in a cooperative fashion and then subm it to the court in the form of a mutually agreedupon proposal. The parties shall set forth a joint proposal outlining the contents of the notice and the details for distributing a general and an individualized notice to identifiable potential class members that shall then be subject to the final approval of the court. Although this decision provides certain parameters to guide the parties’ discussions, it shall be incumbent upon the parties to work towards resolving the details and logistics of the notice.
With respect to the dissemination of a general notice, the parties should consider whether it would be practical to include a general notice in certain regular communications the district m ay have with parents and other community members, such as parent newsletters. Additionally, because certain potential class m embers may no longer be in the community and thus not in a positio n to view a general notice posted in a school building, a for m of notice that has a far br oader reach is necessary. The court concludes that this broad notice is ac complished by posting the notice on MPS’ website. Additional m eans of communicati ng a general notice to potential class m embers shall be determined by the parties.
As for the questions of how long the notice should be posted and how l ong a potential class member should be given to respond to the notice, these are m atters the pa rties must attempt to resolve based upon all relevant circum stances. However, the court finds th at MPS’ proposal that
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potential class members should be provided only 30 days in which to respond to the notice to likely be insufficient. The notice must be posted for a period long enough for it to be reasonable to expect that a parent were to see it and then there must be sufficient time to permit a potential class member to decide w hether he or she wishes to respond. The length of tim e in which class m embers may respond will depend upon when it is possible to finally post th e notice and open the period for accepting responses from potential class m embers. For exam ple, it m ight not be reasonab le to assume that a parent would see a notice posted in his or her child’s school during a specific period if the response period fell in the middle of the summer. However, if that period included the beginning of the school year or som e other time when pa rents are likely to be inside the school, the parties may agree that an exten ded period is unneces sary. Generally, the court would expect that a 90 day period for posting the general notice and perm itting potential class members to respond would be sufficient. The court expects to issue an order re garding the form and procedures for dissem ination of notice within 30 days of the parties’ submission.
C. Parent Advocates The plaintiffs seek the requirem ent that MPS fund “at least 5 new community-based (independent of MPS) Parent A dvocates to assist at all com pensatory education services determination meetings and all initial IEP meetings for newly referred class members.” (Docket No. 582-2 at 5.) The plaintiffs also seek the court to order MPS to fund an “e xpediter” who would have “the duty and authority to ensure that compensatory education services are delivered in a timely and appropriate manner.” (Docket No. 585-2 at 5.) These positions would be in addition to the separate independent monitor (who, in the plaintiffs’ view, would be separate from the monitor overseeing the settlement between the DPI defendants and the plaintiffs). Certainly, navigating the special education process, particularly in the unique context of this litigation, can be a daunting challenge for a parent or guardian or individua l class member, and the
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services of an independent parent advocate m ay be beneficial for all parties involved. However, Congress designed the IDEA fra mework as a s ystem aimed at being navigable for lay parents; if “parent advocates” were necessary for a parent to navigate the spe cial education framework, Congress would have required them.
Further, the court finds that providing fo r an independent parent advocate w ould be redundant in light of the circum stances of this case. Under the settlem ent agreement between the DPI defendants and the plaintiffs, DPI is funding a parent trainer whose services m ay be available to class members. (See Docket No. 431-2 at 13.)
D. Segregated Fund As part of their proposed remedy, the plaintiffs seek: A separate account will be established to fund compensatory education services in an amount to be determined by the parties and the Monitor. A separate fund is required to ensure that individual school budgets are not burdened by the c ost of these services and that there are funds available for their delivery. (Docket No. 585-2.) The court disagrees with the plaintiffs that a separate fund is required. One way or another, MPS is going to pay the costs associat ed with complying with its obligations under this court ordered rem edy. Whatever the expens e may be, it will no t be discreti onary; it is not an expense that can be red uced or elim inated in an effort to balance a pere nnially strained budget. Requiring the costs ass ociated with com plying with the court ordered rem edy be paid from a segregated and dedicated fund would simply create an unnecessary requirement that would make no substantive difference. E. Dispute Resolution As the court discussed above, the court reject s MPS’ request that the court im pose binding arbitration as the exclusive means by which class members may be able to re solve disputes relating to decisions of the hybrid IEP team or independ ent monitor. MPS has presented no authority to indicate that the court is authorized to impose binding arbitration, either pursuant to the IDEA or as
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part of any inherent authority the court m ay possess when tasked with st ructuring a remedy for a class of individuals.
Notwithstanding, it would be an incredibly inefficient applic ation of the court’s lim ited resources for every dispute that m ay arise to be resolved by this court. Thus, the primary means for resolving any disputes that m ay arise m ust be the good faith efforts of cooperation between the parties. Cooperation among parties in an effort to avoid or resolve disputes is a principle prevalent throughout the IDEA. See, e.g., 20 U.S.C. § 1415(e) and (f )(1)(B)(i). Further protraction of this litigation benefits no party. It drains the lim ited resources of MPS and furt her delays any remedy a class member may receive.
Built into the remedial framework outlined above are certain decisional junctures at which the parties and the independent monitor m ust cooperate and attem pt to ag ree to certain details necessary to effect the court ordered rem edy. One such juncture is the de termination of who the independent monitor shall appoint as perm anent members of the hybrid IEP team . As is discussed above, the court exp licitly calls for the parties to attempt to reach an agreement on this poin t. But cooperation among the participants in this rem edial framework shall be essential at all stages, not just those stages where the cour t has explicitly required it. T hus, it shall be incumbent upon the independent monitor to permit the parties, i.e . class counsel and MPS, to of fer input to the independent monitor prior to the independent m onitor issuing any substantive order relating to the procedures that will be utilized to effect this remedy (this requirement need not apply to m inisterial orders of the independent monitor, such as those relating to scheduling and the like).
Therefore, after consulting with the hybrid IEP team and composing an initial draft of the guidelines that shall be utilized to determine whether a pu rported class member is a clas s member, how rotating members shall be chosen for the hybrid IEP team, whether compensatory services are appropriate for a class m ember, and the nature of those compensatory services, the independent
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monitor shall submit the draft guidelines to MPS and class counsel for their review and input. If any party objects to a guideline, the pa rties and the independent monitor shall then attempt to rea ch an agreement as to any disputes. It shall be incu mbent upon the independent m onitor to establish the procedures that shall permit the parties to provide input and to permit dispute resolution.
Notwithstanding, after c onsidering the input of the partie s and attem pting to resolve any disputed issues on sub stantive matters, such as who shall serve as a perm anent member on the hybrid IEP team or the guidelines that the hybrid IE P team shall apply, the final decision shall be that of the independent monitor. Therefore, following the input a nd dispute resolution process, the independent monitor shall file an order pursuant to Rule 53(d) incorporating his determination as to the guidelines that shall be f ollowed or any other substantive m atter. The partie s may file an objection with the court to this ord er of the i ndependent monitor in acco rdance with Rule 53(f). Upon the filing of any substantive order by the independent monitor, including the order appointing the permanent members to the hybrid IEP team or any order outlining the guidelines that shall b e applied by the hybrid IEP team , either party shall have 14 days in which to f ile an objection. The non-objecting party shall respond no later than 5 days after the objection is filed. No reply shall be permitted absent leave of the court. Hearings sh all be scheduled at the court’s discretion. The court shall then resolve the party’s objection in accordance with Rule 53(f).
A slightly different procedure shall apply to disputes relating to whether or not a purported class member is, in fact, a class m ember. As discussed abo ve, the hybrid IEP team is tasked w ith initially making this decision. Upon completing its review of all persons who responded to the class notice, the hybrid IEP team shall not ify all respondents to the class notice of its decision to include or exclude the respondent in the class. Any indivi dual whom the hybrid IEP team determines is not a class member shall be informed of the right to object to a decision of exclusion and be informed as to the procedure for filing an objection. The procedure for filing an objection shall be established by
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the independent monitor in accordance with the terms set forth here. The hybrid IEP team shall then promptly send to the independent monitor its list indicating which respondents it determ ined to be class members. Additionally, the hybrid IEP team shall provide to the independent monitor a list of individuals who responded to the class notice but were excluded and a brief explanation as to why each was determ ined to not be a class m ember. The independent monitor shall promptly prov ide these documents to class counsel and MPS.
An individual who responded to the class notice but who was found to not be a class member shall be perm itted to file an objection to the hybrid IEP team’s determination with the independent monitor. The independent monitor shall then conduct a de novo review of the evidence presented to the hybrid IEP team to determine if the individual is a class m ember. The independent monitor shall notify the individual of his decision and the indivi dual’s right to objec t to a decision of exclusion in accordance with the terms set forth herein.
Upon the com pletion of the independent monitor’s de novo review of any objecting purported class members, the independent monitor shall file an order in accordance with Rule 53(d). In this order, the independent monitor shall identify those individuals the hyb rid IEP tea m determined to be class m embers as well as any additional individuals he de termined to be class members based upon the independent m onitor’s de novo review following the objection of an excluded class m ember. Additionally, the independent monitor shall file with the court a list identifying any purported class m ember who filed an objection with th e independent monitor but who the independent m onitor determined was not a class m ember. Any purported class m ember who was not included in the independent m onitor’s order identifying class m embers and who filed an appropriate objection with the independent m onitor may file an objection with the court within 14 days of the independent monitor informing the individual of the unfavorable decision.
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Further, at this stage, MPS m ay object to th e inclusion of any individual whom it does not believe qualifies as a class m ember. MPS may object by filing an objection within 14 days of the filing of the independent monitor’s order identifying all class members. The court shall then inform the individual of MPS’ objection. The individual and class counsel shall then have 14 days from the date of the filing of MPS’ objection in which to respond. No reply shall be permitted absent leave of the court. H earings shall be sc heduled at the court’s discretion. The court shall th en resolve the party’s objection in accordance with Rule 53(f).
As for disputes relating to the reso lution of the claim of any indivi dual class member, e.g. disputes regarding a determ ination as to wheth er the class member is eligible for com pensatory services or the nature of com pensatory services ordered, any disput es must first be brought to the attention of the indepe ndent monitor. Either the class m ember or M PS, as the local edu cation agency, see 20 U.S.C. § 1415(b)(6), m ay object to a de termination of the hybrid IEP team . The independent monitor shall assume the role of mediator and attempt to encourage the parties to arrive at a mutually agreeable resolution of the dispute.
If the class m ember and MPS are unable to agree upon a resolution of the dispute, the independent monitor shall then co nduct an adjudicative review of the disputed decision of the hybrid IEP team. The review of the independent monitor shall be limited to ensuring that the hybrid IEP team complied with the pre-established guidelines and that the determination of the hybrid IEP team is not plainly erroneous. The independent monitor shall either affirm the determination of the hybrid IEP team or, if the IEP team failed to comply with the guidelines or engaged in plain error, remand the matter to the hybrid IE P team for reconsideration. If the hybrid IEP team appropriately complied with the pre-established guidelines a nd the decision was not plainly erroneous, the independent monitor shall affirm the decision of the hybrid IEP team.
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The independent monitor’s affirmance of the decision of the hybrid IEP team shall constitute a final decision of the local educ ation agency that may be challenged exclusively through the State of Wisconsin’s pre-existing due process framework under the IDEA. See Wis. Stat. § 115.80; see also 20 U.S.C. § 1415. The right to challenge a deci sion relating to compensa tory services shall exist regardless of any procedural bar that might have existed absent this class rem edy, see, e.g., Wis. Stat. § 115.80(1)(a) (one-year statute of lim itations), up to and including, if necessary, the initiation of a civil action independent of this case.
F. Named Plaintiffs The individually named plaintiffs seek a wide variety of compensatory services. Melanie V. seeks “coverage of any expenses related to he r completion of the GED program at MATC, . . . [t]ution, books, supplies and trans portation stipend and tutoring fo r at least two year of postsecondary education at the school of [her] choice,” as well as a laptop co mputer and a high speed internet connection. Jamie S. seeks “[t]uition and serv ices to take all necessary child care and child development related courses at M.A.T.C. in cluding books, supplies, lab or sim ilar fees, transportation stipend and individual tutoring at th e appropriate time,” a laptop com puter and high speed internet connection, “[t]raining on self -determination, self-advocacy[,] sexuality . . . budgeting, money management, food planning and preparation . . . [and] [j]ob placem ent and training at the approp riate time.” (Docket No. 582-2 at 7.) Bryan E. similarly seeks compensatory services for a m inimum of four years including “[t]uition and services to tak e all neces sary plumbing related courses at M.A.T.C. including books , supplies, lab or sim ilar fees, transportation stipend and individual tutoring,” a laptop computer with a high sp eed internet connection, and job placement assistance. (Docket No. 582-2 at 7-8.) MPS proposes a rem edy for only M elanie V. and Jamie S. For Jam ie S., MPS proposes to reconvene her IEP team “to determ ine whether compensatory education is necessary due to a two
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month delay in her referral for special educatio n services.” (Docket No. 552 at 1-2.) MPS proposes a similar remedy for Melanie V. but any rem edy for her would be continge nt upon her re-enrolling in MPS. (Docket No. 552 at 1.)
First, at the liability ph ase of this litig ation, the named plaintiffs served to exem plify the sorts of Child Find f ailures that were systemic in MPS. And at the rem edy phase of this litigation, the named plaintiffs demonstrated that these sy stemic failures resulted in lasting consequences for class members. Although the court received evidence indicating the future aspirations of the named plaintiffs and vague indications as to the sorts of services that m ight be beneficial to persons in situations similar to those of the named plaintiffs, at no point did the court receive specific evidence from educational professionals who engaged in an ind ividualized assessment of the nam ed plaintiffs, determined the nature of any denial of FAPE, a nd determined precisely what sorts of services were necessary to restore that floor of opportunity that was lost as a result of the denial of FAPE. These sorts of individualized determ inations are essential to the IDE A and are the determinations that an IEP team is expected to make. Absent such an i ndividualized determination or detailed individualized eviden ce, the court is in no position to order any rem edy for the named plaintiffs. Accordingly, it is the conclusion of this court that if any named plaintiff is entitled to any individualized remedy as a resu lt of this action, it is to be found through the system the court devises here as being applicable to the entire class.
However, to the extent that th e court’s assessment of the parties’ proposed remedies may be beneficial in offering guidance to the independ ent monitor and the hybrid IEP team , it m ay be instructive to note that, the nature of the compensatory services proposed by the plaintiffs strikes the court as an effort to place the n amed plaintiffs in the best possible position they m ight be in had it not been for a denial of FAPE. As discussed above, this is inconsistent with the requirements of the IDEA. Rather, any compensatory services th at might be appropriate must be aim ed at rem edying
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the wrong, i.e. placing the na med plaintiffs and class m embers in the position s they would have been had it not been for the de nial of FAPE. Likewise, MPS ’ proposed remedy strikes the court as again being too narrow. For example, as discusse d above, there is no requirem ent that a class member be currently enrolled at MPS to be provided with compensatory services. VI. DPI’S MOTION
The DPI defendants have filed a m otion seeking a declaration that this court’s order approving the class s ettlement between the p laintiffs and DPI precludes MPS from seeking contribution from DPI for the costs associated w ith implementing the remedy ordered by this court or if the court’s approval of the class settlement did not address this issue, a declaration that M PS cannot later seek contribution from DPI. (Docket No. 559.) MPS has responded, (Docket No. 582), and DPI has replied, (Docket No. 589.) For the reasons set forth be low, the court sh all deny DPI’s motion.
In this court’s order approving the class settle ment between the plaintiffs and DPI, the court acknowledged MPS’ objection that the settlem ent did not require DPI to pay any portion of any compensatory services the court may order after Phase III. (Docket No. 471 at 14.) However, at no point did the court hold that DPI was forever precluded from be ing required to con tribute to an y remedy that the court m ight impose following Phase III; that issue was not before the court. W hen the court was decid ing the join t motion for approval of the class se ttlement, the issue bef ore the court was whether the settlement was fair, reasonable, and adequate for the class members.
As for DPI’s alternative request that the court now declare that it is not responsible for any portion of the expenses related to the rem edy the court sets forth here, the court finds no basis to make such a declaration. DPI is dismissed as a defendant in this case. The court no longer possesses the jurisdiction over DPI that would be necessary to make such a finding. For the same reason, the court has not and cannot order DPI to be responsib le for any portion of the rem edy set forth above
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(although the court acknowledges that this rem edy may indirectly result in certain costs to the state as a result of class m embers challenging compensatory services de terminations of the hybrid IEP team through the statutory due process framework). If MPS has a claim for contribution against DPI in light of Board of Educ. v. Nancy E., 207 F.3d 931 (7th Cir. 2000), if it may be found at all, it may be found only in an action independent of the present case. Accordingly, DPI’s motion, (Docket No. 559), is denied. VII. CONCLUSION
It is the co nclusion of the court that MPS’ system ic failures to m eet its Child Find obligations necessitates an ind ividualized evaluation of all class m embers to de termine whether compensatory services are appropriate for a re sulting denial of FAPE, and accordin gly, the cou rt hereby orders the rem edy set forth herein. T his remedy shall r equire the establishment of a procedural framework in which these determ inations may be m ade. The court shall appoint an independent monitor to oversee the developm ent and implem entation of this process. The independent monitor shall appoint MPS staff members to serve as permanent members of the hybrid IEP team. In consultation and cooperation with th e permanent members of the hybrid IEP team, the independent monitor shall establish guidelines for the hybrid IEP team to apply when determining if a purported class member is, in fact, a class member, and the r elief, if any, in the form compensatory services that any individual clas s member may receive pursuant to the court ordered remedy.
The parties must engage in good faith efforts to resolve any disputes that m ay develop. However, should the parties fail to reach a m utually agreed upon resolution, disputes relating to the procedural framework or a purported class member’s eligibility as a class member, shall ultimately be resolved by the court in accord ance with the framework set forth above. Disputes relating to the
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individualized remedy that any class member shall receive under this court ordered remedy shall be resolved within the existing administrative framework under the IDEA.
The next step of this litigation requ ires the parties to m eet in a good fai th effort to reach an agreement as to certain essential matters set forth above. First, the parties must identify and attempt to agree upon an independent m onitor to oversee this rem edy. Second, the parties must attem pt to agree on th e details as to the procedures that s hall be utilized to provide individualized notice to certain readily identifiable potential class and a general notice that is likely to reach other po tential class members who may not be so readily identifiable. This shall also r equire the parties to attempt to agree as to the specific contents of any proposed notice.
Therefore, no later than July 24, 2009, the parties shall subm it joint proposals detailing the means that shall be used to provide individual and general notice to potential class members, as well as the contents of any proposed notice. If after g ood faith efforts, the par ties are unable to reach a mutual agreement, the parties shall each submit separate proposals.
Further, no late r than July 24, 2009 , the par ties shall sub mit jointly the nam e, curriculum vitae, affidavit pursuant to Rule 53(b)(3)(a), an d information indicating the terms under which the independent monitor shall be compensated for the proposed independent monitor. If after good faith efforts, the parties are unable to reach a m utual agreement, the parties shall each subm it such information for up to two proposed independent monitors.
SO ORDERED. Dated at Milwaukee, Wisconsin this 9th day of June 2009.

s/ AARON E. GOODSTEIN

U.S.

Magistrate Judge

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APPENDIX – Benchmarks / Timeline for Implementing Court Ordered Remedy

Time 1 July 24, 2009

Event Parties shall submit proposals regarding the appointment of an independent monitor and class notice.

2 30-45 days after the court enters an order appointing independent monitor.

Independent monitor shall appoint perm anent members of hybrid IEP team.

3 30-60 days after the court enters Independent monitor shall ente r an order esta blishing the

an order appointing perm anent guidelines the hybrid IEP team shall apply in its initial

members of hybrid IEP team.

evaluation to determ ine class m embership of respondents

to the class notice.

4 45-90 days after the court enters Independent monitor shall ente r an order establishing all

an order appointing perm anent guidelines the hybrid IEP team shall apply in evaluating

members of hybrid IEP team.

individual class m embers in regard to co mpensatory

services.

5 60-75 days after the close of the Hybrid IEP team shall com plete its evaluation an d

response period.

determination of class m embership and the independent

monitor shall enter an order listing all class members.

6 150-210 days after the court enters Hybrid IEP team shall evaluate all c lass members to

an order identifying all class

determine if com pensatory services are n ecessary to

members who responded to the remedy a denial of FAPE and if so, the nature of the

notice.

compensatory services to be provided.

The timeline set forth herein is intended to move the process toward com pletion without undue delay. However, any firm deadlines established by the independent monitor for benchmarks 5 and 6 must take into consideration the num ber of individuals responding to the class notice and the number of those determ ined to be class m embers. Accordingly, if the independent m onitor concludes that addition al time is needed to co mplete any of these benchm arks, the independent monitor shall file a request for an extension of time with the court.

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., et. al., individually and on behalf of the class, Plaintiffs, v.
MILWAUKEE PUBLIC SCHOOLS, et. al., Defendants.

Case No. 01-C-928

ORDER DENYING MOTION FOR STAY
On September 13, 2001, the plainti ffs filed their com plaint, alleging violations under the Individuals with Disabilities E ducation Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) and related state statutes, Wis. Stat. §§ 115.758, et seq. Nearly 8 years later, after 28 days and three phases of a court trial, tens of thousands of pages of exhibits, an d more than 600 separate docket entries, on June 9, 2009 this court entered a decision and order setting forth a fram ework through which the m embers of the class harm ed by MPS’ system ic violations of its Child Find obligat ions may obtain relief. (Docket No. 598.) In this decision and order, the cour t set forth a tim eline for implementing the court ordered remedy.
MPS filed an appeal, (Docket No. 604), and on July 21, 2009, file d a m otion to stay the court-ordered remedy pending the reso lution of its appeal, (Docket No. 618). Accompanying this motion is a 19 page brie f wherein MPS outlines its ar guments in favor of a stay. Because tim e is of the essence, with July 24, 2009 being the deadline for the part ies to submit the names of proposed independent monitors, MPS has reque sted either oral argument or expedited b riefing to resolve its motion. The court finds that neither expedited briefing nor oral argument is necessary.

In assessing whether a s tay is warranted, [a ] district court [is] required to determine whether the party seeking the stay has de monstrated that: 1) it has a reasonable likelihood of success on the m erits; 2) no adequ ate remedy at law exis ts; 3) it will suffer irreparable harm if it is den ied; 4) th e irreparable harm the party will suf fer without relief is greater th an the harm the opposing party will suffer if the stay is granted; and 5) the stay will be in the public interest. Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006) (citing Kiel v. City of Kenosha, 236 F.3d 814, 815-16 (7th Cir. 2000)). If an appeal has no merit at all, the request f or a stay should be denied. Cavel Int'l, Inc. v. Madigan , 500 F.3d 544, 547 (7th Cir. 2007). If, however, appellants have som e likelihood of success on appeal, then the cou rt applies a “sliding scale” approach, u nder which the court weighs the likelih ood of success and ex tent of irreparable harm likely to b e suffered by appellants against the harm likely to be suffered by appellees if stay is entered. Id. Beginning with the question of whether MPS has a reasonable likelihood of success on the merits, as indicated above, this case is excep tionally complex. Accordingly, there have been m any issues that required resolution, and MPS seeks to challenge m any unfavorable rulings on appeal. In its motion, MPS states its legal positions on these issues, positions the court did not find persuasive. It is not necessary for the cour t to restate its rulings , but sim ply acknowledge that because these issues were complex, both legally and factually, and were at tim es somewhat novel, it is possible that an appellate court may reach a different conc lusion. This is no t an out come that this court regards as highly likely, but it is nonethele ss reasonably likely. Thus, the court must apply the “ sliding s cale ” to weigh the com peting interests at issue to determ ine whether this court shou ld grant or deny the stay. MPS argues that it will be irreparably harm ed should a stay be denied, because the financial burden of the remedy will be great, while any comparable harm to the plaintiffs if a stay is gran ted is de minimis. In considering the motion of MPS, the court finds that two factors overwhelm ingly tip the balance in favor of denying a stay. As no ted above, this case has already been pending for nearly 8 years. The class period spans from September of 2000 through June of 2005. Thus, certain
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class members have already been waiting nearly ni ne years for compe nsation for MPS’ fai lures to comply with the IDEA. Based upon the proposed tim eline set forth in this court’s order, it is likely to be at least another year before any class members are provided with an individualized remedy.
The cliché, “Justice delayed is justice denied,” is appropriate here. As the evid ence in this case has made clear, every delay in providing compensatory services to a student who was denied FAPE compounds the harm of the prior denial. A student who is not provided with the elem ents essential for an educational foundation lacks the basis upon which to build all subsequent education. A decade of delay and denial has already caused substantial injury to class members; any continued delay will n ot only continue but rather exace rbate the ha rm. Additionally, f or a wide varie ty of reasons, any additional delay will undoubtedly result in a decrease in the number of class members who will respond to any class notice and thus will obtain relief. The aim of this litig ation is to ensure that all reason able steps are taken to en sure that as many class m embers as possib le are provided with the remedy to which they are entitled. Granting a stay would run counter to this goal.
Further, the public interest weighs in favor of denying MPS ’ motion for a stay. W hen the harm of MPS’ failures is exacerb ated by a furthe r delay, not only does every class m ember suffer, but the harm extends to the public as a whole. The consequences of MPS’ systemic denial of FAPE manifest themselves every day in countless varied ways throughout this community.
Further, the court is m indful of the fact that MPS’ status as a public entity m eans that the costs of the litigation are ultim ately borne by taxpayers. MPS ha s emphasized this point throughout this litigation, for example, cont ending that any remedy should be lim ited because of the poten tial cost to the district. A lthough as a general m atter the expense of compliance or rem edying noncompliance is not an appropriate consideration for the court, wh en considering whether to grant or deny a stay, costs for taxpayers is an appropria te consideration falling within in the pu blic interest factor. In this regard, a further delay wi ll simply exacerbate costs. For example, any delay
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will likely make any necessary compensatory services more expensive due to th e fact that existing

educational deficits will be exace rbated. Not only do the deficits be come more substantial and thus

more difficult and expensive to rem edy, but it may be reasonable to conclude that as students get

older, the most appropriate com pensatory services will be found outside of MPS. To be bl unt,

concerns about money do not trump providing appropriate education.

In weighing the competing interests, it is the co nclusion of the court th at the harm to class

members and the public that would re sult should this court grant a stay substantially outweighs the

risk of irreparable harm that the defendants may suffer should a stay be de nied. Accordingly, MPS’

motion for a stay, (Docket No. 618), is denied.

SO ORDERED.

Dated at Milwaukee, Wisconsin this 22nd day of July 2009.

s/AARON E. GOODSTEIN

U.S.

Magistrate Judge

4

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., on behalf of the class, Plaintiffs,
v.
MILWAUKEE PUBLIC SCHOOLS, et. al.,
Defendants.

Case No. 01-C-928

ORDER APPOINTING INDEPENDENT MONITOR
In this court’s Decision and Order Follo wing Phase III, (Doc ket No. 598), the court concluded that an independent m onitor is necessa ry to oversee and implem ent the court ordered class remedy. On July 24, 2009, the parties each subm itted the names of three nominees to serve as the independent m onitor as well as affidavits required under Rule 53(b)(3)(A). ( See Docket Nos. 624, 627, 628, 629, 630.) On July 31, 2009, each party sub mitted a res ponse to the other party ’s proposal. (Docket No. 633, 635, 636.)
Having carefully reviewed these subm issions and conducted telephone interviews with certain candidates, the court hereby appoints Elise T. Baach to serve as the indepen dent monitor in this case pursuant to Rule 53 of th e Federal Rules of Civil Procedure. ( Rule 53 refers to “m asters.” The court uses the term “monitor” here because it is the term used by the parties, and it better connotes the role envisioned by the court. Substantively, the distinction is one without consequence.)
The independent monitor shall proceed with all reasonable diligence to implem ent the remedy set forth wit hin this court ’s Decision and Order Following P hase III, (Docket No. 598), which is incorporated herein by reference.
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The independent monitor is empowered to “regulate all proceedings” necessary to effectuate the court ordered remedy and to “take all appropriate measures to perform the assigned duties fairly and efficiently.” Rule 53(c)(1). Th e independent monitor shall have th e primary authority to f ill in the details to the fram ework the court construc ted in its Decis ion and Order Follo wing Phase III, (Docket No. 598), regarding the m eans by which pur ported class m embers shall be evaluated to determine whether th ey are entitled to compen satory services. A prim ary concern for the independent monitor shall be ensu ring that this remedy is implemented in an expeditious m anner, including establishing deadlines for completing all phases of this remedy, so as to not unnecessarily further delay any relief for class members.
In accordance with Rule 53(d), the independent monitor shall issue orders necessary to effect the remedy the court discusses in more detail below, including, for example, orders appointing permanent members to the hybrid IEP team, and establishing the guidelines that the hy brid IEP team shall apply in making the individualized determinations necessary for each purported class member. Further, in accordance with the Appendix to this court’s Decision and Order Follo wing Phase III, (Docket No. 598), which is incorporated herein b y reference, the independent m onitor shall be tasked with establishing firm deadlines to com plete all tasks necessary to implement this remedy. The independent monitor is authorized to issue orders establishing such deadlines throughout the implementation process.
The independent m onitor may communicate ex parte w ith any party whenever the independent monitor concludes that it is necessary to effectuate her designated responsibilities. However, in general, the independent m onitor should act with a presum ption that ex parte communication is an exception to the norm of communicating with the parties. Examples where ex parte communication might be appropriate are scheduling or other adm inistrative tasks or when the independent monitor assumes the role of mediator in an e ffort to brin g the par ties to a m utually agreeable conclusion.
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The independent m onitor may communicate ex parte with the court if the independent monitor concludes tha t it is necessa ry to ef fectuate her designated responsib ilities. Such ex parte communications with the court sh all not involve substa ntive matters over which the indep endent monitor has responsibility, but shall be limited to matters of administrative concern. For example, at no point should the independent monitor communicate ex parte with the court regarding individuals considered to be appointed to the hybrid IEP team, specific guidelines under consideration by the hybrid IEP team , whether an individual claim ant is or is not a class m ember, or the nature of compensatory services that are appropriate for any individual class member. From time to time, the court may engage in ex parte status conferences with the independent monitor to inq uire generally as to the progress in implementing the remedy.
The court m ay periodically requ ire the independent monitor to file reports with the cour t pursuant to Rule 53(e).
The independent monitor shall preserve all documents relating to communications between the independent monitor and the parties and potent ial and actual class members. The independent monitor need not preserve her individual work pr oduct, which m ight include item s such as draft documents created by her or her ow n personal notes. At a later date, the court shall issue an ord er identifying which preserved docum ents should be filed as the reco rd of the independent m onitor’s activities.
Pursuant to Rule 53(g)(2)(A) and in accordan ce with Rule 53(g)(3 ), the MPS defendants shall pay all cos ts associated with the indepen dent monitor. The independent m onitor shall be compensated as follows:
 $225 per hour for all work performed by the in dependent monitor that is necessary to effectuate this court ordered remedy;
 $35 per hour for work perform ed by an adm inistrative assistant th at is necessary to effectuate this court ordered remedy;
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 When travel to the Milwaukee area is necessa ry to effectuate this court ordered rem edy, travel expenses including, but not necessari ly limited to, actual cost of coach class airfare to Milwaukee and ground transpor tation in the Milwaukee area which m ay include either cab fare or economy rental car expenses;
 When travel to the Milwaukee area is necessa ry to effectuate this court ordered rem edy, a per diem rate for m eals and lodging for days spent in the Mi lwaukee area. The per diem rate s hall be d etermined in accordan ce with United States General Se rvice Administration (“GSA”) Regulations;
 Reimbursement for duplication costs, ECF ch arges, teleconferencing fees, postage and delivery fees, and transcription services if the expense is necessary for the independent monitor to fulfill her duties.
The independent monitor shall submit a s tatement to the co urt within five business days of
the end of every m onth in which she engages in compensable activity during the period of her
appointment. The statem ent shall set forth the du ties performed under this appointm ent in the
preceding month, briefly describe the nature of the work performed, and indicate the time expended
for each duty. The independent m onitor shall also retain all receip ts for expenses for which she
seeks reimbursement and upon request shall provide copies of receipts to DRW, MPS, or the court.
If MPS believes that any char ge on the statem ent is improper, within 10 days of the
independent monitor filing her stat ement with the court, M PS may file an objectio n. If the court
believes a response to the objection is necessary, the court shall permit the independent monitor and
DRW to submit their respective responses within 5 days. No reply shall be permitted absent leave of
the court. The court shall then issue an order resolving the objection.
If no objection is filed, MPS shall have 30 days fr om the date the statement is filed to pay in
full the statem ent submitted by the independen t monitor. Payments shall be m ade directly to the
independent monitor.
The independent monitor shall utilize this district’s Electronic Case Filing (“ECF”) system
for filing all docum ents such as statem ents or orders that this court has indicated must be filed on
the docket. This will en sure that all parties, including the court, shall receive prom pt notice of any
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filings and shall avoid the need for the execution of traditional service upon each party. Further, the

Clerk shall add the independent m onitor as a party in this case. This s hall enable the independent

monitor to be informed about all other filings that may occur in this case during the pendency of the

independent monitor’s appointment.

As a party, when a d ocument is electron ically filed the independ ent monitor shall be

permitted to view the document once for free. If the independent monitor fails to save the document

during this “free view” or wishes to view a p reviously filed docum ent, the independent m onitor

shall be billed at the rate of $0.08 per page. A ny such charges are processed through the Public

Access to Court Electronic Records (“PACER”) syst em. Therefore, if she has not already done so,

the independent m onitor shall register with PACER. http://pacer.psc.uscourts.gov/psco/cgi-

bin/register.pl.

Because the independent monitor shall be using this district’s ECF system as an independent

monitor and not as an attorney, the court hereby waives the requir ement that she be an attorn ey

admitted to practice in this d istrict. Information about this district’s ECF system , including User

Manuals, can be found on this district’s website, http://www.wied.uscourts.gov.

Upon registering with P ACER, the independent monitor shall contact the district’s Q uality

Control Administrator at 414-297-3418 so that the independent m onitor may be added as a party in

this case and the Clerk’s office may complete the independent monitor’s ECF registration.

SO ORDERED.

Dated at Milwaukee, Wisconsin this 19th day of August 2009.

s/AARON E. GOODSTEIN

U.S.

Magistrate Judge

5 Case 2:01-cv-00928-RTR Filed 08/19/09 Page 5 of 5 Document 638

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S., on behalf of the class, Plaintiffs,
v.
MILWAUKEE PUBLIC SCHOOLS, et. al.,
Defendants.

Case No. 01-C-928

ORDER REGARDING CLASS NOTIFICATION

On July 24, 2009, th e parties each submitted proposed general and individualized class action notices, claim forms, as well as procedures for the distribution of these notices. In accordance with Federal Rule of Civil Procedure 23(c)(2)(A) and upon considering the parties’ proposals, the court hereby approves the attached notice of class action, which shal l be used for both the general and individual notices, expl anation of the class action to be included in the individual notice, and claim form, and sets forth here the procedures for the dissemination of these notices. GENERAL NOTICE
The general class notice shall be distributed in the following manner: 1. Posted in a location highly visible to the ge neral public within the m ain school office of
every Milwaukee Public School; 2. Posted in at least one other high-traffic publ ic location within ev ery Milwaukee Public
School; it shall be within the discretion of an administrator within each school to determine an appropriate high traffic area;

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3. Posted in numerous high traffic public locati ons within Milwaukee Public Schools’ Central

Offices, including, but not necessarily lim ited to, all bulletin boards o r similar locations

where information regarding MPS or community events or issues is posted;

4. Posted in a location highly visible to the general public within the MPS Parent Inf ormation

Center;

5. A link to a PDF version of the class action notic e shall be posted in a prominent location on

the main page of MPS’ website, http://mpsportal.milwaukee.k12.wi.us;

6. MPS shall post the general class notice in all of its locations listed above no later than

September 1, 2009. The notice shall remain posted until January 4, 2010;

7. MPS shall include the general notice in all district-wide MPS publications, e.g. district-wide

parent newsletters, mailed to parents or guardians of current MPS

students between

September 14, 2009 and December 14, 2009;

8. DRW shall post the general notice on its website;

9. DRW may disseminate the general notice to ne wspapers and other media outlets, provide it

to other community organizations, or otherwise disseminate the notice as it see s fit, all at its

own cost;

10. DPI may post the general notice on its website, at its own cost.

INDIVIDUAL NOTICE

The individual class notice shall be distributed in the following manner:

1. The individual class no tice packet shall cons ist of the general c lass notice, the five-page

information packet, and a Potential Class Member Claim Form.

2. The five-page information packet may be printed double-sided.

3. MPS shall identify all current and former students:

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a. whose special education evaluations o ccurred more than 10 days beyond the statutory deadline then in effect, betw een September 2000 and June 2005, without a valid extension; or
b. who were suspended more than 10 days in any school year. 4. Not later than October 16, 2009 , MPS shall provide DRW a list identifying all students
identified as meeting either of these criteria. 5. MPS shall mail an individual class notice packet to the last known a ddress of all students
identified as meeting either of these criteria, not later than October 16, 2009. CLAIM FORM
1. In addition to being m ailed with each indivi dual class notice packet, a P DF version of the claim form shall be ava ilable on MPS and DRW ’s respective websites . With respect to MPS’ website, http://mpsportal.milwaukee.k12.wi.us, a link to a PDF ve rsion of the class action notice shall be posted in a prom inent location on the m ain page of MPS’ website, adjacent to the general notice of class action.
2. MPS shall mail a claim form to any individual requesting one by calling the Office of the Director of Special Services at 414-475-8745.
3. The claim form may be printed as a single, double-sided page. SUBMISSION
1. The deadline for the subm ission of all claim forms shall be January 4, 2010. Claim forms postmarked on this date or earlier shall be accepted by MPS.
2. All forms must be m ailed to MPS at: Milwauke e Public Schools, Office of the Director of Special Services (Room 272), Att n: Class Ac tion Remedy Administrator, P.O. Box 2181, Milwaukee, WI 53201-2181.
3 Case 2:01-cv-00928-RTR Filed 08/19/09 Page 3 of 4 Document 639

3. There shall be no provis ion for emailing, electronically submitting, or personally delivering

claim forms to MPS. The court fin ds that requiring all potential claimants to mail a claim

form to a single add ress is necessary to ensu re that claim forms are ha ndled in a u niform

manner and to minimize the possibility that a form is lost in the bureaucratic shuffle.

4. If DRW chooses to co llect claim forms from individual claim ants, it shall be DRW ’s

responsibility to ensure that such claim forms are timely mailed to MPS.

5. For any claim for m received by MPS that is found to be deficien t, for example because the

claim form is not signed, MPS shall mail a notice to the claimant informing the claimant of

the deficiency and providing the claimant at least 14 days to submit an amended claim form.

6. No later than January 22, 2010, MPS shall provide to the independent monitor and DRW

copies of all claim forms received.

SO ORDERED.

Dated at Milwaukee, Wisconsin this 19th day of August 2009.

s/AARON E. GOODSTEIN

U.S.

Magistrate Judge

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 Case: 09-2741 Document: 15-5 Filed: 08/26/2009 Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley D irksen U nited States C ourthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco u rts.g ov

August 26, 2009

ORDER
BEFORE
FRANK H. EASTERBROOK, Chief Judge ANN CLAIRE WILLIAMS, Circuit Judge DIANE S. SYKES, Circuit Judge

No.: 09-2741

JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al., Plaintiffs - Appellees
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants - Appellants

Originating Case Information: District Court No: 2:01-cv-00928-AEG Eastern District of Wisconsin Magistrate Judge Aaron E. Goodstein
The following are before the court:
1. MOTION FOR DISMISSAL OF DEFENDANTS’ APPEAL, filed on July 30, 2009, by counsel for the appellees.
2. OPPOSITION TO MOTION TO DISMISS APPEAL, filed on August 14, 2009, by counsel for the appellants.
3. MOTION FOR A STAY OF THE DISTRICT COURT’S JUNE 9, 2009 ORDER, filed on August 20, 2009, by counsel for the appellants.

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Case: 09-2741 Document: 15-5 Filed: 08/26/2009 Pages: 2

4. PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR DISMISSAL OF DEFENDANTS’ APPEAL, filed on August 24, 2009, by counsel for the appellees.

IT IS ORDERED that #1, #2, and #4 are taken with the case to be determined by the assigned merits panel. The parties shall thoroughly address this court’s jurisdiction in their briefs.

IT IS FURTHER ORDERED that #3 is GRANTED. The district court’s order dated June 9, 2009, is STAYED pending resolution of this appeal.

IT IS FINALLY ORDERED that briefing will proceed as follows:

1. The brief and required short appendix of the appellants are due by September 25, 2009.

2. The brief of the appellees is due by October 26, 2009.

3. The reply brief of the appellants, if any, is due by November 9, 2009.

Note:

Circuit Rule 31(e) (amended Dec. 1, 2001) requires that counsel tender a digital copy of a brief, from cover to conclusion, at the time the paper copies are tendered for filing. The file must be a text based PDF (portable document format), which contains the entire brief from cover to conclusion. Graphic based scanned PDF images do not comply with this rule and will not be accepted by the clerk.

Rule 26(c), Fed. R. App. P., which allows three additional days after service by mail, does not apply when the due dates for briefs are specifically set by order of this court. All briefs are due by the dates ordered.

Important Scheduling Notice !
Notices of hearing for particular appeals are mailed shortly before the date of oral argument. Criminal appeals are scheduled shortly after the filing of the appellant's main brief; civil appeals after the filing of the appellee's brief. If you foresee that you will be unavailable during a period in which your particular appeal might be scheduled, please write the clerk advising him of the time period and the reason for such unavailability. Session data is located at http://www.ca7.uscourts.gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date, it is very difficult to have the setting changed. See Circuit Rule 34(e).

form name: c7_Order_3J (form ID: 177)

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S, et al.,
Plaintiffs,
-vs-
MILWAUKEE PUBLIC SCHOOLS, DEPARTMENT OF PUBLIC INSTRUCTION, STATE OF WISCONSIN, et al.,
Defendants.

Case No. 01-C-928

DECISION AND ORDER

This matter is a long-running class-action lawsuit seeking structural reform of special education in the Milwaukee public school district. In the previous district court proceedings, Judge Goodstein certified a c lass based upon al leged violations of t he “child find” requirements of the Individuals with Disabilities Education Act. A fter a bench trial, the Department of Public Instruction reached a settlement with the class, agreeing to order the Milwaukee Public Schools to meet certain compliance benchmarks.
On appeal, the Seventh Circuit vacated the district court’s class-certification order. The Seventh Circuit also vacated the settlement reached between the plaintiffs and t he Department of Public Instruction. The Seventh Circuit remanded for further proceedings, the necessity of which appears to be an open question. “What remains are the claims of the individual plaintiffs; the district court did not find a denial of a free appropriate public education in any individual case. Fur thermore, the court’s reasons for excusing
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administrative exhaustion appear to have been tied to the class allegations, and it’s not clear whether the court would have excused exhaustion for any of the individual claims. Finally, it’s possible – per haps likely – t hat some of t he named plai ntiffs’ individual factual circumstances have changed such that their claims are now moot. We leave to the district court on remand the task of determining whether anything remains of this case and what, if anything, should happen next.” Jamie S. v. Mil. Pub. Sch., 668 F.3d 481, 499-500 (7th Cir. 2012).
If the plaintiffs want to pursue this case any further, they should meet and confer with the defendants pursuant to Federal Rule of Civil Procedure 26(f) and submit a proposed discovery plan within thirty (30) days of the date of this Order. Failing that, the Court will enter an order of dismissal.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2012. BY THE COURT: __________________________ HON. RUDOLPH T. RANDA U.S. District Judge
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 Case: 09-2741 Document: 00711719883 Filed: 03/13/2012 Pages: 3

(1 of 56)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley D irksen U nited States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco urts.gov

March 13, 2012

NOTICE OF ISSUANCE OF MANDATE

To:

Jon W. Sanfilippo

UNITED STATES DISTRICT COURT

Eastern District of Wisconsin

Milwaukee , WI 53202-0000

No.: 09-2741

JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al., Plaintiffs - Appellees
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants - Appellants

No.: 09-3274

JAMIE S., on her own behalf and on behalf of a class of similarly situtated persons, et al., Plaintiffs - Appellants
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants - Appellees

Originating Case Information:
District Court No: 2:01-cv-00928-AEG Eastern District of Wisconsin Magistrate Judge Aaron E. Goodstein

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Case: 09-2741 Document: 00711719883 Filed: 03/13/2012 Pages: 3

(2 of 56)

Originating Case Information:
District Court No: 2:01-cv-00928-AEG Eastern District of Wisconsin Magistrate Judge Aaron E. Goodstein Clerk/Agency Rep Jon W. Sanfilippo
Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

Loose pleadings:

16

RECORD ON APPEAL STATUS:

Entire record returned consisting of

Pleadings:

4

Transcripts:

23

Exhibits:

7 boxes

Depositions:

15

Sealed Envelopes:

23

NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of. Please acknowledge receipt of these documents on the enclosed copy of this notice.
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Case: 09-2741 Document: 00711719883 Filed: 03/13/2012 Pages: 3

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:
03/13/2012
_________________________

Received by:
D. McGuire (record to be returned
____________________________________

at a later date)

form name: c7_Mandate(form ID: 135)

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Case: 09-2741 Document: 00711719884 Filed: 03/13/2012 Pages: 1

(4 of 56)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley D irksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco urts.gov

February 3, 2012 Before:

FINAL JUDGMENT
JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge

Nos.: 09-2741 & 09-3274

DIANE S. SYKES, Circuit Judge
JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al., Plaintiffs - Appellees/Cross - Appellants,
v.

MILWAUKEE PUBLIC SCHOOLS, et al., Defendants - Appellants/Cross - Appellees.
Originating Case Information:
District Court No: 2:01-cv-00928-AEG Eastern District of Wisconsin Magistrate Judge Aaron E. Goodstein Clerk/Agency Rep Jon W. Sanfilippo

The plaintiffs’ appeal (number 09-3274) is DISMISSED for lack of appellate jurisdiction. The motion to dismiss MPS’s appeal (number 09-2741) is DENIED. The district court’s class-certification order, its liability order following Phase II of the trial, its order approving DPI’s settlement, and its remedial order following Phase III of the trial is VACATED. The case is REMANDED for further proceedings consistent with the opinion.

The above is in accordance with the decision of this court entered on this date. Each side to bear its own costs.

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Case: 09-2741 Document: 00711719885 Filed: 03/13/2012 Pages: 51

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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2741 & 09-3274 JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al.,
Plaintiffs-Appellees/ Cross-Appellants,
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants-Appellants/ Cross-Appellees.
Appeals from the United States District Court for the Eastern District of Wisconsin.
No. 01 C 928—Aaron E. Goodstein, Magistrate Judge.
ARGUED SEPTEMBER 7, 2010—DECIDED FEBRUARY 3, 2012
Before FLAUM, ROVNER, and SYKES, Circuit Judges. SYKES, Circuit Judge. We are asked in these consolidated appeals to review multiple procedural and substantive orders in a long-running class-action lawsuit seeking

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Case: 09-2741 Document: 00711719885 Filed: 03/13/2012 Pages: 51

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2

Nos. 09-2741 & 09-3274

structural reform of special education in the Milwaukee public school district. Under the Individuals with Disabilities Education Act (the “IDEA” or “the Act”), 20 U.S.C. §§ 1400 et seq., the States receive federal funding for the education of disabled children on the condition that their local school districts comply with the procedural requirements of the Act and provide a “free appropriate public education” to all resident children with disabilities. Id. § 1412(a)(1)(A). As relevant here, local districts must identify children with disabilities, determine whether these children require special-education services, and develop individualized education programs (“IEPs”) tailored to each student’s specific needs. Each step in the process is highly individualized because every child is unique.
In 2001 seven students with disabilities sued the Milwaukee Public Schools (“MPS”) and the Wisconsin Department of Public Instruction (“DPI”) on behalf of themselves and a class of “all school age children with disabilities who reside in the Milwaukee Public School District boundaries and who are or may be eligible for special education and related services under IDEA and Wisconsin law.” The complaint alleged widespread violations of the IDEA touching on nearly every aspect of MPS’s implementation of the Act. The district court rejected the plaintiffs’ ambitious proposed class but certified a somewhat more modest one: students eligible to receive special education from MPS “who are, have been or will be” denied or delayed entry into or participation in the IEP process. This narrower class definition had the effect of focusing the case on alleged violations

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Nos. 09-2741 & 09-3274

3

of the so-called “child find” requirements of the IDEA. Id. § 1412(a)(3)(A).
The district court held a bench trial and found MPS and DPI liable for various “systemic” IDEA violations. DPI then settled with the class by agreeing to order MPS to meet certain compliance benchmarks; the district court approved the settlement over MPS’s objection. On June 9, 2009, the court ordered a complex remedial scheme requiring MPS to set up a court-monitored system to identify disabled children who were delayed or denied entry into the IEP process, implement “hybrid” IEP meetings, and craft compensatory-education remedies.
MPS appealed the remedial order and also challenged the district court’s class-certification decision, the liability order, and the approval of the DPI settlement. The plaintiffs sought review of the order rejecting their sweeping class definition but missed the filing deadline for a cross-appeal. On August 19 the district court issued two follow-up orders appointing an independent monitor and approving the class notice. The plaintiffs appealed from these orders but do not contest either decision; instead, they ask us to review the order denying their original class-certification motion.
Both sides moved to dismiss on jurisdictional grounds. We took the motions with the merits and now dismiss the plaintiffs’ appeal. The orders from which the plaintiffs appealed are not final orders; nor are they the equivalent of injunctions, so they do not qualify for immediate appeal under 28 U.S.C. § 1292(a)(1). Moreover, the plaintiffs are attempting a flagrantly improper procedural

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Nos. 09-2741 & 09-3274

maneuver; they may not revive their untimely appeal by appealing from orders they do not want reviewed. We deny the motion to dismiss MPS’s appeal. The June 9 remedial order is the functional equivalent of an injunction and may be immediately appealed under § 1292(a)(1); we have pendent appellate jurisdiction over the related orders.
On the merits we vacate the class-certification order. Like the Title VII claims in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the IDEA claims in this case are highly individualized and vastly diverse, making this case unsuitable for class-action treatment under Rule 23 of the Federal Rules of Civil Procedure. The class itself is fatally indefinite, the claims lack the commonality required by Rule 23(a)(2), and it’s not possible to order final injunctive or corresponding declaratory relief on a class-wide basis, as required by Rule 23(b)(2). Because the class should not have been certified, the liability and remedial orders must be vacated as well. Finally, DPI’s settlement with the class prejudiced MPS’s legal rights by requiring more of MPS than DPI had the statutory authority to demand. In any case, because the class was certified in error, the order approving the DPI settlement must also be vacated.

I. Background A. Legal Framework
The IDEA requires participating States to provide to all disabled students a “free appropriate public education.”

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20 U.S.C. § 1412(a)(1)(A). Complying with this requirement is a complex and inherently child-specific undertaking. First, the IDEA requires that “[a]ll children with disabilities residing in the State . . . and who are in need of special education and related services” be “identified, located, and evaluated,” a process known as “child find.” Id. § 1412(a)(3)(A). Once a disabled child in need of special education is identified, the local school district must evaluate the child’s specific needs and develop an “individualized educational program,” or “IEP,” outlining the particular special-education services that are necessary to allow the child to learn in the “least restrictive environment.” Id. §§ 1412(a)(4)-(5), 1414. The content of an IEP and the meaning of “least restrictive environment” are nuanced topics that we need not explore here. With limited exceptions, an “IEP Team” must be convened and meet within 90 days of the child’s initial referral, see WIS. STAT. § 115.78(3)(a) (1998);1 the IEP Team must include various educational professionals and the child’s parent or guardian, see 20 U.S.C. § 1414(d)(1)(B). Once an IEP is in place, the school must provide the services listed in it, and the IDEA sets out many rules governing the process of amending an IEP. These topics, too, are beyond the scope of inquiry here.
To ensure that each disabled child receives a free appropriate public education, the IDEA also requires States to provide various procedural safeguards to stu-

1 The statutory time frame has since been shortened to 60 days. See WIS. STAT § 115.78(3)(a).

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dents and parents. See id. § 1415. A parent may file a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child,” id. § 1415(b)(6)(A), and may request an impartial due-process hearing to resolve the complaint, id. § 1415(f). After receiving a final decision from the hearing officer, the parent may appeal to the state educational agency. Id. § 1415(g). Finally, a still-aggrieved parent may file a civil action seeking review of the decision. Id. § 1415(i)(2). The IDEA also requires that parents be given notice of their procedural rights at various times, including when the school district first proposes or refuses to evaluate a child for a disability. Id. § 1415(b)(3), (c)(1).
Wisconsin implements the IDEA through sections 115.758-115.90 of the Wisconsin Statutes, which track the IDEA’s requirements while adding functional detail. One provision of particular importance here, section 115.90, gives DPI—the state educational agency charged with overseeing Wisconsin’s IDEA compliance—various enforcement mechanisms if individual schools or school districts are not fulfilling their statutory obligations. Specifically, DPI may order a school district to submit a “corrective plan” that addresses the area of noncompliance, withhold state funding until the violation is fixed, or if the first two methods are unsuccessful, ask the state attorney general to bring a lawsuit against the school district to force compliance. WIS. STAT. § 115.90.

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B. Proceedings Below
The procedural history of this case is lengthy and complex; we will simplify where we can. In 2001 Jamie S. and six other named plaintiffs brought this class-action suit against MPS and DPI alleging a host of IDEA violations. Jamie is cognitively impaired and was at that time an eight-year-old student in an MPS school. The other named plaintiffs are (or were) MPS students with disabilities ranging from deafness to Asperger’s syndrome to various emotional disturbances. The parties consented to the jurisdiction of a magistrate judge, see 28 U.S.C. § 636(c)(1), and the plaintiffs moved to certify a class of all Milwaukee-area students who “are or may be eligible for special education and related services under IDEA and Wisconsin law due to their disabilities.” The magistrate judge declined to certify a class of this scope based largely on concerns about exhaustion of administrative remedies. But the judge believed that some of plaintiffs’ claims could be litigated as a class notwithstanding their failure to exhaust administrative remedies.
To that end, the judge divided the proposed class into two categories: those having “pre-determination claims” and those having “post-determination claims.” These were terms of the court’s own creation and referred to IDEA violations arising before an IEP meeting takes place and IDEA violations arising after an IEP takes place. Although the IDEA generally requires plaintiffs to use the administrative dispute-resolution process before filing suit, the judge thought that exhaustion of

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administrative remedies for “pre-determination claims” would be futile because parents of children with these kinds of claims might not know they have a right to administrative review. For this reason the judge excused, on a class-wide basis, the failure to exhaust administrative remedies for pre-determination claims. On the other hand, the judge thought that parents who had attended an IEP meeting would understand their right to administrative review. Accordingly, the judge held that the administrative system is adequate for postdetermination claims and declined to excuse the exhaustion requirement for this category.
This approach meant the plaintiffs could litigate their pre-determination claims as a class, but their postdetermination claims had to proceed individually (or not at all if administrative remedies had not been exhausted). Accordingly, the judge invited the plaintiffs to try again at class certification using the court’s predetermination/post-determination distinction. After two more rounds of briefing, the judge settled on his own class definition. On November 14, 2003, the court entered an order certifying the following class:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
Following class certification and several years of discovery, the court conducted a two-phase bench trial on

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liability. In Phase I the court heard testimony from experts regarding MPS’s and DPI’s compliance with the IDEA. Satisfied that a full trial was warranted, the court conducted lengthy Phase II proceedings in which the parties presented further evidence regarding the basis for the experts’ opinions. In a written decision issued on September 11, 2007, the court found both MPS and DPI liable for “systemic” violations of the child-find requirements of the IDEA. Specifically, the court found that from September 2000 to June 2005, MPS committed the following IDEA violations on a system-wide basis: it failed to identify children with suspected disabilities and refer them for evaluation within the statutory 90day time frame; improperly extended the 90-day time frame; imposed suspensions in a way that frustrated disability referrals; and failed to ensure that parents attended IEP meetings. The court also found that DPI failed in its oversight duties.
The court based its liability findings primarily on the opinion testimony of Dr. Diana Rogers-Adkinson, a special-education professor at the University of Wisconsin-Whitewater who served as the plaintiffs’ primary expert. She reviewed approximately 200 MPS student files but engaged in no statistical analysis or other accepted analytical method to determine whether any particular violation of the IDEA could properly be characterized as “systemic.” Instead, she based her opinion entirely on “patterns” or “trends” she observed in the student files. During the time period in question, MPS annually enrolled 95,000 to 97,000 students, approximately 16,000 of whom were eligible for special

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education every year. Dr. Rogers-Adkinson did not explain how a review of 200 student files could yield a conclusion that MPS was in systemic violation of the IDEA during the relevant five-year period.
Indeed, the court’s 64-page liability order does not contain any analysis subjecting Dr. Rogers-Adkinson’s testimony to the standards applicable to expert witnesses under Rule 702 of the Federal Rules of Evidence. To the contrary, the court expressly acknowledged that her opinion was not based on any scientific method but instead rested on what she loosely termed a “qualitative analysis” of the student files she reviewed. After identifying “certain patterns” and “trends” in the student files, Dr. Rogers-Adkinson simply “projected” the patterns and trends “over the entire MPS district” and said she “believe[d] . . . the same trends would appear if a scientific or true random sampling of files had been conducted.” Without mentioning the requirements of Rule 702, the court summarily accepted Dr. RogersAdkinson’s methodology as an adequate factual foundation for finding MPS in systemic violation of the IDEA: “The court accepts the qualitative analysis methodology used by Dr. Rogers-Adkinson. The court further accepts her Child Find trends or patterns and applies them system wide to MPS.”
In response to the court’s liability order, DPI entered into settlement negotiations with the plaintiff class and eventually presented a settlement agreement to the court for approval. We will describe it in more detail later, but in brief, DPI agreed to order MPS to meet

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various compliance benchmarks within a certain time frame and to pay for an independent monitor to oversee MPS’s performance. In exchange the plaintiff class dismissed its claims against DPI and gave away the rights of class members to bring representative suits against DPI for IDEA violations predating the agreement. Over MPS’s vigorous objection, the district court approved the settlement.
The case then proceeded to the remedial phase of the trial against MPS alone. The court heard evidence and argument on possible remedies, and on November 17, 2008, ordered the parties to submit posttrial briefs regarding their final remedial proposals. This order included two pages of detailed questions, the answers to which informed the content of the parties’ final proposals. For example, the court directed the parties to address how putative members of the class were to be evaluated for inclusion in the class; how individual liability and compensatory-education determinations should be made; which party should prevail when the evidence is inconclusive; how disputes between the parties should be resolved; and who should pay for the dispute-resolution process. The parties submitted briefs outlining their preferred remedies and responded to each other’s proposal.
On June 9, 2009, the court issued a lengthy order setting forth an elaborate court-monitored remedial scheme. The court ordered both general and specific class notice designed to reach the parent or guardian of as many potential class members as possible. Recipients would

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identify their children as potential class members by submitting response forms that would initiate a process of professional evaluation to determine whether or not the child was a member of the class. The court ordered the creation of a “hybrid” IEP team, closely resembling the IEP team required by the IDEA but including a courtappointed independent monitor to oversee its operation.
The hybrid IEP team was charged with evaluating the responses to the class notice to determine how to proceed in each individual case. In some cases it might be obvious that the child is not disabled, and no further evaluation would be required. In others a professional evaluation would be required to determine whether the child has a disability. In others a full IEP meeting would be needed to determine whether the child requires special-education services in order to receive a free appropriate public education. And finally, in some cases the child might be entitled to compensatory education— a remedy available under the IDEA—to compensate for a past denial of a free appropriate public education. The hybrid IEP team was given the authority to grant compensatory-education awards, subject to the court’s oversight. The estimated cost to MPS to implement this remedy: between $11.5 and $40 million, depending on how many parents responded and the extent of the compensatory education awarded to qualifying children.
The June 9 remedial order also rejected some of the remedial proposals made by the parties. For example, the judge rejected the plaintiffs’ request for a segregated compensatory-education fund and for “parent advocates”

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separate from the independent monitor and denied MPS’s request for a binding-arbitration system to resolve disputes. Finally, the court ordered the parties to negotiate regarding the independent monitor and the form of the class notice. If they could not agree, the parties were to submit nominations for the independent monitor and a proposed class-notice form.
MPS appealed the June 9 remedial order and also sought review of the court’s class-certification decision, the liability order, and the court’s order approving the DPI settlement. The plaintiffs sought review of the district court’s rejection of their original class definition but missed the deadline for filing a cross-appeal. In the meantime the parties could not agree on an independent monitor or class-notice form, so they submitted competing proposals on these two follow-on matters.
On August 19, 2009, the court entered an order naming the independent monitor and charging her with the responsibility of “implement[ing] the remedy set forth within” the June 9 order. This brief order also summarizes the independent monitor’s duties, explains how she is to be paid, and provides some detail about how she would interact with the parties and the court. In a second order issued on August 19, the court approved the classnotice form and explained how it should be distributed.
The plaintiffs appealed the August 19 orders, but they have no quarrel with the substance of these decisions. That is, they do not disagree with the judge’s choice of an independent monitor or the form of the class notice. Instead, they ask us to review the denial of their original class-certification motion.

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Both sides moved to dismiss the other’s appeal for lack of jurisdiction. MPS also moved to stay the June 9 remedial order pending resolution of its appeal. We consolidated the cases, stayed the remedial order, and asked the parties to brief the jurisdictional questions along with the merits.

II. Discussion
These consolidated appeals raise important procedural and substantive issues regarding the suitability of IDEA claims for class certification, the kind and degree of evidence necessary to find a local school district in systemic violation of the IDEA, and the propriety of a federalcourt takeover of a school district’s special-education program as a remedy for individual IDEA violations. We begin, however, with jurisdictional issues.

A. Jurisdiction
Both appeals claim appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which permits immediate appeal from an interlocutory order “granting, continuing, modifying, refusing or dissolving” an injunction. Section 1292(a)(1) “creates an exception from the long-established policy against piecemeal appeals,” but “[t]he exception is a narrow one and is keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480 (1978) (quoting Balt. Contractors v. Bodinger, 348 U.S. 176, 181 (1955)).

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Accordingly, mandatory interlocutory orders are considered injunctions reviewable under § 1292(a)(1) “only if they effectively grant or withhold the relief sought on the merits and affect one party’s ability to obtain such relief in a way that cannot be rectified by a later appeal (that is, ‘irreparably’).” In re City of Springfield, Ill., 818 F.2d 565, 567 (7th Cir. 1987) (citing Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377-79 (1987), and Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Stated differently, “[a]n order . . . is properly characterized as an ‘injunction’ when it substantially and obviously alters the parties’ pre-existing legal relationship.” Jones-El v. Berge, 374 F.3d 541, 544 (7th Cir. 2004) (citing Gautreaux v. Chi. Hous. Auth., 178 F.3d 951, 958 (7th Cir. 1999)).
The parties agree that by ordering the creation of the hybrid IEP system, the district court granted an injunction within the meaning of § 1292(a)(1), but they disagree about which order achieved that result. MPS appealed from the June 9 remedial order and contends that this order is the functional equivalent of an injunction. The plaintiffs argue that MPS’s appeal was premature. They maintain that the remedial order did not fully “ripen” into an appealable injunction until the district court appointed the independent monitor and approved the class notice on August 19.
The plaintiffs direct our attention to Sherpell v. Humnoke School District No. 5, 814 F.2d 538, 539-40 (8th Cir. 1987), and Groseclose v. Dutton, 788 F.2d 356, 361 (6th Cir. 1986), both of which held that an order requiring parties to submit proposed remedial plans is generally not an

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injunction for purposes of § 1292(a)(1). In our decision in Springfield, we agreed with that general principle: “[O]nly directives awarding the relief plaintiffs seek or putting the case on a collision course with that relief are ‘injunctions’ under § 1292(a)(1).” 818 F.2d at 568. The plaintiffs insist that the June 9 order was merely an order to formulate proposals for the independent monitor and class notice and that it was only after the August 19 orders appointing the monitor and approving the class notice that the hybrid IEP system was truly in place.
This characterization of the June 9 order is disingenuous. It’s true that the court directed the parties to consult with each other about the identity of the independent monitor and the form of the class notice, and to submit proposals if they could not agree. But the bulk of the court’s 71-page order was devoted to evaluating the comprehensive remedial proposals the parties had already submitted and explaining the elaborate remedial scheme the court had crafted. The order established in fine detail the remedial program MPS was required to implement—a scheme designed to produce individualized compensatory-education awards, the ultimate relief sought in the case.
Although the June 9 order left the identity of the independent monitor and the content of the class notice to be worked out by the parties, MPS’s obligations were not contingent on those details. Whoever the monitor, and whatever the form of the class notice, the June 9 order required MPS to create a massive identification and

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evaluation system consuming significant educational resources and costing millions of dollars. Even if the hybrid IEP system could not begin operating until the independent monitor was appointed and the class notice was approved, the June 9 order gave the plaintiffs the relief they were seeking and substantially altered MPS’s legal rights. The remedial order is the functional equivalent of an injunction for purposes of § 1292(a)(1). See Springfield, 818 F.2d at 568. We have jurisdiction over MPS’s appeal; the plaintiffs’ motion to dismiss is denied.
In contrast, the plaintiffs’ jurisdictional argument in support of their own appeal is at best inconsistent and at worst incoherent. The plaintiffs initially tried to crossappeal from the June 9 remedial order, seeking review of the denial of their original class-certification motion. But they missed the filing deadline, so they tried a different route to get their preferred class definition before this court: They appealed the August 19 orders appointing the independent monitor and approving the class notice, insisting that these orders are the “injunction” for purposes of § 1292(a)(1). They are not. Unlike the June 9 order, the August 19 orders do not grant relief on the merits or substantively alter the parties’ legal relationship. See Jones-El, 374 F.3d at 544; Springfield, 818 F.2d at 567. They do not require the parties to do or refrain from doing anything at all. The district court had already announced the remedial scheme in the June 9 order, including the appointment of an independent monitor and the requirement of general and specific class notice. All that remained was to decide the identity of the monitor and approve the form of the

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class notice. These details were surely important, but resolving them did not amount to an appealable injunction. Cf. Jones-El, 374 F.3d at 544 (“[A]n unappealable order is one that interprets or clarifies a prior order and does not create new rights or obligations independently enforceable through a contempt action.”).
Moreover, the plaintiffs are plainly engaged in a bootstrapping procedural maneuver. They have no complaint about the independent monitor or the class notice, though they appealed those decisions; rather, they want us to review the denial of their original class-certification motion. This is an improper attempt to revive their untimely cross-appeal from the June 9 remedial order. We dismiss the plaintiffs’ appeal.
Finally, MPS seeks review of the district court’s orders certifying the class, finding liability, and approving DPI’s settlement. Ordinarily these interlocutory orders would be unappealable, but MPS argues that the doctrine of pendent appellate jurisdiction applies. In Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995), the Supreme Court ” ‘set out a general rule against exercising pendent jurisdiction over related rulings.’ ” McKinney v. Duplain, 463 F.3d 679, 692 (7th Cir. 2006) (quoting Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092 (9th Cir. 1998)). Pendent appellate jurisdiction “may be invoked ‘only if there are compelling reasons for not deferring the appeal of the former order to the end of the lawsuit.’ ” Montano v. City of Chicago, 375 F.3d 593, 599 (7th Cir. 2004) (quoting U.S. for Use of Valders Stone & Marble, Inc. v. C-Way Constr. Co., 909 F.2d 259, 262 (7th

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Cir. 1990)). We may “review an otherwise unappealable interlocutory order if it is ‘inextricably intertwined with an appealable one.’ ” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir. 2010) (quoting Montano, 375 F.3d at 599). In other words, ” ‘it must be practically indispensable that we address the merits of the unappealable order in order to resolve the properly-taken appeal.’ ” Montano, 375 F.3d at 600 (quoting Valders Stone & Marble, 909 F.2d at 262). If an otherwise unappealable order is sufficiently intertwined to permit pendent appellate jurisdiction, we may exercise our discretion to review it. Jones v. InfoCure Corp., 310 F.3d 529, 536-37 (7th Cir. 2002).
The decision to exercise pendent appellate jurisdiction is inherently case specific. See Montano, 375 F.3d at 600. Here, our review of the appealable order—the June 9 order imposing the remedial scheme—simply cannot be conducted in isolation from the earlier orders. The June 9 order imposes a remedy for MPS’s liability to the plaintiff class; deferring review of the class-certification and liability decisions until after final judgment would make our present review of the remedial scheme meaningless. As this case comes to us, it is “practically indispensable” that we review the class-certification and liability orders now “in order to resolve the properlytaken appeal.” Id.; see also Asset Allocation & Mgmt. Co. v. W. Emp’rs Ins. Co., 892 F.2d 566, 569 (7th Cir. 1989) (“[A]ny ruling on which the validity of the [appealable order] turns is reviewable . . . .”).
The court’s order approving DPI’s settlement presents a closer question, but viewing the case as a whole, we

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think this order is so closely linked with the others that it cannot be separated. Because we vacate the class certification, declining to exercise pendent jurisdiction over the order approving DPI’s settlement would create the strangely anomalous result of a free-standing district court order approving and incorporating a settlement between a defendant and a class that no longer exists. Furthermore, with essentially the entire case already before us, deferring appellate review of the settlement would create rather than prevent piecemeal appeals; this too favors pendent appellate review. See Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001).

B. Class Certification
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). A district court may certify a case for class-action treatment only if it satisfies the four requirements of Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation—and one of the conditions of Rule 23(b). See FED. R. CIV. P. 23. In addition, a class must be sufficiently definite that its members are ascertainable. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); see Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) (“It is axiomatic that for a class action to be certified a ‘class’ must exist.”).

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Class certification is appropriate only if, “after a rigorous analysis,” the trial court is satisfied that the requirements of Rule 23 have been met. Wal-Mart, 131 S. Ct. at 2551 (quotation marks omitted). “Frequently, that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Id.; see also Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 890 n.6 (7th Cir. 2011) (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). We review the district court’s class-certification order for abuse of discretion, but legal determinations made in support of the decision are reviewed de novo. Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008).
There are several basic flaws in the district court’s classcertification decision. First, the class is both fatally indefinite and lacks the commonality required by Rule 23(a)(2). Furthermore, although the case was certified as a class action for injunctive and declaratory relief under Rule 23(b)(2), final injunctive or corresponding declaratory relief cannot be ordered on a class-wide basis, as required for a Rule 23(b)(2) class.
We begin with the terms of the class definition, something over which the parties and the judge struggled mightily. The plaintiffs initially sought to represent a class so broad that it effectively included all students eligible for special education and related services from MPS. The original proposed class thus joined together all Milwaukee-area disabled students, regardless of differences in their disabilities or educational situations, whose procedural or substantive rights under the IDEA

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were violated in any way. The district court properly rejected this sweeping class definition, but not for the obvious reason that it sought to lump together thousands of disparate plaintiffs with widely varying individual claims. Rather, the court rejected the plaintiffs’ proposed class definition based on difficulties associated with the IDEA’s requirement that administrative remedies be exhausted before filing suit.
The district court was justifiably concerned about the administrative-exhaustion requirement. But the court’s effort to resolve the problem was misguided. The court sua sponte divided the class into two categories: those with “pre-determination claims” and those with “postdetermination claims.” These designations were apparently meant to categorize individual violations of the IDEA, separating those that occurred prior to an IEP meeting from those that occurred after an IEP meeting. The judge thought this categorization made it possible to excuse the exhaustion requirement for “pre-determination claims” and allow these alleged IDEA violations to be litigated on a class-wide basis, while enforcing the exhaustion requirement for “post-determination claims,” excluding them from class-action treatment.
There is reason to doubt the propriety of this approach, but for present purposes we will address it on its own terms. Ordinarily, a plaintiff may not file an IDEA lawsuit without first exhausting available administrative remedies. See 20 U.S.C. § 1415; Honig v. Doe, 484 U.S. 305, 326-27 (1988); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996). However, exhaustion may

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be excused if administrative review would be futile or inadequate. Honig, 484 U.S. at 326-27. The district court applied this exception to all pre-determination claims, reasoning that the parents of disabled students might not be fully aware of the right to administrative remedies prior to a properly constructed IEP meeting, making exhaustion an exercise in futility.2 Once an IEP meeting is convened, however, the court thought that

2 We question this reasoning. Wisconsin law requires that parents be notified of their administrative-review rights when a child is initially referred for evaluation, well before an IEP meeting occurs. WIS. STAT. § 115.792(1)(b). For this reason the defendants argued below that if exhaustion was to be excused on a class-wide basis for violations occurring before parents received notice of their right to administrative remedies, it should be excused for pre-referral claims only. The district court rejected this argument, perceiving “too great” a “potential of having parties unwittingly forgo their rights.” Even when notice of administrative remedies was provided, the judge was “not sanguine with the fact that this information is always properly delivered or that the parents have a full understanding of the information.” Let’s assume for the sake of argument that it was appropriate to waive the exhaustion requirement on a class-wide basis on the rationale that parents “lacked full understanding” of their rights. The plaintiffs, as the proponents of the futility exception to the exhaustion requirement, would bear the burden of establishing this lack of understanding. See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 n.8 (2d Cir. 2002). That burden is not satisfied by the district court’s unsupported intuition that notice might not always be “properly delivered” or that parents might not always understand it.

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parents would sufficiently understand their rights, making administrative review adequate and keeping the IDEA’s exhaustion requirement intact for post-determination claims. On this rationale the court was willing to certify a class defined to include only pre-determination claims, for which it excused the plaintiffs’ failure to exhaust administrative remedies.3

3 In settling on the pre-determination/post-determination line of demarcation, the district court relied heavily on the concept of “systemic” IDEA violations developed by other circuits, most prominently the Ninth Circuit in Doe ex rel. Brockhuis v. Arizona Department of Education, 111 F.3d 678, 681 (9th Cir. 1997). Doe discussed the distinction between “systemic” and “nonsystemic” IDEA claims in the context of deciding whether to apply the futility exception to excuse the plaintiffs’ failure to exhaust administrative remedies prior to bringing a class-action suit. Here, however, the district court applied the Ninth Circuit’s definition of a “systemic” IDEA violation in determining MPS’s liability, using it as the substantive legal standard for evaluating whether MPS was in noncompliance with the IDEA system-wide. We question whether Doe’s definition of “systemic” IDEA noncompliance has any value outside its specific context—that is, outside the context of deciding as a threshold matter in a proposed IDEA class action whether to excuse the failure to exhaust administrative remedies. And even in that context, the line drawn in Doe between systemic and nonsystemic violations for purposes of the exhaustion requirement seems rather arbitrary. While some IDEA violations may implicate the structure of a school district’s special-education program and may not be remediable through ordinary administrative review, it does not necessarily follow that administrative review is futile or
(continued...)

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The court thus certified a class of its own creation:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
In other words, the certified class combined all disabled students eligible for special education from MPS who were not identified as potentially eligible for services, not timely referred for evaluation after identification, not timely evaluated after referral, not evaluated in a properly constituted IEP meeting, or whose parents did not (for whatever reason) attend an otherwise proper IEP meeting. The court made it clear that students who suffered a pre-determination violation but have since received a proper IEP meeting—for example, students who received a late IEP meeting—are also included in the class.
One immediately obvious defect in this class is its indefiniteness. A significant segment of the class (of unknown and unknowable size) comprises disabled students who may have been eligible for special education

3 (...continued) inadequate for all violations that are alleged to be “systemic.” However, because our decision rests on other flaws in the classcertification decision and does not reach the substance of the court’s liability decision, we neither accept nor reject the Ninth Circuit’s reasoning in Doe.

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but were not identified and remain unidentified. There is no question that MPS has a legal obligation under the IDEA to seek out disabled students and refer for evaluation those it reasonably believes are disabled and in need of special education. See 20 U.S.C. § 1412(a)(3)(A); WIS. STAT. § 115.77(1m)(a). The failure to properly identify a disabled student can itself be a violation of the IDEA if the failure results in the denial of a free appropriate public education to a qualifying child with a disability. Cf. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2495 (2009) (“A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.”). The problem with a class of potentially eligible but unidentified students is not that their rights might not been violated but that the relevant criteria for class membership are unknown. By what standard is class membership to be determined? How is the court to decide whether there was reason to believe in 2000-2005 that a presently unidentified child was potentially eligible for special-education services from MPS? It’s not hard to see how this class lacks the definiteness required for class certification; there is no way to know or readily ascertain who is a member of the class.4 See Oshana, 472 F.3d at 513; Simer, 661 F.2d at 669.

4 Typical suits for child-find-violations focus on a school district’s failure to timely identify a qualifying disability in an identified student, e.g., Richard S. v. Wissahickon Sch. Dist., 334
(continued...)

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Of course, unidentified but potentially eligible disabled students are defined not only by having not been identified but also by having a disability. If we could easily identify all Milwaukee students with disabilities during the relevant time period, perhaps we could crosscheck that list against a list of known disabled students to determine which students MPS failed to identify and refer for an IEP evaluation. But identifying disabled students who might be eligible for special-education services is a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria. Every step of the child-find inquiry and IEP process under the IDEA is child specific and requires the application of trained and particularized professional educational judgment. In short, a class of unidentified but potentially IDEA-eligible disabled students is inherently too indefinite to be certified.
This conclusion draws support from Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980). The plaintiffs in Adashunas alleged widespread violations of the childfind requirements in the IDEA’s predecessor statute and proposed a class consisting of “all children within

4 (...continued) F. App’x 508, 510 (3d Cir. 2009), or a school district’s failure to identify a disability despite a parental referral, e.g., Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2488 (2009). In both situations the identity of the student is known. The class here includes all students not properly identified as potentially eligible for special education, the vast majority of whom are not individually known.

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the State of Indiana entitled to a public education who have learning disabilities who are not properly identified and/or who are not receiving such special instruction as to guarantee them of minimally adequate education.” Id. at 601. We noted the practical difficulty in defining the class in this way: “How does one identify class members consisting of persons not identified?” Id. at 603. In theory such a class might make sense if the process of identifying unknown class members was relatively simple. But because the task of identifying learning-disabled children is a “long, arduous process,” and the proposed class of plaintiffs was “so highly diverse and so difficult to identify,” we held that the class was “not adequately defined or nearly ascertainable” and the class action could not be maintained. Id. at 603-04 (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)). The same is true here.
The plaintiffs insist that because the class is defined by reference to MPS’s illegal actions—that is, by MPS’s failure to comply with the IDEA—the defect of indefiniteness may be forgiven. For this principle they rely on Alliance to End Repression v. Rochford, 565 F.2d 975, 97778 (7th Cir. 1977), in which we upheld the certification of two plaintiff classes consisting of organizations and persons in Chicago who had been unconstitutionally monitored and harassed by various municipal and federal defendants in retaliation for exercising their First Amendment rights. The defendants in Rochford argued that this class—potentially large in scope and with no ready means of identifying its members—was

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too indefinite to be certified. We concluded that “a class that satisfies all of the other requirements of Rule 23 will not be rejected as indefinite when its contours are defined by the defendants’ own conduct.” Id. at 978.
Rochford’s tolerance of a wildly indefinite class definition under Rule 23 is no longer the norm. We have noted that “[Rochford] is a relic of a time when the federal judiciary thought that structural injunctions taking control of executive functions were sensible. That time is past.” Rahman v. Chertoff, 530 F.3d 622, 626 (7th Cir. 2008). Moreover, the class certified in Rochford is different from the one here in at least two critical respects. First, for reasons we will explain in a moment, class certification in this case does not comply with other requirements of Rule 23; more specifically, the class does not satisfy Rule 23(a)(2)’s commonality requirement, and it does not satisfy Rule 23(b)(2). Second, the defendants’ actions in Rochford provided at least some means of identifying class members: Each class member was the victim of some discrete act of harassment that once revealed—for example, through discovery—would in turn reveal the identity of the victimized class member. Not so with the present class. MPS’s alleged failure to identify disabled students in no way pins down the identities of the class members; the relevant conduct here is not a discrete action as in Rochford but rather a failure to act. The liability and remedial orders are powerful evidence of this difference; the elaborate scheme for identifying class members via a hybrid IEP process

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dramatically illustrates the fatal indefiniteness of this class. Rochford is no help to the plaintiffs here.5
Beyond its inherent indefiniteness, the class certified here fails to satisfy Rule 23(a)(2)’s commonality prerequisite, which requires that the class claims involve “questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). It’s true that ” ‘[e]ven a single [common] question’ will do.” Wal-Mart, 131 S. Ct. at 2556 (quoting Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 176, n.110 (2003)) (alteration in original). But the Supreme Court explained in Wal-Mart that superficial common questions—like whether each class member is an MPS student or whether each class member “suffered a violation of the same provision of law”—are not enough. Id. at 2551. Rather, “[c]ommonality requires the plaintiffs to demonstrate that the class members ‘have suffered the same injury.’ ” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). The class “claims must depend upon a common contention,” and “[t]hat common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

5 Our conclusion that a class of child-find claims does not fit within Rochford’s carve-out is reinforced by the fact that we decided Adashunas less than three years after Rochford but did not even cite it.

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The plaintiffs identify the following common issue: “[A]ll potential class members have suffered as a result of MPS’ failure to ensure their Child Find rights under IDEA and Wisconsin law.” This completely misunderstands Rule 23(a)(2). Whether MPS failed in its obligations under the IDEA and thereby deprived an eligible disabled child of a free appropriate public education is the bottom-line liability question in any individual plaintiff’s IDEA claim. To bring individual IDEA claims together to litigate as a class, the plaintiffs must show that they share some question of law or fact that can be answered all at once and that the single answer to that question will resolve a central issue in all class members’ claims. That all the class members have “suffered” as a result of disparate individual IDEA child-find violations is not enough; it does not establish that the individual claims have any question of law or fact in common. The plaintiffs have identified no common factual or legal question that satisfies the Rule 23(a)(2) standard, and it is their burden to do so. See Oshana, 472 F.3d at 513.
To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child’s parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining MPS’s liability for each? On the

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plaintiffs’ theory, that question is something like this: Did MPS fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children’s claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child’s particular situation.
This was the basic commonality problem in Wal-Mart, which involved a nationwide class-action suit on behalf of female employees of the discount retailer for alleged sex discrimination in violation of Title VII. The Supreme Court summarized the lack of commonality in this way:
In this case, proof of commonality necessarily overlaps with respondents’ merits contention that WalMart engages in a pattern or practice of discrimination. That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is the reason for a particular employment decision . . . . Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Wal-Mart, 131 S. Ct. at 2552 (internal quotation marks and citations omitted). Here, too, resolving any individual class member’s claim for relief under the IDEA requires an inherently particularized inquiry into the circumstances of the child’s case.

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That the court narrowed its focus to child-find violations (what the court called “pre-determination claims”) is not enough. Child-find inquiries, like other aspects of the IDEA, are necessarily child specific. There is no such thing as a “systemic” failure to find and refer individual disabled children for IEP evaluation—except perhaps if there was “significant proof” that MPS operated under child-find policies that violated the IDEA. See id. at 2553. As the Supreme Court noted in Wal-Mart, an illegal policy might provide the “glue” necessary to litigate otherwise highly individualized claims as a class. Id. at 2552-54. But again, as in Wal-Mart, proof of an illegal policy “is entirely absent here.” Id. at 2553; see also J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (affirming the denial of class certification because the “plaintiffs merely attempt to broadly conflate a variety of claims [under the IDEA and other statutes] to establish commonality via an allegation of ‘systematic failures’ ”). Lacking any common questions, the class fails to satisfy Rule 23(a)(2) and should not have been certified.
Finally, it should be clear from our discussion thus far that the district court also erred when it certified an injunction class under Rule 23(b)(2). Rule 23(b)(2) permits the court to certify a case for class-action treatment if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). The final clause is important: The

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injunctive or declaratory relief sought must be “final” to “the class as a whole.” See Kartman, 634 F.3d at 892-94. In other words, “claims for individualized relief . . . do not satisfy [Rule 23(b)(2)].” Wal-Mart, 131 S. Ct. at 2557. To the contrary, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id.
That the plaintiffs have superficially structured their case around a claim for class-wide injunctive and declaratory relief does not satisfy Rule 23(b)(2) if as a substantive matter the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made; this kind of relief would be class-wide in name only, and it would certainly not be final. See id. (“The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted . . . .’ ” (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009))); see also id. at 2558 (“[T]he relief sought [under Rule 23(b)(2)] must perforce affect the entire class at once . . . .”); Kartman, 634 F.3d at 892-94; Andrews, 545 F.3d at 577. If individualized relief is sought—even individual injunctive relief—the named plaintiffs must look elsewhere

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in Rule 23(b) to obtain certification.6 See Wal-Mart, 131 S. Ct. at 2558-59; Kartman, 634 F.3d at 895.
The relief sought here does not come close to satisfying Rule 23(b)(2)’s standard. That much is clear from the intricate remedial scheme ordered by the district court, which requires thousands of individual determinations of class membership, liability, and appropriate remedies. While the compensatory-education remedies will often or always be injunctive in nature, there can be no single injunction that provides final relief to the class as a whole. It is no answer to say that the June 9 remedial order affects the entire class; that order merely establishes a system for eventually providing individualized relief. It does not, on its own, provide “final” relief to any class member. See Andrews, 545 F.3d at 577. Moreover, the remedial order requires class notice as a necessary element of its operation: Only those class members who respond are to be evaluated within the hybrid IEP system; nonresponders are unaffected. That the putative class members must opt in after notice and then be evaluated for membership in the class—before making a claim for entitlement to compensatory education— belies the notion that the court can provide final injunctive relief to the class as a whole. This is not the stuff of a proper Rule 23(b)(2) class.

6 Our discussion of commonality makes it clear that the present class does not satisfy Rule 23(b)(3). Without even a single common question of law or fact, common questions cannot predominate. See FED. R. CIV. P. 23(b)(3).

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So the class-certification order must be vacated. It follows that without a class to whom MPS can be liable and provide a remedy, the liability and remedial orders must be vacated as well. What remains are the claims of the individual plaintiffs; the district court did not find a denial of a free appropriate public education in any individual case.7 Furthermore, the court’s reasons for excusing administrative exhaustion appear to have been tied to the class allegations, and it’s not clear whether the court would have excused exhaustion for any of the individual claims. Finally, it’s possible—perhaps likely—that some of the named plaintiffs’ individual factual circumstances have changed such that their claims are now moot. We leave to the district court on remand the task of determining whether anything remains of this case and what, if anything, should happen next.

C. DPI Settlement
Finally, we turn to DPI’s settlement with the plaintiff class. A district court may approve a class settlement if it is “fair, reasonable, and adequate.” FED. R. CIV. P. 23(e)(2). We review an order approving a class settlement

7 As stated in the remedial order: “[A]t no point did the court receive specific evidence from educational professionals who engaged in an individualized assessment of the named plaintiffs, determined the nature of any denial of [a free appropriate public education], and determined precisely what sorts of services were necessary . . . .”

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for an abuse of discretion. Mirfasihi v. Fleet Mortg. Corp., 450 F.3d 745, 748 (7th Cir. 2006). As with any order reviewed under this standard, if the district court’s analysis turned on an error of law, the court necessarily abused its discretion. Wis. Right to Life State PAC v. Barland, 644 F.3d 139, 150 (7th Cir. 2011).
After the district court found MPS and DPI liable for IDEA violations, DPI commenced settlement negotiations with class counsel and eventually submitted a settlement agreement for court approval. DPI agreed to appoint an independent monitor to oversee MPS’s IDEA compliance and develop a compliance plan for MPS— with input from class counsel and the independent monitor—establishing specific requirements that DPI would in turn impose on MPS. The plan’s implementation would be tied to several benchmarks DPI promised to enforce against MPS. Among other things, DPI agreed that MPS would evaluate 95% of referred students within the statutory time frame; that MPS would make reasonable attempts to include a parent in 95% of IEP meetings; and that MPS would refer 95% of students with a specified number of suspensions and 95% of students retained in grade to an early intervention system for the possibility of disability evaluations. The settlement also gave the independent monitor significant oversight authority over MPS, including the ability to order MPS to make administrative changes to comply with the settlement agreement. In exchange for these and other promises, the settlement released DPI from all claims in this suit and also purported to

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preclude all class members from bringing any representative suit against DPI for IDEA violations that occurred prior to the settlement date.
It should be apparent from the foregoing description that this settlement agreement is highly unusual. DPI’s primary concessions require performance from MPS, which is not a party to the agreement and did not consent. Sensing the problem, the district court allowed MPS to file an objection to the settlement. MPS argued that the settlement agreement impermissibly affected its legal rights and conflicted with state statutes governing DPI’s oversight authority. The district court framed the question this way: Does “DPI ha[ve] the authority to order MPS to take the actions called for in the proposed settlement agreement[?]” If DPI has the legal authority to command MPS to take the specified actions, then the state agency’s agreement to impose mandates on MPS would pose no problem. But if DPI does not have that legal authority—stated differently, if MPS has a legal right to resist such a demand from DPI—then a settlement agreement binding DPI to impose mandates on MPS, a nonparty, infringes MPS’s legal rights.
“The general rule . . . is that a non-settling party does not have standing to object to a settlement between other parties.” Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 246 (7th Cir. 1992). There is an exception when the nonsettling party “can show plain legal prejudice resulting from the settlement.” See id. at 246-47 (citing Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1233 (7th Cir. 1983), and other cases). That a settling defendant creates

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a tactical disadvantage for another defendant is not sufficient to support standing to object; the prejudice to the nonsettling defendant must be legal, such as (for example) interference with contractual or contribution rights or the stripping away of a cross-claim. Id. at 247. Here, as the district court correctly acknowledged, MPS’s substantive objection to the settlement and its basis for standing are one and the same: If the settlement agreement prejudiced MPS’s legal rights, MPS may object, and its objection has merit.
The district court ultimately held that MPS did not have standing to object because DPI has authority to implement the agreement. As the state agency with authority to dispense federal special-education funding, DPI is responsible for ensuring local compliance with the IDEA’s requirements. See 20 U.S.C. § 1412(a)(11). Section 115.90 of the Wisconsin Statutes outlines the three enforcement mechanisms available to DPI should a local school district fail to comply:
(1) If, as the result of a monitoring procedure or a complaint investigation, the state superintendent finds that a local educational agency has violated this subchapter, the state superintendent may require the local educational agency to submit a corrective plan addressing the violation.
(2) If the state superintendent, after reasonable notice and an opportunity for a hearing, finds that a local educational agency has failed to comply with any requirement in this subchapter, the state superintendent shall reduce or eliminate special education aid to

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the local educational agency until he or she is satisfied that the local educational agency is complying with that requirement.
(3) If the state superintendent finds that a corrective plan under sub. (1) has not been implemented, or that withholding aid under sub. (2) has been inadequate to ensure compliance with this subchapter, the state superintendent shall request the attorney general to proceed against the local educational agency for injunctive or other appropriate relief.
(Emphasis added.)
The district court focused on DPI’s statutory authority under subsection (2) to withhold MPS’s funding for failure to comply with the IDEA’s requirements. Because MPS retained the right to appeal any suspension of funds to the Department of Education, see 34 C.F.R. § 76.401, the district court concluded that the settlement did not violate MPS’s rights but rather “could be viewed as essentially another corrective action, similar to any one of the numerous other corrective action plans previously established by DPI.”
This analysis overlooks key parts of Wisconsin’s enforcement scheme. It’s true that DPI has the authority to reduce MPS’s federal funding or eliminate it altogether. But the settlement agreement does not implicate DPI’s authority over the disbursement of federal funds; rather, DPI bound itself to impose a corrective plan on MPS. DPI does not, however, have the unilateral authority to impose a corrective plan on a noncompliant local school district. To the contrary,

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DPI may only require that a local school district develop and submit a plan to address areas of IDEA noncompliance; the details of the plan are left to the local school district. See WIS. STAT. § 115.90(1). DPI can force a local school district to take specific remedial action only if the district fails to implement its own corrective plan. Alternatively, DPI can withhold or reduce federal funds, and if this more dramatic action does not induce compliance, the state superintendent of public instruction can ask the state attorney general to sue to bring the school district into compliance. See id. § 115.90(3).
The local school district’s autonomous authority to develop its own corrective plan is no small distinction in the context of this case. Because DPI cannot unilaterally force MPS to take specific remedial action, a settlement that attempts to do exactly that prejudices MPS’s legal rights by requiring more of MPS than Wisconsin law permits DPI to impose. The district court’s conclusion to the contrary was an error of law, and because the decision to approve DPI’s settlement turned in large part on this legal error, that decision was an abuse of discretion.8

8 The parties note a change in Wisconsin law during the pendency of these appeals. Under 2009 Wisconsin Act 215 (published May 13, 2010), the state superintendent of public instruction is empowered to order certain low-performing school districts to take certain remedial actions. However, Act 215 does not amend section 115.90, or any other provision in the Wisconsin Statutes, Chapter 115, Subchapter V, the
(continued...)

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Apart from this misunderstanding about DPI’s statutory oversight authority, the district court’s approval of DPI’s settlement must be vacated for a much simpler reason: There can be no class settlement if the class should not have been certified in the first place. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 858 (1999) (“[T]he determination whether ‘proposed classes are sufficiently cohesive to warrant adjudication’ must focus on ‘questions that preexist any settlement.’ ” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622-23 (1997))). Although class certification and settlement approval were sought separately here, the caselaw on so-called “settlement only” classes is instructive.9 The Supreme Court has made clear that a settlement-only class must satisfy the bulk of Rule 23’s requirements in order to be certified. See id. at 864; Amchem, 521 U.S. at 620. And when a district court abuses its discretion in certifying a settlement-only class, we unwind not only the class certification but also the class settlement. See, e.g., Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 881-82 (7th Cir. 2000) (vacating order approving class settlement because class did not satisfy Rule 23(b)). Basic principles of due process prevent individual named plaintiffs from binding—through litigation or court-approved settle-

8 (...continued) statutory scheme relevant to special education. Accordingly, Act 215 does not appear to affect the state regulatory apparatus pertaining to the IDEA.
9 Settlement-only classes are those for which class certification and settlement approval are sought simultaneously.

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ment—absent class members the plaintiffs do not legally represent.10
As we have explained, the class here is fatally indefinite, lacks the commonality required by Rule 23(a)(2), and was improperly certified under Rule 23(b)(2). Because the named plaintiffs do not legally represent the absent class members, they cannot settle the absent class members’ claims. The district court’s order approving DPI’s settlement must be vacated.

10 As summarized by the Court in Ortiz v. Fibreboard Corp.:
[Class actions] implicate the due process “principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process,” Hansberry v. Lee, [311 U.S. 32, 40 (1940)], it being “our ‘deeprooted historic tradition that everyone should have his own day in court,’ ” Martin v. Wilkes, [490 U.S. 755, 762 (1989)] (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981)); see Richards v. Jefferson County, [517 U.S. 793, 798-99 (1996)]. Although “ ‘[w]e have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party,’ ” . . . Martin, [490 U.S. at 762 n.2], the burden of justification rests on the exception.
527 U.S. 815, 846 (1999).

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III. Conclusion
For the foregoing reasons, we DISMISS the plaintiffs’ appeal (number 09-3274) for lack of appellate jurisdiction. We DENY the motion to dismiss MPS’s appeal (number 092741). We VACATE the district court’s class-certification order, its liability order following Phase II of the trial, its order approving DPI’s settlement, and its remedial order following Phase III of the trial. We REMAND the case for further proceedings consistent with this opinion.

ROVNER, Circuit Judge, concurring in part and dissenting in part. I share many of my colleagues’ concerns about the way in which the class was defined in this case, and I further agree that because DPI lacked the authority to unilaterally impose a corrective plan on a local school district, it was error to approve DPI’s settlement with the plaintiffs. However, I am not convinced that no class was feasible in this case, nor do I believe that the inability to identify class members until the remedial phase of the litigation precludes certification of the class. For these reasons, I write separately.
On its face, the class certified in this case bears the hallmarks of the sort of open-ended classes of which we
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disapproved in Adashunas v. Negley, 626 F.2d 600, 603-04 (7th Cir. 1980), and Rahman v. Chertoff, 530 F.3d 622, 625-26 (7th Cir. 2008). Although the class that the district court approved (all school age children with disabilities who reside within the MPS district, who are or may be eligible for special education services, and who are, have been, or will be denied or delayed entry into or participation in the IEP process) is considerably more narrow than the class originally proposed by the plaintiffs (all school age children with disabilities who reside within the MPS district and who are or may be eligible for special education services), it was never formally delimited by the particular types of violations that the plaintiffs were alleging. The consequence of such an open-ended description of the class, as we noted in Rahman, is that “every time plaintiffs file a brief or motion, membership in the class[ ] may change.” Id. at 625. Thus, at any given point during the litigation, it may not be possible to know from the class definition itself what the true parameters of the class are and what types of individuals might be in the class. Id. at 625-26. In this case, the class has been defined to include all students eligible for special services who have been denied or delayed entry into the IEP system. That definition literally may include students who were delayed or denied entry due to circumstances having little or nothing to do with the defendants’ actions, by essentially random circumstances that are unique to one student or limited to a small number of students, or by circumstances that the class representatives have not identified as a basis for relief to the class.

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I am mindful that the parties and the court, from the time that the class was certified forward, appear to have developed an understanding that the class would include the four sets of individuals that the court later expressly identified in its liability decision: (1) students with suspected disabilities who were never referred for an evaluation; (2) students who were referred for evaluation, but whose evaluations were not completed within the requisite 90-day limit; (3) students who were suspended in such a way as to frustrate their evaluation; and (4) students whose IEP meetings took place in the absence of their parents. See ante at 9; R. 195 at 3-6; R. 389 at 61. Moreover, the court’s liability decision was limited to the time period commencing in September 2000 and ending in June 2005. R. 389 at 3. In these respects, the litigation ultimately focused on a class of students that was much more limited than the certified class was on its face, and one that in the end was much more definite than the sweeping class we criticized in Adashunas, for example.
But even as confined to these four groups of students and this roughly five-year period, the class includes unknown numbers of variations. To cite one example: When, in her 2004 report, Dr. Rogers-Adkinson addressed MPS’s failure to meet statutory deadlines during the assessment process, she identified at least four different patterns of delays: (1) delays occasioned by the initial mis-categorization of a student’s suspected disability; (2) delays caused by extensions of time routinely requested for disability assessments solicited during the spring semester; (3) delays triggered by the need for

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additional medical records; and (4) delays for reasons not revealed in the files she reviewed. Plaintiffs’ Ex. 8 at 6, 8-9. Each of these four scenarios might be a manifestation of MPS’s failure to timely identify students with disabilities and to convene IEP meetings to address those disabilities, but it is difficult to discern a common, wrongful policy or practice that might account for them all. Instead, this looks more like an effort to sweep many individual plaintiffs and sets of facts into one class on the premise that all reflect illegal conduct by the defendant in practice and culture if not in policy. As the majority points out, ante at 32, that is precisely the sort of class that the Supreme Court recently rejected in WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Like my colleagues, I am not convinced that the certified class in this case is united by common legal or factual issues.
Nonetheless, I do not rule out the possibility that a class properly could be certified in this case or one like it, and it is to this limited extent that I dissent. My colleagues have concerns both with the notion that a class action may be premised on “systemic” violations of a school district’s child-find obligations and with a class composed of individuals whose identity cannot be known until the remedial phase of the litigation. However, I believe that notwithstanding the inherently child specific nature of child-find inquiries, a class action based on a truly systemic child-find failure may be viable. And the fact that it may not be possible to identify individual class members until the remedial phase of the litigation, when prospective members of the class are invited to come forward and establish that

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they were among those injured by this systemic failure, should not preclude a class action, which may be the only realistic avenue of relief for those injured by systemic violations of their rights.
Systemic violations of the IDEA are cognizable. See Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 681 (9th Cir. 1997) (coll. cases). The problem here is that the plaintiffs’ claims appear to be based on multiple, disparate failures to comply with the school district’s statutory child-find obligations rather than a truly systemic policy or practice which affects them all. But my colleagues go so far as to state that “[t]here is no such thing as a ‘systemic’ failure to find and refer individual disabled children for IEP evaluation—except perhaps if there was ‘significant proof’ that MPS operated under child-find policies that violated the IDEA.” Ante at 33 (emphasis in original) (citing Wal-Mart, 130 S. Ct. at 2553). Certainly I agree that an illegal policy would support a claim for a systemic violation of the IDEA’s child-find mandate. But I also think that widespread practices might also support such a claim. Cf. King ex rel. King v. E. St. Louis School Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (citing Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005)) (noting that municipal liability under 42 U.S.C. § 1983 may be based on customs and practices as well as formal, written policies). Suppose, for example, that MPS ignored and did not refer for evaluation students with a particular type of potential disability—e.g., dyslexia—and as a result, large numbers of students with that disability went unidentified and were deprived of the educational services to which they

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were entitled under the IDEA. To my mind, this would be a genuinely systemic violation of the district’s childfind obligations that would be amenable to recognition and remediation in a class action: Notwithstanding the fact that each student is unique and is entitled to his own, individualized IEP, all members of the class would suffer a common injury resulting from the school district’s failure to have appropriate systems in place to identify students with that particular disability. Insisting instead that each student exhaust his administrative remedies and/or sue independently would surely mean that many such students would reamin unidentified and denied their right to free appropriate public education (if only because they would be unaware of their rights) and likely would mean that the systemic violation underlying their claims to relief would persist, as any individual proceedings would result in individual rather than structural relief.
A key reason why my colleagues are reluctant to acknowledge the possibility of a systemic violation of a school district’s child-find obligations is the inability to identify individual class members except by asking the parents of putative class members to come forward at the remedial phase of the litigation and to establish, in individual hearings, that their children were in fact the victims of the district’s child-find failures. But this method of identifying class members is hardly unprecedented. Our decision in McDonald v. United Air Lines, Inc., 745 F.2d 1081 (7th Cir. 1984), reflects a similar approach. The class in McDonald comprised women who had lost their jobs as a result of United Air Line’s rule (dating back to the 1930s) prohibiting marriage for its female

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cabin attendants. Once this court declared the no-marriage rule to be a violation of Title VII’s ban on sex discrimination in Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971), any woman who had lost her position as a result of that rule between the date Title VII took effect in 1965 and United’s abolition of the rule in 1968 became entitled to relief. See McDonald v. United Air Lines, Inc., 587 F.2d 357 (7th Cir. 1978). But many if not most of the class members had simply resigned their positions in contemplation of the no-marriage rule rather than formally protesting the rule or waiting for the company to discharge them, so there was no record enabling easy identification of those women who left because of the no-marriage rule as opposed to another reason. Consequently, the onus was on former flight attendants to come forward at the final stage of the litigation and claim entitlement to relief, at which point individual, adversarial hearings were convened before special masters in order to establish whether each claimant in fact left her position because of the illegal rule. See McDonald, 745 F.2d at 1087-88.
As in McDonald, there will be times when the nature of the challenged conduct makes it difficult if not impossible to identity who is in the class and is entitled to relief absent some sort of opt-in procedure by putative class members coupled with an adjudicatory procedure to confirm that they in fact qualify as class members. In McDonald this was true because so many class members silently resigned their jobs in deference to their employer’s illegal rule; in a child-find case like this one it would be true because the school district neglected

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its obligation under the IDEA to identify students with potential disabilities. This is not a function of a poor or open-ended class definition as in Rahman, but rather due to the fact that the defendant’s conduct did not produce a tidy record of the individuals harmed by that conduct. Identifying class members in such circumstances necessarily will require a relatively cumbersome, after-the-fact inquiry of the sort employed in McDonald and as the district court envisioned here. The only alternative is to foreclose class-wide relief in such cases and leave each individual harmed by the defendant’s conduct to pursue relief on his or her own, if he or she is even aware that a wrong has been committed. Realistically, that will mean no relief at all for most individuals.
For all of these reasons, I concur in the court’s conclusion that the class certified in this case was improper, but I do not join its conclusion that no class would be viable in this case or other litigation alleging violation of a school district’s child-find obligations absent an ability to identify an express policy that violates the IDEA.

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United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
March 5, 2012
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge

Nos. 09-2741 & 09-3274
JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al.,
Plaintiffs-Appellees/ Cross-Appellants,
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants-Appellants/ Cross-Appellees.

Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 01 C 928
Aaron E. Goodstein, Magistrate, Judge.

O R D E R
On consideration of the petition for rehearing and for rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S, et al.,

Plaintiffs,

-vs-

Case No. 01-C-928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, et al., and WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, et al.,

Defendants.

DECISION AND ORDER

This is a decade-old lawsuit under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., a federal statute which requires states to provide a “free appropriate public education” to disabled children in exchange for federal funding. In the initial district court proceedings, Magistrate Judge Aaron Goodstein granted the plaintiffs’ motion for class certification and appointed Disability Rights Wisconsin (“DRW”) as class counsel. ECF No. 195. The district court eventually held a bench trial and found the defendants, Milwaukee Public Schools (“MPS”) and the Wisconsin Department of Public Instruction (“DPI”), liable for systemic violations of the IDEA. ECF No. 389; Jamie S. v. Milwaukee Pub. Sch., 519 F. Supp. 2d 870 (E.D. Wis. 2007). DPI settled with the class, agreeing to order MPS to meet certain compliance benchmarks. The district court approved the settlement over MPS’s objection. ECF No. 471; 2008 WL 2340362 (E.D. Wis. June 6,

2008). The court then ordered MPS to comply with a complex remedial scheme. ECF No. 598; 2009 WL 1615520 (E.D. Wis. June 9, 2009).
MPS appealed, and the Seventh Circuit vacated all of these orders. “What remains are the claims of the individual plaintiffs; the district court did not find a denial of a free appropriate public education [FAPE] in any individual case. Furthermore, the court’s reasons for excusing administrative exhaustion appear to have been tied to the class allegations, and it’s not clear whether the court would have excused exhaustion for any of the individual claims. Finally, it’s possible – perhaps likely – that some of the named plaintiffs’ individual circumstances have changed such that their claims are now moot. We leave it to the district court on remand the task of determining whether anything remains of this case and what, if anything, should happen next.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499-500 (7th Cir. 2012).
On remand, MPS and DPI jointly move for judgment on the pleadings, arguing that the plaintiffs did not exhaust their administrative remedies. Also before the Court are separate motions filed by MPS and DPI for restitution of attorneys fees. I. Judgment on the Pleadings
As an initial matter, the Court must discuss the plaintiffs’ argument that the Seventh Circuit’s ruling does not preclude further litigation over the certification of a class. This argument flies in the face of the mandate rule, which requires a lower court to adhere to the commands of a higher court on remand. United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995). Here, the Seventh Circuit specifically stated that individual claims are all that
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“remains” of this case. Moreover, the law of the case doctrine, a corollary to the mandate rule, prohibits a lower court from reconsidering on remand an issue expressly or impliedly decided by a higher court absent certain circumstances. Id. at 779. “Once an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case.” Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1031 (7th Cir. 1997). The bulk of the Seventh Circuit’s opinion was devoted to its discussion of why the class certified by the district court failed to meet the various requirements of Fed. R. Civ. P. 23. That the issue was conclusively decided is highlighted by Judge Rovner’s separate opinion, where she wrote: “I do not rule out the possibility that a class properly could be certified in this case or one like it, and it is to this limited extent that I dissent.” Jamie S. at 504 (Rovner, J., concurring in part and dissenting in part) (emphasis added). Thus, according to the controlling majority opinion, the plaintiffs can no longer pursue class certification.
As explained by the Seventh Circuit, the duty to provide disabled students with a “free appropriate public education” is a “complex and inherently child-specific undertaking.” Jamie S. at 486. The IDEA imposes “child find” obligations, wherein all “children with disabilities residing in the State . . . and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed education and related services.” 20 U.S.C. § 1412(a)(3)(A). Each child’s individual needs must be evaluated for the purpose of developing an “individualized educational program,”
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or “IEP,” outlining the “particular special-education services that are necessary to allow the child to learn in the ‘least restrictive environment.’” Jamie S. at 486 (citing §§ 1412(a)(4)(5), 1414).
With respect to exhaustion, the IDEA requires states to provide a formal process for parents to seek administrative and judicial review of “any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education to such child” in a funded special-education program. § 1415(b)(6)(A). Any party aggrieved by the findings and decision made after an impartial due process hearing may bring a civil action in federal court. § 1415(i)(2)(A).1 “It is well-settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court . . .” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004). Exhaustion advances several objectives, including: (1) permitting the exercise of agency discretion and expertise on issues requiring these characteristics; (2) allowing the full development of technical issues and a factual record prior to court review; (3) preventing deliberate disregard and circumvention of agency procedures established by Congress; and (4) avoiding unnecessary judicial decisions by giving the agency the first opportunity to correct any error. McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007). “States are given the power to place themselves in compliance with
1 Plaintiffs argue that their use of DPI’s Complaint Resolution Procedure is sufficient for purposes of the IDEA’s exhaustion requirement. Formerly known as EDGAR complaints, the CRP process is an “informal” process and an “optional step toward binding relief.” Vultaggio ex rel. Vultaggio v. Bd. of Educ., 343 F.3d 598, 601 (2d Cir. 2003). It is not an “adequate substitute to exhausting administrative remedies under the IDEA.” Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1045 (10th Cir. 1993).
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the law, and the incentive to develop a regular system for fairly resolving conflicts under the [IDEA]. Federal courts – generalists with no experience in the educational needs of handicapped students – are given the benefit of expert factfinding by a state agency devoted to this very purpose.” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992).
Plaintiffs may bypass the administrative process in a variety of contexts, including when exhaustion would be futile or inadequate, or when the administrative agency cannot grant relief. Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir. 1996). Plaintiffs argue, as they did in the prior district court proceedings, that exhaustion should be excused because their claims are “systemic” in nature. “[S]everal courts have recognized that IDEA claims raising ‘systemic’ or ‘structural’ allegations may not need to be administratively exhausted.” Doe v. Ariz. Dep’t of Educ., 111 F.3d 678, 681 (9th Cir. 1997) (collecting cases). The exception for “systemic” violations “merely flows implicitly from, or is in fact subsumed by, the futility and no-administrative-relief exceptions . . .” Beth V. at 89. For example, in Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992), the plaintiff challenged a state procedure which permitted boards of education to appoint hearing officers, resulting in the selection of adjudicators that were biased in favor of the school district, which in turn violated his right to an impartial due process hearing. The court characterized this claim as “systemic” and excused exhaustion. “Heldman claims that the NYSED regulation specifying the hearing officer selection procedure violates the mandate of the IDEA. Because the regulation implements a New York statute, neither the Commissioner nor the assigned hearing officer
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has the authority to alter the procedure; therefore, it would be an exercise in futility to require Heldman to exhaust the state administrative remedies.” Id. at 159. As the Second Circuit later explained, the “common element” among Heldman and other cases applying the “systemic violation” exception is that the “plaintiffs’ problems could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process.” J.S. ex rel. N.S. at 114 (discussing Heldman; Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987) ; J.G. v. Bd. of Educ. of the Rochester Sch. Dist., 830 F.2d 444 (2d Cir. 1987); Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982)). In other words, “it would be futile to complete the administrative process because the hearing officer had no power to correct the violation.” J.S. ex rel. N.S. at 113.
The plaintiffs claim that the defendants failed to identify them as eligible for special education at an earlier time. The failure to properly identify a disabled student can itself be a violation of the IDEA, but only if the “failure results in the denial of a free appropriate public education to a qualifying child with a disability.” Jamie S. at 495. Accordingly, this is an issue that must be litigated through the administrative process. “A dispute over such eligibility policies concerns, in essence, questions about the identification and evaluation of individual disabled children, precisely the kind of dispute to which the IDEA’s administrative scheme is addressed.” Hoeft at 1306. Wisconsin’s procedures are capable of resolving child find disputes on a case-by-case, individual basis. Wis. Stat. § 115.80(1)(a)1
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(a parent or attorney representing the child may “file a written request for a hearing within one year after the refusal or proposal of the local educational authority to initiate or change his or her child’s evaluation, individualized education program, educational placement, or the provision of a free appropriate public education”); § 115.80(5)(a) (hearing officers have the authority to “issue an order consistent with this subchapter and 20 U.S.C. § 1415(k) and to order whatever remedy is reasonably necessary to bring the parties into compliance with this subchapter”); Hoffman v. East Troy Cmty. Sch. Dist., 38 F. Supp. 2d 750 (E.D. Wis. 1999) (describing Wisconsin’s child-find procedures).
Moreover, when the Seventh Circuit ruled that the class certification order must be vacated for lack of commonality, it held that “[c]hild-find inquiries, like other aspects of the IDEA, are necessarily child specific. There is no such thing as a ‘systemic’ failure to find and refer individual disabled children for IEP evaluation – except perhaps if there was ‘significant proof’ that MPS operated under child-find policies that violated the IDEA. . . . [P]roof of an illegal policy ‘is entirely absent here.’” Jamie S. at 498 (citing Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S. Ct. 2541, 2550 (2011)) (emphasis in original). Accordingly, it is the law of the case that the defendants did not systematically fail to find and refer disabled children for evaluation pursuant to an illegal policy of “general applicability.” Mrs. W at 756; Heldman at 158 n.11. Therefore, the defendants cannot find safe harbor in the exception for systemic violations. Each plaintiff must offer an individual excuse for failing to exhaust the administrative process. See, e.g., Urban by Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720, 725 (10th Cir. 1996) (exhaustion required for
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claim regarding creation of IEP because the district did not adopt a “policy of general
applicability contrary to law which ‘thereby renders agency expertise and the factual
development of an administrative record less important’”) (quoting Ass’n for Cmty. Living
in Colo. v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993)).
The Seventh Circuit remanded this case to address the individual claims of the named
plaintiffs in this case, not to engage in further litigation over class certification. None of the
plaintiffs exhausted their administrative remedies, and the exception for systemic violations
is essentially a “class action exception.” J.S. ex rel. N.S. at 113. While there are some cases,
such as Heldman, that apply this exception to individual claims, those cases are
distinguishable because the administrative process can resolve individual child find disputes.
Therefore, the defendants are entitled to judgment on the pleadings.2
II. Attorneys’ Fees – MPS
The district court ordered MPS to pay DRW $459,123.96 in interim attorneys’ fees
based upon the plaintiffs’ status as “prevailing parties” under the IDEA. 20 U.S.C. §
2 Aside from the primary issue of child find, the plaintiffs also argued that the defendants failed to review relevant data, granted improper extensions to mandated deadlines, used suspensions in the pre-referral process (which impedes the child’s initial evaluation), and conducted meetings outside the presence of parents. Jamie S. v. Milwaukee Pub. Sch., 519 F. Supp. 2d 870, 881 (E.D. Wis. 2007). The plaintiffs do not appear to advance these theories after remand. To the extent these claims are still viable, the defendants are entitled to judgment on them because they are claims that should have been raised in the administrative process, just like the child find claims. See, e.g., Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1307 (9th Cir. 1992) (“even where local school policies appear on their face to violate the IDEA, administrative exhaustion may be necessary to give the state a reasonable opportunity to investigate and correct such policies. . . . Although hearing officers lack power to adjudicate questions of statutory compliance, they are empowered to order the provision of an appropriate education program for an individual child, as guaranteed by the IDEA”) (internal citations omitted); McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 875-76 (10th Cir. 2007) (“To be sure, Joshua contends that the CDE’s guidelines and the District’s policy facially violate the IDEA. . . . But the ultimate issue in the case – and the decisive consideration for the reimbursement claim in district court – is whether Joshua received an appropriately individualized IEP and whether he was denied a FAPE”); Romer at 1045 (“facial violation” of the IDEA “still ultimately requires a determination as to whether any individual child was denied a [FAPE]. Such a determination is enhanced by the factual details of a particular child’s case”).
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1415(i)(3)(B)(I). As the court explained, the “question of liability was determined by the court in its September 11, 2007 Decision and Order. The plaintiffs have prevailed.” ECF No. 511; 2008 WL 3852663, at *1 (E.D. Wis. Aug. 15, 2008). The liability order referenced in this decision was ultimately vacated by the Seventh Circuit. Therefore, the plaintiffs are no longer prevailing parties under the IDEA, and the order granting interim attorneys’ fees must be vacated. “The plaintiffs, we now know, have lost this case; and when a judgment on which an award of attorney’s fees to the prevailing party is based is reversed, the award, of course, falls with it.” Palmer v. City of Chi., 806 F.2d 1316, 1320 (7th Cir. 1986); Fed’n of Adver. Indus. Representatives, Inc. v. City of Chi., 326 F. 3d 924, 933 (7th Cir. 2003) (“Obtaining a favorable judgment that is reversed on appeal does not entitle a party to prevailing-party status”). Plaintiffs argue that MPS cannot recover their fees because they did not appeal the interim fee order. Even if MPS did not explicitly attack the fee award on appeal, MPS’s successful appeal eviscerated the entire basis for the fee award. Pursuant to the law of the case, the plaintiffs are no longer prevailing parties, so the fee award is subject to vacatur.3 III. Attorneys’ Fees – DPI
As noted above, the plaintiffs settled their claims against DPI. In exchange, DPI agreed to pay DRW $475,000.00 in attorneys’ fees and costs. ECF No. 433-2 at 18. DPI did
3 Strangely, the plaintiffs also chastise MPS for not obtaining a bond pending appeal. “The function of a supersedeas bond is to protect the judgment creditor’s position from erosion during any period that its right to execute is obstructed by a stay pending appeal . . .” Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794, 800 (7th Cir. 1986). In this context, the plaintiffs and DRW are judgment creditors, and their position was protected during the appeal because MPS tendered payment of the fees to DRW. Now DRW has to pay them back. Balark v. City of Chi., 81 F.3d 658, 663 (7th Cir. 1996) (“If a district court judgment is reversed on appeal, the effect of the appellate court ruling is that the judgment was never correct to begin with. If a judgment has been paid immediately, it must be refunded”).
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not join in MPS’s appeal (in fact, they filed an amicus brief in support of the settlement), but the Seventh Circuit vacated the district court’s order approving the settlement because DPI “cannot unilaterally force MPS to take specific remedial action,” and also because there can be “no class settlement if the class should not have been certified in the first place.” Jamie S. at 502. DPI argues that it is entitled to restitution because the fees were paid in reliance on the district court’s now-vacated order approving the settlement agreement. Put another way, DPI argues that the settlement agreement – specifically the agreement to pay the fees – should be rescinded under a variety of theories, including mutual mistake and frustration of purpose. This is a state law claim that should be initiated by a pleading, not raised for the first time in a collateral motion. Carr v. Runyan, 89 F.3d 327, 331 (7th Cir. 1996) (“the formation, construction, and enforceability of a settlement agreement is governed by local contract law”). The Court would not exercise supplemental jurisdiction over such a claim in any event because the federal claims have now been dismissed. 28 U.S.C. § 1367(c)(3); Bourke v. Conger, 639 F.3d 344, 346 (7th Cir. 2011) (“district courts should generally dismiss . . . state law claims without prejudice once they have resolved all federal claims”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
1. Defendants’ motion for judgment on the pleadings [ECF No. 680] is GRANTED;
2. MPS’s motion to vacate the order granting interim attorneys’ fees and for restitution of attorneys’ fees [ECF No. 682] is GRANTED;
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3. DPI’s motion for restitution of attorneys’ fees [ECF No. 677] is DENIED without prejudice;
4. Plaintiffs’ motion to strike DPI’s reply brief [ECF No. 701] is DENIED; and 5. This matter is DISMISSED. The Clerk of Court is directed to enter judgment accordingly. Dated at Milwaukee, Wisconsin, this 20th day of August, 2012.
BY THE COURT: __________________________ HON. RUDOLPH T. RANDA U.S. District Judge
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JAMIE S, et al.,

Plaintiffs,

-vs-

Case No. 01-C-928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, et al., and WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, et al.,

Defendants.

DECISION AND ORDER

On August 20, the Court issued an order granting the defendants’ motion for judgment on the pleadings and granting Milwaukee Public Schools’ motion to vacate the interim award of attorneys’ fees. The Clerk entered judgment the next day, but the judgment did not include any reference to the fees. MPS now moves to amend the judgment to include the following language: “Judgment is entered in favor of defendant Milwaukee Public Schools and against Disability Rights of Wisconsin in the amount of $459,123.96.” This motion [ECF No. 710] is GRANTED. The Clerk of Court is directed to amend the judgment accordingly.
Dated at Milwaukee, Wisconsin, this 3rd day of October, 2012. BY THE COURT:
__________________________ HON. RUDOLPH T. RANDA U.S. District Judge

Case 2:01-cv-00928-RTR Filed 10/03/12 Page 1 of 1 Document 711

 
 AO 450 (Rev. 5/85) Judgment in a Civil Case q
United States District Court
EASTERN DISTRICT OF WISCONSIN
AMENDED JUDGMENT IN A CIVIL CASE

JAMIE S., MELANIE V., BRYAN E., and BIAGIO R., by their parents and next friends, KINA K., JANE P., PETER V., BRIDGET E., and DEBRA W., on their own behalf and on behalf of a class of similarly situated persons,

Plaintiffs,

V.

CASE NUMBER: 01-C-928

MILWAUKEE BOARD OF SCHOOL DIRECTORS, MILWAUKEE PUBLIC SCHOOLS, WILLIAM ANDREKOPOLOUS, Superintendent of Milwaukee Public Schools in his official capacity, STATE OF WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION,
and ELIZABETH BURMASTER, State Superintendent of Public Instruction, in her official capacity,

Defendants.

: Decision by Court. This action came on for consideration and a decision has been
rendered.

Case 2:01-cv-00928-RTR Filed 10/04/12 Page 1 of 2 Document 712

IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the defendants and against the plaintiffs on the plaintiffs’ claims under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq, 42 U.S.C. § 1983, and § 504 of the Rehabilitation Act.
The plaintiffs did not exhaust their administrative remedies under IDEA. Therefore, the defendant’s motion for judgment on the pleadings is GRANTED.
Judgment is entered in favor of defendant Milwaukee Public Schools and against Disability Rights of Wisconsin in the amount of $459,123.96.
This action is hereby DISMISSED.

October 4, 2012 Date

JON W. SANFILIPPO Clerk
s/ Linda M. Zik (By) Deputy Clerk

Case 2:01-cv-00928-RTR Filed 10/04/12 Page 2 of 2 Document 712

 
 In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2741 & 09-3274 JAMIE S., on her own behalf and on behalf of a class of similarly situated persons, et al.,
Plaintiffs-Appellees/ Cross-Appellants,
v.
MILWAUKEE PUBLIC SCHOOLS, et al., Defendants-Appellants/ Cross-Appellees.
Appeals from the United States District Court for the Eastern District of Wisconsin.
No. 01 C 928—Aaron E. Goodstein, Magistrate Judge.
ARGUED SEPTEMBER 7, 2010—DECIDED FEBRUARY 3, 2012
Before FLAUM, ROVNER, and SYKES, Circuit Judges. SYKES, Circuit Judge. We are asked in these consolidated appeals to review multiple procedural and substantive orders in a long-running class-action lawsuit seeking

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Nos. 09-2741 & 09-3274

structural reform of special education in the Milwaukee public school district. Under the Individuals with Disabilities Education Act (the “IDEA” or “the Act”), 20 U.S.C. §§ 1400 et seq., the States receive federal funding for the education of disabled children on the condition that their local school districts comply with the procedural requirements of the Act and provide a “free appropriate public education” to all resident children with disabilities. Id. § 1412(a)(1)(A). As relevant here, local districts must identify children with disabilities, determine whether these children require special-education services, and develop individualized education programs (“IEPs”) tailored to each student’s specific needs. Each step in the process is highly individualized because every child is unique.
In 2001 seven students with disabilities sued the Milwaukee Public Schools (“MPS”) and the Wisconsin Department of Public Instruction (“DPI”) on behalf of themselves and a class of “all school age children with disabilities who reside in the Milwaukee Public School District boundaries and who are or may be eligible for special education and related services under IDEA and Wisconsin law.” The complaint alleged widespread violations of the IDEA touching on nearly every aspect of MPS’s implementation of the Act. The district court rejected the plaintiffs’ ambitious proposed class but certified a somewhat more modest one: students eligible to receive special education from MPS “who are, have been or will be” denied or delayed entry into or participation in the IEP process. This narrower class definition had the effect of focusing the case on alleged violations

Nos. 09-2741 & 09-3274

3

of the so-called “child find” requirements of the IDEA. Id. § 1412(a)(3)(A).
The district court held a bench trial and found MPS and DPI liable for various “systemic” IDEA violations. DPI then settled with the class by agreeing to order MPS to meet certain compliance benchmarks; the district court approved the settlement over MPS’s objection. On June 9, 2009, the court ordered a complex remedial scheme requiring MPS to set up a court-monitored system to identify disabled children who were delayed or denied entry into the IEP process, implement “hybrid” IEP meetings, and craft compensatory-education remedies.
MPS appealed the remedial order and also challenged the district court’s class-certification decision, the liability order, and the approval of the DPI settlement. The plaintiffs sought review of the order rejecting their sweeping class definition but missed the filing deadline for a cross-appeal. On August 19 the district court issued two follow-up orders appointing an independent monitor and approving the class notice. The plaintiffs appealed from these orders but do not contest either decision; instead, they ask us to review the order denying their original class-certification motion.
Both sides moved to dismiss on jurisdictional grounds. We took the motions with the merits and now dismiss the plaintiffs’ appeal. The orders from which the plaintiffs appealed are not final orders; nor are they the equivalent of injunctions, so they do not qualify for immediate appeal under 28 U.S.C. § 1292(a)(1). Moreover, the plaintiffs are attempting a flagrantly improper procedural

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Nos. 09-2741 & 09-3274

maneuver; they may not revive their untimely appeal by appealing from orders they do not want reviewed. We deny the motion to dismiss MPS’s appeal. The June 9 remedial order is the functional equivalent of an injunction and may be immediately appealed under § 1292(a)(1); we have pendent appellate jurisdiction over the related orders.
On the merits we vacate the class-certification order. Like the Title VII claims in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the IDEA claims in this case are highly individualized and vastly diverse, making this case unsuitable for class-action treatment under Rule 23 of the Federal Rules of Civil Procedure. The class itself is fatally indefinite, the claims lack the commonality required by Rule 23(a)(2), and it’s not possible to order final injunctive or corresponding declaratory relief on a class-wide basis, as required by Rule 23(b)(2). Because the class should not have been certified, the liability and remedial orders must be vacated as well. Finally, DPI’s settlement with the class prejudiced MPS’s legal rights by requiring more of MPS than DPI had the statutory authority to demand. In any case, because the class was certified in error, the order approving the DPI settlement must also be vacated.

I. Background A. Legal Framework
The IDEA requires participating States to provide to all disabled students a “free appropriate public education.”

Nos. 09-2741 & 09-3274

5

20 U.S.C. § 1412(a)(1)(A). Complying with this requirement is a complex and inherently child-specific undertaking. First, the IDEA requires that “[a]ll children with disabilities residing in the State . . . and who are in need of special education and related services” be “identified, located, and evaluated,” a process known as “child find.” Id. § 1412(a)(3)(A). Once a disabled child in need of special education is identified, the local school district must evaluate the child’s specific needs and develop an “individualized educational program,” or “IEP,” outlining the particular special-education services that are necessary to allow the child to learn in the “least restrictive environment.” Id. §§ 1412(a)(4)-(5), 1414. The content of an IEP and the meaning of “least restrictive environment” are nuanced topics that we need not explore here. With limited exceptions, an “IEP Team” must be convened and meet within 90 days of the child’s initial referral, see WIS. STAT. § 115.78(3)(a) (1998);1 the IEP Team must include various educational professionals and the child’s parent or guardian, see 20 U.S.C. § 1414(d)(1)(B). Once an IEP is in place, the school must provide the services listed in it, and the IDEA sets out many rules governing the process of amending an IEP. These topics, too, are beyond the scope of inquiry here.
To ensure that each disabled child receives a free appropriate public education, the IDEA also requires States to provide various procedural safeguards to stu-

1 The statutory time frame has since been shortened to 60 days. See WIS. STAT § 115.78(3)(a).

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Nos. 09-2741 & 09-3274

dents and parents. See id. § 1415. A parent may file a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child,” id. § 1415(b)(6)(A), and may request an impartial due-process hearing to resolve the complaint, id. § 1415(f). After receiving a final decision from the hearing officer, the parent may appeal to the state educational agency. Id. § 1415(g). Finally, a still-aggrieved parent may file a civil action seeking review of the decision. Id. § 1415(i)(2). The IDEA also requires that parents be given notice of their procedural rights at various times, including when the school district first proposes or refuses to evaluate a child for a disability. Id. § 1415(b)(3), (c)(1).
Wisconsin implements the IDEA through sections 115.758-115.90 of the Wisconsin Statutes, which track the IDEA’s requirements while adding functional detail. One provision of particular importance here, section 115.90, gives DPI—the state educational agency charged with overseeing Wisconsin’s IDEA compliance—various enforcement mechanisms if individual schools or school districts are not fulfilling their statutory obligations. Specifically, DPI may order a school district to submit a “corrective plan” that addresses the area of noncompliance, withhold state funding until the violation is fixed, or if the first two methods are unsuccessful, ask the state attorney general to bring a lawsuit against the school district to force compliance. WIS. STAT. § 115.90.

Nos. 09-2741 & 09-3274

7

B. Proceedings Below
The procedural history of this case is lengthy and complex; we will simplify where we can. In 2001 Jamie S. and six other named plaintiffs brought this class-action suit against MPS and DPI alleging a host of IDEA violations. Jamie is cognitively impaired and was at that time an eight-year-old student in an MPS school. The other named plaintiffs are (or were) MPS students with disabilities ranging from deafness to Asperger’s syndrome to various emotional disturbances. The parties consented to the jurisdiction of a magistrate judge, see 28 U.S.C. § 636(c)(1), and the plaintiffs moved to certify a class of all Milwaukee-area students who “are or may be eligible for special education and related services under IDEA and Wisconsin law due to their disabilities.” The magistrate judge declined to certify a class of this scope based largely on concerns about exhaustion of administrative remedies. But the judge believed that some of plaintiffs’ claims could be litigated as a class notwithstanding their failure to exhaust administrative remedies.
To that end, the judge divided the proposed class into two categories: those having “pre-determination claims” and those having “post-determination claims.” These were terms of the court’s own creation and referred to IDEA violations arising before an IEP meeting takes place and IDEA violations arising after an IEP takes place. Although the IDEA generally requires plaintiffs to use the administrative dispute-resolution process before filing suit, the judge thought that exhaustion of

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Nos. 09-2741 & 09-3274

administrative remedies for “pre-determination claims” would be futile because parents of children with these kinds of claims might not know they have a right to administrative review. For this reason the judge excused, on a class-wide basis, the failure to exhaust administrative remedies for pre-determination claims. On the other hand, the judge thought that parents who had attended an IEP meeting would understand their right to administrative review. Accordingly, the judge held that the administrative system is adequate for postdetermination claims and declined to excuse the exhaustion requirement for this category.
This approach meant the plaintiffs could litigate their pre-determination claims as a class, but their postdetermination claims had to proceed individually (or not at all if administrative remedies had not been exhausted). Accordingly, the judge invited the plaintiffs to try again at class certification using the court’s predetermination/post-determination distinction. After two more rounds of briefing, the judge settled on his own class definition. On November 14, 2003, the court entered an order certifying the following class:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
Following class certification and several years of discovery, the court conducted a two-phase bench trial on

Nos. 09-2741 & 09-3274

9

liability. In Phase I the court heard testimony from experts regarding MPS’s and DPI’s compliance with the IDEA. Satisfied that a full trial was warranted, the court conducted lengthy Phase II proceedings in which the parties presented further evidence regarding the basis for the experts’ opinions. In a written decision issued on September 11, 2007, the court found both MPS and DPI liable for “systemic” violations of the child-find requirements of the IDEA. Specifically, the court found that from September 2000 to June 2005, MPS committed the following IDEA violations on a system-wide basis: it failed to identify children with suspected disabilities and refer them for evaluation within the statutory 90day time frame; improperly extended the 90-day time frame; imposed suspensions in a way that frustrated disability referrals; and failed to ensure that parents attended IEP meetings. The court also found that DPI failed in its oversight duties.
The court based its liability findings primarily on the opinion testimony of Dr. Diana Rogers-Adkinson, a special-education professor at the University of Wisconsin-Whitewater who served as the plaintiffs’ primary expert. She reviewed approximately 200 MPS student files but engaged in no statistical analysis or other accepted analytical method to determine whether any particular violation of the IDEA could properly be characterized as “systemic.” Instead, she based her opinion entirely on “patterns” or “trends” she observed in the student files. During the time period in question, MPS annually enrolled 95,000 to 97,000 students, approximately 16,000 of whom were eligible for special

10

Nos. 09-2741 & 09-3274

education every year. Dr. Rogers-Adkinson did not explain how a review of 200 student files could yield a conclusion that MPS was in systemic violation of the IDEA during the relevant five-year period.
Indeed, the court’s 64-page liability order does not contain any analysis subjecting Dr. Rogers-Adkinson’s testimony to the standards applicable to expert witnesses under Rule 702 of the Federal Rules of Evidence. To the contrary, the court expressly acknowledged that her opinion was not based on any scientific method but instead rested on what she loosely termed a “qualitative analysis” of the student files she reviewed. After identifying “certain patterns” and “trends” in the student files, Dr. Rogers-Adkinson simply “projected” the patterns and trends “over the entire MPS district” and said she “believe[d] . . . the same trends would appear if a scientific or true random sampling of files had been conducted.” Without mentioning the requirements of Rule 702, the court summarily accepted Dr. RogersAdkinson’s methodology as an adequate factual foundation for finding MPS in systemic violation of the IDEA: “The court accepts the qualitative analysis methodology used by Dr. Rogers-Adkinson. The court further accepts her Child Find trends or patterns and applies them system wide to MPS.”
In response to the court’s liability order, DPI entered into settlement negotiations with the plaintiff class and eventually presented a settlement agreement to the court for approval. We will describe it in more detail later, but in brief, DPI agreed to order MPS to meet

Nos. 09-2741 & 09-3274

11

various compliance benchmarks within a certain time frame and to pay for an independent monitor to oversee MPS’s performance. In exchange the plaintiff class dismissed its claims against DPI and gave away the rights of class members to bring representative suits against DPI for IDEA violations predating the agreement. Over MPS’s vigorous objection, the district court approved the settlement.
The case then proceeded to the remedial phase of the trial against MPS alone. The court heard evidence and argument on possible remedies, and on November 17, 2008, ordered the parties to submit posttrial briefs regarding their final remedial proposals. This order included two pages of detailed questions, the answers to which informed the content of the parties’ final proposals. For example, the court directed the parties to address how putative members of the class were to be evaluated for inclusion in the class; how individual liability and compensatory-education determinations should be made; which party should prevail when the evidence is inconclusive; how disputes between the parties should be resolved; and who should pay for the dispute-resolution process. The parties submitted briefs outlining their preferred remedies and responded to each other’s proposal.
On June 9, 2009, the court issued a lengthy order setting forth an elaborate court-monitored remedial scheme. The court ordered both general and specific class notice designed to reach the parent or guardian of as many potential class members as possible. Recipients would

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Nos. 09-2741 & 09-3274

identify their children as potential class members by submitting response forms that would initiate a process of professional evaluation to determine whether or not the child was a member of the class. The court ordered the creation of a “hybrid” IEP team, closely resembling the IEP team required by the IDEA but including a courtappointed independent monitor to oversee its operation.
The hybrid IEP team was charged with evaluating the responses to the class notice to determine how to proceed in each individual case. In some cases it might be obvious that the child is not disabled, and no further evaluation would be required. In others a professional evaluation would be required to determine whether the child has a disability. In others a full IEP meeting would be needed to determine whether the child requires special-education services in order to receive a free appropriate public education. And finally, in some cases the child might be entitled to compensatory education— a remedy available under the IDEA—to compensate for a past denial of a free appropriate public education. The hybrid IEP team was given the authority to grant compensatory-education awards, subject to the court’s oversight. The estimated cost to MPS to implement this remedy: between $11.5 and $40 million, depending on how many parents responded and the extent of the compensatory education awarded to qualifying children.
The June 9 remedial order also rejected some of the remedial proposals made by the parties. For example, the judge rejected the plaintiffs’ request for a segregated compensatory-education fund and for “parent advocates”

Nos. 09-2741 & 09-3274

13

separate from the independent monitor and denied MPS’s request for a binding-arbitration system to resolve disputes. Finally, the court ordered the parties to negotiate regarding the independent monitor and the form of the class notice. If they could not agree, the parties were to submit nominations for the independent monitor and a proposed class-notice form.
MPS appealed the June 9 remedial order and also sought review of the court’s class-certification decision, the liability order, and the court’s order approving the DPI settlement. The plaintiffs sought review of the district court’s rejection of their original class definition but missed the deadline for filing a cross-appeal. In the meantime the parties could not agree on an independent monitor or class-notice form, so they submitted competing proposals on these two follow-on matters.
On August 19, 2009, the court entered an order naming the independent monitor and charging her with the responsibility of “implement[ing] the remedy set forth within” the June 9 order. This brief order also summarizes the independent monitor’s duties, explains how she is to be paid, and provides some detail about how she would interact with the parties and the court. In a second order issued on August 19, the court approved the classnotice form and explained how it should be distributed.
The plaintiffs appealed the August 19 orders, but they have no quarrel with the substance of these decisions. That is, they do not disagree with the judge’s choice of an independent monitor or the form of the class notice. Instead, they ask us to review the denial of their original class-certification motion.

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Both sides moved to dismiss the other’s appeal for lack of jurisdiction. MPS also moved to stay the June 9 remedial order pending resolution of its appeal. We consolidated the cases, stayed the remedial order, and asked the parties to brief the jurisdictional questions along with the merits.

II. Discussion
These consolidated appeals raise important procedural and substantive issues regarding the suitability of IDEA claims for class certification, the kind and degree of evidence necessary to find a local school district in systemic violation of the IDEA, and the propriety of a federalcourt takeover of a school district’s special-education program as a remedy for individual IDEA violations. We begin, however, with jurisdictional issues.

A. Jurisdiction
Both appeals claim appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which permits immediate appeal from an interlocutory order “granting, continuing, modifying, refusing or dissolving” an injunction. Section 1292(a)(1) “creates an exception from the long-established policy against piecemeal appeals,” but “[t]he exception is a narrow one and is keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480 (1978) (quoting Balt. Contractors v. Bodinger, 348 U.S. 176, 181 (1955)).

Nos. 09-2741 & 09-3274

15

Accordingly, mandatory interlocutory orders are considered injunctions reviewable under § 1292(a)(1) “only if they effectively grant or withhold the relief sought on the merits and affect one party’s ability to obtain such relief in a way that cannot be rectified by a later appeal (that is, ‘irreparably’).” In re City of Springfield, Ill., 818 F.2d 565, 567 (7th Cir. 1987) (citing Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377-79 (1987), and Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Stated differently, “[a]n order . . . is properly characterized as an ‘injunction’ when it substantially and obviously alters the parties’ pre-existing legal relationship.” Jones-El v. Berge, 374 F.3d 541, 544 (7th Cir. 2004) (citing Gautreaux v. Chi. Hous. Auth., 178 F.3d 951, 958 (7th Cir. 1999)).
The parties agree that by ordering the creation of the hybrid IEP system, the district court granted an injunction within the meaning of § 1292(a)(1), but they disagree about which order achieved that result. MPS appealed from the June 9 remedial order and contends that this order is the functional equivalent of an injunction. The plaintiffs argue that MPS’s appeal was premature. They maintain that the remedial order did not fully “ripen” into an appealable injunction until the district court appointed the independent monitor and approved the class notice on August 19.
The plaintiffs direct our attention to Sherpell v. Humnoke School District No. 5, 814 F.2d 538, 539-40 (8th Cir. 1987), and Groseclose v. Dutton, 788 F.2d 356, 361 (6th Cir. 1986), both of which held that an order requiring parties to submit proposed remedial plans is generally not an

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injunction for purposes of § 1292(a)(1). In our decision in Springfield, we agreed with that general principle: “[O]nly directives awarding the relief plaintiffs seek or putting the case on a collision course with that relief are ‘injunctions’ under § 1292(a)(1).” 818 F.2d at 568. The plaintiffs insist that the June 9 order was merely an order to formulate proposals for the independent monitor and class notice and that it was only after the August 19 orders appointing the monitor and approving the class notice that the hybrid IEP system was truly in place.
This characterization of the June 9 order is disingenuous. It’s true that the court directed the parties to consult with each other about the identity of the independent monitor and the form of the class notice, and to submit proposals if they could not agree. But the bulk of the court’s 71-page order was devoted to evaluating the comprehensive remedial proposals the parties had already submitted and explaining the elaborate remedial scheme the court had crafted. The order established in fine detail the remedial program MPS was required to implement—a scheme designed to produce individualized compensatory-education awards, the ultimate relief sought in the case.
Although the June 9 order left the identity of the independent monitor and the content of the class notice to be worked out by the parties, MPS’s obligations were not contingent on those details. Whoever the monitor, and whatever the form of the class notice, the June 9 order required MPS to create a massive identification and

Nos. 09-2741 & 09-3274

17

evaluation system consuming significant educational resources and costing millions of dollars. Even if the hybrid IEP system could not begin operating until the independent monitor was appointed and the class notice was approved, the June 9 order gave the plaintiffs the relief they were seeking and substantially altered MPS’s legal rights. The remedial order is the functional equivalent of an injunction for purposes of § 1292(a)(1). See Springfield, 818 F.2d at 568. We have jurisdiction over MPS’s appeal; the plaintiffs’ motion to dismiss is denied.
In contrast, the plaintiffs’ jurisdictional argument in support of their own appeal is at best inconsistent and at worst incoherent. The plaintiffs initially tried to crossappeal from the June 9 remedial order, seeking review of the denial of their original class-certification motion. But they missed the filing deadline, so they tried a different route to get their preferred class definition before this court: They appealed the August 19 orders appointing the independent monitor and approving the class notice, insisting that these orders are the “injunction” for purposes of § 1292(a)(1). They are not. Unlike the June 9 order, the August 19 orders do not grant relief on the merits or substantively alter the parties’ legal relationship. See Jones-El, 374 F.3d at 544; Springfield, 818 F.2d at 567. They do not require the parties to do or refrain from doing anything at all. The district court had already announced the remedial scheme in the June 9 order, including the appointment of an independent monitor and the requirement of general and specific class notice. All that remained was to decide the identity of the monitor and approve the form of the

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class notice. These details were surely important, but resolving them did not amount to an appealable injunction. Cf. Jones-El, 374 F.3d at 544 (“[A]n unappealable order is one that interprets or clarifies a prior order and does not create new rights or obligations independently enforceable through a contempt action.”).
Moreover, the plaintiffs are plainly engaged in a bootstrapping procedural maneuver. They have no complaint about the independent monitor or the class notice, though they appealed those decisions; rather, they want us to review the denial of their original class-certification motion. This is an improper attempt to revive their untimely cross-appeal from the June 9 remedial order. We dismiss the plaintiffs’ appeal.
Finally, MPS seeks review of the district court’s orders certifying the class, finding liability, and approving DPI’s settlement. Ordinarily these interlocutory orders would be unappealable, but MPS argues that the doctrine of pendent appellate jurisdiction applies. In Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995), the Supreme Court ” ‘set out a general rule against exercising pendent jurisdiction over related rulings.’ ” McKinney v. Duplain, 463 F.3d 679, 692 (7th Cir. 2006) (quoting Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092 (9th Cir. 1998)). Pendent appellate jurisdiction “may be invoked ‘only if there are compelling reasons for not deferring the appeal of the former order to the end of the lawsuit.’ ” Montano v. City of Chicago, 375 F.3d 593, 599 (7th Cir. 2004) (quoting U.S. for Use of Valders Stone & Marble, Inc. v. C-Way Constr. Co., 909 F.2d 259, 262 (7th

Nos. 09-2741 & 09-3274

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Cir. 1990)). We may “review an otherwise unappealable interlocutory order if it is ‘inextricably intertwined with an appealable one.’ ” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir. 2010) (quoting Montano, 375 F.3d at 599). In other words, ” ‘it must be practically indispensable that we address the merits of the unappealable order in order to resolve the properly-taken appeal.’ ” Montano, 375 F.3d at 600 (quoting Valders Stone & Marble, 909 F.2d at 262). If an otherwise unappealable order is sufficiently intertwined to permit pendent appellate jurisdiction, we may exercise our discretion to review it. Jones v. InfoCure Corp., 310 F.3d 529, 536-37 (7th Cir. 2002).
The decision to exercise pendent appellate jurisdiction is inherently case specific. See Montano, 375 F.3d at 600. Here, our review of the appealable order—the June 9 order imposing the remedial scheme—simply cannot be conducted in isolation from the earlier orders. The June 9 order imposes a remedy for MPS’s liability to the plaintiff class; deferring review of the class-certification and liability decisions until after final judgment would make our present review of the remedial scheme meaningless. As this case comes to us, it is “practically indispensable” that we review the class-certification and liability orders now “in order to resolve the properlytaken appeal.” Id.; see also Asset Allocation & Mgmt. Co. v. W. Emp’rs Ins. Co., 892 F.2d 566, 569 (7th Cir. 1989) (“[A]ny ruling on which the validity of the [appealable order] turns is reviewable . . . .”).
The court’s order approving DPI’s settlement presents a closer question, but viewing the case as a whole, we

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think this order is so closely linked with the others that it cannot be separated. Because we vacate the class certification, declining to exercise pendent jurisdiction over the order approving DPI’s settlement would create the strangely anomalous result of a free-standing district court order approving and incorporating a settlement between a defendant and a class that no longer exists. Furthermore, with essentially the entire case already before us, deferring appellate review of the settlement would create rather than prevent piecemeal appeals; this too favors pendent appellate review. See Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001).

B. Class Certification
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). A district court may certify a case for class-action treatment only if it satisfies the four requirements of Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation—and one of the conditions of Rule 23(b). See FED. R. CIV. P. 23. In addition, a class must be sufficiently definite that its members are ascertainable. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); see Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) (“It is axiomatic that for a class action to be certified a ‘class’ must exist.”).

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Class certification is appropriate only if, “after a rigorous analysis,” the trial court is satisfied that the requirements of Rule 23 have been met. Wal-Mart, 131 S. Ct. at 2551 (quotation marks omitted). “Frequently, that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Id.; see also Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 890 n.6 (7th Cir. 2011) (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). We review the district court’s class-certification order for abuse of discretion, but legal determinations made in support of the decision are reviewed de novo. Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008).
There are several basic flaws in the district court’s classcertification decision. First, the class is both fatally indefinite and lacks the commonality required by Rule 23(a)(2). Furthermore, although the case was certified as a class action for injunctive and declaratory relief under Rule 23(b)(2), final injunctive or corresponding declaratory relief cannot be ordered on a class-wide basis, as required for a Rule 23(b)(2) class.
We begin with the terms of the class definition, something over which the parties and the judge struggled mightily. The plaintiffs initially sought to represent a class so broad that it effectively included all students eligible for special education and related services from MPS. The original proposed class thus joined together all Milwaukee-area disabled students, regardless of differences in their disabilities or educational situations, whose procedural or substantive rights under the IDEA

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were violated in any way. The district court properly rejected this sweeping class definition, but not for the obvious reason that it sought to lump together thousands of disparate plaintiffs with widely varying individual claims. Rather, the court rejected the plaintiffs’ proposed class definition based on difficulties associated with the IDEA’s requirement that administrative remedies be exhausted before filing suit.
The district court was justifiably concerned about the administrative-exhaustion requirement. But the court’s effort to resolve the problem was misguided. The court sua sponte divided the class into two categories: those with “pre-determination claims” and those with “postdetermination claims.” These designations were apparently meant to categorize individual violations of the IDEA, separating those that occurred prior to an IEP meeting from those that occurred after an IEP meeting. The judge thought this categorization made it possible to excuse the exhaustion requirement for “pre-determination claims” and allow these alleged IDEA violations to be litigated on a class-wide basis, while enforcing the exhaustion requirement for “post-determination claims,” excluding them from class-action treatment.
There is reason to doubt the propriety of this approach, but for present purposes we will address it on its own terms. Ordinarily, a plaintiff may not file an IDEA lawsuit without first exhausting available administrative remedies. See 20 U.S.C. § 1415; Honig v. Doe, 484 U.S. 305, 326-27 (1988); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996). However, exhaustion may

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be excused if administrative review would be futile or inadequate. Honig, 484 U.S. at 326-27. The district court applied this exception to all pre-determination claims, reasoning that the parents of disabled students might not be fully aware of the right to administrative remedies prior to a properly constructed IEP meeting, making exhaustion an exercise in futility.2 Once an IEP meeting is convened, however, the court thought that

2 We question this reasoning. Wisconsin law requires that parents be notified of their administrative-review rights when a child is initially referred for evaluation, well before an IEP meeting occurs. WIS. STAT. § 115.792(1)(b). For this reason the defendants argued below that if exhaustion was to be excused on a class-wide basis for violations occurring before parents received notice of their right to administrative remedies, it should be excused for pre-referral claims only. The district court rejected this argument, perceiving “too great” a “potential of having parties unwittingly forgo their rights.” Even when notice of administrative remedies was provided, the judge was “not sanguine with the fact that this information is always properly delivered or that the parents have a full understanding of the information.” Let’s assume for the sake of argument that it was appropriate to waive the exhaustion requirement on a class-wide basis on the rationale that parents “lacked full understanding” of their rights. The plaintiffs, as the proponents of the futility exception to the exhaustion requirement, would bear the burden of establishing this lack of understanding. See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 n.8 (2d Cir. 2002). That burden is not satisfied by the district court’s unsupported intuition that notice might not always be “properly delivered” or that parents might not always understand it.

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parents would sufficiently understand their rights, making administrative review adequate and keeping the IDEA’s exhaustion requirement intact for post-determination claims. On this rationale the court was willing to certify a class defined to include only pre-determination claims, for which it excused the plaintiffs’ failure to exhaust administrative remedies.3

3 In settling on the pre-determination/post-determination line of demarcation, the district court relied heavily on the concept of “systemic” IDEA violations developed by other circuits, most prominently the Ninth Circuit in Doe ex rel. Brockhuis v. Arizona Department of Education, 111 F.3d 678, 681 (9th Cir. 1997). Doe discussed the distinction between “systemic” and “nonsystemic” IDEA claims in the context of deciding whether to apply the futility exception to excuse the plaintiffs’ failure to exhaust administrative remedies prior to bringing a class-action suit. Here, however, the district court applied the Ninth Circuit’s definition of a “systemic” IDEA violation in determining MPS’s liability, using it as the substantive legal standard for evaluating whether MPS was in noncompliance with the IDEA system-wide. We question whether Doe’s definition of “systemic” IDEA noncompliance has any value outside its specific context—that is, outside the context of deciding as a threshold matter in a proposed IDEA class action whether to excuse the failure to exhaust administrative remedies. And even in that context, the line drawn in Doe between systemic and nonsystemic violations for purposes of the exhaustion requirement seems rather arbitrary. While some IDEA violations may implicate the structure of a school district’s special-education program and may not be remediable through ordinary administrative review, it does not necessarily follow that administrative review is futile or
(continued...)

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The court thus certified a class of its own creation:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
In other words, the certified class combined all disabled students eligible for special education from MPS who were not identified as potentially eligible for services, not timely referred for evaluation after identification, not timely evaluated after referral, not evaluated in a properly constituted IEP meeting, or whose parents did not (for whatever reason) attend an otherwise proper IEP meeting. The court made it clear that students who suffered a pre-determination violation but have since received a proper IEP meeting—for example, students who received a late IEP meeting—are also included in the class.
One immediately obvious defect in this class is its indefiniteness. A significant segment of the class (of unknown and unknowable size) comprises disabled students who may have been eligible for special education

3 (...continued) inadequate for all violations that are alleged to be “systemic.” However, because our decision rests on other flaws in the classcertification decision and does not reach the substance of the court’s liability decision, we neither accept nor reject the Ninth Circuit’s reasoning in Doe.

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but were not identified and remain unidentified. There is no question that MPS has a legal obligation under the IDEA to seek out disabled students and refer for evaluation those it reasonably believes are disabled and in need of special education. See 20 U.S.C. § 1412(a)(3)(A); WIS. STAT. § 115.77(1m)(a). The failure to properly identify a disabled student can itself be a violation of the IDEA if the failure results in the denial of a free appropriate public education to a qualifying child with a disability. Cf. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2495 (2009) (“A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.”). The problem with a class of potentially eligible but unidentified students is not that their rights might not been violated but that the relevant criteria for class membership are unknown. By what standard is class membership to be determined? How is the court to decide whether there was reason to believe in 2000-2005 that a presently unidentified child was potentially eligible for special-education services from MPS? It’s not hard to see how this class lacks the definiteness required for class certification; there is no way to know or readily ascertain who is a member of the class.4 See Oshana, 472 F.3d at 513; Simer, 661 F.2d at 669.

4 Typical suits for child-find-violations focus on a school district’s failure to timely identify a qualifying disability in an identified student, e.g., Richard S. v. Wissahickon Sch. Dist., 334
(continued...)

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Of course, unidentified but potentially eligible disabled students are defined not only by having not been identified but also by having a disability. If we could easily identify all Milwaukee students with disabilities during the relevant time period, perhaps we could crosscheck that list against a list of known disabled students to determine which students MPS failed to identify and refer for an IEP evaluation. But identifying disabled students who might be eligible for special-education services is a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria. Every step of the child-find inquiry and IEP process under the IDEA is child specific and requires the application of trained and particularized professional educational judgment. In short, a class of unidentified but potentially IDEA-eligible disabled students is inherently too indefinite to be certified.
This conclusion draws support from Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980). The plaintiffs in Adashunas alleged widespread violations of the childfind requirements in the IDEA’s predecessor statute and proposed a class consisting of “all children within

4 (...continued) F. App’x 508, 510 (3d Cir. 2009), or a school district’s failure to identify a disability despite a parental referral, e.g., Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2488 (2009). In both situations the identity of the student is known. The class here includes all students not properly identified as potentially eligible for special education, the vast majority of whom are not individually known.

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the State of Indiana entitled to a public education who have learning disabilities who are not properly identified and/or who are not receiving such special instruction as to guarantee them of minimally adequate education.” Id. at 601. We noted the practical difficulty in defining the class in this way: “How does one identify class members consisting of persons not identified?” Id. at 603. In theory such a class might make sense if the process of identifying unknown class members was relatively simple. But because the task of identifying learning-disabled children is a “long, arduous process,” and the proposed class of plaintiffs was “so highly diverse and so difficult to identify,” we held that the class was “not adequately defined or nearly ascertainable” and the class action could not be maintained. Id. at 603-04 (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)). The same is true here.
The plaintiffs insist that because the class is defined by reference to MPS’s illegal actions—that is, by MPS’s failure to comply with the IDEA—the defect of indefiniteness may be forgiven. For this principle they rely on Alliance to End Repression v. Rochford, 565 F.2d 975, 97778 (7th Cir. 1977), in which we upheld the certification of two plaintiff classes consisting of organizations and persons in Chicago who had been unconstitutionally monitored and harassed by various municipal and federal defendants in retaliation for exercising their First Amendment rights. The defendants in Rochford argued that this class—potentially large in scope and with no ready means of identifying its members—was

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too indefinite to be certified. We concluded that “a class that satisfies all of the other requirements of Rule 23 will not be rejected as indefinite when its contours are defined by the defendants’ own conduct.” Id. at 978.
Rochford’s tolerance of a wildly indefinite class definition under Rule 23 is no longer the norm. We have noted that “[Rochford] is a relic of a time when the federal judiciary thought that structural injunctions taking control of executive functions were sensible. That time is past.” Rahman v. Chertoff, 530 F.3d 622, 626 (7th Cir. 2008). Moreover, the class certified in Rochford is different from the one here in at least two critical respects. First, for reasons we will explain in a moment, class certification in this case does not comply with other requirements of Rule 23; more specifically, the class does not satisfy Rule 23(a)(2)’s commonality requirement, and it does not satisfy Rule 23(b)(2). Second, the defendants’ actions in Rochford provided at least some means of identifying class members: Each class member was the victim of some discrete act of harassment that once revealed—for example, through discovery—would in turn reveal the identity of the victimized class member. Not so with the present class. MPS’s alleged failure to identify disabled students in no way pins down the identities of the class members; the relevant conduct here is not a discrete action as in Rochford but rather a failure to act. The liability and remedial orders are powerful evidence of this difference; the elaborate scheme for identifying class members via a hybrid IEP process

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dramatically illustrates the fatal indefiniteness of this class. Rochford is no help to the plaintiffs here.5
Beyond its inherent indefiniteness, the class certified here fails to satisfy Rule 23(a)(2)’s commonality prerequisite, which requires that the class claims involve “questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). It’s true that ” ‘[e]ven a single [common] question’ will do.” Wal-Mart, 131 S. Ct. at 2556 (quoting Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 176, n.110 (2003)) (alteration in original). But the Supreme Court explained in Wal-Mart that superficial common questions—like whether each class member is an MPS student or whether each class member “suffered a violation of the same provision of law”—are not enough. Id. at 2551. Rather, “[c]ommonality requires the plaintiffs to demonstrate that the class members ‘have suffered the same injury.’ ” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). The class “claims must depend upon a common contention,” and “[t]hat common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

5 Our conclusion that a class of child-find claims does not fit within Rochford’s carve-out is reinforced by the fact that we decided Adashunas less than three years after Rochford but did not even cite it.

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The plaintiffs identify the following common issue: “[A]ll potential class members have suffered as a result of MPS’ failure to ensure their Child Find rights under IDEA and Wisconsin law.” This completely misunderstands Rule 23(a)(2). Whether MPS failed in its obligations under the IDEA and thereby deprived an eligible disabled child of a free appropriate public education is the bottom-line liability question in any individual plaintiff’s IDEA claim. To bring individual IDEA claims together to litigate as a class, the plaintiffs must show that they share some question of law or fact that can be answered all at once and that the single answer to that question will resolve a central issue in all class members’ claims. That all the class members have “suffered” as a result of disparate individual IDEA child-find violations is not enough; it does not establish that the individual claims have any question of law or fact in common. The plaintiffs have identified no common factual or legal question that satisfies the Rule 23(a)(2) standard, and it is their burden to do so. See Oshana, 472 F.3d at 513.
To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child’s parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining MPS’s liability for each? On the

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plaintiffs’ theory, that question is something like this: Did MPS fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children’s claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child’s particular situation.
This was the basic commonality problem in Wal-Mart, which involved a nationwide class-action suit on behalf of female employees of the discount retailer for alleged sex discrimination in violation of Title VII. The Supreme Court summarized the lack of commonality in this way:
In this case, proof of commonality necessarily overlaps with respondents’ merits contention that WalMart engages in a pattern or practice of discrimination. That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is the reason for a particular employment decision . . . . Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Wal-Mart, 131 S. Ct. at 2552 (internal quotation marks and citations omitted). Here, too, resolving any individual class member’s claim for relief under the IDEA requires an inherently particularized inquiry into the circumstances of the child’s case.

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That the court narrowed its focus to child-find violations (what the court called “pre-determination claims”) is not enough. Child-find inquiries, like other aspects of the IDEA, are necessarily child specific. There is no such thing as a “systemic” failure to find and refer individual disabled children for IEP evaluation—except perhaps if there was “significant proof” that MPS operated under child-find policies that violated the IDEA. See id. at 2553. As the Supreme Court noted in Wal-Mart, an illegal policy might provide the “glue” necessary to litigate otherwise highly individualized claims as a class. Id. at 2552-54. But again, as in Wal-Mart, proof of an illegal policy “is entirely absent here.” Id. at 2553; see also J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (affirming the denial of class certification because the “plaintiffs merely attempt to broadly conflate a variety of claims [under the IDEA and other statutes] to establish commonality via an allegation of ‘systematic failures’ ”). Lacking any common questions, the class fails to satisfy Rule 23(a)(2) and should not have been certified.
Finally, it should be clear from our discussion thus far that the district court also erred when it certified an injunction class under Rule 23(b)(2). Rule 23(b)(2) permits the court to certify a case for class-action treatment if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). The final clause is important: The

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injunctive or declaratory relief sought must be “final” to “the class as a whole.” See Kartman, 634 F.3d at 892-94. In other words, “claims for individualized relief . . . do not satisfy [Rule 23(b)(2)].” Wal-Mart, 131 S. Ct. at 2557. To the contrary, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id.
That the plaintiffs have superficially structured their case around a claim for class-wide injunctive and declaratory relief does not satisfy Rule 23(b)(2) if as a substantive matter the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made; this kind of relief would be class-wide in name only, and it would certainly not be final. See id. (“The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted . . . .’ ” (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009))); see also id. at 2558 (“[T]he relief sought [under Rule 23(b)(2)] must perforce affect the entire class at once . . . .”); Kartman, 634 F.3d at 892-94; Andrews, 545 F.3d at 577. If individualized relief is sought—even individual injunctive relief—the named plaintiffs must look elsewhere

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in Rule 23(b) to obtain certification.6 See Wal-Mart, 131 S. Ct. at 2558-59; Kartman, 634 F.3d at 895.
The relief sought here does not come close to satisfying Rule 23(b)(2)’s standard. That much is clear from the intricate remedial scheme ordered by the district court, which requires thousands of individual determinations of class membership, liability, and appropriate remedies. While the compensatory-education remedies will often or always be injunctive in nature, there can be no single injunction that provides final relief to the class as a whole. It is no answer to say that the June 9 remedial order affects the entire class; that order merely establishes a system for eventually providing individualized relief. It does not, on its own, provide “final” relief to any class member. See Andrews, 545 F.3d at 577. Moreover, the remedial order requires class notice as a necessary element of its operation: Only those class members who respond are to be evaluated within the hybrid IEP system; nonresponders are unaffected. That the putative class members must opt in after notice and then be evaluated for membership in the class—before making a claim for entitlement to compensatory education— belies the notion that the court can provide final injunctive relief to the class as a whole. This is not the stuff of a proper Rule 23(b)(2) class.

6 Our discussion of commonality makes it clear that the present class does not satisfy Rule 23(b)(3). Without even a single common question of law or fact, common questions cannot predominate. See FED. R. CIV. P. 23(b)(3).

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So the class-certification order must be vacated. It follows that without a class to whom MPS can be liable and provide a remedy, the liability and remedial orders must be vacated as well. What remains are the claims of the individual plaintiffs; the district court did not find a denial of a free appropriate public education in any individual case.7 Furthermore, the court’s reasons for excusing administrative exhaustion appear to have been tied to the class allegations, and it’s not clear whether the court would have excused exhaustion for any of the individual claims. Finally, it’s possible—perhaps likely—that some of the named plaintiffs’ individual factual circumstances have changed such that their claims are now moot. We leave to the district court on remand the task of determining whether anything remains of this case and what, if anything, should happen next.

C. DPI Settlement
Finally, we turn to DPI’s settlement with the plaintiff class. A district court may approve a class settlement if it is “fair, reasonable, and adequate.” FED. R. CIV. P. 23(e)(2). We review an order approving a class settlement

7 As stated in the remedial order: “[A]t no point did the court receive specific evidence from educational professionals who engaged in an individualized assessment of the named plaintiffs, determined the nature of any denial of [a free appropriate public education], and determined precisely what sorts of services were necessary . . . .”

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for an abuse of discretion. Mirfasihi v. Fleet Mortg. Corp., 450 F.3d 745, 748 (7th Cir. 2006). As with any order reviewed under this standard, if the district court’s analysis turned on an error of law, the court necessarily abused its discretion. Wis. Right to Life State PAC v. Barland, 644 F.3d 139, 150 (7th Cir. 2011).
After the district court found MPS and DPI liable for IDEA violations, DPI commenced settlement negotiations with class counsel and eventually submitted a settlement agreement for court approval. DPI agreed to appoint an independent monitor to oversee MPS’s IDEA compliance and develop a compliance plan for MPS— with input from class counsel and the independent monitor—establishing specific requirements that DPI would in turn impose on MPS. The plan’s implementation would be tied to several benchmarks DPI promised to enforce against MPS. Among other things, DPI agreed that MPS would evaluate 95% of referred students within the statutory time frame; that MPS would make reasonable attempts to include a parent in 95% of IEP meetings; and that MPS would refer 95% of students with a specified number of suspensions and 95% of students retained in grade to an early intervention system for the possibility of disability evaluations. The settlement also gave the independent monitor significant oversight authority over MPS, including the ability to order MPS to make administrative changes to comply with the settlement agreement. In exchange for these and other promises, the settlement released DPI from all claims in this suit and also purported to

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preclude all class members from bringing any representative suit against DPI for IDEA violations that occurred prior to the settlement date.
It should be apparent from the foregoing description that this settlement agreement is highly unusual. DPI’s primary concessions require performance from MPS, which is not a party to the agreement and did not consent. Sensing the problem, the district court allowed MPS to file an objection to the settlement. MPS argued that the settlement agreement impermissibly affected its legal rights and conflicted with state statutes governing DPI’s oversight authority. The district court framed the question this way: Does “DPI ha[ve] the authority to order MPS to take the actions called for in the proposed settlement agreement[?]” If DPI has the legal authority to command MPS to take the specified actions, then the state agency’s agreement to impose mandates on MPS would pose no problem. But if DPI does not have that legal authority—stated differently, if MPS has a legal right to resist such a demand from DPI—then a settlement agreement binding DPI to impose mandates on MPS, a nonparty, infringes MPS’s legal rights.
“The general rule . . . is that a non-settling party does not have standing to object to a settlement between other parties.” Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 246 (7th Cir. 1992). There is an exception when the nonsettling party “can show plain legal prejudice resulting from the settlement.” See id. at 246-47 (citing Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1233 (7th Cir. 1983), and other cases). That a settling defendant creates

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a tactical disadvantage for another defendant is not sufficient to support standing to object; the prejudice to the nonsettling defendant must be legal, such as (for example) interference with contractual or contribution rights or the stripping away of a cross-claim. Id. at 247. Here, as the district court correctly acknowledged, MPS’s substantive objection to the settlement and its basis for standing are one and the same: If the settlement agreement prejudiced MPS’s legal rights, MPS may object, and its objection has merit.
The district court ultimately held that MPS did not have standing to object because DPI has authority to implement the agreement. As the state agency with authority to dispense federal special-education funding, DPI is responsible for ensuring local compliance with the IDEA’s requirements. See 20 U.S.C. § 1412(a)(11). Section 115.90 of the Wisconsin Statutes outlines the three enforcement mechanisms available to DPI should a local school district fail to comply:
(1) If, as the result of a monitoring procedure or a complaint investigation, the state superintendent finds that a local educational agency has violated this subchapter, the state superintendent may require the local educational agency to submit a corrective plan addressing the violation.
(2) If the state superintendent, after reasonable notice and an opportunity for a hearing, finds that a local educational agency has failed to comply with any requirement in this subchapter, the state superintendent shall reduce or eliminate special education aid to

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the local educational agency until he or she is satisfied that the local educational agency is complying with that requirement.
(3) If the state superintendent finds that a corrective plan under sub. (1) has not been implemented, or that withholding aid under sub. (2) has been inadequate to ensure compliance with this subchapter, the state superintendent shall request the attorney general to proceed against the local educational agency for injunctive or other appropriate relief.
(Emphasis added.)
The district court focused on DPI’s statutory authority under subsection (2) to withhold MPS’s funding for failure to comply with the IDEA’s requirements. Because MPS retained the right to appeal any suspension of funds to the Department of Education, see 34 C.F.R. § 76.401, the district court concluded that the settlement did not violate MPS’s rights but rather “could be viewed as essentially another corrective action, similar to any one of the numerous other corrective action plans previously established by DPI.”
This analysis overlooks key parts of Wisconsin’s enforcement scheme. It’s true that DPI has the authority to reduce MPS’s federal funding or eliminate it altogether. But the settlement agreement does not implicate DPI’s authority over the disbursement of federal funds; rather, DPI bound itself to impose a corrective plan on MPS. DPI does not, however, have the unilateral authority to impose a corrective plan on a noncompliant local school district. To the contrary,

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DPI may only require that a local school district develop and submit a plan to address areas of IDEA noncompliance; the details of the plan are left to the local school district. See WIS. STAT. § 115.90(1). DPI can force a local school district to take specific remedial action only if the district fails to implement its own corrective plan. Alternatively, DPI can withhold or reduce federal funds, and if this more dramatic action does not induce compliance, the state superintendent of public instruction can ask the state attorney general to sue to bring the school district into compliance. See id. § 115.90(3).
The local school district’s autonomous authority to develop its own corrective plan is no small distinction in the context of this case. Because DPI cannot unilaterally force MPS to take specific remedial action, a settlement that attempts to do exactly that prejudices MPS’s legal rights by requiring more of MPS than Wisconsin law permits DPI to impose. The district court’s conclusion to the contrary was an error of law, and because the decision to approve DPI’s settlement turned in large part on this legal error, that decision was an abuse of discretion.8

8 The parties note a change in Wisconsin law during the pendency of these appeals. Under 2009 Wisconsin Act 215 (published May 13, 2010), the state superintendent of public instruction is empowered to order certain low-performing school districts to take certain remedial actions. However, Act 215 does not amend section 115.90, or any other provision in the Wisconsin Statutes, Chapter 115, Subchapter V, the
(continued...)

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Apart from this misunderstanding about DPI’s statutory oversight authority, the district court’s approval of DPI’s settlement must be vacated for a much simpler reason: There can be no class settlement if the class should not have been certified in the first place. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 858 (1999) (“[T]he determination whether ‘proposed classes are sufficiently cohesive to warrant adjudication’ must focus on ‘questions that preexist any settlement.’ ” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622-23 (1997))). Although class certification and settlement approval were sought separately here, the caselaw on so-called “settlement only” classes is instructive.9 The Supreme Court has made clear that a settlement-only class must satisfy the bulk of Rule 23’s requirements in order to be certified. See id. at 864; Amchem, 521 U.S. at 620. And when a district court abuses its discretion in certifying a settlement-only class, we unwind not only the class certification but also the class settlement. See, e.g., Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 881-82 (7th Cir. 2000) (vacating order approving class settlement because class did not satisfy Rule 23(b)). Basic principles of due process prevent individual named plaintiffs from binding—through litigation or court-approved settle-

8 (...continued) statutory scheme relevant to special education. Accordingly, Act 215 does not appear to affect the state regulatory apparatus pertaining to the IDEA.
9 Settlement-only classes are those for which class certification and settlement approval are sought simultaneously.

Nos. 09-2741 & 09-3274

43

ment—absent class members the plaintiffs do not legally represent.10
As we have explained, the class here is fatally indefinite, lacks the commonality required by Rule 23(a)(2), and was improperly certified under Rule 23(b)(2). Because the named plaintiffs do not legally represent the absent class members, they cannot settle the absent class members’ claims. The district court’s order approving DPI’s settlement must be vacated.

10 As summarized by the Court in Ortiz v. Fibreboard Corp.:
[Class actions] implicate the due process “principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process,” Hansberry v. Lee, [311 U.S. 32, 40 (1940)], it being “our ‘deeprooted historic tradition that everyone should have his own day in court,’ ” Martin v. Wilkes, [490 U.S. 755, 762 (1989)] (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981)); see Richards v. Jefferson County, [517 U.S. 793, 798-99 (1996)]. Although “ ‘[w]e have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party,’ ” . . . Martin, [490 U.S. at 762 n.2], the burden of justification rests on the exception.
527 U.S. 815, 846 (1999).

44

Nos. 09-2741 & 09-3274

III. Conclusion
For the foregoing reasons, we DISMISS the plaintiffs’ appeal (number 09-3274) for lack of appellate jurisdiction. We DENY the motion to dismiss MPS’s appeal (number 092741). We VACATE the district court’s class-certification order, its liability order following Phase II of the trial, its order approving DPI’s settlement, and its remedial order following Phase III of the trial. We REMAND the case for further proceedings consistent with this opinion.

ROVNER, Circuit Judge, concurring in part and dissenting in part. I share many of my colleagues’ concerns about the way in which the class was defined in this case, and I further agree that because DPI lacked the authority to unilaterally impose a corrective plan on a local school district, it was error to approve DPI’s settlement with the plaintiffs. However, I am not convinced that no class was feasible in this case, nor do I believe that the inability to identify class members until the remedial phase of the litigation precludes certification of the class. For these reasons, I write separately.
On its face, the class certified in this case bears the hallmarks of the sort of open-ended classes of which we

Nos. 09-2741 & 09-3274

45

disapproved in Adashunas v. Negley, 626 F.2d 600, 603-04 (7th Cir. 1980), and Rahman v. Chertoff, 530 F.3d 622, 625-26 (7th Cir. 2008). Although the class that the district court approved (all school age children with disabilities who reside within the MPS district, who are or may be eligible for special education services, and who are, have been, or will be denied or delayed entry into or participation in the IEP process) is considerably more narrow than the class originally proposed by the plaintiffs (all school age children with disabilities who reside within the MPS district and who are or may be eligible for special education services), it was never formally delimited by the particular types of violations that the plaintiffs were alleging. The consequence of such an open-ended description of the class, as we noted in Rahman, is that “every time plaintiffs file a brief or motion, membership in the class[ ] may change.” Id. at 625. Thus, at any given point during the litigation, it may not be possible to know from the class definition itself what the true parameters of the class are and what types of individuals might be in the class. Id. at 625-26. In this case, the class has been defined to include all students eligible for special services who have been denied or delayed entry into the IEP system. That definition literally may include students who were delayed or denied entry due to circumstances having little or nothing to do with the defendants’ actions, by essentially random circumstances that are unique to one student or limited to a small number of students, or by circumstances that the class representatives have not identified as a basis for relief to the class.

46

Nos. 09-2741 & 09-3274

I am mindful that the parties and the court, from the time that the class was certified forward, appear to have developed an understanding that the class would include the four sets of individuals that the court later expressly identified in its liability decision: (1) students with suspected disabilities who were never referred for an evaluation; (2) students who were referred for evaluation, but whose evaluations were not completed within the requisite 90-day limit; (3) students who were suspended in such a way as to frustrate their evaluation; and (4) students whose IEP meetings took place in the absence of their parents. See ante at 9; R. 195 at 3-6; R. 389 at 61. Moreover, the court’s liability decision was limited to the time period commencing in September 2000 and ending in June 2005. R. 389 at 3. In these respects, the litigation ultimately focused on a class of students that was much more limited than the certified class was on its face, and one that in the end was much more definite than the sweeping class we criticized in Adashunas, for example.
But even as confined to these four groups of students and this roughly five-year period, the class includes unknown numbers of variations. To cite one example: When, in her 2004 report, Dr. Rogers-Adkinson addressed MPS’s failure to meet statutory deadlines during the assessment process, she identified at least four different patterns of delays: (1) delays occasioned by the initial mis-categorization of a student’s suspected disability; (2) delays caused by extensions of time routinely requested for disability assessments solicited during the spring semester; (3) delays triggered by the need for

Nos. 09-2741 & 09-3274

47

additional medical records; and (4) delays for reasons not revealed in the files she reviewed. Plaintiffs’ Ex. 8 at 6, 8-9. Each of these four scenarios might be a manifestation of MPS’s failure to timely identify students with disabilities and to convene IEP meetings to address those disabilities, but it is difficult to discern a common, wrongful policy or practice that might account for them all. Instead, this looks more like an effort to sweep many individual plaintiffs and sets of facts into one class on the premise that all reflect illegal conduct by the defendant in practice and culture if not in policy. As the majority points out, ante at 32, that is precisely the sort of class that the Supreme Court recently rejected in WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Like my colleagues, I am not convinced that the certified class in this case is united by common legal or factual issues.
Nonetheless, I do not rule out the possibility that a class properly could be certified in this case or one like it, and it is to this limited extent that I dissent. My colleagues have concerns both with the notion that a class action may be premised on “systemic” violations of a school district’s child-find obligations and with a class composed of individuals whose identity cannot be known until the remedial phase of the litigation. However, I believe that notwithstanding the inherently child specific nature of child-find inquiries, a class action based on a truly systemic child-find failure may be viable. And the fact that it may not be possible to identify individual class members until the remedial phase of the litigation, when prospective members of the class are invited to come forward and establish that

48

Nos. 09-2741 & 09-3274

they were among those injured by this systemic failure, should not preclude a class action, which may be the only realistic avenue of relief for those injured by systemic violations of their rights.
Systemic violations of the IDEA are cognizable. See Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 681 (9th Cir. 1997) (coll. cases). The problem here is that the plaintiffs’ claims appear to be based on multiple, disparate failures to comply with the school district’s statutory child-find obligations rather than a truly systemic policy or practice which affects them all. But my colleagues go so far as to state that “[t]here is no such thing as a ‘systemic’ failure to find and refer individual disabled children for IEP evaluation—except perhaps if there was ‘significant proof’ that MPS operated under child-find policies that violated the IDEA.” Ante at 33 (emphasis in original) (citing Wal-Mart, 130 S. Ct. at 2553). Certainly I agree that an illegal policy would support a claim for a systemic violation of the IDEA’s child-find mandate. But I also think that widespread practices might also support such a claim. Cf. King ex rel. King v. E. St. Louis School Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (citing Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005)) (noting that municipal liability under 42 U.S.C. § 1983 may be based on customs and practices as well as formal, written policies). Suppose, for example, that MPS ignored and did not refer for evaluation students with a particular type of potential disability—e.g., dyslexia—and as a result, large numbers of students with that disability went unidentified and were deprived of the educational services to which they

Nos. 09-2741 & 09-3274

49

were entitled under the IDEA. To my mind, this would be a genuinely systemic violation of the district’s childfind obligations that would be amenable to recognition and remediation in a class action: Notwithstanding the fact that each student is unique and is entitled to his own, individualized IEP, all members of the class would suffer a common injury resulting from the school district’s failure to have appropriate systems in place to identify students with that particular disability. Insisting instead that each student exhaust his administrative remedies and/or sue independently would surely mean that many such students would reamin unidentified and denied their right to free appropriate public education (if only because they would be unaware of their rights) and likely would mean that the systemic violation underlying their claims to relief would persist, as any individual proceedings would result in individual rather than structural relief.
A key reason why my colleagues are reluctant to acknowledge the possibility of a systemic violation of a school district’s child-find obligations is the inability to identify individual class members except by asking the parents of putative class members to come forward at the remedial phase of the litigation and to establish, in individual hearings, that their children were in fact the victims of the district’s child-find failures. But this method of identifying class members is hardly unprecedented. Our decision in McDonald v. United Air Lines, Inc., 745 F.2d 1081 (7th Cir. 1984), reflects a similar approach. The class in McDonald comprised women who had lost their jobs as a result of United Air Line’s rule (dating back to the 1930s) prohibiting marriage for its female

50

Nos. 09-2741 & 09-3274

cabin attendants. Once this court declared the no-marriage rule to be a violation of Title VII’s ban on sex discrimination in Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971), any woman who had lost her position as a result of that rule between the date Title VII took effect in 1965 and United’s abolition of the rule in 1968 became entitled to relief. See McDonald v. United Air Lines, Inc., 587 F.2d 357 (7th Cir. 1978). But many if not most of the class members had simply resigned their positions in contemplation of the no-marriage rule rather than formally protesting the rule or waiting for the company to discharge them, so there was no record enabling easy identification of those women who left because of the no-marriage rule as opposed to another reason. Consequently, the onus was on former flight attendants to come forward at the final stage of the litigation and claim entitlement to relief, at which point individual, adversarial hearings were convened before special masters in order to establish whether each claimant in fact left her position because of the illegal rule. See McDonald, 745 F.2d at 1087-88.
As in McDonald, there will be times when the nature of the challenged conduct makes it difficult if not impossible to identity who is in the class and is entitled to relief absent some sort of opt-in procedure by putative class members coupled with an adjudicatory procedure to confirm that they in fact qualify as class members. In McDonald this was true because so many class members silently resigned their jobs in deference to their employer’s illegal rule; in a child-find case like this one it would be true because the school district neglected

Nos. 09-2741 & 09-3274

51

its obligation under the IDEA to identify students with potential disabilities. This is not a function of a poor or open-ended class definition as in Rahman, but rather due to the fact that the defendant’s conduct did not produce a tidy record of the individuals harmed by that conduct. Identifying class members in such circumstances necessarily will require a relatively cumbersome, after-the-fact inquiry of the sort employed in McDonald and as the district court envisioned here. The only alternative is to foreclose class-wide relief in such cases and leave each individual harmed by the defendant’s conduct to pursue relief on his or her own, if he or she is even aware that a wrong has been committed. Realistically, that will mean no relief at all for most individuals.
For all of these reasons, I concur in the court’s conclusion that the class certified in this case was improper, but I do not join its conclusion that no class would be viable in this case or other litigation alleging violation of a school district’s child-find obligations absent an ability to identify an express policy that violates the IDEA.

2-3-12

 
 CLOSED,PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:01−cv−00928−RTR

S v. School Bd Milwaukee et al Assigned to: Judge Rudolph T Randa Demand: $0 Case in other court: Seventh Circuit, 09−2741
Eastern District of Kentucky, 05−47−WOB

Date Filed: 09/13/2001 Date Terminated: 08/21/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

USCA Milw Public Schools 07/08/09, 09−2741

09−3274

USCA: Biagio R. , et al; 09/11/09, 09−3274

12−3506

USCA Jamies S 10/31/12, 12−3506

Cause: 20:1400 Civil Rights of Handicapped Child

Plaintiff

Lamont A by his father and next friend, Maurice A TERMINATED: 11/14/2003

represented by Jeffrey D Spitzer−Resnick Disability Rights Wisconsin 131 W Wilson St − Ste 700 Madison, WI 53703−3263 608−267−0214 Fax: 608−267−0368 Email: jspitznick@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber Disability Rights Wisconsin 6737 W Washington St − Ste 3230 Milwaukee, WI 53214 414−342−8700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy Disability Rights Wisconsin 6737 W Washington St − Ste 3230 Milwaukee, WI 53214 414−773−4646 Fax: 414−773−4647 Email: monicam@w−c−a.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Aaron V by his mother and next friend, Kimberly V TERMINATED: 02/18/2004

represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy (See above for address) LEAD ATTORNEY
Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 1 of 50

ATTORNEY TO BE NOTICED

Plaintiff
Jim M by his father and next friend, William M TERMINATED: 11/14/2003

represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tyler C by his mother and next friend, Vickie S TERMINATED: 11/14/2003

represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
David P by his mother and next friend, Doris T TERMINATED: 11/14/2003

represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jamie S on her own behalf and on behalf of a class of similarly−situated persons

represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica M Murphy

Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 2 of 50

Plaintiff Maiysha Y by her mother and next friend, Flora Y TERMINATED: 11/14/2003
Plaintiff Biagio R by his parent and next friend Debra W
Plaintiff Bryan E by his mother and next friend Bridget E
Plaintiff Melanie V by her parents and next friends Jane P and Peter V

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey D Spitzer−Resnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J Bachhuber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica M Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey D Spitzer−Resnick (See above for address) ATTORNEY TO BE NOTICED
Monica M Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey D Spitzer−Resnick (See above for address) ATTORNEY TO BE NOTICED
Monica M Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey D Spitzer−Resnick (See above for address) ATTORNEY TO BE NOTICED
Monica M Murphy (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Milwaukee Public Schools

represented by Adrienne J Olson Marquette University Law School Sensenbrenner Hall 1103 W Wisconsin Ave PO Box 1881 Milwaukee, WI 53201−1881 414−288−6823 Email: adrienne.olson@marquette.edu TERMINATED: 11/01/2007 LEAD ATTORNEY

Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 3 of 50

E King Poor Quarles & Brady LLP 300 N LaSalle St − Ste 4000 Chicago, IL 60654 312−715−5143 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary M Ruesch Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5000 Fax: 414−277−5122 Email: gary.ruesch@quarles.com TERMINATED: 04/26/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lafayette L Crump Quarles & Brady 411 E Wisconsin Ave − Ste 2040 Milwaukee, WI 53202−4497 414−277−5000 TERMINATED: 12/03/2003 LEAD ATTORNEY

Michael Aldana Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5151 Fax: 414−978−8951 Email: ma2@quarles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

W Stuart Parsons Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5657 Fax: 414−271−3552 Email: wsp@quarles.com TERMINATED: 07/13/2009 LEAD ATTORNEY

Autumn M Kruse Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5567 Fax: 414−978−8648 Email: autumn.kruse@quarles.com TERMINATED: 04/26/2012 ATTORNEY TO BE NOTICED

Case: 2:01-cv-928

Jane E Appleby Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5517 Fax: 414−978−8836 Email: jappleby@quarles.com TERMINATED: 07/13/2009
As of: 10/26/2017 11:30 PM CDT 4 of 50

Katie A Featherston Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5146 Fax: 414−271−3552 Email: kfeather@quarles.com TERMINATED: 07/13/2009

Lisa Andeen Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2350 Milwaukee, WI 53202−4426 414−277−5737 TERMINATED: 01/31/2005

Nicholas O Anderson Schneider National Inc 3101 S Packerland Dr PO Box 2545 Green Bay, WI 54306−2545 920−592−3876 Fax: 920−592−3891 Email: nicholas.anderson@quarles.com ATTORNEY TO BE NOTICED

Roxane L Crawford Milwaukee City Attorney's Office 200 E Wells St − Rm 800 Milwaukee, WI 53202−3551 414−286−2628 TERMINATED: 09/25/2002

Susan D Bickert Milwaukee City Attorney's Office 200 E Wells St − Rm 800 Milwaukee, WI 53202−3551 414−286−2628 TERMINATED: 09/25/2002

Defendant
Spence Korte Superintendent Milwaukee Public Schools, in his official capacity TERMINATED: 09/25/2002

represented by Nicholas O Anderson (See above for address) ATTORNEY TO BE NOTICED
Roxane L Crawford Milwaukee City Attorney's Office 200 E Wells St − Ste 800 Milwaukee, WI 53202 414−286−2628 TERMINATED: 09/25/2002

Susan D Bickert (See above for address) TERMINATED: 09/25/2002

Defendant

Department of Public Instruction State of Wisconsin TERMINATED: 07/28/2008
Case: 2:01-cv-928

represented by Bruce A Olsen Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857
As of: 10/26/2017 11:30 PM CDT 5 of 50

608−266−2580 Fax: 608−267−2223 Email: olsenba@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane E Appleby (See above for address) TERMINATED: 07/13/2009

Nicholas O Anderson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Elizabeth Burmaster State Superintendent of Public Instruction, in her official capacity TERMINATED: 07/28/2008

represented by Bruce A Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas O Anderson (See above for address) ATTORNEY TO BE NOTICED

Defendant Milwaukee Board of School Directors

represented by Adrienne J Olson (See above for address) TERMINATED: 11/01/2007 LEAD ATTORNEY

Gary M Ruesch (See above for address) TERMINATED: 04/26/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lafayette L Crump (See above for address) TERMINATED: 12/03/2003 LEAD ATTORNEY

Michael Aldana (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W Stuart Parsons (See above for address) TERMINATED: 07/13/2009 LEAD ATTORNEY

Autumn M Kruse (See above for address) TERMINATED: 04/26/2012 ATTORNEY TO BE NOTICED

Jane E Appleby (See above for address) TERMINATED: 07/13/2009

Katie A Featherston (See above for address) TERMINATED: 07/13/2009

Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 6 of 50

Defendant
William Andrekopolous Superintendent Milwaukee Public Schools

Lisa Andeen (See above for address) TERMINATED: 01/31/2005
Nicholas O Anderson (See above for address) ATTORNEY TO BE NOTICED
Roxane L Crawford (See above for address) TERMINATED: 09/25/2002
Susan D Bickert (See above for address) TERMINATED: 09/25/2002
represented by Adrienne J Olson (See above for address) TERMINATED: 11/01/2007 LEAD ATTORNEY
Gary M Ruesch (See above for address) TERMINATED: 04/26/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lafayette L Crump (See above for address) TERMINATED: 12/03/2003 LEAD ATTORNEY
Michael Aldana (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Stuart Parsons (See above for address) TERMINATED: 07/13/2009 LEAD ATTORNEY
Autumn M Kruse (See above for address) TERMINATED: 04/26/2012 ATTORNEY TO BE NOTICED
Lisa Andeen (See above for address) TERMINATED: 01/31/2005
Nicholas O Anderson (See above for address) ATTORNEY TO BE NOTICED
Roxane L Crawford (See above for address) TERMINATED: 09/25/2002
Susan D Bickert (See above for address) TERMINATED: 09/25/2002

Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 7 of 50

Movant Milwaukee Teachers' Education Association TERMINATED: 05/03/2002
Movant Milwaukee Public Schools TERMINATED: 06/06/2003
Movant Milwaukee Board of School Directors TERMINATED: 06/06/2003
Movant William Andrekopolous TERMINATED: 06/06/2003

represented by Barbara Z Quindel Hawks Quindel SC 222 E Erie St − Ste 210 PO Box 442 Milwaukee, WI 53201−0442 414−272−7400 Fax: 414−271−8442 Email: bquindel@hq−law.com TERMINATED: 05/03/2002 LEAD ATTORNEY
represented by Todd M Rowe Tressler LLP Sears Tower 233 S Wacker Dr − 22nd Fl Chicago, IL 60606−6308 312−627−4180 Fax: 312−627−1717 Email: trowe@tresslerllp.com TERMINATED: 12/11/2003 LEAD ATTORNEY
William P Croke Quale Feldbruegge Calvelli Thom & Croke SC 710 N Plankinton Ave − 9th Fl Milwaukee, WI 53203−2404 414−271−2266 Fax: 414−276−0417 Email: wcroke@qfctc.com LEAD ATTORNEY
represented by Todd M Rowe (See above for address) TERMINATED: 12/11/2003 LEAD ATTORNEY
William P Croke (See above for address) LEAD ATTORNEY
represented by Todd M Rowe (See above for address) TERMINATED: 12/11/2003 LEAD ATTORNEY
William P Croke (See above for address) LEAD ATTORNEY

V.
Objector
United States Department of Justice TERMINATED: 03/28/2006

represented by Jonathan H Koenig United States Department of Justice (ED−WI) Office of the US Attorney

Case: 2:01-cv-928 As of: 10/26/2017 11:30 PM CDT 8 of 50

517 E Wisconsin Ave − Rm 530 Milwaukee, WI 53202 414−297−4399 Fax: 414−297−4394 LEAD ATTORNEY

Date Filed 09/13/2001
09/13/2001 09/13/2001 09/17/2001 09/24/2001 10/03/2001
10/05/2001 10/18/2001
10/24/2001 10/24/2001 11/13/2001 11/13/2001 11/13/2001 11/14/2001 11/28/2001

# Docket Text
1 COMPLAINT (Summons(es) issued); consent forms distributed for Magistrate Judge Goodstein (vlh, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (blr). (Additional attachment(s) added on 5/7/2012: # 6 Civil Cover Sheet) (blr).
2 CERTIFICATE of interest by plaintiffs (vlh, ) (blr). (Entered: 09/14/2001)
3 CERTIFICATE of interest (SEALED) by plaintiffs (vlh, ) (blr). (Entered: 09/14/2001)
4 ORDER for random reassignment by Judge Lynn Adelman for Judge Reynolds: case randomly reassigned to Judge Charles N. Clevert (cc: all counsel) (vlh, ) (blr). (Entered: 09/18/2001)
5 MOTION by plaintiff FOR ORDER FOR PERMISSION TO PROCEED ANONYMOUSLY , and TO SEAL CERTIFICATE OF INTEREST (ers, ) (Additional attachment(s) added on 4/4/2012: # 1 Cover Letter) (blr).
6 DECISION AND ORDER: by Judge Charles N. Clevert GRANTING motion FOR ORDER FOR PERMISSION TO PROCEED ANONYMOUSLY [5−1], GRANTING motion TO SEAL CERTIFICATE OF INTEREST [5−2] THAT the parties shall refer to any Plaintiff of proposed class members by their first name & last initial in any document filed w/ the court unless the documents are sealed upon a proper request by the parties. THAT the identification information beyond the Plaintiffs or proposed class members first name & last initial obtained during the course of discovery shall not be disclosed except as necessary for the prosecution of the case or the defense or upon a proper application to the court. (cc: all counsel) (ers, ) (blr). (Entered: 10/04/2001)
7 REFUSAL to Consent to Proceed before Magistrate Judge by defendant Public Instruction, defendant Elizabeth Burmaster w/ attached Certificate of Service (ers, ) (Additional attachment(s) added on 5/9/2012: # 1 Certificate of Service) (blr).
8 CONSENT to Proceed before Magistrate Judge by defendant Public Instruction, defendant Elizabeth Burmaster ( A Change from 10/4/01) (ers, ) Modified on 10/18/2001 (Additional attachment(s) added on 4/4/2012: # 1 Cover Letter, # 2 Certificate of Service) (blr).
9 CONSENT to Proceed before Magistrate Judge by ALL plaintiffs (ers, ) (Additional attachment(s) added on 4/4/2012: # 1 Cover Letter) (blr).
10 CERTIFICATE Of Service by plaintiffs (ers, ) (blr).
11 ANSWER & Affirmative Defenses by defendant Public Instruction, defendant Elizabeth Burmaster to [1−1] (ers, ) (Additional attachment(s) added on 4/4/2012: # 1 Certificate of Service, # 2 Cover Letter) (blr).
12 ANSWER by defendant Schools Milwaukee, defendant Spence Korte, defendant Board of Sch Dir Mil to [1−1] (ers, ) (blr). (Attachments: # 1 Certificate of Service)
13 CERTIFICATE OF SERVICE by defendant Schools Milwaukee, defendant Spence Korte, defendant Board of Sch Dir Mil (ers, ) (blr).
14 NOTICE by the Court ; Scheduling Conference set for 9:30 12/13/01 Joint Written Report outlining their discovery plan due 12/5/01 (cc: all counsel) (ers, ) (blr). (Entered: 11/16/2001)
15 CONSENT to Proceed before Magistrate Judge by defendant Board of Sch Dir Mil, defendant Schools Milwaukee and defendant Spence Korte (vkb, ) (blr). (Entered: 11/29/2001)

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11/28/2001 16 CERTIFICATE of service by defendant Schools Milwaukee, defendant Spence Korte and defendant Board of Sch Dir Mil (vkb, ) (blr). (Entered: 11/29/2001)

11/28/2001

17 ORDER by Judge Charles N. Clevert upon consent of parties, this case transferred to Mag Judge Aaron E. Goodstein for final disposition (cc: all counsel) (kah, ) (blr). (Entered: 11/29/2001)

11/28/2001

Consent to Magistrate Jurisdiction (vkb) (Entered: 03/21/2005)

12/03/2001 18 NOTICE of hearing by the Court ; Rule 16 scheduling conference rescheduled for 9:30am on 12/19/01 (cc: all counsel) (vkb, ) (blr). (Entered: 12/04/2001)

12/05/2001 19 JOINT RULE 26 DISCOVERY PLAN by plaintiffs and defendants (vkb, ) (blr). (Entered: 12/06/2001)

12/13/2001 20 JOINT SCHEDULING CONFERENCE REPORT from plaintiffs, defendants (kah, ) (blr). (Entered: 12/14/2001)

12/17/2001 21 ATTORNEY APPEARANCE for defendant Board of Sch Dir Mil by Stuart Parsons, Gary M Ruesch, Michael Aldana, Lafayette L Crump (kah, ) (blr).

12/19/2001

22 HEARING MINUTES: by Mag Judge Aaron E. Goodstein ; any motions relating to discovery disputes are to be filed no later than 3/13/02; Rule 16 conference continued to 9:30am on 3/20/02; Joint Rule 26f report to be filed by 3/13/02 Court Reporter: Tape 2011 1−966 (vkb, ) Modified on 03/05/2002 (blr). (Entered: 12/20/2001)

12/21/2001 23 SCHEDULING ORDER by Mag Judge Aaron E. Goodstein; see hearing minutes (cc: all counsel) (vkb, ) (blr). (Entered: 12/27/2001)

03/04/2002

24 JOINT MOTION by plaintiffs and defendants Dept of Public Instruction and Elizabeth Burmaster for protective order ; proposed order attached (vkb, ) (blr). (Entered: 03/05/2002)

03/04/2002

25 BRIEF by plaintiffs and State defendants in support of joint motion for protective order [24−1] (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Appendix 101 − 106, # 2 Appendix 107 − 112) (blr). (Entered: 03/05/2002)

03/08/2002 26 MOTION by plaintiff for declaratory order (vkb, ) (blr). (Entered: 03/11/2002)

03/08/2002

27 BRIEF by plaintiffs in support of motion for declaratory order [26−1] (vkb, ) (blr). (Additional attachment(s) added on 5/9/2012: # 1 Affidavit of Jeffrey Spitzer−Resnick) (blr). (Entered: 03/11/2002)

03/08/2002

28 LETTER from the court to plaintiffs; the court has received plaintiffs' motion for a declaratory order, however, before the court will consider this motion compliance with Civil Local Rule 37.1 is necessary (vkb, ) (blr). (Entered: 03/11/2002)

03/08/2002 29 PROTECTIVE ORDER by Mag Judge Aaron E. Goodstein: see order for details (cc: all counsel) (vkb, ) (blr). (Entered: 03/11/2002)

03/13/2002 30 JOINT RULE 26 DISCOVERY PLAN by plaintiffs and defendants (vkb, ) (blr).

03/13/2002

31 LETTER from plaintiffs in response to letter from the court dated 03/08/02 re: Motion for Declaratory Order that was filed. (kah, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A) (blr). (Entered: 03/15/2002)

03/19/2002 32 MOTION of the Milwaukee Teachers' Education Association to intervene (vkb, ) (blr). (Entered: 03/20/2002)

03/19/2002 33 BRIEF in support of motion to intervene [32−1] by the Milwaukee Teachers' Education Association (vkb, ) (blr). (Entered: 03/20/2002)

03/19/2002

34 AFFIDAVIT of Sam Carmen in support of motion of the Milwaukee Teachers' Education Association to intervene (vkb) (Additional attachment(s) added on 1/24/2014: # 1 Certificate of Service) (blr). (Entered: 03/20/2002)

03/19/2002 35 LETTER from Milwaukee Teachers Education Assoication re: plaintiffs Motion for Declaratory Order (vkb, ) (blr). (Entered: 03/20/2002)

03/20/2002 36 HEARING MINUTES: by Mag Judge Aaron E. Goodstein status hearing held 3/20/02 ; defendant to respond to plaintiffs' motion for declaratory order by 4/03/02; plaintiff
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03/22/2002 03/28/2002 03/28/2002 03/28/2002 04/03/2002 04/03/2002 04/03/2002
04/03/2002 04/08/2002 04/10/2002 04/10/2002
04/10/2002
04/11/2002 04/11/2002 04/15/2002
04/17/2002

to respond by 4/17/02; parties to respond to Milwaukee Teachers Education Association's motion to intervene and its letter requesting notice of informal interviews and depositions no later than 4/03/02; MTEA to respond by 4/10/02; initial disclosures to be exchanged by 5/20/02; plaintiffs to disclose expert witnesses by 7/22/02; defendants by 9/06/02; motion for class certification due by 10/31/02; responses by 12/16/02 and reply by 1/10/03 Court Reporter: John Schindhelm (vkb, ) Modified on 03/25/2002 (blr). (Entered: 03/21/2002)
37 SCHEDULING ORDER II by Mag Judge Aaron E. Goodstein: see hearing minutes (cc: all counsel) (vkb, ) (blr). (Entered: 03/25/2002)
38 MOTION by plaintiffs to compel (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr).
39 BRIEF by plaintiffs in support of motion to compel [38−1] (vkb, ) (blr).
40 SECOND AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb, ) (blr).
41 LETTER from defendants Department of Public Instruction and Elizabeth Burmaster stating that they do not object to MTEA's motion to intervene nor do they object to the request in MTEA's 3/19/02 letter (vkb, ) (blr). (Entered: 04/04/2002)
42 LETTER from plaintiffs in response to MTEA's motion to intervene and request in MTEA's 3/19/02 letter (vkb, ) (blr). (Entered: 04/04/2002)
43 LETTER from defendants MPS, Spence Korte and Board of Sch Dir stating that they do not object to MTEA's motion to intervene and that their position with regard to plaintiffs' interviewing bargaining unit members is stated in their brief in opposition to plaintiffs' motion for a declaratory ruling (vkb, ) (blr). (Entered: 04/04/2002)
44 BRIEF by defendant MPS, Spence Korte and Board of Sch Dir Mil in opposition to plaintiffs' motion for declaratory order [26−1] (vkb, ) (blr). (Attachments: # 1 Certificate of Service) (Entered: 04/04/2002)
45 LETTER from plaintiffs re: discovery disupte (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit) (blr). (Entered: 04/09/2002)
46 LETTER from the Court to plaintiff; the court will consider the motion to complel; the defendant shall respond no later than 4/19/02 and any reply must be filed no later than 5/03/02 (vkb, ) (blr). (Entered: 04/11/2002)
47 MOTION by defendants Department of Public Instruction and Elizabeth Burmaster for hearing on parent objections to proposed release of student records (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (blr). (Entered: 04/11/2002)
48 DOCUMENTS received from defendants Department of Public Instruction and Elizabeth Burmaster; copies of documents containing personally identifiable student information regarding the three students whose parents or guardians have objected to the release of certain documents pursuant to the Court's Protective Order (SEALED) (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Documents − Part 2, # 2 Cover Letter) (blr). (Entered: 04/11/2002)
49 ORDER by Mag Judge Aaron E. Goodstein granting motion for hearing on parent objections to proposed release of student records [47−1] (cc: all counsel) (vkb, ) (blr). (Entered: 04/12/2002)
49 NOTICE of hearing by the Court ; hearing on parent objections set for 9:00am on 5/1/02 in Courtroom 254 (cc: all counsel) (vkb, ) (blr). (Entered: 04/12/2002)
50 SUPPLEMENTAL DOCUMENT relating to the hearing on objections to the release of certain documents by defendants Department of Public Instruction and Elizabeth Burmaster (SEALED) (vkb, ) (blr). (Additional attachment(s) added on 5/2/2012: # 1 Cover Letter) (blr). (Entered: 04/16/2002)
51 REPLY BRIEF by plaintiffs in support of motion for declaratory order [26−1] (vkb, ) (blr). (Entered: 04/18/2002)

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04/19/2002 04/19/2002 04/29/2002 05/01/2002
05/01/2002
05/03/2002 05/03/2002
06/12/2002 06/17/2002 06/24/2002 06/27/2002
06/28/2002
07/15/2002

52 BRIEF by defendants Board of Sch Dir Mil, MPS and Spence Korte in opposition to plaintiffs' motion to compel [38−1] (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A) (blr). (Entered: 04/22/2002)
53 AFFIDAVIT of Gary Ruesch in support of defendants Milwaukee Board of School Directors, Milwaukee Public Schools and Spence Korte's response to plaintiffs' motion to compel (vkb, ) (Additional attachment(s) added on 4/4/2012: # 1 Exhibit A, # 2 Exhibit B) (blr). (Entered: 04/22/2002)
54 LETTER from Susie Smith, mother of Beatrice Smith, stating that she does not object to the release of information about her daughter and she does not intend on appearing at the hearing on this matter (vkb, ) (blr).
55 HEARING MINUTES: by Mag Judge Aaron E. Goodstein ; hearing held 5/1/02 ; parties agree to draft letter to parents which will give parents more information as to the disemination of information; parties have not appeared; Court states that parties have waived objections due to non−appearance; Court Reporter: Kristin Wurgler, Schindhelm (vkb, ) (blr). (Entered: 05/02/2002)
56 ORDER AUTHORIZING RELEASE by Mag Judge Aaron E. Goodstein; because the parents or guardians failed to appear, the court, in the exercise of its discretion, concludes that the parents have waived their objections to the release of information; the defendants may release the documents in accordance with the protective order; the plaintiffs and defendants agree to work on revising the letter sent to parents concerning the release of information in an effort to make it more consumer friendly (cc: all counsel) (vkb, ) (blr). (Entered: 05/02/2002)
57 REPLY BRIEF by plaintiffs in support of motion to compel [38−1] (vkb, ) (blr).
58 ORDER by Mag Judge Aaron E. Goodstein denying without prejudice MTEA's motion to intervene [32−1]; denying plaintiffs' motion for declaratory order [26−1] but the court establishes the informal discovery procedure set forth in this order at pages 9−10; denying plaintiffs' motion to compel [38−1] (cc: all counsel) (vkb, ) (blr). (Entered: 05/06/2002)
59 REQUEST by defense attorney Bruce Olson for a telephone status conference re: parents objections to release of documents (vkb, ) (blr). (Entered: 06/13/2002)
60 NOTICE of hearing by the Court ; Telephonic scheduling conference to discuss parents' objections set for 8:30am on 6/27/02 (cc: all counsel) (vkb, ) (blr).
61 LETTER from plaintiffs re: 6/27/02 hearing (vkb, ) (blr).
62 HEARING MINUTES: by Mag Judge Aaron E. Goodstein; John and Rosa Malave called but not available; because they failed to appear the court concludes that the parents have waived their objections to the release of information; the plaintiffs and defendants agree to work on revising the letter sent to parents in an effort to make it more consumer friendly; draft of the revised letter to plaintiffs' counsel by 7/9/02 ; telephone hearing held 6/27/02 Court Reporter: None (vkb, ) (blr). (Entered: 06/28/2002)
63 ORDER AUTHORIZING RELEASE OF DOCUMENTS by Mag Judge Aaron E. Goodstein; because Juan and Rosa Malave failed to appear, the court, in the exercise of its discretion, concludes that the parents have waived their objections to the release of information; the defendants may release the documents in accordance with the protective order; see hearing minutes (cc: all counsel) (vkb, ) (blr). (Entered: 07/01/2002)
64 LETTER from plaintiffs; the parties have agreed to modify dates for sharing certain information; the response deadlined to plaintiffs Second Set of Interrogatories and Request for Production of Documents Directed Towards Defendnats MBSD, MPS and Spence Korte and plaintiff's Rule 34 Request related to the deposition of Carol Topinka is exntended to 7/31/02; plaintiff shall disclose the names, CV, and other expert experience of their experts by 8/02/02; plaintiffs shall disclose their experts' reports by 8/16/02; all defendants shall disclose the names, CV, and other expert experience of their experts by 9/06/02; all defendants shall disclose their experts' reports by 9/20/02 (vkb, ) (blr). (Entered: 07/16/2002)

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08/27/2002 65 JOINT MOTION by plaintiffs and defendants for protective order (vkb, ) (blr). (Entered: 08/28/2002)

08/28/2002 66 PROTECTIVE ORDER by Mag Judge Aaron E. Goodstein : granting motion for protective order [65−1] (cc: all counsel) (vkb, ) (blr). (Entered: 08/30/2002)

09/11/2002

67 RULE 7.4 EXPEDITED NON−DISPOSITIVE MOTION by defendants Board of Sch Dir Mil, MPS and Spence Korte to enlarge the time to serve their expert report (vkb, ) (blr). (Entered: 09/12/2002)

09/13/2002

68 ORDER by Mag Judge Aaron E. Goodstein granting defendants motion to enlarge the time to serve their expert report [67−1]; granted on the condition that the report is delivered to plaintiffs' counsel on or before 9/27/02; the deadline for the filing of the motion for class certification is extended to 11/07/02; the date for responding is extended to 12/23/02; and the date for reply is extended to 1/17/03 (cc: all counsel) (vkb, ) (blr). (Entered: 09/16/2002)

09/16/2002 69 BRIEF IN OPPOSITION TO MPS DEFENDANTS' MOTION TO ENLARGE TIME by plaintiffs [67−1] (vkb, ) (blr). (Entered: 09/17/2002)

09/16/2002

70 THIRD AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb, ) (Additional attachment(s) added on 4/3/2012: # 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) (blr). (Entered: 09/17/2002)

09/25/2002 71 RULE 7.4 EXPEDITED NON−DISPOSITIVE MOTION by plaintiffs for leave to file a supplemental complaint (vkb, ) (blr). (Entered: 09/26/2002)

09/25/2002

72 PROPOSED First Supplemental Complaint submitted by plaintiffs (vkb, ) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr). (Entered: 09/26/2002)

09/25/2002 73 MOTION by plaintiffs for preliminary injunction (vkb, ) (blr). (Entered: 09/26/2002)

09/25/2002 74 BRIEF by plaintiffs in support of motion for preliminary injunction [73−1] (vkb, ) (blr). (Entered: 09/26/2002)

09/25/2002 75 DECLARATION of Maurice A in support of Motion for Preliminary Injunction (unsigned) (vkb, ) (blr). (Entered: 09/26/2002)

09/25/2002

76 DECLARATION of Laura Owens in support of motion for preliminary injunction (vkb, ) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B) (blr). (Entered: 09/26/2002)

09/25/2002

77 DECLARATION of Michael J Bachhuber in support of motion for preliminary injunction (vkb, ) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A) (blr). (Entered: 09/26/2002)

09/25/2002 78 RULE 7.4 EXPEDITED NON−DISPOSITVE MOTION by plaintiffs to file signed copy of declaration under seal (vkb, ) (blr). (Entered: 09/26/2002)

09/27/2002

79 NOTICE of hearing by the Court setting telephone hearing on plaintiff's motion for leave to file a supplemental complaint [71−1] for 4:00pm on 10/9/02; defendants shall file their written response in accordance with Civil LR 7.4(b); plaintiffs shall file a proposed supplemental complaint that meets the requirements of Civil LR 15 in that "the entire pleading as amended" must be reproduced and it "may not incorporate any prior pleading by reference"; this shall be filed no later than 10/04/02 (cc: all counsel) (vkb, ) (blr). (Entered: 09/30/2002)

10/01/2002

80 LETTER from Attorney Roxane Crawford stating that she will not be participating in the 10/09/02 hearing; the Milw Board of School Directors will be represented by Quarles & Brady at the hearing (vkb, ) (blr). (Entered: 10/02/2002)

10/03/2002 81 MOTION by plaintiffs to compel (vkb, ) (blr). (Entered: 10/04/2002)

10/03/2002 82 BRIEF by plaintiffs in support of motion to compel [81−1] (vkb, ) (blr). (Entered: 10/04/2002)

10/03/2002 83 FOURTH AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb, ) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr).

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10/04/2002 10/04/2002 10/04/2002 10/08/2002 10/09/2002 10/09/2002
10/09/2002 10/09/2002 10/09/2002
10/11/2002 10/23/2002 10/25/2002 11/06/2002 11/07/2002 11/07/2002 11/07/2002 11/07/2002

(Entered: 10/04/2002)
84 PROPOSED First Amended and Supplemental Complaint submitted by plaintiff (vkb, ) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr). (Entered: 10/07/2002)
85 BRIEF by state defendants Public Instruction and Elizabeth Burmaster in opposition to plaintiffs' motion for leave to file a supplemental complaint [71−1] (vkb, ) (blr). (Entered: 10/07/2002)
86 BRIEF by defendants MPS, Board of Sch Dir Mil and William Andrekopolous in opposition to plaintiffs' motion for leave to file a supplemental complaint [71−1] (vkb, ) (blr). (Entered: 10/07/2002)
87 LETTER BRIEF by MPS defendants in opposition to plaintiffs' motion to compel [81−1] (vkb, ) Modified on 10/09/2002 (blr). (Entered: 10/09/2002)
88 ATTORNEY APPEARANCE for movants MPS, Board of Sch Dir Mil, William Andrekopolous by William P Croke and Todd M Rowe (vkb, ) (Attachments: # 1 Certificate of Service) (blr). (Entered: 10/10/2002)
89 MOTION by movants MPS, Board of Sch Dir Mil and William Andrekopolous to bring in third−party defendant (vkb, ) (Additional attachment(s) added on 4/13/2012: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit B, # 4 Exhibit C) (blr). (Entered: 10/10/2002)
90 BRIEF by movants MPS, Board of Sch Dir Mil and William Andrekopolous in support of motion to bring in third−party defendant [89−1] (vkb, ) (blr). (Entered: 10/10/2002)
91 AFFIDAVIT of William P Croke in support of motion to bring in third−party defendant (vkb, ) (Additional attachment(s) added on 4/17/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr). (Entered: 10/10/2002)
92 HEARING MINUTES: by Mag Judge Aaron E. Goodstein on motion for leave to file a supplemental complaint [71−1] and motion to compel [81−1]; the court will DENY plaintiffs' motion for leave to file a supplemental complaint [71−1]; the court lacks jurisdiction; plaintiffs' motion to compel [81−1] is GRANTED; defendants to state reasons for denial within 10 days; Court Reporter: Recorded 4:02:26 − 4:44:31 (vkb, ) (blr). (Entered: 10/10/2002)
93 ORDER by Mag Judge Aaron E. Goodstein; see hearing minutes (cc: all counsel) (vkb, ) (blr).
94 PLAINTIFF'S STATEMENT regarding response brief to MPS defendants' motion for leave to bring in third−party defendant docketed as BRIEF IN OPPOSITION to motion to bring in third−party defendant [89−1] (vkb, ) (blr). (Entered: 10/24/2002)
95 REPLY BRIEF by defendants Board of Sch Dir Mil, MPS, and William Andrekopolous in support of their motion to bring in third−party defendant [89−1] (vkb, ) (blr). (Entered: 10/28/2002)
96 NOTICE of hearing by the Court setting hearing on motion to bring in third−party defendant [89−1] for 9:00am on 11/18/02 (cc: all counsel) (vkb, ) (blr). (Entered: 11/07/2002)
97 MOTION by plaintiffs for class certification (vkb, ) (blr). (Entered: 11/08/2002)
98 BRIEF by plaintiffs in support of motion for class certification [97−1] (vkb, ) (blr). (Entered: 11/08/2002)
99 MOTION by plaintiffs to file signed copy of declarations in support of motion for class certification under seal (vkb, ) (blr). (Entered: 11/08/2002)
100 Signed copy of declarations in support of plaintiffs' Motion for Class Certification filed under SEAL (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Declaration of Jim M., # 2 Declaration of Jim M. − Exhibit A, # 3 Declaration of Jim M. − Exhibit B, # 4 Declaration of Kim V., # 5 Declaration of Jeff A., # 6 Declaration of Linda B., # 7 Declaration of Linda B. − Exhibits, # 8 Declaration of Teresa C., # 9

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11/07/2002
11/07/2002 11/07/2002
11/07/2002 11/07/2002 11/07/2002 11/07/2002

Declaration of Tracey C., # 10 Declaration of Tracey C. − Exhibit A, # 11 Declaration of Anges D., # 12 Declaration of Tameka D., # 13 Declaration of Rebecca F., # 14 Declaration of Ellouise G., # 15 Declaration of Gala H., # 16 Declaration of Sandra H., # 17 Declaration of Kathleen K., # 18 Declaration of Kathleen K. − Exhibits, # 19 Declaration of Tanya N., # 20 Declaration of Ann O., # 21 Declaration of Ann O. − Exhibit A, # 22 Declaration of Ann O. − Exhibit B, # 23 Declaration of Ann O. − Exhibit C, # 24 Declaration of Joanie P., # 25 Declaration of John P., # 26 Declaration of Golda R., # 27 Declaration of Ken R., # 28 Declaration of Bobby S., # 29 Declaration of Detra S., # 30 Declaration of Laura S., # 31 Declaration of Pam S., # 32 Delcaration of Pam S. #2, # 33 Declaration of Susan S., # 34 Declaration of Theresa S., # 35 Declaration of Harvenia W., # 36 Declaration of Latika W., # 37 Declaration of Stephanie W−G) (blr). (Entered: 11/08/2002)
101 DOCUMENTS received from plaintiffs; Volume 2 − Affidavit of Counsel, Deposition Excerpts, Exhibits (vkb, ) (Additional attachment(s) added on 4/17/2012: # 2 Affidavit of Monica Murphy, # 3 Affidavit of Kathryn Peacock, # 4 Affidavit of Kathryn Peacock − Exhibit A, # 5 Affidavit of Kathryn Peacock − Exhibit B, # 6 Deposition of Richard Brigham, # 7 Deposition of Janice Duff, # 8 Deposition of Jack L. Frye−Osier, # 9 Deposition of Spence Korte, # 10 Deposition of John S. Gardner, # 11 Deposition of Suzanne Lundin, # 12 Deposition of Stephanie Petska, # 13 Deposition of Robert Plath, # 14 Deposition of Audrey Potter, # 15 Deposition of Kaye Reynolds, # 16 Deposition of Susan M. Ristow, # 17 Deposition of Georgette Rodriguez, # 18 Deposition of Carol Topinka, # 19 Deposition of Elliot Weiman, # 20 Deposition of Patricia Yahle, # 21 Yahle − Exhibit 7, # 22 Brigham − Exhibit 15, # 23 Topinka − Exhibit 18, # 24 Weiman − Exhibit 66, # 25 Weiman − Exhibit 67, # 26 Weiman − Exhibit 68, # 27 Weiman − Exhibit 69, # 28 Weiman − Exhibit 70, # 29 Weiman − Exhibit 71, # 30 Weiman − Exhibit 72, # 31 Weiman − Exhibit 73, # 32 Weiman − Exhibit 74, # 33 Exhibit 75, # 34 Exhibit 78, # 35 Duff − Exhibit 86, # 36 Duff − Exhibit 87, # 37 Duff − Exhibit 88, # 38 Duff − Exhibit 89, # 39 Duff − Exhibit 90, # 40 Duff − Exhibit 91, # 41 Duff − Exhibit 92, # 42 Duff − Exhibit 93, # 43 Duff − Exhibit 94, # 44 Duff − Exhibit 95, # 45 Duff − Exhibit 96, # 46 Duff − Exhibit 100, # 47 Petska − Exhibit 111, # 48 Petska − Exhibit 112, # 49 Korte − Exhibit 125) (blr). (Entered: 11/08/2002)
102 DOCUMENTS received from plaintiffs; Volume 3 − Experts' Vitae, Experts' Reports (vkb, ) (Additional attachment(s) added on 4/17/2012: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H) (blr). (Entered: 11/08/2002)
103 DOCUMENTS received from plaintiffs; Volume 4 − Declarations (vkb, ) (blr). (Additional attachment(s) added on 4/17/2012: # 1 Declaration of Kim V., # 2 Declaration of Jim M., # 3 Declaration of Jim M. − Exhibit A, # 4 Declaration of Jim M. − Exhibit B, # 5 Declaration of Terri Fuller, # 6 Declaration of Pat Patterson, # 7 Declaration of Vickie S., # 8 Declaration of Doris T., # 9 Declaration of Flora Y., # 10 Declaration of Jeff A., # 11 Declaration of Julie B., # 12 Declaration of Linda B., # 13 Declaration of Teresa C., # 14 Declaration of Tracey C., # 15 Declaration of Anges D., # 16 Declaration of Rhonda D., # 17 Declaration of Tameka D., # 18 Declaration of Rebecca F., # 19 Declaration of Ellouise G., # 20 Declaration of Gala H., # 21 Declaration of Sandra H., # 22 Declaration of Kathleen K., # 23 Declaration of Lynn M., # 24 Declaration of Tanya N., # 25 Declaration of Ann O., # 26 Declaration of Joanie P., # 27 Declaration of John P., # 28 Declaration of Golda R., # 29 Declaration of Ken R., # 30 Declaration of Bobby S., # 31 Declaration of Detra S., # 32 Declaration of Laura S., # 33 Declaration of Pam S. #1, # 34 Declaration of Pam S. #2, # 35 Declaration of Susan S., # 36 Declaration of Theresa S., # 37 Declaration of Christine W., # 38 Declaration of Harvenia W., # 39 Declaration of Latika W., # 40 Declaration of Stephanie W−G) (blr). (Entered: 11/08/2002)
104 DECLARATION of Terri Fuller in support of motion for class certification (vkb, ) (blr). (Entered: 11/08/2002)
105 DECLARATION of Pat Patterson in support of motion for class certification (vkb, ) (blr). (Entered: 11/08/2002)
106 DECLARATION of Flora Y (vkb, ) (blr). (Entered: 11/08/2002)
107 DECLARATION of Vickie S (vkb, ) (blr). (Entered: 11/08/2002)

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11/07/2002 108 DECLARATION of Julie B (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 109 DECLARATION of Rhonda D (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 110 DECLARATION of Lynn M (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 111 DECLARATION of Christine W (copy filed) (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 112 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Spence Korte 10/24/02 (vkb, ) Modified on 11/08/2002 (blr). (Entered: 11/08/2002)

11/07/2002 113 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Susan Ristow 5/24/02 (vkb, ) Modified on 11/08/2002 (blr). (Entered: 11/08/2002)

11/07/2002

114 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Elliot Weiman 7/01/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 66, # 2 Exhibit 67, # 3 Exhibit 68, # 4 Exhibit 69, # 5 Exhibit 70, # 6 Exhibit 71, # 7 Exhibit 72, # 8 Exhibit 73, # 9 Exhibit 74) (blr). (Entered: 11/08/2002)

11/07/2002 115 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Georgette Rodriguez 6/10/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 61) (blr). (Entered: 11/08/2002)

11/07/2002 116 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Robert Plath 7/11/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 82, # 2 Exhibit 83, # 3 Exhibit 84, # 4 Exhibit 85) (blr). (Entered: 11/08/2002)

11/07/2002 117 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Suzanne Lundin 6/24/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002

118 ORIGINAL SEALED TRANSCRIPT filed; Examination of Jack L Frye−Osier 7/02/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 75, # 2 Exhibit 76, # 3 Exhibit 77, # 4 Exhibit 78, # 5 Exhibit 79, # 6 Exhibit 80, # 7 Exhibit 81) (blr). (Entered: 11/08/2002)

11/07/2002 119 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Kaye Reynolds 10/09/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 118, # 2 Exhibit 119) (blr). (Entered: 11/08/2002)

11/07/2002 120 ORIGINAL SEALED TRANSCRIPT filed; Deposition of John Gardner 5/31/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 121 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Stephanie Petska 10/04/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 122 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Audrey Potter 10/07/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 123 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Carol R Topinka 5/30/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 124 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Janice Duff 7/15/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 125 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Richard Brigham 5/29/02 (vkb, ) (Additional attachment(s) added on 5/2/2012: # 1 Exhibit 15) (blr). (Entered: 11/08/2002)

11/07/2002 126 ORIGINAL SEALED TRANSCRIPT filed; Volume 2 Deposition of Richard Brigham 6/13/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 127 ORIGINAL SEALED TRANSCRIPT filed; Deposition of Patricia A Yahle 5/22/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/07/2002 128 ORIGINAL SEALED TRANSCRIPT filed; Volume 2 Deposition of Patricia A Yahle 6/05/02 (vkb, ) (blr). (Entered: 11/08/2002)

11/18/2002

129 Minute Entry for proceedings held before Judge Aaron E Goodstein: Motion Hearing held on 11/18/2002 re 99 Motion to File signed copy of declarations in support of motion for class certification under seal and 89 Motion to Add Party as third party defendant; court will GRANT motion to maintain signed declarations under seal; court

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11/19/2002
11/20/2002 11/20/2002 11/20/2002 11/20/2002 12/02/2002 12/11/2002
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will order substitution of the new superintendent in place of Spence Korte; plaintiff has no objection to adding 3rd pary defendant so long as it does not impede movement of the case; court will only bring in National Union and USF&G if the parties will consent to proceed before the magistrate; National Union to discuss and advise the court; Atty Fredrickson to advise the court within 7 days (Tape #9:04:10 − 9:40:04) (vkb) Modified on 11/19/2002 (vkb, ). (blr). (Entered: 11/19/2002)
130 ORDER signed by Judge Aaron E Goodstein; plaintiff's Motion to file signed copy of declarations in support of motion for class certification under seal is GRANTED; defendants' Motion to bring in third party is TAKEN UNDER ADVISEMENT; National Union Fire Ins Co is to advise the court, in writing by 11/25/02, whether or not it will consent to Magistrate Judge jurisdiction if the defendants' motion is granted; pursuant to Rule 25(d), William Andrekopolous is substituted as Superintendent of Milw Public Schools replacing Spence Korte (cc: all counsel) (vkb) (blr). (Entered: 11/21/2002)
131 MOTION by plaintiffs to Compel answers to plaintiffs' third set of interrogatories and request for production of documents (vkb) (blr). (Entered: 11/22/2002)
131 MOTION by plaintiffs for Leave to Exceed Interrogatories Limit (vkb) (blr). (Entered: 11/22/2002)
132 BRIEF in Support of plaintiffs' 131 MOTION to Compel and 131 MOTION for Leave (vkb) (blr). (Entered: 11/22/2002)
133 FIFTH AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (blr). (Entered: 11/22/2002)
134 LETTER from National Union; National Union has chosen not to consent to magistrate jurisdiction and wishes to maintain its full, unencumbered rights to bring in third−parties to any action in which it is named (vkb) (blr). (Entered: 12/03/2002)
135 BRIEF in Opposition re 131 plaintiffs' MOTION to Compel answers to plaintiffs' third set of interrogatories and request for production of documentsand re 131 MOTION by plaintiffs for Leave to Exceed Interrogatories Limit filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 12/12/2002)
136 AFFIDAVIT of Lafayette L Crump in support of response to plaintiffs' motion to compel and to seek responses to additional interrogatories (vkb) (Additional attachment(s) added on 4/3/2012: # 1 Exhibit A, # 2 Exhibit B) (blr). (Entered: 12/12/2002)
137 BRIEF in Opposition re 97 Motion to Certify Class filed by State Defendants (vkb) (blr).
138 AFFIDAVIT of Bruce A Olsen (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (blr).
139 AFFIDAVIT of Sherri Honaker (vkb) (blr).
140 BRIEF in Opposition re 97 plaintiffs' Motion to Certify Class filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 12/24/2002)
141 AFFIDAVIT of Patricia Yahle in support of Milwaukee Board of School Directors, Milwaukee Public Schools and William Andrekopoulos's Brief in Opposition to Plaintiffs' Motion for Class Certification (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A) (blr). (Entered: 12/24/2002)
142 REPLY BRIEF in Support re 131 MOTION to Compel and 131 MOTION to Seek Responses to additional interrogatories beyond those permitted by rule filed by Plaintiffs (vkb) (blr).
143 SIXTH AFFIDAVIT of Jeffrey Sptizer−Resnick (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (blr).

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01/03/2003 144 LETTER from MPS defendants clarifying a point in their brief in oppostion to plaintiffs' motion to compel and to seek responses to additional interrogatories (vkb) (blr). (Entered: 01/06/2003)

01/17/2003 145 REPLY BRIEF in Support re 97 Motion to Certify Class filed by Plaintiffs (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 146 AFFIDAVIT of Monica Murphy in support of motion for class certification (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 147 MOTION to Enlarge Page Limits for its Reply Brief in Support of Plaintiffs' Motion for Class Certification by Plaintiffs (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 148 MOTION to Strike the Affidavit of Patricia Yahle by Plaintiffs (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 149 BRIEF in Support re 148 MOTION to Strike the Affidavit of Patricia Yahle filed by Plaintiffs (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 150 AFFIDAVIT of Monica Murphy in support of Motion to Strike the Affidavit of Patricia Yahle (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 151 DECLARATION of Ayoka Huff in support of Motion to Strike Pat Yahle Affidavit (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 152 TRANSCRIPT of Deposition of Ada Rivera on 12/11/02; in judge's file (vkb) (blr). (Entered: 01/21/2003)

01/17/2003 153 TRANSCRIPT of Deposition of Elise Frattura, PhD held on 10/18/02; in judge's file (vkb) (blr). (Entered: 01/21/2003)

02/10/2003 154 BRIEF in Opposition re 148 plaintiffs' MOTION to Strike Affidavit of Patricia Yahle filed by City of Milwaukee Defendants(vkb) (blr).

02/10/2003 155 AFFIDAVIT of Patricia Yahle in opposition to plaintiff's motion to strike (vkb) (blr).

02/10/2003 156 AFFIDAVIT of Joann Buhr in opposition to plaintiff's motion to strike (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit) (blr).

02/10/2003 157 AFFIDAVIT of Richard Desotelle in opposition to plaintiffs' motion to strike (vkb) (blr).

02/24/2003 158 REPLY BRIEF in Support re 148 MOTION to Strike the Affidavit of Patricia Yahle filed by Plaintiffs (vkb) (blr).

05/23/2003

159 DECISION & ORDER REGARDING CLASS CERTIFICATION signed by Judge Aaron E Goodstein on 05/23/03: IT IS ORDERED that Pltf's 147 Motion for Leave to File Excess Pages is GRANTED; FURTHER ORDERED that the pltfs submit an amended class certification motion by 06/23/03; defts to submit their response by 07/14/03; pltfs reply due by 07/21/03; FURTHER ORDERED that Deft's 148 Motion to Strike the affidavit of Patricia Yahle is DENIED WITHOUT PREJUDICE . (cc: all counsel) (kah, ) (blr). (Entered: 05/27/2003)

05/27/2003

160 LETTER from the Court to counsel; regarding some unresolved matters in this case, plaintiffs' motion to compel which was filed on 11/20/02 and defendants motion to add a third−party defendant which was filed 10/9/02. Plaintiffs counsel should submit a letter indicating which interrogatories need to be answered and which documents should be produced. Plaintiffs letter should be submitted nolater than 6/6/03, and defendants respond no later than 6/16/03, no reply is required. Defendants are to advise the court in writing no later than 6/6/0 3as to whether they are still pursuing their motion to add a third−party defendant.(eeb, ) Modified on 5/27/2003 (eeb, ). (blr).

06/06/2003 161 LETTER from Milwaukee defendants (movants) confirming that the motion to add a third−party in this case was effectively withdrawn by Atty. Fredrickson's 12/02/02 letter (vkb) (blr). (Entered: 06/09/2003)

06/06/2003

MARGINAL ORDER by Judge Aaron E Goodstein that the clerk is directed to have the docket reflect that 89 defendants'/movants' Motion to Add a Third−Party Defendant has been WITHDRAWN (motion terminated and movants terminated) (cc:

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06/06/2003 06/06/2003 06/16/2003
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07/28/2003

all counsel)(vkb) (Entered: 06/09/2003)
162 LETTER from plaintiffs indicating which interrogatories need to be answered and which documents need to be produced (vkb) (blr). (Entered: 06/12/2003)
163 SEVENTH AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (blr) (Entered: 06/12/2003)
164 LETTER from Milwaukee defendants requesting that the Court deny plaintiffs' Motion to Compel and deny plaintiffs' Motion to File Additional Interrogatories as moot, or, in the alternative, limit plaintiffs' additional interrogatories to those that have already been answered (vkb) (blr). (Entered: 06/18/2003)
165 AMENDED MOTION for Class Certification by Plaintiffs (vkb) (blr). (Entered: 06/24/2003)
***Motions terminated: 97 Motion to Certify Class filed by plaintiffs; amended motion filed (vkb) (Entered: 06/24/2003)
166 BRIEF in Support re 165 Amended MOTION for Class Certification filed by Plaintiffs (vkb) (Additional attachment(s) added on 4/17/2012: # 1 Appendix A, # 2 Appendix B) (blr). (Entered: 06/24/2003)
167 Eighth AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (Additional attachment(s) added on 4/17/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (blr). (Entered: 06/24/2003)
168 CERTIFICATE OF SERVICE of Amended Motion for Class Certification by Plaintiffs (vkb) (blr). (Entered: 06/25/2003)
169 BRIEF in Opposition re 165 plaintiffs' Amended MOTION for Class Certification filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit) (blr). (Entered: 07/15/2003)
170 AFFIDAVIT of Nancy Fuhrman in opposition to plaintiff's amended motion for class certification (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr). (Entered: 07/15/2003)
171 AFFIDAVIT of Patricia Yahle in support of Milwaukee Board of School Directors, MPS, and William Andrekopoulos' brief in opposition to plaintiffs' amended motion for class certification (SEALED per the 8/01/03 order) (vkb) (Additional attachment(s) added on 5/2/2012: # 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) (blr). (Entered: 07/15/2003)
172 BRIEF in Opposition re 165 plaintiffs' Amended MOTION for Class Certification filed by Defendants Elizabeth Burmaster and Department of Public Instruction (vkb) (blr).
173 REPLY BRIEF in Support re 165 MOTION to Certify Class filed by Plaintiff Lamont A. (eeb, ) (blr). (Entered: 07/22/2003)
174 NINTH AFFIDAVIT of Jeffrey Spitzer−Resnick (eeb, ) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (blr). (Entered: 07/22/2003)
175 JOINT MOTION to Seal Affidavit of Patricia Yahle and Attached Documents Submitted Therewith (vkb) (blr). (Entered: 07/24/2003)
176 Copy of 169 defendants' BRIEF in Opposition to 165 plaintiffs' Amended MOTION for Class Certification; appendices properly attached; filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C) (blr). (Entered: 07/24/2003)
177 DOCUMENTS RECEIVED from plaintiffs; first page from Exhibit B of the Ninth Affidavit of Jeffrey Spitzer−Resnick (vkb) (blr). (Entered: 07/29/2003)

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07/29/2003 178 MOTION to Strike the Milwaukee Defendants' Brief in Opposition to Plaintiffs' Amended Motion for Class Certification with Appendices by Plaintiffs (vkb) (blr).

07/29/2003

179 DECLARATION of Michael J Bachhuber in support of plaintiffs' motion to strike the Milwaukee defendants' brief in opposition to plaintiffs' amended motion for class certification with appendices (vkb) (Additional attachment(s) added on 3/30/2012: # 1 Exhibit A, # 2 Exhibit B) (blr).

07/29/2003 180 BRIEF in Opposition re 178 plaintiffs' MOTION to Strike filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr).

07/30/2003 181 MOTION for Summary Judgment by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 07/31/2003)

07/30/2003

182 BRIEF in Support re 181 MOTION for Summary Judgment filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (Appendix C SEALED per 8/08/03 order) (vkb) Modified on 8/8/2003 (vkb) (Additional attachment(s) added on 4/17/2012: # 1 Appendix A, # 2 Appendix B, # 3 Appendix D, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D) (blr). (Additional attachment(s) added on 5/2/2012: # 8 SEALED Appendix C) (blr). (Entered: 07/31/2003)

08/01/2003

184 DECISION AND ORDER by Judge Aaron E Goodstein that the plaintiffs shall submit their second amended class certification motion by not later than 8/22/03; the defendants shall file their response by no later than 9/08/03; and any reply must be filed by no later than 9/18/03; IT IS FURTHER ORDERED that 73 plaintiffs' Motion for Preliminary Injunction is DENIED as moot; IT IS FURTHER ORDERED that 131 plaintiffs' Motion to Compel is DENIED without prejudice; IT IS FURTHER ORDERED that the parties' 175 joint Motion to Seal the affidavit of Patricia Yahle, along with all of the supporting documents, is GRANTED; IT IS FURTHER ORDERED that the 178 plaintiffs' Motion to Strike the Milwaukee defendants' brief in opposition to the amended motion for class certification is DENIED; IT IS FURTHER ORDERED that 181 the Milwaukee defendants' Motion for Summary Judgment is DENIED without prejudice; terminating 165 plaintiffs' Motion to Certify Class (cc: all counsel) (vkb) (blr). (Entered: 08/05/2003)

08/04/2003 183 Joint MOTION to Seal Appendix C to the Brief in Support of Motion for Summary Judgment by the parties (vkb) (Additional attachment(s) added on 4/2/2012: # 2 Cover Letter) (blr). (Entered: 08/05/2003)

08/05/2003

185 ORDER AMENDING DECISION AND ORDER REGARDING CLASS CERTIFICATION by Judge Aaron E Goodstein; due to an editorial error, that portion of the Order of 8/01/03 which reads as follows "It is further ordered that the Milwaukee defendants' motion for summary judgment is denied with prejudice" shall be amended to read as follows: IT IS FURTHER ORDERED that the Milwaukee defendants' motion for summary judgment is denied without prejudice; in all other respects, the Order of 8/01/03 remains unchanged (cc: all counsel)(vkb) (blr). (Entered: 08/06/2003)

08/08/2003

MARGINAL ORDER by Judge Aaron E Goodstein GRANTING 183 joint Motion to Seal Appendix C to the Brief in Support of Motion for Summary Judgment (cc: all counsel) (vkb)

08/22/2003 186 Second Amended MOTION for Class Certification by Plaintiffs(vkb) (blr). (Entered: 08/25/2003)

09/08/2003

187 BRIEF in Opposition re 186 plaintiffs' Second Amended MOTION for Class Certification filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools; affidavit of Patricia Yahle in support of brief in opposition attached with exhibits (vkb) (Additional attachment(s) added on 4/18/2012: # 1 Affidavit of Patricia Yahle, # 2 Exhibits A−K) (blr). (Entered: 09/09/2003)

09/09/2003 188 BRIEF in Opposition re 186 plaintiffs' Second Amended MOTION for Class Certification filed by Defendants Elizabeth Burmaster and Department of Public Instruction (vkb) (blr).

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189 AFFIDAVIT of Elliot Weiman (vkb) (Additional attachment(s) added on 4/2/2012: # 1 Exhibit 1) (blr).
190 AFFIDAVIT of Jack Marker (vkb) (Additional attachment(s) added on 4/2/2012: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (blr).
191 REPLY BRIEF in Support re 186 plaintiff's Second Amended Motion for Class Certification filed by Plaintiffs (vkb) (blr). (Entered: 09/19/2003)
192 SECOND MOTION to Strike the Affidavit of Patricia Yahle (a Rule 7.4 Expedited Non−Dispositive Motion) by Plaintiffs (vkb) (blr). (Additional attachment(s) added on 1/16/2014: # 1 Certificate of Service) (blr). (Entered: 09/19/2003)
193 BRIEF in Opposition re 192 plaintiffs' Second MOTION to Strike the Affidavit of Patricia Yahle filed by Defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 09/29/2003)
194 SUPPLEMENTAL AFFIDAVIT of Patricia Yahle in support of Milwaukee Board of School Directors', Milwaukee Publice Schools' and William Andrekopoulos' Brief in Opposition to Plaintiffs' Second Amended Motion for Class Certification (vkb) (Additional attachment(s) added on 4/18/2012: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit R, # 8 Exhibit S, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X, # 14 Exhibit Y, # 15 Exhibit Z, # 16 Exhibit AA, # 17 Exhibit BB, # 18 Exhibit CC, # 19 Exhibit DD, # 20 Exhibit EE, # 21 Exhibit FF, # 22 Exhibit GG, # 23 Exhibit HH, # 24 Exhibit II, # 25 Exhibit JJ, # 26 Exhibit KK, # 27 Exhibit LL, # 28 Exhibit MM, # 29 Exhibit NN, # 30 Exhibit OO, # 31 Exhibit PP, # 32 Exhibit QQ, # 33 Exhibit RR, # 34 Exhibit SS, # 35 Exhibit TT, # 36 Exhibit UU, # 37 Exhibit VV) (blr). (Entered: 09/29/2003)
195 DECISION AND ORDER by Judge Aaron E Goodstein GRANTING IN PART 186 plaintiffs' Motion for Class Certification; the class is defined as follows: those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in properly constituted meeting between the IEP team and the parents or guardians of the student; IT IS FURTHER ORDERED that the caption shall be changed to reflect the fact that Jamie S. and Aaron V. are the only class representatives and named plaintiffs; IT IS FURTHER ORDERED that 192 plaintiffs' Motion to Strike the Affidavit of Patricia Yahle is DENIED; IT IS FURTHER ORDERED that the court shall conduct a conference on 12/01/03 at 9:30am, in Courtroom 254, to discuss all matters, such as further scheduling, post−certification discovery and notice to the class members (cc: all counsel) (vkb) (blr). (Entered: 11/17/2003)
Set/Reset Hearings: In−court Scheduling Conference set for 12/1/2003 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein; terminating plaintiffs Jim M, David P, Maiysha Y, Lamont A and Tyler C (vk) (Entered: 11/17/2003)
196 MOTION to Strike the Supplemental Affidavit of Patricia Yahle by plaintiffs (vkb) (blr). (Entered: 11/18/2003)
197 DECLARATION of Michael J. Bachhuber in support of plaintiffs' motion to strike the supplemental affidavit of Patricia Yahle (vkb) (blr). (Entered: 11/18/2003)
198 MOTION to Dismiss Aaron V's Claims as Not Typical to the Class by defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 11/26/2003)
199 BRIEF in Support re 198 MOTION to Dismiss Aaron V's Claims as Not Typical to the Class filed by defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (Additional attachment(s) added on 4/5/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (blr). (Entered: 11/26/2003)
200 MOTION to Compel and to Seek Production of Materials from the United States Department of Justice Pursuant to Federal Rule of Civil Procedure 45 by plaintiffs (vkb) (blr).

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01/23/2004 01/26/2004

201 BRIEF in Support re 200 MOTION to Compel and to Seek Production of Materials from the United States Department of Justice Pursuant to Federal Rule of Civil Procedure 45 filed by plaintiffs (vkb) (blr).
202 TENTH AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (Additional attachment(s) added on 4/5/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (blr).
203 Minute Entry for proceedings held before Judge Aaron E Goodstein : Scheduling Conference held on 12/1/2003; see order(Court Reporter John Schindhelm) (vkb) (blr). (Entered: 12/02/2003)
204 ORDER by Judge Aaron E Goodstein that the court will defer making a decision on the defendants' motion to dismiss Aaron V.'s claims until after the 7th Circuit has ruled on the plaintiff's appeal; thereafter, a briefing will be established; the parties shall be permitted to engage in limited discovery pending the decision of the 7th Circuit (see order for details); the plaintiffs' motion to compel documents from the US Dept of Justice shall be considered by the court during this interim period; a separate scheduling order will set the time and date for that hearing (cc: all counsel)(vkb) (blr). (Entered: 12/02/2003)
205 NOTICE of Hearing on Motion 200 plaintiffs' MOTION to Compel: Motion Hearing set for 1/21/2004 at 9:30 AM before Magistrate Judge Aaron E Goodstein; the Department of Justice shall respond to plaintiff's motion by 12/10/03; any response shall be due by 12/17/03(vkb) (blr). (Entered: 12/03/2003)
Attorney Lafayette L Crump terminated (vkb)
206 NOTICE of Hearing on Motion 200 MOTION to Compel: Motion Hearing rescheduled for 1/23/2004 at 9:30 AM before Magistrate Judge Aaron E Goodstein(vkb) (blr). (Entered: 12/10/2003)
207 BRIEF in Opposition re 200 plaintiffs' MOTION to Compel filed by US Department of Justice (vkb) (blr). (Entered: 12/11/2003)
208 DECLARATION of Jonathan H. Koenig (vkb) (Additional attachment(s) added on 4/5/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (blr). (Entered: 12/11/2003)
209 DECLARATION of Iris Goldschmidt (vkb) (Additional attachment(s) added on 4/5/2012: # 1 Exhibit A) (blr). (Entered: 12/11/2003)
210 CERTIFICATE OF SERVICE by US Department of Justice (vkb) (blr). (Entered: 12/11/2003)
211 REPLY BRIEF in Support re 200 MOTION to Compel filed by all plaintiffs. (eeb, ) (blr). (Entered: 12/19/2003)
212 DECLARATION of Terry Fuller (eeb, ) (blr). (Entered: 12/19/2003)
213 USCA CERTIFIED ORDER that the Petition for Permission to Appeal, filed on 12/01/03, is DENIED (vkb) (blr). (Entered: 12/22/2003)
214 LETTER from Atty. Olson providing a courtesy copy of the 7th Circuit's order denying the plaintiffs' petition for permission to appeal and stating that a briefing schedule will now be set regarding defendant MPS' motion to dismiss Aaron V's claims (vkb) (blr). (Entered: 12/22/2003)
215 Minute Entry for proceedings held before Judge Aaron E Goodstein : Motion Hearing held on 1/23/2004 re 200 plaintiffs' MOTION to Compel; see order (Court Reporter Heidi Trapp) (vkb) (blr). (Entered: 01/26/2004)
216 LETTER from the court to the parties; the parties should move forward on the defendant's motion to dismiss Aaron V's claims 198 ; the plaintiffs' response to the motion shall be filed by no later than 2/13/04; the defendants' reply, if any, shall be filed by no later than 2/23/04; a modified Rule 26(f) report shall be filed by no later than 3/01/04; a proposed class notice shall be filed with the court by no later than 3/31/04 (vkb) (blr). (Entered: 01/27/2004)

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02/02/2004

217 ORDER by Judge Aaron E Goodstein GRANTING 200 plaintiffs' Motion to Compel and to Seek Production of Materials from the United States Department of Justice Pursuant to Federal Rule of Civil Procedure 45; IT IS THEREFORE ORDERED that the US Atty's Office for the Eastern District of WI, on behalf of the US Dept of Justice, shall disclose a redacted copy of the report by Dr. Kerr to the parties in this case no later than 2/09/04; IT IS FURTHER ORDERED that the US Atty's Office for the Eastern District of WI, on behalf of the US Dept of Justice, shall make the interview notes associated with Dr. Kerr's report available for viewing by the parties in this case; the parties must view the notes by no later than 2/20/04; any duplication must take place by no later than 2/27/04 (cc: all counsel) (vkb) (blr). (Entered: 02/03/2004)

02/06/2004

218 Rule 7.4 Expedited MOTION for Extension of Time to Comply with the Court's 2/02/04 Discovery Order and for Extension of Time to Seek Reconsideration or Seek Review of the 2/02/04 Order by US Department of Justice (vkb) (blr). (Entered: 02/09/2004)

02/06/2004 219 Local Rule 37.1 CERTIFICATION of Consultation with Counsel by US Department of Justice (vkb) (blr). (Entered: 02/09/2004)

02/06/2004

220 NOTICE of Hearing on Motion re: 218 MOTION for Extension of Time:Telephonic Motion Hearing set for 2/11/2004 at 2:00 PM before Magistrate Judge Aaron E Goodstein; plaintiffs' written response is due by 2/10/04; the 2/09/04 deadline for disclosure of report and notes is STAYED until further order of the court(vkb) (blr). (Entered: 02/09/2004)

02/10/2004 221 BRIEF in Opposition re 218 US Dept of Justice's MOTION for Extension of Time filed by plaintiffs (vkb) (blr).

02/11/2004 222 CERTIFICATE OF SERVICE by US Department of Justice (vkb) (blr). (Entered: 02/12/2004)

02/11/2004

223 Minute Entry for proceedings held before Judge Aaron E Goodstein : Motion Hearing held on 2/11/2004 re 218 MOTION for Extension of Time filed by US Department of Justice; see order for details (Tape #2:04:04 − 2:56:42) (vkb) (blr). (Entered: 02/12/2004)

02/12/2004

224 ORDER by Judge Aaron E Goodstein on 218 USDOJ's Motion for Extension of Time; the USDOJ shall provide the plaintiffs with a redacted copy of the Kerr Report by no later than 3/09/04; the USDOJ shall make available for inspection by the plaintiffs a redacted copy of the notes associated with the Kerr report by no later than 3/22/04; counsel for the plaintiffs shall furnish the USDOJ a list of its clients in this case, together with a list of the names of persons who have furnished plaintiffs' counsel with declarations in regard to this case by no later than 2/17/04; the USDOJ shall provide the Milwaukee and State defendants with a partially redacted copy of the Kerr report by no later than 3/09/04; the USDOJ shall make available for inspection by the defendants a partially redacted copy of the notes associated with the Kerr report by no later than 3/22/04; the notes prepared in anticipation of litigation by the USDOJ are covered by the work product doctrine and shall not be disclosed (see order for further details) (cc: all counsel) (vkb) (blr). (Entered: 02/13/2004)

02/18/2004 225 NOTICE of Appearance by Atty Adrienne J Olson on behalf of defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr).

02/18/2004 226 LETTER from plaintiffs re: Aaron V's claims do not fall within the certified class as defined by the court and therefore are not typical of the class (vkb) (blr). (Entered: 02/19/2004)

02/18/2004

227 ORDER by Judge Aaron E Goodstein GRANTING 198 defendants' Motion to Dismiss Aaron V. as not typical of the class; Aaron V's claims shall be DISMISSED and his name shall be removed from the caption (cc: all counsel) (vkb) (blr). (Entered: 02/19/2004)

02/18/2004

Plaintiff Aaron V terminated (vkb) (Entered: 02/19/2004)

02/26/2004 228 JOINT MODIFIED REPORT of Rule 26(f) Plan by the parties (vkb) (blr). (Entered: 02/27/2004)

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02/26/2004 03/01/2004 03/31/2004 04/01/2004 04/05/2004 04/14/2004
04/15/2004
05/03/2004 05/03/2004 05/05/2004 05/13/2004 05/13/2004 05/13/2004 05/13/2004 05/20/2004 05/25/2004 06/15/2004 06/15/2004

229 TRANSCRIPT of Motion Hearing held on 2/11/04 before Judge Goodstein; Court Reporter: Julie Bouressa (vkb) (blr). (Entered: 02/27/2004)
230 TRANSCRIPT of Hearing on Motion to Compel held on 1/23/04 before Judge Goodstein, Court Reporter: Heidi Trapp (vkb) (blr). (Entered: 03/03/2004)
231 JOINT PROPOSED Class Notice filed by the parties (vkb) (blr). (Entered: 04/01/2004)
232 CERTIFICATE OF SERVICE by defendants (vkb) (blr).
233 NOTICE of Hearing: In−court Status Conference set for 4/14/2004 at 10:00 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein (cc: all counsel)(vkb) (blr).
234 Minute Entry for proceedings held before Judge Aaron E Goodstein : Scheduling Conference held on 4/14/2004; amended complaint to be filed no later than 5/03/04; plaintiff shall disclose expert witnesses no later than 8/16/04; defendant shall disclose expert witnesses no later than 10/01/04; discovery deadline set for 12/01/04; telephone scheduling conference set for 12/09/04 at 9:00am(Tape #10:00:26 − 10:59:21) (vkb) (blr). (Entered: 04/15/2004)
235 SCHEDULING ORDER: by Judge Aaron E Goodstein; see hearing minutes for scheduling dates; in regard to the proposed class notice: the plaintiffs will submit a final draft of both short and long form notices to the defendants by no later than 5/10/04; the defendants will have until 5/17/04 to object; if the defendants do not object, the defendants should commence the posting of the non−individual distribution of the notices on 5/18/04 and the posting of notices shall be complete by no later than 6/01/04; if the defendants object to the content of the final draft of the notices and the parties are unable to resolve their differences, the court will hold a hearing on 5/19/04 at 10:00am; the plaintiffs shall notify the court if such a hearing is necessary; see order for further details (cc: all counsel)(vkb) (blr). (Entered: 04/16/2004)
236 AMENDED COMPLAINT filed by plaintiffs; original redacted version(vkb) (blr). (Entered: 05/04/2004)
237 SEALED DOCUMENT RECEIVED from plaintiffs; unredacted amended complaint filed under seal (vkb) (blr). (Entered: 05/04/2004)
238 EXHIBIT B to plaintiffs' Amended Complaint; inadvertently omitted from the amended complaint(vkb) (blr).
239 LETTER from plaintiffs submitting both the short and long forms of the class notice which the parties have agreed upon (vkb) (blr).
MARGIN ORDER by Judge Aaron E Goodstein; the court accepts the forms of class notice and each shall be docketed; posting and distribution shall proceed in accordance with the court's order of 4/15/04 (cc: all counsel)(vkb)
240 LEGAL NOTICE to Potential Class Members filed by plaintiffs; long form (vkb) (blr).
241 LEGAL NOTICE to Potential Class Members filed by plaintiffs; short form (vkb) (blr).
242 ANSWER AND AFFIRMATIVE DEFENSES to Amended Complaint by defendants Elizabeth Burmaster and Department of Public Instruction (vkb) (blr). (Entered: 05/21/2004)
243 ANSWER to Amended Complaint by defendants William Andrekopolous, Milwaukee Board of School Directors and Milwaukee Public Schools (vkb) (blr). (Entered: 05/26/2004)
244 MOTION to Reconsider Decision and Order Regarding Second Amended Motion for Class Certification by plaintiffs (vkb) (blr).
244 BRIEF in Support re 244 MOTION to Reconsider Decision and Order Regarding Second Amended Motion for Class Certification filed by plaintiffs (vkb) Modified on 6/15/2004, changing document number (vkb) (blr).

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06/15/2004 245 Eleventh AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (blr).

07/06/2004 246 BRIEF in Opposition re 244 MOTION to Reconsider the Decision and Order Regarding Class Certification filed by William Andrekopolous, Milwaukee Board of School Directors, Milwaukee Public Schools. (kah, ) (blr). (Entered: 07/07/2004)

07/06/2004

247 AFFIDAVIT of Patricia Yahle in Support of MPS Defts Response to Pltfs Motion to Reconsider (kah, ) (Additional attachment(s) added on 4/24/2012: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (blr). (Entered: 07/07/2004)

07/06/2004 248 CERTIFICATE OF SERVICE by William Andrekopolous, Milwaukee Board of School Directors, Milwaukee Public Schools (kah, ) (blr). (Entered: 07/07/2004)

07/08/2004 249 BRIEF in Opposition re 244 plaintiffs' MOTION to Reconsider Decision and Order Regarding Second Amended Motion for Class Certification filed by defendants Elizabeth Burmaster and Department of Public Instruction (vkb) (blr).

07/21/2004 250 REPLY BRIEF in Support re 244 MOTION to Reconsider Decision and Order Regarding Second Amended Motion for Class Certification filed by plaintiffs (vkb) (blr).

08/02/2004

251 STIPULATION and PROPOSED ORDER To Amend Scheduling Order signed by Judge Aaron E Goodstein on 8/2/04. Parties have agree that the 4/15/04 Scheduling Order should be amended as follows: 10/18/04 plfts expert disclosures; 12/16/04 defts expert disclosures; 2/1/05 all factual and expert discovery closes. This will be the last discovery extension request to be granted, except for a showing of substantial good cause. Telephone Conference scheduled for 12/9/04 is rescheduled for 2/2/2005 08:30 AM. (cc: all counsel)(eeb, ) (blr).

10/13/2004 252 LETTER from plaintiffs providing the court with a recent decision from the Court of Appeals for the Second Circuit in J.S., et al. vs Attica Central Schools (vkb) (blr).

10/29/2004 253 LETTER from defendants responding to plaintiffs' filing of the Second Circuit decision, J.S. et al. vs Attica Central Schools (vkb) (blr). (Entered: 11/01/2004)

11/18/2004 254 LETTER from plaintiffs providing the court with a copy of a recent decision from the Court of Appeals or the Ninth Circuit, Christopher S. v Stanislaus County Office of Education (vkb) (blr).

01/24/2005 255 ORDER by Judge Aaron E Goodstein DENYING 244 plaintiffs' Motion for Reconsideration (cc: all counsel) (vkb) (blr). (Entered: 01/25/2005)

02/02/2005

256 Minute Entry for proceedings held before Judge Aaron E Goodstein : Telephone Conference held on 2/2/2005; stipulation of facts, statement of disputed facts, summaries of expert testimony (not to exceed 4 pages) to be submitted by 5/27/05; in−court scheduling conference set for 6/20/05 at 2:00pm (Tape #8:30:17 − 8:54:29) (vkb) (blr). (Entered: 02/03/2005)

02/07/2005

257 SCHEDULING ORDER signed by Judge Aaron E Goodstein on 2/7/2005. Parties to submit stipulated fact statement by May 27, 2005.Scheduling Conference set for 6/20/2005 at 2:00 PM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. (cc: all counsel)(Goodstein, )

05/03/2005 258 Joint MOTION to Amend/Correct February 7, 2005, Scheduling Order by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)

05/03/2005 259 AFFIDAVIT of Bruce A. Olsen (Olsen, Bruce) Additional attachment(s) added on 5/3/2005 (vkb, ).

05/03/2005 260 LETTER from Bruce A. Olsen (Olsen, Bruce)

05/03/2005 261 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)

05/03/2005 262 Docket Annotation; email sent to Atty. Olsen re: all e−filed documents should be electronically signed (vkb)

05/03/2005 263 Docket Annotation; email sent to Atty. Olsen re: incorrect document attached to #259 (vkb)

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05/03/2005 264 INCORRECT ENTRY; DISREGARD (Joint MOTION to Amend/Correct February 7, 2005, Scheduling Order by Department of Public Instruction, Elizabeth Burmaster.) (Olsen, Bruce) Modified on 5/3/2005 (vkb)

05/03/2005 265 Docket Annotation; Affidavit of Bruce Olsen has been attached to 259 and to this entry (vkb)

05/04/2005

266 ORDER signed by Judge Aaron E Goodstein on 5/4/2005 GRANTING 258 Motion to Amend/Correct. SEE Order. An in−court hearing to discuss further scheduling will be held July 19, 2005, at 9:30 A.M. in Courtroom 254. (cc: all counsel) (Goodstein, Aaron)

05/04/2005

Set Deadlines/Hearings: Scheduling Conference set for 7/19/2005 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. (cq)

06/24/2005 267 JOINT STIPULATED STATEMENT OF FACTS by the parties (Attachments: # 1 Stipulated Facts continued# 2 Cover Letter)(vkb)

06/24/2005 268 MPS and DPI Defendants' Joint Disputed Facts (vkb)

06/24/2005 269 Summary of MPS' Expert Davied P. Riley, Ph.D.'s Report to US District Court Eastern District of Wisconsin 9/26/02 (vkb)

06/24/2005 270 Summary of MPS' Expert Elise M. Frattura, Ph.D.'s Report to US District Court for Eastern District of Wisconsin 12/15/04 (vkb)

06/24/2005 271 Summary of MPS' Expert Eric P. Hartwig, Ph.D.'s Report to US District Court for Eastern District of Wisconsin 12/16/04 (vkb)

06/24/2005 272 Summary of Expert Witness Report of Judy A. Schrag (vkb)

06/24/2005 273 Plaintiffs' Expert Summaries (vkb) (Entered: 06/27/2005)

06/24/2005 274 Additional Proposed Findings of Fact by plaintiffs (vkb) (Entered: 06/27/2005)

07/11/2005 275 REVISED Additional Proposed Findings of Fact by plaintiffs (correcting formatting error in the 6/24/05 submission) (vkb) Modified on 7/12/2005 (vkb) (Entered: 07/12/2005)

07/19/2005

276 Minute Entry for proceedings held before Judge Aaron E Goodstein : Scheduling Conference held on 7/19/2005; final pretrial scheduled for 10/06/05 at 2:00pm; final pretrial report to be filed at least 5 days before the conference and should include a list of each parties witnesses, together with a joint list of exhibits; court trial for expert witnesses RESCHEDULED to begin on 10/18/05 at 9:30am; estimated length of trial is 3 days; 10/31/05 is being reserved on the court's calendar if the parties advise the court that they are unable to begin trial on 10/18/05 (vkb) (Entered: 07/20/2005)

07/21/2005

277 SCHEDULING ORDER: by Judge Aaron E Goodstein; Final Pretrial Conference set for 10/6/2005 at 2:00 PM in Courtroom 254; Court Trial RESCHEDULED for 10/18/2005 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein (alternate trial date of 10/31/05 set); see hearing minutes for further details (Attachments: # 1 Exhibit List Form) (cc: all counsel)(vkb)

07/21/2005

Copy of Scheduling Order 277 sent via U.S. Mail to Atty. Spitzer−Resnick (vkb)

08/03/2005 282 LETTER from Atty Stuart Parsons re: scheduling of expert witness testimony (vkb) (Entered: 09/19/2005)

09/12/2005 278 MOTION in Limine to Strike David Riley as an Expert Witness and BRIEF IN SUPPORT by plaintiffs (vkb) (Entered: 09/13/2005)

09/12/2005 279 Twelfth AFFIDAVIT of Jeffrey Spitzer−Resnick (vkb) (Entered: 09/13/2005)

09/12/2005 280 Original TRANSCRIPT of the Deposition of David Riley held on 10/21/02; Court Reporter: Colleen Reed; IN JUDGE'S FILE (vkb) (blr). (Entered: 09/13/2005)

09/15/2005 281 LETTER from the MPS defendants stating that they have decided not to call David Riley as an expert witness (vkb) (Entered: 09/16/2005)

09/30/2005 283 LETTER from Atty. Stuart Parsons re: schedule for expert testimony (vkb) (Entered: 10/03/2005)
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10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005
10/03/2005 10/03/2005 10/06/2005 10/06/2005 10/06/2005 10/06/2005 10/07/2005
10/11/2005 10/14/2005 10/17/2005 10/18/2005 10/24/2005

284 State Defendants' PRETRIAL REPORT by Department of Public Instruction, Elizabeth Burmaster (Attachments: # 1 Cover Letter# 2 Cert of Service)(Olsen, Bruce)
285 PRETRIAL REPORT by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
286 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of MPS' Pretrial Report Docket 285 (Olson, Adrienne)
287 Joint Exhibit List by all parties. (Olson, Adrienne)
288 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Joint Exhibit List Docket No. 287 (Olson, Adrienne)
289 MOTION in Limine to Exclude Portions of Dr. Rogers−Adkinson's Expert Report by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
290 BRIEF in Support re 289 MOTION in Limine to Exclude Portions of Dr. Rogers−Adkinson's Expert Report filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Olson, Adrienne)
291 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Motion in Limine and Supporting Brief Docket Nos. 289, 290 (Olson, Adrienne)
292 Plaintiffs PRETRIAL REPORT submitted by all plaintiffs. (Attachments: # 1 cover letter# 2 certification)(Murphy, Monica)
293 SUPPLEMENT by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools Index to Stipulated Facts Filed June 24, 2005 (Olson, Adrienne)
294 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Index of Stipulated Facts (Docket No. 293) (Olson, Adrienne)
295 OBJECTIONS by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools to Exhibits on Joint Exhibit List Filed October 3, 2005 (Olson, Adrienne)
297 Minute Entry for proceedings held before Judge Aaron E Goodstein : Final Pretrial Conference held on 10/6/2005; see Pretrial Order(Tape #2:07:53 − 2:50:21) (vkb) (Entered: 10/07/2005)
296 PRETRIAL ORDER, TRIAL TO THE COURT, PHASE I, signed by Judge Aaron E Goodstein on 10/7/2005,finding as moot 278 Plaintiffs' Motion in Limine. Plaintiffs shall respond to MPS's motion in limine no later than October 11, 2005, MPS shall file its reply, if any, no later than October 13, 2005. (cc: all counsel) (Goodstein, A.)
298 RESPONSE to Motion re 289 MOTION in Limine to Exclude Portions of Dr. Rogers−Adkinson's Expert Report filed by all plaintiffs. (Murphy, Monica)
299 ORDER signed by Judge Aaron E Goodstein on 10/14/2005 GRANTING IN PART AND DENYING IN PART 289 Motion in Limine . (cc: all counsel) (Goodstein, A.)
300 AMENDED Exhibit List (Amendment to 287 Exhibit List) (vkb) (Entered: 10/24/2005)
301 Minute Entry for proceedings held before Judge Aaron E Goodstein : Court Trial begun on 10/18/2005 and continued on 10/19/05 and 10/20/05 (court trial to resume 10/31/05)(Court Reporter John Schindhelm) (vkb) (Entered: 10/24/2005)
Set Hearings: Court Trial to resume on 10/31/2005 at 9:00 AM before Magistrate Judge Aaron E Goodstein (vkb)

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10/25/2005 11/02/2005
11/02/2005 11/28/2005
11/29/2005
11/30/2005 01/03/2006
01/05/2006 01/05/2006 01/05/2006 01/11/2006
01/12/2006 03/03/2006 03/03/2006 03/06/2006 03/10/2006 03/10/2006 03/10/2006
03/10/2006
03/10/2006
03/10/2006 03/10/2006

302 LETTER from Stuart Parsons Re: Revised Witness Schedule (Olson, Adrienne)
303 Minute Entry for proceedings held before Judge Aaron E Goodstein : Court Trial held on 10/31/05, 11/01/05 and completed on 11/2/2005;status conference scheduled for 11/28/05 at 9:30am(Court Reporter John Schindhelm) (vkb) (Entered: 11/04/2005)
313 Amended Trial Exhibit List (vkb) (Entered: 02/17/2006)
304 Minute Entry for proceedings held before Judge Aaron E Goodstein : Status Conference held on 11/28/2005; see Order(Court Reporter Heidi Trapp) (vkb) (Entered: 11/29/2005)
305 POST PHASE I SCHEDULING ORDER: by Judge Aaron E Goodstein; the parties are to submit written proposals regarding Phase II of the trial by 1/05/06; In−court Conference set for 1/11/2006 at 2:00 PM in Courtroom 254 before Magistrate Judge Aaron E Goodstein (cc: all counsel)(vkb)
306 TRANSCRIPT of In−court Status Conference held on 11/28/05 before Judge Goodstein. Court Reporter: Heidi Trapp − (IN PAPER FORMAT) (kah, )
307 TRANSCRIPT of Status Conference held on 7/19/05 before Judge Goodstein; Court Reporter: Sharon Vivian; Original transcript in JUDGE'S FILE with copy in clerk's file (vkb) (Entered: 01/04/2006)
308 LETTER from AAG Bruce Olsen w/ Certificate of Service by E−Filing (Attachments: # 1)(Olsen, Bruce)
309 LETTER from Plaintiffs' Counsel (Murphy, Monica)
310 LETTER from MPS Defendants Re: Phase II Trial Proposal (Olson, Adrienne)
311 Minute Entry for proceedings held before Judge Aaron E Goodstein : Scheduling Conference held on 1/11/2006; plaintiff witness list to be filed no later than 3/03/06; defendant witness list to be filed no later than 3/10/06; joint supplemental exhibit list to be filed no later than 4/03/06; final pretrial conference set for 10:00am on 4/03/06; court trial scheduled for 4/10/06 at 9:00am; estimated length of trial is 3 weeks(Court Reporter Cindy Bohman) (vkb) (Entered: 01/12/2006)
312 PHASE II SCHEDULING ORDER: by Judge Aaron E Goodstein; see hearing minutes (cc: all counsel)(vkb) (Entered: 01/13/2006)
314 Witness List by all plaintiffs. (Murphy, Monica)
315 CERTIFICATE OF SERVICE Witness List by all plaintiffs. (Murphy, Monica) Modified to fix event on 3/6/2006 (kah, ).
316 Docket Annotation to Atty Murphy re: doc. 314 & 315. (kah, )
317 LETTER from Bruce Olsen (Attachments: # 1)(Olsen, Bruce)
318 Witness List by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
319 TRANSCRIPT of Status Conference held on 1/11/06 before Judge Goodstein; Court Reporter: Cynthia Bohman; in PAPER format only (vkb) Modified on 5/9/2012 (blr). (blr).
320 7.4 MOTION for Order Limiting Plaintiffs' Witness List and Requiring Plainitiffs' to Schedule Testimony by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
321 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of 7.4 Motion for Order Limiting Plaintiffs' Witness List and Requiring Plaintiffs to Schedule Testimony (Olson, Adrienne)
322 Witness List by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
323 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of MPS' Witness List (Olson, Adrienne)

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03/15/2006
03/15/2006 03/16/2006
03/23/2006 03/23/2006 03/23/2006 03/23/2006 03/23/2006 03/23/2006
03/23/2006 03/23/2006 03/24/2006 03/27/2006 03/27/2006 03/28/2006
03/29/2006
03/29/2006
03/29/2006
04/03/2006 04/03/2006 04/03/2006
04/04/2006 04/05/2006

324 BRIEF in Opposition re 320 7.4 MOTION for Order Limiting Plaintiffs' Witness List and Requiring Plainitiffs' to Schedule Testimony filed by all plaintiffs. (Murphy, Monica)
325 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
326 ORDER re 320 7.4 MOTION for Order signed by Judge Aaron E Goodstein on 3/16/2006. IT IS ORDERED that all parties supplement their witness list as described herein no later than 3/23/2006. (cc: all counsel)(Goodstein, A.)
327 Witness List by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
328 LETTER from Bruce Olsen, AAG (Olsen, Bruce)
329 LETTER from Bruce Olsen, AAG (Olsen, Bruce)
330 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
331 Witness List by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
332 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Amended Witness List (Olson, Adrienne)
333 Witness List by all plaintiffs. (Murphy, Monica)
334 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
335 LETTER from Michael Aldana to Honorable Aaron E. Goodstein (Aldana, Michael)
336 COVER LETTER for Amended Witness List by all plaintiffs. (Attachments: # 1 cover letter)(Murphy, Monica) Modified on 3/28/2006 (vkb)
337 Witness List by all plaintiffs. (Murphy, Monica)
338 ORDER signed by Judge Aaron E Goodstein on 3/28/2006 GRANTING in part and DENYING in part 320 Motion for Order. To the extent that MPS seeks to limit the number of witnesses that plaintiffs may call and hourly witness schedule, the motion is DENIED. (cc: all counsel) (Goodstein, A.)
339 First MOTION in Limine to Exclude Evidence on Individual Students' Circumstances Outside of the Certified Class by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
340 BRIEF in Support re 339 First MOTION in Limine to Exclude Evidence on Individual Students' Circumstances Outside of the Certified Class filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Attachments: # 1 Affidavit of Adrienne J. Olson# 2 Exhibit A−E# 3 Exhibit F−H# 4 Exhibit I−K)(Olson, Adrienne)
341 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Motion in Limine, Brief in Support, Affidavit of Adrienne Olson and Exhibits A−K (Olson, Adrienne)
342 Jointly Filed Phase II Exhibit List by all parties. (Olson, Adrienne)
343 LETTER from Adrienne Olson Regarding Joint Exhibit List (Olson, Adrienne)
344 Minute Entry for proceedings held before Judge Aaron E Goodstein : Final Pretrial Conference held on 4/3/2006; see final pretrial order(Court Reporter John Schindhelm) (vkb) (Entered: 04/04/2006)
345 PRETRIAL ORDER − TRIAL TO THE COURT, PHASE II signed by Judge Aaron E Goodstein on 4/4/06 granting 339 Motion in Limine. (cc: all counsel)
346 INCORRECT DOCUMENT ATTACHED LETTER from Monica Murphy, Attorney for Plaintiffs (Murphy, Monica) Modified on 4/5/2006 (vkb)

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04/05/2006 04/10/2006
04/10/2006 04/26/2006
05/04/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 06/01/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006
06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006

347 LETTER from Monica Murphy, Attorney for Plaintiffs (vkb)
348 Minute Entry for proceedings held before Judge Aaron E Goodstein : Court Trial begun on 4/10/2006 and concluded on 4/26/06(Court Reporter John Schindhelm) (vkb) (Entered: 04/27/2006)
349 Trial Exhibit List (vkb) (Entered: 04/27/2006)
Minute Entry for proceedings held before Judge Aaron E Goodstein : Court Trial completed on 4/26/2006 (Court Reporter John Schindhelm) (vkb) (Entered: 04/27/2006)
350 Volume 12 of TRANSCRIPT of Court Trial held on 4/14/06 before Judge Goodstein Court Reporter: Kathy Malsom (vkb) (blr).
351 BRIEF Post Trial Brief on Issue of Liability filed by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
352 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Attachments: # 1)(Olsen, Bruce)
353 BRIEF (Post Trial) filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
354 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Post Trial Brief (Olson, Adrienne)
355 BRIEF filed by all plaintiffs. (Murphy, Monica)
356 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
357 LETTER from plaintiffs counsel (Murphy, Monica)
358 Docket Annotation; email sent to Attys. Olson and Parsons re: all documents should be efiled by the attorney who signed them (vkb)
359 REPLY Post Trial Brief filed by all plaintiffs. (Spitzer−Resnick, Jeffrey)
360 LETTER from Jeffrey Spitzer−Resnick (Spitzer−Resnick, Jeffrey)
361 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
362 REPLY Post−Trial Reply Brief on Issue of Liability filed by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
363 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
364 LETTER from Bruce Olsen (Olsen, Bruce)
365 REPLY [Post−Trial] filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Olson, Adrienne)
366 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Post−Trial Reply Brief (Olson, Adrienne)
367 MASTER INDEX for Phase I Court Trial 10/18/05 − 11/20/05 (Volumes 1−6) and Phase II Court Trial 4/10/06 − 4/26/06 (Volumes 7−20) (vkb) (blr).
368 TRANSCRIPT, Volume 1, of Court Trial held on 10/18/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
369 TRANSCRIPT of Court Trial, Volume 2, held on 10/19/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
370 TRANSCRIPT of Court Trial, Volume 3, held on 10/20/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
371 TRANSCRIPT of Court Trial, Volume 4, held on 10/31/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).

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06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 10/17/2006 06/06/2007 09/11/2007
09/27/2007
09/27/2007 09/27/2007
10/12/2007

372 TRANSCRIPT of Court Trial, Volume 5, held on 11/01/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
373 TRANSCRIPT of Court Trial, Volume 6, held on 11/02/05 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
374 TRANSCRIPT of Court Trial, Volume 7, held on 4/10/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
375 TRANSCRIPT of Court Trial, Volume 8, held on 4/11/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
376 TRANSCRIPT of Court Trial, Volume 9, held on 4/12/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
377 TRANSCRIPT of Court Trial, Volume 10, held on 4/13/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
378 TRANSCRIPT of Court Trial, Volume 11, held on 4/14/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
379 TRANSCRIPT of Court Trial, Volume 13, held on 4/17/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
380 TRANSCRIPT of Court Trial, Volume 14, held on 4/18/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
381 TRANSCRIPT of Court Trial, Volume 15, held on 4/19/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
382 TRANSCRIPT of Court Trial, Volume 16, held on 4/20/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
383 TRANSCRIPT of Court Trial, Volume 17, held on 4/21/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
384 TRANSCRIPT of Court Trial, Volume 18, held on 4/24/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
385 TRANSCRIPT of Court Trial, Volume 19, held on 4/25/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
386 TRANSCRIPT of Court Trial, Volume 20, held on 4/26/06 before Judge Goodstein; Court Reporter: John Schindhelm (vkb) (blr).
387 LETTER from Jeffrey Spitzer−Resnick. (Spitzer−Resnick, Jeffrey)
388 LETTER from Plaintiffs' counsel, Jeffrey Spitzer−Resnick. (Spitzer−Resnick, Jeffrey)
389 DECISION AND ORDER signed by Judge Aaron E Goodstein on 9/11/2007. Status Conference set for 9/27/2007 at 10:00 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. (cc: all counsel)(Goodstein, A.)
390 SCHEDULING ORDER: by Judge Aaron E Goodstein; plaintiffs shall submit their petition and supporting affidavits for attorney fees no later than 10/12/07; defendants' response shall be filed no later than 10/26/07; any reply shall be filed no later than 11/09/07; in−court conference set for 12/6/2007 at 9:30 AM in Courtroom 254; the court stays further discovery until the 12/6/2007 hearing; Court Trial set for 11/3/2008 at 9:00 AM in Courtroom 254; estimated length of trial is 2 weeks (cc: all counsel)(vkb) (Entered: 09/28/2007)
Set Hearings: Court Trial set for 11/3/2008 09:00 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein (vkb) (Entered: 09/28/2007)
391 Minute Entry for proceedings held before Judge Aaron E Goodstein : Status Conference held on 9/27/2007; see Scheduling Order (Tape #10:02:30 − 10:26:51) (vkb) (Entered: 09/28/2007)
392 MOTION for Attorney Fees by all plaintiffs. (Spitzer−Resnick, Jeffrey)

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10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/15/2007 10/26/2007 10/26/2007
10/26/2007 10/29/2007 10/30/2007 10/30/2007
10/30/2007
10/30/2007 10/31/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007 11/28/2007 11/28/2007 12/06/2007
12/07/2007

393 Thirteenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)
394 AFFIDAVIT of Lynn Novotnak. (Spitzer−Resnick, Jeffrey)
395 AFFIDAVIT of Leslie Seid Margolis. (Spitzer−Resnick, Jeffrey)
396 CERTIFICATE OF SERVICE by pltfs in letter format LETTER from Jeffrey Spitzer−Resnick. (Spitzer−Resnick, Jeffrey) Modified event on 10/15/2007 (kah).
397 AFFIDAVIT of Monica Murphy. (Murphy, Monica)
398 Docket Annotation to Atty Spitzer−Resnick re: doc. 396. (kah)
399 MOTION for Leave to File Excess Pages by Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools. (Appleby, Jane)
400 RESPONSE filed by Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools re 392 MOTION for Attorney Fees.. (Attachments: # 1 Affidavit of Jane Appleby# 2 Exhibit A (Part 1 of 2)# 3 Exhibit A (Part 2 of 2)# 4 Errata B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J (Part 1 of 2)# 13 Exhibit J (Part 2 of 2))(Appleby, Jane)
401 CERTIFICATE OF SERVICE by Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools (Appleby, Jane)
402 Docket Annotation; email sent to Atty. Appleby re: affidavits should be filed separately from briefs (vkb)
403 LETTER from Bruce Olsen. (Olsen, Bruce)
404 BRIEF in Support filed by Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools re 392 MOTION for Attorney Fees (CORRECTED). (Appleby, Jane)
405 SECOND AFFIDAVIT of Jane Appleby AS TO CORRECTED JOINT BRIEF AND EXHIBITS TENDERED IN SUPPORT OF DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PETITION FOR ATTORNEYS FEES AND COSTS. (Attachments: # 1 Exhibit F# 2 Exhibit H# 3 Exhibit K)(Appleby, Jane)
406 CERTIFICATE OF SERVICE by Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools (Appleby, Jane)
407 NOTICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools of Withdrawal of Atty. A. Olson (Olson, Adrienne)
408 REPLY BRIEF in Support filed by all plaintiffs re 392 MOTION for Attorney Fees. (Murphy, Monica)
409 Second Fee Petition AFFIDAVIT of Monica M. Murphy. (Murphy, Monica)
410 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
411 Fourteenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Spitzer−Resnick, Jeffrey)
412 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
413 MOTION to Clarify of September 11, 2007, Decision and Order by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
414 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
416 Minute Entry for proceedings held before Judge Aaron E Goodstein : Scheduling Conference held on 12/6/2007; see Scheduling Order (Tape #9:38:46 − 10:31:20) (vkb) (Entered: 12/10/2007)
415 PHASE III SCHEDULING ORDER signed by Judge Aaron E Goodstein on 12/7/2007. See Order for all deadlines. Telephone Conference set for 4/10/2008 at

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12/12/2007 12/12/2007
12/12/2007 12/12/2007 12/12/2007
12/12/2007 02/28/2008
03/03/2008 03/03/2008 03/03/2008 03/03/2008 04/03/2008 04/03/2008 04/03/2008
04/03/2008 04/07/2008 04/07/2008

8:30 AM.; Final Pretrial Conference set for 10/20/2008 at 9:30 AM in Courtroom 254; Court Trial set for 11/3/2008 at 9:00 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. (cc: all counsel)(Goodstein, A.)
417 NOTICE of Appearance by Autumn M Kruse on behalf of Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. Attorney(s) appearing: Autumn M. Kruse (Kruse, Autumn)
418 REPLY to 408 filed by Department of Public Instruction, Elizabeth Burmaster, Milwaukee Board of School Directors, Milwaukee Public Schools of a Joint Sur−Reply Brief in Support of Objections to Plaintiffs' Petition for Attorneys' Fees and Costs. (Olsen, Bruce) Corrected PDF added on 12/12/2007 (vkb)
419 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster, Milwaukee Board of School Directors, Milwaukee Public Schools (Olsen, Bruce)
420 ORDER signed by Judge Aaron E Goodstein on 12/12/2007 DENYING 413 Motion to clarify. (cc: all counsel) (Goodstein, A.)
421 THIRD AFFIDAVIT of Jane E. Appleby AS TO JOINT SUR−REPLY BRIEF AND EXHIBITS TENDERED IN SUPPORT OF DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PETITION FOR ATTORNEYS' FEES AND COSTS (Joint Sur−Reply Brief filed by Bruce Olsen). (Attachments: # 1 Exhibit L# 2 Exhibit M# 3 Exhibit N# 4 Exhibit O)(Appleby, Jane)
422 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster, Milwaukee Board of School Directors, Milwaukee Public Schools (Appleby, Jane)
NOTICE RESCHEDULING HEARING TIME: (cc: all counsel) Due to a conflict in the court's calendar, the Telephone Conference set for 4/10/2008 is rescheduled to 9:00 AM before Magistrate Judge Aaron E Goodstein. The court will initiate the call.(Quinn, C., Deputy Clerk)
423 Witness List by Jamie S, Biagio R, Bryan E, Melanie V. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Spitzer−Resnick, Jeffrey)
424 CERTIFICATE OF SERVICE by Jamie S, Biagio R, Bryan E, Melanie V (Spitzer−Resnick, Jeffrey)
425 NOTICE of Appearance by Katie A Featherston on behalf of Milwaukee Board of School Directors, Milwaukee Public Schools. Attorney(s) appearing: Katie A. Featherston (Featherston, Katie)
426 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, Milwaukee Public Schools of Notice of Appearance (Featherston, Katie)
427 Witness List by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
428 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
429 Witness List by all defendants Milwaukee Board of School Directors, Milwaukee Public Schools and William Andrelopolous (Attachments: # 1 Exhibit, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Aldana, Michael) Modified on 4/4/2008, correcting filer (vkb)
430 CERTIFICATE OF SERVICE by all defendants (Aldana, Michael)
431 MOTION Joint Motion by Plaintiffs and State Defendants to Approve Settlement Aggreement by all plaintiffs. (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)
432 BRIEF in Support filed by all plaintiffs re 431 MOTION Joint Motion by Plaintiffs and State Defendants to Approve Settlement Aggreement Joint Brief of Plaintiffs and State Defendants in Support of Motion to Approve Settlement Agreement. (Spitzer−Resnick, Jeffrey)

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04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/08/2008
04/15/2008
04/15/2008 04/15/2008 04/17/2008
04/18/2008 04/24/2008 04/24/2008 04/24/2008 04/25/2008 04/25/2008 04/29/2008
04/29/2008 05/01/2008 05/01/2008 05/01/2008
05/01/2008
05/01/2008

433 15th AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)
434 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
435 AFFIDAVIT of Bruce A. Olsen. (Olsen, Bruce)
436 Corrected AFFIDAVIT of Bruce A. Olsen. (Olsen, Bruce)
437 NOTICE RESCHEDULING Hearing: (cc: all counsel) In Court Status Conference set for 4/17/2008 at 2:00 PM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. See Notice. (Quinn, C., Deputy Clerk)
438 MOTION to Compel Directed Towards MPS Defendants by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Spitzer−Resnick, Jeffrey)
439 Sixteenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)
440 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
441 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Status Conference held on 4/17/2008; plaintiffs shall provide the court and defendants with a copy of the curriculum vitae for Allen Coulter by 4/24/08; by 4/25/08 the plaintiffs and MPS are to provide the court with a stipulation regarding the scheduling of discovery of expert witnesses for Phase III, if there is no agreement to the schedule, separate proposals are to be submitted; MPS shall file their objections to the settlement agreement by 5/01/08; plaintiffs and DPI shall file any reply by 5/15/08 (Tape #2:02:44 − 2:55:45) (vkb) (Entered: 04/18/2008)
442 SCHEDULING ORDER by Magistrate Judge Aaron E Goodstein; see hearing minutes (cc: all counsel)(vkb)
443 LETTER from Jeffrey Spitzer−Resnick. (Spitzer−Resnick, Jeffrey)
444 ORIGINAL DOCUMENT Curriculum Vitae of Alan Coulter (Spitzer−Resnick, Jeffrey)
445 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
446 STIPULATION Joint Stipulation Regarding Submission of Expert Reports by all plaintiffs. (Spitzer−Resnick, Jeffrey)
447 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
448 SETTLEMENT AGREEMENT Memorandum of Understanding Between Plaintiffs and State Defendants by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce)
449 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
450 NOTICE by all plaintiffs of Withdrawal of Plaintiffs' Motion to Compel Directed Towards MPS Defendants (Spitzer−Resnick, Jeffrey)
451 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
452 BRIEF in Opposition filed by Milwaukee Public Schools re 431 MOTION Joint Motion by Plaintiffs and State Defendants to Approve Settlement Aggreement. (Aldana, Michael)
453 AFFIDAVIT of Patricia Yahle. (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 I1, # 10 Exhibit I2, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L)(Aldana, Michael)
454 Second AFFIDAVIT of Gary Ruesch. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Aldana, Michael)

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05/01/2008 05/15/2008
05/15/2008 05/15/2008
05/15/2008 05/15/2008 05/15/2008 05/15/2008 05/15/2008 05/15/2008 05/21/2008 05/21/2008 05/22/2008
05/27/2008
05/27/2008 05/27/2008 06/06/2008
06/18/2008 06/18/2008 06/18/2008 06/18/2008 06/18/2008 06/18/2008 06/18/2008

455 CERTIFICATE OF SERVICE by Milwaukee Public Schools (Aldana, Michael)
456 REPLY BRIEF in Support filed by all plaintiffs re 431 MOTION Joint Motion by Plaintiffs and State Defendants to Approve Settlement Aggreement. (Spitzer−Resnick, Jeffrey)
457 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
458 EXHIBITS TO 460 AFFIDAVIT of Monica M. Murphy. (Attachments: # 1 Exhibit C. depsosition exhbits, # 2 Exhibit interrogatory and document response, # 3 Exhibit Interrogatory 7 and 9, # 4 Exhibit Interrogatory 18, # 5 Exhibit parent center complaints, # 6 Exhibit Journal article, # 7 Exhibit Yahle deposition, # 8 Errata deposition ex. 1−5)(Murphy, Monica) Modified on 5/16/2008 (vkb)
459 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
460 AFFIDAVIT of Monica M. Murphy. (Murphy, Monica)
461 AFFIDAVIT of Janice Duff. (Attachments: # 1 Affidavit)(Olsen, Bruce)
462 AFFIDAVIT of Elliot V. Weiman. (Attachments: # 1 Affidavit)(Olsen, Bruce)
463 AFFIDAVIT of Stephanie J. Petska. (Attachments: # 1 Affidavit)(Olsen, Bruce)
464 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
465 7.4 MOTION to Strike the Settling Parties Joint Brief or for Leave to File a Surresponse by Milwaukee Board of School Directors. (Kruse, Autumn)
466 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
467 ORDER signed by Magistrate Judge Aaron E Goodstein on 5/22/2008: IT IS THEREFORE ORDERED that MPS' motion to strike is denied. (Docket No. 465.) MPS' motion to file a sur−reply is granted. (Docket No. 465.) MPS shall file its sur−reply no later than May 27, 2008. (cc: all counsel) (Goodstein, A.)
468 BRIEF in Opposition filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools re 431 MOTION Joint Motion by Plaintiffs and State Defendants to Approve Settlement Aggreement (Surresponse). (Kruse, Autumn)
469 AFFIDAVIT of Richard E. Brigham. (Kruse, Autumn)
470 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Kruse, Autumn)
471 ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT signed by Magistrate Judge Aaron E Goodstein on 6/6/2008. Telephone Conference set for 6/20/2008 at 10:00 AM before Magistrate Judge Aaron E Goodstein. (cc: all counsel)(Goodstein, A.)
472 CERTIFICATE OF SERVICE by Milwaukee Public Schools (Kruse, Autumn)
473 Expedite MOTION for Order Motion to Order Plaintiffs to Submit to Rule 35 Examinations by Milwaukee Public Schools. (Kruse, Autumn)
474 AFFIDAVIT of Michael Aldana. (Kruse, Autumn)
475 ATTACHMENTS Exhibit A by Milwaukee Public Schools re 474 Affidavit. (Kruse, Autumn)
476 ATTACHMENTS Exhibit B by Milwaukee Public Schools re 474 Affidavit. (Kruse, Autumn)
477 ATTACHMENTS Exhibit C by Milwaukee Public Schools re 474 Affidavit. (Kruse, Autumn)
478 PROPOSED Proposed Order Granting MPS Defendants' Motion for Rule 35 Mental Examination filed by Milwaukee Public Schools. (Kruse, Autumn)

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06/18/2008
06/19/2008 06/20/2008 06/20/2008 06/20/2008 06/20/2008 06/23/2008
06/24/2008 06/25/2008
06/25/2008
06/26/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008

NOTICE of Hearing: (cc: all counsel) Telephone Conference set for 6/30/2008 at 4:00 PM before Magistrate Judge Aaron E Goodstein on Defendants' 7.4 Motion for order[Docket 473]. Plaintiffs shall file written response in accordance with Civil L.R. 7.4.(Quinn, C., Deputy Clerk)
479 Docket Annotation to Atty Kruse re: doc. 478. (kah)
480 RESPONSE to Motion filed by Department of Public Instruction, Elizabeth Burmaster re 473 Expedite MOTION for Order Motion to Order Plaintiffs to Submit to Rule 35 Examinations Letter Form. (Olsen, Bruce)
481 PROPOSED Proposed Legal Notice of Pendency of Class Action Settlement Hearing filed by all plaintiffs. (Spitzer−Resnick, Jeffrey)
482 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
483 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Telephone Conference held on 6/20/2008; class notification discussed; see Order (Tape #10:09:00 − 11:05:53) (vkb) (Entered: 06/23/2008)
484 ORDER REGARDING CLASS NOTIFICATION signed by Magistrate Judge Aaron E Goodstein; IT IS ORDERED that plaintiffs shall file a proposed class notification no later than 6/24/08; the notice shall be published no later than 7/07/08; objections to the proposed class settlement shall be filed no later than 7/21/08; (Fairness Hearing set for 7/28/2008 at 10:00 AM in Courtroom 254; the settling parties shall assume the cost of the publication (cc: all counsel)(vkb)
485 LETTER re: PROPOSED Stipulation to Proposed Notice of Pendency of Class Action Settlement Hearing filed by Department of Public Instruction, Elizabeth Burmaster. (Olsen, Bruce) Modified on 6/25/2008 (vkb)
486 ORDER by Magistrate Judge Aaron E Goodstein that the parties shall have three days from the date of this order in which to object to the court's proposed changes; at the end of the objection period the court shall resolve any objections and promptly issue an order granting preliminary approval of the proposed class notice (Attachments: # 1 Draft Proposed Notice of Pendency of Class Action Settlement Hearing) (cc: all counsel)(vkb)
487 BRIEF in Opposition filed by all plaintiffs re 473 Expedite MOTION for Order Motion to Order Plaintiffs to Submit to Rule 35 Examinations. (Attachments: # 1 Affidavit Monica Murphy, # 2 Exhibit email exchange, # 3 Certificate of Service)(Murphy, Monica)
488 Docket Annotation; email sent to Atty. Murphy re: affidavits in support should be filed as separate entries, not as attachments (vkb)
489 TRANSCRIPT of Deposition of Kenneth Holt held on 7/10/02; PAPER format (vkb) (blr). (Entered: 07/01/2008)
490 TRANSCRIPT of Deposition of Georgette Rodriguez held on 7/29/04; PAPER format only (vkb) (Additional attachment(s) added on 4/24/2012: # 1 Exhibit 130, # 2 Exhibit 131, # 3 Exhibit 132) (blr). (Entered: 07/01/2008)
491 TRANSCRIPT of Deposition of Donna Hart−Tervalon held on 7/30/04; PAPER format (vkb) (Additional attachment(s) added on 4/24/2012: # 1 Exhibit 133, # 2 Exhibit 134) (blr). (Entered: 07/01/2008)
492 TRANSCRIPT of Deposition of Stephanie Petska held on 8/02/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
493 TRANSCRIPT of Deposition of Donna Maras held on 8/03/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
494 TRANSCRIPT of Deposition of Ada Rivera held on 8/06/04; PAPER format (vkb) (Additional attachment(s) added on 4/24/2012: # 1 Exhibit 136, # 2 Exhibit 137) (blr). (Entered: 07/01/2008)
495 TRANSCRIPT of Deposition of Patricia Yahle held on 8/31/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)

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06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008
06/30/2008 06/30/2008
07/01/2008
07/03/2008
07/07/2008 07/07/2008 07/07/2008 07/28/2008
07/28/2008 08/15/2008

496 TRANSCRIPT of Deposition of Yovira Moroney held on 9/01/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
497 TRANSCRIPT of Deposition of Debra Jacob held on 9/01/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
498 TRANSCRIPT of Deposition of Brigid Boyle held on 9/03/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
499 TRANSCRIPT of Deposition of Monica Lopez held on 9/03/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
500 TRANSCRIPT of Deposition of Janice Duff held on 9/09/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
501 TRANSCRIPT of Deposition of Elliot Weiman held on 9/10/04; PAPER format (vkb) (blr). (Entered: 07/01/2008)
502 TRANSCRIPT of Deposition of Paul Pelzek held on 9/23/04; PAPER format (vkb) (Additional attachment(s) added on 4/24/2012: # 1 Exhibit 146, # 2 Exhibit 147, # 3 Exhibit 148, # 4 Exhibit 149, # 5 Exhibit 150, # 6 Exhibit 151, # 7 Exhibit 152, # 8 Exhibit 153) (blr). (Entered: 07/01/2008)
503 TRANSCRIPT of Deposition of Judith A. Schrag held on 2/08/05; PAPER format (vkb) (blr). Modified on 11/13/2013 (blr). (Entered: 07/01/2008)
504 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Telephone Conference held on 6/30/2008; court sets telephone conference for 7/07/08 at 11:00am to determine schedule for conducting Rule 35 examinations (Tape #4:06:14 − 5:06:02) (vkb) (Entered: 07/01/2008)
505 ORDER APPROVING CLASS NOTICE OF SETTLEMENT by Magistrate Judge Aaron E Goodstein; the court hereby APPROVES the attached class notice of settlement; a hearing shall be held in Courtroom 254, United States Courthouse, 517 E Wisconsin Ave, Milwaukee, WI at 10:00am on 7/28/08, to consider whether the settlement should be given final approval of the court; the plaintiffs are directed to have the notice published in the Milwaukee Journal/Sentinel newspaper one day during the week of 7/07/08 (Attachments: # 1 Notice of Class Action Settlement Hearing) (cc: all counsel)(vkb)
506 ORDER by Magistrate Judge Aaron E Goodstein; Telephone Conference set for 7/7/2008 at 11:00 AM to establish procedures and a schedule for conducting Rule 35 examinations; if the parties agree on procedures and a schedule prior to the hearing it should be filed with the court and the hearing will not be held (cc: all counsel)(vkb)
507 ORDER SETTING SCHEDULE FOR RULE 35 EXAMINATIONS signed by Magistrate Judge Aaron E Goodstein on 7/7/2008. (cc: all counsel)(Goodstein, A.)
Set Hearings: Oral Argument Hearing set for 8/28/2008 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. (cq)
508 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Telephone Conference held on 7/7/2008 (Tape #11:03:47 − 11:30:10) (vkb) (Entered: 07/08/2008)
509 ORDER GRANTING APPROVAL OF CLASS SETTLEMENT signed by Magistrate Judge Aaron E Goodstein on 7/28/2008. Defendants Wisconsin Department of Public Instruction and State Superintendent of Public Instruction Elizabeth Burmaster are hereby dismissed from this action. (cc: all counsel)(Goodstein, A.)
510 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Fairness Hearing held on 7/28/2008; no objections received; MPS objections stand; DPI is dismissed as a party to the action (Tape #10:05:31 − 10:15:57) (vkb)
511 ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR INTERIM ATTORNEYS' FEES signed by Magistrate Judge Aaron E Goodstein on 8/15/2008. IT IS THEREFORE ORDERED that the plaintiffs' motion for interim attorneys' fees, (Docket No. 392), is granted as modified. The plaintiffs' motion for interim costs is denied without prejudice. (cc: all counsel) (Goodstein, A.)

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08/15/2008 512 LETTER from Monica Murphy Attorney for Plaintiffs. (Murphy, Monica)

08/15/2008 513 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)

08/20/2008

MARGIN ORDER signed by Magistrate Judge Aaron E Goodstein on 8/20/2008 re 512 Letter. In light of the foregoing, the court will conduct a Telephone Conference instead of an in−court hearing, on 8/28/2008 at 9:30 A.M., if there are matters that the parties need to address with the court. Counsel are encouraged to submit a joint list of matters to be discussed, but if not possible, separate submissions should be made. List of topics is due no later than 8/26/2008. (cc: all counsel)(Goodstein, A.)

08/27/2008 514 LETTER from Monica Murphy Attorney for Plaintiffs. (Murphy, Monica)

08/27/2008 515 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)

08/28/2008

516 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Telephone status conference held on 8/28/2008; defendant to file expert reports by 9/19/08; discovery to be completed by 10/10/08; final pretrial report and motions in limine to be filed no later than 10/20/08; final pretrial conference reset for 10/28/08 at 10:00am; court trial reset to 11/06/08 at 9:00am (Tape #9:31:34 − 10:53:42) (vkb) (Entered: 08/29/2008)

08/29/2008

517 SCHEDULING ORDER signed by Magistrate Judge Aaron E Goodstein on 08/28/2008 is modified as follows: Defendants' Expert Witness Reports due by 9/19/2008 All discovery, including depositions of experts, due by 10/10/2008 Final Pretrial Report and any motions in limine shall be filed by 10/20/2008 Final Pretrial Conference reset for 10/28/2008 10:00 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. Court Trial reset for 11/6/2008 09:00 AM before Magistrate Judge Aaron E Goodstein and will last approximately 6 days. No proceedings will be held on Veterans' Day, November 11, 2008. Evidence to be presented limited to the period of 2000 to, and not exceeding, June 30, 2005. (cc: all counsel)(dm)

08/29/2008

Set Deadlines/Hearings: All Discovery due by 10/10/2008; Final/Joint Pretrial Report due by 10/20/2008; Final Pretrial Conference reset for 10/28/2008 at 10:00 AM before Magistrate Judge Aaron E Goodstein. Court Trial reset to begin on 11/6/2008 09:00 AM before Magistrate Judge Aaron E Goodstein. (kmf) (Entered: 09/02/2008)

10/20/2008 518 MOTION in Limine for Phase III trial by all plaintiffs. (Spitzer−Resnick, Jeffrey)

10/20/2008 519 BRIEF in Support filed by all plaintiffs re 518 MOTION in Limine for Phase III trial. (Spitzer−Resnick, Jeffrey)

10/20/2008 520 Seventeenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Spitzer−Resnick, Jeffrey)

10/20/2008 521 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)

10/20/2008 522 First MOTION in Limine and Brief to Exclude the Testimony and 2008 Expert Report of Diana Rogers−Adkinson by Milwaukee Board of School Directors. (Kruse, Autumn)

10/20/2008

523 AFFIDAVIT of Autumn M. Kruse in Support of Motion in Limine #1 to Exclude the Testimony and 2008 Expert Report of Diana−Rogers Adkinson. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Kruse, Autumn)

10/20/2008 524 Second MOTION in Limine and Brief to Exclude Evidence Related to Biagio R. by Milwaukee Board of School Directors. (Kruse, Autumn)

10/20/2008 525 Third MOTION in Limine and Brief to Exclude Evidence Related to Melanie V. by Milwaukee Board of School Directors. (Kruse, Autumn)

10/20/2008 526 AFFIDAVIT of Patricia Yahle in Support of MPS' Motions in Limine 2 and 3. (Kruse, Autumn)

10/20/2008 527 Fourth MOTION in Limine and Brief to Exclude Evidence Falling Outside of the Relevant Time Period by Milwaukee Board of School Directors. (Kruse, Autumn)

10/20/2008 528 MPS Defendants' PRETRIAL REPORT by Milwaukee Board of School Directors. (Kruse, Autumn)

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10/20/2008 10/20/2008
10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/22/2008 10/22/2008 10/22/2008 10/22/2008
10/22/2008 10/24/2008
10/24/2008 10/24/2008 10/24/2008
10/24/2008 10/27/2008
10/27/2008 10/27/2008
10/27/2008 10/27/2008 10/27/2008

529 Proposed Findings of Fact by Milwaukee Public Schools (Kruse, Autumn)
530 Joint Phase III Exhibit List by Milwaukee Board of School Directors. (Kruse, Autumn)(See 537 for Corrected Joint Phase III Exhibit List) Modified on 10/23/2008 (vkb)
531 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
532 Proposed Findings of Fact by all plaintiffs. (Murphy, Monica)
533 Witness List by all plaintiffs. (Murphy, Monica)
534 See 540 for Complete Trial Brief; TRIAL BRIEF part 1 by all plaintiffs. (Murphy, Monica) Modified on 10/23/2008 (vkb)
535 See 540 for Complete Trial Brief; TRIAL BRIEF part 2 by all plaintiffs. (Murphy, Monica) Modified on 10/23/2008 (vkb).
536 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
537 Corrected Joint Phase III Exhibit List by Milwaukee Board of School Directors. (Kruse, Autumn)
538 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
539 Witness List by all plaintiffs. (Murphy, Monica)
540 TRIAL BRIEF reconfigured by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Murphy, Monica)
541 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
542 BRIEF in Opposition filed by all plaintiffs re 522 First MOTION in Limine and Brief to Exclude the Testimony and 2008 Expert Report of Diana Rogers−Adkinson. (Spitzer−Resnick, Jeffrey)
543 Eighteenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Spitzer−Resnick, Jeffrey)
544 BRIEF in Opposition filed by all plaintiffs re 525 Third MOTION in Limine and Brief to Exclude Evidence Related to Melanie V.. (Spitzer−Resnick, Jeffrey)
545 BRIEF in Opposition filed by all plaintiffs re 527 Fourth MOTION in Limine and Brief to Exclude Evidence Falling Outside of the Relevant Time Period. (Spitzer−Resnick, Jeffrey)
546 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
547 BRIEF in Opposition filed by all defendants re 518 MOTION in Limine for Phase III trial (and Oppostion to Plaintiffs' Motions in Limine Nos. 1−4). (Kruse, Autumn) Modified on 10/27/2008 (kmf) PER FILER − DOUCMENT DOCKETED IN ERROR.
548 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
549 BRIEF in Opposition filed by Milwaukee Board of School Directors re 518 MOTION in Limine for Phase III trial (and Opposition to Plaintiffs' Motions in Limine Nos. 1−4). (Kruse, Autumn)
550 RESPONSE to Motion filed by all plaintiffs re 524 Second MOTION in Limine and Brief to Exclude Evidence Related to Biagio R.. (Murphy, Monica)
551 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
552 PROPOSED Proposed Remedy filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Featherston, Katie)

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10/27/2008 10/28/2008 10/28/2008 10/28/2008
10/28/2008 11/03/2008 11/07/2008
11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/11/2008 11/11/2008 11/13/2008
11/13/2008 11/17/2008
12/18/2008

553 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Featherston, Katie)
554 LETTER from Bruce Olsen DPI objects to a portion of MPS's proposed remedy. (Olsen, Bruce)
555 CERTIFICATE OF SERVICE by Department of Public Instruction (Olsen, Bruce)
556 PHASE III FINAL PRETRIAL ORDER signed by Magistrate Judge Aaron E Goodstein on 10/28/2008. Based upon the parties' pretrial submissions and the argument and discussion at the conference, the court now enters the pretrial order that shall govern the proceeding in this case. See Order. (cc: all counsel) (Goodstein, A.)
557 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Final Pretrial Conference held on 10/28/2008; see order (Tape #10:02:46 − 11:52:36) (vkb) (Entered: 10/29/2008)
558 BRIEF filed by all defendants MPS Defendants' Phase III Trial Brief. (Aldana, Michael)
559 MOTION of Dismissed Defendants, Wisconsin DPI and Burmaster, for Declaratory Order that DPI Has No Legal Liability to Contribute to the Costs of Providing Compensatory Education and Services for MPS Students Whose IDEA Rights will be Determined at Trial Phase III by Department of Public Instruction, Elizabeth Burmaster. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Olsen, Bruce)
560 CERTIFICATE by Department of Public Instruction, Elizabeth Burmaster of Counsel Pursuant to Civil Local Rule 7.1(a) Regarding Non−Filing of Brief in Support of Motion (Olsen, Bruce)
561 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
597 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Court Trial (PHASE III) completed on 11/14/2008 − SEE minutes for details. (Court Reporter John Schindhelm) (kah) (Entered: 05/07/2009)
599 Exhibit List (Phase III Court trial)(vkb) (Entered: 06/09/2009)
562 LETTER from Michael Aldana in response to DPI's motion for a declaratory ruling. (Aldana, Michael)
563 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools to letter to the Honorable Aaron E. Goodstein (Aldana, Michael)
564 ORDER SUSPENDING BRIEFING signed by Magistrate Judge Aaron E Goodstein on 11/13/2008. The briefing on DPI's motion, (Docket No. 559), is hereby suspended until further order of the court. Following the conclusion of Phase III trial, the court shall establish a briefing schedule for all post−trial briefs. As part of this briefing, MPS shall respond to DPI's motion as part of its initial Phase III post−trial brief. DPI shall then be given an opportunity to reply. (cc: all counsel)(Goodstein, A.)
565 NOTICE by Department of Public Instruction . Bruce A. Olsen appearing on behalf of Subpoenaed Witness Stephanie Petska (Attachments: # 1 Certificate of Service)(Olsen, Bruce)
566 POST−PHASE III SCHEDULING ORDER signed by Magistrate Judge Aaron E Goodstein on 11/17/2008. On November 14, 2008, the court trial for Phase III of this class action case concluded. At the close of the trial, the court established a briefing schedule; Further, the court stated that it would include certain questions that the court would like the parties to address in their post−trial briefs. The court now issues the following order. (cc: all counsel)(Goodstein, A.)
567 TRANSCRIPT of Court Trial − Phase III held on 11/6/2008 − Vol 21 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal.

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NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

568 TRANSCRIPT of Court Trial − Phase III held on 11/7/2008 − Vol 22 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

569 TRANSCRIPT of Court Trial − Phase III held on 11/10/2008 − Vol 23 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

570 TRANSCRIPT of Court Trial − Phase III held on 11/12/2008 − Vol 24 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

571 TRANSCRIPT of Court Trial − Phase III held on 11/13/2008 − Vol 25 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

572 TRANSCRIPT of Court Trial − Phase III held on 11/14/2008 − Vol 26 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

573 TRANSCRIPT of Phase III Court Trial − Word Index held on 11/6−14/2008 Vols 21−26 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public

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terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

12/18/2008

574 TRANSCRIPT of Phase III Court Trial − Master Index held on 11/6−14/2008 − Vols 21−26 before Judge Aaron E Goodstein Court Reporter/Transcriber John Schindhelm, Contact at johns54@sbcglobal.net. Transcripts may be purchased through the court reporter using the Transcript Order Form found here or viewed at the court public terminal. NOTICE RE REDACTION OF TRANSCRIPTS: If necessary, within 7 business days each party shall inform the Court of their intent to redact personal identifiers by filing a Notice of Intent to Redact. Please read the policy located on our website www.wied.uscourts.gov; Redaction Statement due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (Schindhelm, John)

01/14/2009 575 LETTER from Michael Aldana. (Aldana, Michael)

01/14/2009 576 DOCUMENT RE−FILED; See 579 Expedite MOTION to Exclude Plaintiffs from Introducing New Evidence Or Alternatively To Modify The Briefing Schedule by Milwaukee Public Schools (Aldana, Michael) Modified on 1/15/2009 (vkb)

01/14/2009 577 AFFIDAVIT of Michael Aldana. (Aldana, Michael)

01/14/2009 578 CERTIFICATE OF SERVICE by Milwaukee Public Schools (Aldana, Michael)

01/14/2009 579 MOTION to Preclude Plaintiffs from Introducing New Evidence or alternatively MOTION to Modify the Briefing Schedule filed by Milwaukee Public Schools (vkb) (Entered: 01/15/2009)

01/15/2009

MARGIN ORDER re [Docket No. 579] signed by Magistrate Judge Aaron E Goodstein on 1/15/2009.The defendants' request for a hearing prior to the January 16 submissions is premature. The court will conduct a prompt review of plaintiffs' submission and decide whether a hearing on defendants' 7.4 motion is warranted. If so, one will be scheduled prior to the date for reply submissions. (cc: all counsel)(Goodstein, A.)

01/15/2009 580 Docket Annotation; email sent to Atty. Aldana re: filing of multi−part motions (vkb)

01/16/2009 581 BRIEF filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools Phase III Initial Post−Trial. (Kruse, Autumn)

01/16/2009

582 RESPONSE to Motion filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools re 559 MOTION of Dismissed Defendants, Wisconsin DPI and Burmaster, for Declaratory Order that DPI Has No Legal Liability to Contribute to the Costs of Providing Compensatory Education and Services for MPS Students Whose IDEA Rights will be Determined at Tri. (Kruse, Autumn)

01/16/2009 583 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Kruse, Autumn)

01/16/2009 584 BRIEF filed by all plaintiffs Phase III Post−trial brief. (Spitzer−Resnick, Jeffrey)

01/16/2009 585 Nineteenth AFFIDAVIT of Jeffrey Spitzer−Resnick. (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)

01/16/2009 586 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)

01/16/2009 587 CERTIFICATE OF SERVICE by all plaintiffs (correction on date from previous submission) (Spitzer−Resnick, Jeffrey)

01/20/2009

588 ORDER signed by Magistrate Judge Aaron E Goodstein on 1/20/2009 denying 579 Motion to Exclude; denying 579 Motion to Modify. However, now facing a revised remedy with substantially more detail does warrant the granting of additional time for a reply by MPS. The court will extend the date for reply. IT IS THEREFORE ORDERED, that the parties' Phase III reply briefs shall be filed on February 9, 2009.

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01/30/2009
01/30/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 06/09/2009
06/17/2009 06/17/2009 06/17/2009 06/17/2009 07/08/2009 07/09/2009 07/09/2009 07/09/2009 07/10/2009

The Rule 7.4 motion of MPS is hereby denied. (cc: all counsel) (Goodstein, A.)
589 REPLY BRIEF in Support filed by Department of Public Instruction, Elizabeth Burmaster re 559 MOTION of Dismissed Defendants, Wisconsin DPI and Burmaster, for Declaratory Order that DPI Has No Legal Liability to Contribute to the Costs of Providing Compensatory Education and Services for MPS Students Whose IDEA Rights will be Determined at Tri al Phase III. (Olsen, Bruce)
590 CERTIFICATE OF SERVICE by Department of Public Instruction, Elizabeth Burmaster (Olsen, Bruce)
591 REPLY filed by all plaintiffs Phase III Post−Trial Reply Brief. (Spitzer−Resnick, Jeffrey)
592 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
593 AFFIDAVIT of Monica Murphy. (Murphy, Monica)
594 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
595 REPLY filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools Phase III Post−Trial Reply Brief. (Kruse, Autumn)
596 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Kruse, Autumn)
598 DECISION AND ORDER FOLLOWING PHASE III, signed by Magistrate Judge Aaron E Goodstein on 6/9/2009 DENYING 559 Motion for Declaratory Order. It is the conclusion of the court that MPS' systemic failures to meet its Child Find obligations necessitates an individualized evaluation of all class members to determine whether compensatory services are appropriate for a resulting denial of FAPE, and accordingly, the court hereby orders the remedy set forth herein. The next step of this litigation requires the parties to meet in a good faith effort to reach an agreement as to certain essential matters set forth above. Therefore, no later than July 24, 2009, the parties shall submit joint proposals detailing the means that shall be used to provide individual and general notice to potential class members, as well as the contents of any proposed notice. If after good faith efforts, the parties are unable to reach a mutual agreement, the parties shall each submit separate proposals. Further, no later than July 24, 2009, the parties shall submit jointly the name, curriculum vitae, affidavit pursuant to Rule 53(b)(3)(a), and information indicating the terms under which the independent monitor shall be compensated for the proposed independent monitor. If after good faith efforts, the parties are unable to reach a mutual agreement, the parties shall each submit such information for up to two proposed independent monitors. (cc: all counsel) (Goodstein, A.)
600 MOTION for Payment of Expert Fees Taxation of Costs by all plaintiffs (Murphy, Monica) Modified on 6/18/2009 (vkb)
601 BRIEF in Support filed by all plaintiffs re 600 MOTION for Payment of Expert Fees Taxation of Costs (Murphy, Monica) Modified on 6/18/2009 (vkb)
602 AFFIDAVIT of Monica Murphy. (Murphy, Monica)
603 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
604 NOTICE OF APPEAL by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. Filing Fee PAID $455, receipt number 4689012250 (cc: all counsel)(dlm) (Entered: 07/09/2009)
605 7th Circuit Information Sheet re: 604 Notice of Appeal (dlm)
606 Attorney Cover Letter re: 604 Notice of Appeal (Attachments: # 1 appeal record)(dlm)
607 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 604 Notice of Appeal (dlm)
608 USCA Case Number 09−2741 re: 604 Notice of Appeal filed by Milwaukee Public Schools, William Andrekopolous, Milwaukee Board of School Directors. (dlm)

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07/10/2009 07/10/2009 07/10/2009 07/10/2009
07/13/2009 07/13/2009 07/14/2009
07/20/2009 07/20/2009 07/21/2009
07/21/2009 07/21/2009 07/21/2009 07/21/2009 07/22/2009 07/22/2009 07/24/2009 07/24/2009
07/24/2009 07/24/2009 07/24/2009 07/24/2009
07/24/2009 07/24/2009

609 LETTER from Autumn M. Kruse re 6/17/09 Motion. (Kruse, Autumn)
610 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
611 LETTER from Autumn M. Kruse re notification list. (Kruse, Autumn)
612 USCA Case Number 09−2741 Seventh Circuit re: 604 Notice of Appeal filed by Milwaukee Public Schools, William Andrekopolous, Milwaukee Board of School Directors. (dmm)
613 LETTER from Monica Murphy. (Murphy, Monica)
614 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)
MARGIN ORDER re 600 MOTION for Order, signed by Magistrate Judge Aaron E Goodstein on 7/14/2009. Based on plaintiffs' request, the motion is deemed withdrawn. (cc: all counsel)(Goodstein, A.)
615 LETTER from Jeffrey Spitzer−Resnick. (Spitzer−Resnick, Jeffrey)
616 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)
MARGIN ORDER signed by Magistrate Judge Aaron E Goodstein on 7/21/09 re 615 Letter request; The court will accept three names from each party. In regard to an application for attorney fees, the court will establish a date in the future when there is more definition to the remedy. (cc: all counsel)(Goodstein, Aaron)(dm) Modified on 7/21/2009 (vkb).
617 LETTER from Autumn M. Kruse, Esq.. (Kruse, Autumn)
618 MOTION to Stay by Milwaukee Board of School Directors, Milwaukee Public Schools. (Kruse, Autumn)
619 BRIEF in Support filed by Milwaukee Board of School Directors, Milwaukee Public Schools re 618 MOTION to Stay. (Kruse, Autumn)
620 AFFIDAVIT of Patricia Yahle. (Attachments: # 1 Exhibit Yahle Affidavit Ex. A)(Kruse, Autumn)
621 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)
622 ORDER signed by Magistrate Judge Aaron E Goodstein on 7/22/2009 DENYING 618 Motion to Stay. (cc: all counsel) (Goodstein, A.)
623 LETTER from Autumn M. Kruse Requesting a Schedule. (Kruse, Autumn)
624 PROPOSED Proposal Regarding the Appointment of an Independent Monitor and Class Notice filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4)(Kruse, Autumn)
625 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Kruse, Autumn)
626 ORIGINAL DOCUMENT Plaintiffs' Proposed Class Notification Procedures (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Spitzer−Resnick, Jeffrey)
627 ORIGINAL DOCUMENT Plaintiffs' List of Proposed Independent Monitors (Spitzer−Resnick, Jeffrey)
628 AFFIDAVIT of Elise Baach. (Attachments: # 1 Letter Information regarding costs for Elise Baach, # 2 Letter References for Elise Baach, # 3 Supplement Elise Baach CV, # 4 Supplement Elise Baach writing samples)(Spitzer−Resnick, Jeffrey)
629 AFFIDAVIT of Susan Gramling. (Attachments: # 1 Supplement References for Susan Gramling)(Spitzer−Resnick, Jeffrey)
630 AFFIDAVIT of Deusdedi Merced. (Attachments: # 1 Supplement References for Deusdedi Merced, # 2 Supplement Deusdedi Merced CV)(Spitzer−Resnick, Jeffrey)

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07/24/2009 631 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)

07/27/2009

632 ORDER re 623 Letter request for schedule signed by Magistrate Judge Aaron E Goodstein on 7/27/2009. The court shall permit the parties to submit a memorandum as to why one of its proposed monitors should be appointed and/or reasons why the opposing partys proposed monitors should not be appointed. Such memorandum shall be submitted no later than Friday, July 31, 2009. (cc: all counsel)(Goodstein, A.)

07/31/2009 633 RESPONSE filed by all plaintiffs (Murphy, Monica)

07/31/2009 634 CERTIFICATE OF SERVICE by all plaintiffs (Murphy, Monica)

07/31/2009 635 BRIEF filed by all defendants Defendants' Memorandum in Support of its Proposed Monitors and Objections to Plaintiffs' Nominations. (Kruse, Autumn)

07/31/2009 636 AFFIDAVIT of Autumn Kruse. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Kruse, Autumn)

08/03/2009 637 CERTIFICATE OF SERVICE by all defendants (Kruse, Autumn)

08/19/2009

638 ORDER APPOINTING INDEPENDENT MONITOR, signed by Magistrate Judge Aaron E Goodstein on 8/19/2009. The court hereby appoints Elise T. Baach to serve as the independent monitor in this case pursuant to Rule 53 of the Federal Rules of Civil Procedure. (cc: all counsel, Elise Bach via U.S. mail)(Goodstein, A.)

08/19/2009

639 ORDER REGARDING CLASS NOTIFICATION by Magistrate Judge Aaron E Goodstein; see order for details (Attachments: # 1 Attachment A: Notice of Class Action, # 2 Attachment B: Individual Information Packet, # 3 Attachment C: Potential Class Member Claim Form) (cc: all counsel)(vkb)

08/24/2009 640 EXHIBITS received by Clerk's Office for all parties. Exhibit list filed. (Attachments: # 1 Exhibit List) (bdr)

08/26/2009

641 ORDER of USCA re 604 IT IS ORDERED THAT motion for dismissal of defendant's appeal; opposition to motion to dismiss appeal; plaintiff's reply brief will be determined by the assigned merits panel. IT IS FURTHER ORDERED that motion for stay of District Court's June 9, 2009 Order is GRANTED. IT IS FINALLY ORDERED that briefing schedule will proceed as attached.(dlm)

08/26/2009 642 MOTION for Extension of Time to file Cross Appeal by all plaintiffs. (Spitzer−Resnick, Jeffrey)

08/26/2009 643 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)

08/26/2009

644 RULE 7.4 MOTION to Stay This Court's August 9, 2009 Order Appointing Independent Monitor Elise T. Baach and Order Regarding Class Notification by Milwaukee Board of School Directors. (Attachments: # 1 Exhibit A)(Kruse, Autumn) Modified on 8/27/2009 to correct text(cms).

08/27/2009 645 LETTER from Autumn Kruse. (Kruse, Autumn)

08/27/2009 646 7.4 MOTION to Stay the August 19, 2009 Orders Appointing Independent Monitor Elise T. Baach and Order Regarding Class Notification by Milwaukee Board of School Directors. (Attachments: # 1 Exhibit A)(Kruse, Autumn)

08/27/2009 647 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)

08/27/2009

648 ORDER signed by Magistrate Judge Aaron E Goodstein on 8/27/09 GRANTING 644 MPS' Rule 7.4 Motion to Stay. The independent monitor, Elise T. Baach, shall not take any further action in this matter pending further order of this court. Furthermore, the court order appointing an independent monitor, (Docket No. 638), and the court order regarding class notification, (Docket No. 639), are hereby STAYED, until further order of the court. (cc: all counsel, Elise Baach via US Mail) (Goodstein, A.)(dm)

08/27/2009

649 VACATED pursuant to 658 ; ORDER signed by Magistrate Judge Aaron E Goodstein on 8/27/09 GRANTING 642 Plaintiffs' Motion for Extension of Time to File Cross−Appeal; plaintiffs shall file their cross−appeal no later than 9/11/09 (cc: all counsel) (Goodstein, A.)(dm) Modified on 8/27/2009 (vkb) Modified on 9/8/2009 (vkb)

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08/28/2009 650 MOTION for Reconsideration the Order Oder Granting an Extension of time for Plaintiffs to file a Cross−Appeal by Milwaukee Board of School Directors. (Kruse, Autumn) Modified on 8/28/2009 to correct text (cms).

08/28/2009 651 BRIEF in Support filed by Milwaukee Board of School Directors re 650 MOTION for Reconsideration the Oder Granting an Extension of time for Plaintiffs to file a Cross−Appeal. (Kruse, Autumn)

08/28/2009 652 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors (Kruse, Autumn)

08/28/2009

653 ORDER signed by Magistrate Judge Aaron E Goodstein on 8/28/09 re 650 MOTION for Reconsideration filed by Milwaukee Board of School Directors. The court should hear from the plaintiffs before deciding the motion to reconsider. Plaintiffs response is due no later than September 2, 2009, and the defendants should reply no later than September 4, 2009. (cc: all counsel)(Goodstein, A.)(dm)

09/02/2009 654 RESPONSE to Motion filed by all plaintiffs re 650 MOTION for Reconsideration the Oder Granting an Extension of time for Plaintiffs to file a Cross−Appeal. (Spitzer−Resnick, Jeffrey)

09/02/2009 655 CERTIFICATE OF SERVICE by all plaintiffs (Spitzer−Resnick, Jeffrey)

09/04/2009

656 REPLY BRIEF in Support filed by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools re 650 MOTION for Reconsideration the Oder Granting an Extension of time for Plaintiffs to file a Cross−Appeal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Aldana, Michael)

09/04/2009 657 CERTIFICATE OF SERVICE by Milwaukee Board of School Directors, William Andrekopolous, Milwaukee Public Schools (Aldana, Michael)

09/08/2009 658 ORDER by Magistrate Judge Aaron E Goodstein GRANTING 650 MPS' Motion for Reconsideration and VACATING 649 Order on Motion for Extension of Time; 642 Plaintiff's Motion for an Extension of Time is DENIED (cc: all counsel) (vkb)

09/11/2009 659 NOTICE OF APPEAL to the USCA from orders entered on 05/23/03, 08/01/03, 11/14/03. Filing Fee PAID $455, receipt number MK4689013470 (cc: all counsel) (dlm) (Entered: 09/14/2009)

09/14/2009 660 7th Circuit Information Sheet re: 659 Notice of Appeal (dlm)

09/14/2009 661 Attorney Cover Letter re: 659 Notice of Appeal (Attachments: # 1 docket sheet)(dlm)

09/14/2009 662 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 659 Notice of Appeal (dlm)

09/15/2009 663 USCA Case Number 09−3274 re: 659 Notice of Appeal filed by Biagio R, Aaron V, Melanie V, Bryan E, Jim M, Lamont A, Jamie S, Maiysha Y, David P and Tyler C. (lmt)

06/18/2010 664 Appeal Record Request received from 7th Cir. Re: USCA Case Number 09−2741. (dlm)

06/18/2010 665 Appeal Record Request received from 7th Cir. Re: USCA Case Number 09−3274. (dlm)

06/22/2010

666 Certified Record on Appeal 09−2741 and 09−3274 Transmitted to US Court of Appeals re 604 Notice of Appeal, 659 Notice of Appeal consisting of 4 vol pldgs paper format, 9 vol pldgs PDF format, 16 loose pldgs, 23 vol transcripts paper format, PDF transcripts: 567−574, 7 boxes of exhibits, 23 in−camera materials, 15 deposition transcripts (cc: all counsel) (Attachments: # 1 docket sheet)(dlm)

06/30/2010 667 Supplemental Record on Appeal 09−2741 and 09−3274 sent to USCA consisting of 4 boxes of exhibits and 3 vol transcripts re 604 Notice of Appeal, 659 Notice of Appeal (Attachments: # 1 docket sheet)(dlm)

06/16/2011

668 Report from W. Alan Coulter, Independent Expert, recommending that MPS be recognized as having met outcome standards 1 & 2 of the Settlement Agreement (Attachments: # 1 Settlement Agreement, # 2 Legal Notice (Exhibit A to Settlement Agreement), # 3 Report to the Independent Expert)(vkb)

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03/13/2012

669 USCA Mandate (certified copy) USCA 09−3274 is DISMISSED. The motion to dismiss MPS's appeal is DENIED (09−2741). The district court's class certification order is VACATED and the case is REMANDED for further proceedings. The record will be returned at a later date. (dlm)

03/14/2012

Pursuant to the USCA Mandate, this case has been randomly reassigned to Judge Rudolph T Randa; Magistrate Judge Aaron E Goodstein no longer assigned to the case. (vkb)

03/14/2012

Appeal Record Returned 09−2741 & 09−3274 consisting of 16 loose pleadings, 4 vol pleadings, 23 transcripts, 7 boxes of exhibits, 15 vol depositions, 23 sealed envelopes re 659 Notice of Appeal, 604 Notice of Appeal (dlm)

03/20/2012

670 ORDER. If the plaintiffs want to pursue this case any further, they should meet and confer with the defendants pursuant to Federal Rule of Civil Procedure 26(f) and submit a proposed discovery plan within thirty (30) days of the date of this Order. Failing that, the Court will enter an order of dismissal. Signed by Judge Rudolph T Randa on 03/20/2012. (cc: all counsel)(Koll, J)

03/30/2012

Appeal Record Returned consisting of 4 boxes of Exhibits re 659 Notice of Appeal (lmt)

04/19/2012 671 REPORT of Rule 26(f) Plan by All Plaintiffs. (Spitzer−Resnick, Jeffrey)

04/19/2012 672 CERTIFICATE OF SERVICE by All Plaintiffs (Spitzer−Resnick, Jeffrey)

04/19/2012 673 Defendants' Joint Discovery Plan REPORT of Rule 26(f) Plan by All Defendants. (Olsen, Bruce)

04/19/2012 674 CERTIFICATE OF SERVICE by All Defendants of Defendants' Joint Discovery Plan (Olsen, Bruce)

04/20/2012

675 VACATED 5/15/2012 per 686 ORDER − DECISION and ORDER signed by Judge Rudolph T Randa on 4/20/2012. Written discovery deadline is 10/19/2012; Deadline for lay witness depositions is 12/212012; Deadline for naming expert witnesses is 1/22/2013; Deadline for exchanging expert reports is 2/22/2013; Deadline for expert witness depositions is 3/22/2013; and Deadline for dispositive motions is 5/22/2013. (cc: all counsel)(nts) Modified text on 5/16/2012 (blr).

04/25/2012 676 NOTICE of Appearance by Nicholas O Anderson on behalf of Milwaukee Public Schools. Attorney(s) appearing: Nicholas O. Anderson (Anderson, Nicholas)

05/04/2012 677 MOTION Restitution of Attorneys Fees Paid to Class Counsel Pursuant to Vacated Order Approving Class Settlement by Elizabeth Burmaster, Department of Public Instruction. (Olsen, Bruce)

05/04/2012 678 BRIEF in Support filed by Elizabeth Burmaster, Department of Public Instruction re 677 MOTION Restitution of Attorneys Fees Paid to Class Counsel Pursuant to Vacated Order Approving Class Settlement . (Olsen, Bruce)

05/04/2012 679 DECLARATION of Bruce A. Olsen . (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Order Approving Settlement, # 3 Exhibit $475,000 check and letter, # 4 Exhibit 7th Circuit amicus brief)(Olsen, Bruce)

05/10/2012 680 Joint MOTION for Judgment on the Pleadings by All Defendants. (Anderson, Nicholas)

05/10/2012 681 BRIEF in Support filed by All Defendants re 680 Joint MOTION for Judgment on the Pleadings . (Anderson, Nicholas)

05/10/2012 682 MOTION to Vacate Order Granting Interim Attorneys Fees and For Restitution of Attorneys Fees by Milwaukee Public Schools. (Anderson, Nicholas)

05/10/2012 683 BRIEF in Support filed by Milwaukee Public Schools re 682 MOTION to Vacate Order Granting Interim Attorneys Fees and For Restitution of Attorneys Fees . (Anderson, Nicholas)

05/10/2012 684 AFFIDAVIT of Michael Aldana in Support of Motion to Vacate Order Granting Interim Attorneys' Fees and for Restitutoin of Attorneys Fees. (Attachments: # 1 Exhibit 1)(Anderson, Nicholas)

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05/10/2012

NOTICE of Electronic Filing Error re 680 Joint MOTION for Judgment on the Pleadings, 681 Brief in Support of Motion, 682 MOTION to Vacate, 683 Brief in Support of Motion; All documents should contain the s/signature of the attorney who files the document. These documents do not need to be re−filed; Please refer to the policies and procedures for electronic case filing found at www.wied.uscourts.gov (blr) (Entered: 05/11/2012)

05/14/2012 685 LETTER from Jeffrey Spitzer−Resnick . (Spitzer−Resnick, Jeffrey)

05/15/2012 686 ORDER signed by Judge Rudolph T. Randa on 5/15/2012 VACATING Court's Decision and Order 675 adopting plaintiff's proposed discovery plan. Court will decide pending motions in due course. (cc: all counsel)(cb) (Entered: 05/16/2012)

05/25/2012 687 BRIEF in Opposition filed by All Plaintiffs re 677 MOTION Restitution of Attorneys Fees Paid to Class Counsel Pursuant to Vacated Order Approving Class Settlement . (Spitzer−Resnick, Jeffrey)

05/25/2012 688 DECLARATION of Jeffrey Spitzer−Resnick . (Attachments: # 1 Exhibit A)(Spitzer−Resnick, Jeffrey)

05/25/2012 689 DECLARATION of Carol Nelson . (Spitzer−Resnick, Jeffrey)

05/25/2012 690 DECLARATION of W. Alan Coulter . (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)(Spitzer−Resnick, Jeffrey)

05/25/2012 691 CERTIFICATE OF SERVICE by All Plaintiffs (Spitzer−Resnick, Jeffrey)

05/31/2012 692 RESPONSE to Motion filed by All Plaintiffs re 682 MOTION to Vacate Order Granting Interim Attorneys Fees and For Restitution of Attorneys Fees . (Spitzer−Resnick, Jeffrey)

05/31/2012 693 DECLARATION of Jeffrey Spitzer−Resnick Second. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Spitzer−Resnick, Jeffrey)

05/31/2012 694 DECLARATION of Carol Nelson Second. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Spitzer−Resnick, Jeffrey)

05/31/2012 695 DECLARATION of W. Alan Coulter Second. (Spitzer−Resnick, Jeffrey)

05/31/2012 696 CERTIFICATE OF SERVICE by All Plaintiffs (Spitzer−Resnick, Jeffrey)

06/08/2012 697 REPLY BRIEF in Support filed by Elizabeth Burmaster, Department of Public Instruction re 677 MOTION Restitution of Attorneys Fees Paid to Class Counsel Pursuant to Vacated Order Approving Class Settlement . (Olsen, Bruce)

06/08/2012 698 DECLARATION of Rollie Boeding . (Olsen, Bruce)

06/11/2012 699 BRIEF in Opposition filed by All Plaintiffs re 680 Joint MOTION for Judgment on the Pleadings . (Attachments: # 1 Appendix)(Murphy, Monica)

06/14/2012 700 REPLY BRIEF in Support filed by Milwaukee Public Schools re 682 MOTION to Vacate Order Granting Interim Attorneys Fees and For Restitution of Attorneys Fees . (Aldana, Michael)

06/15/2012 701 MOTION to Strike 700 State Defendants' Reply Brief in Support of its Motion for Restitution of Attorneys' Fees Paid to Class Counsel by All Plaintiffs. (Spitzer−Resnick, Jeffrey) Modified text on 6/18/2012 (blr).

06/15/2012 702 BRIEF in Support filed by All Plaintiffs re 701 MOTION to Strike State Defendants' Reply Brief in Support of its Motion for Restitution of Attorneys' Fees Paid to Class Counsel . (Spitzer−Resnick, Jeffrey)

06/15/2012 703 CERTIFICATE OF SERVICE by All Plaintiffs (Spitzer−Resnick, Jeffrey)

06/25/2012 704 REPLY BRIEF in Support filed by All Defendants re 680 Joint MOTION for Judgment on the Pleadings . (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C)(Aldana, Michael)

06/26/2012 705 MOTION for Leave to File , Nunc Pro Tunc, Oversize Reply Brief in Support of State Defendants' Motion for Return of Attorneys Fees Paid to Class Counsel Pursuant to
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06/26/2012
07/03/2012 07/05/2012 08/20/2012
08/21/2012
08/30/2012 10/03/2012
10/04/2012
10/31/2012 10/31/2012 11/01/2012 11/01/2012 11/01/2012 11/01/2012 11/12/2013

Vacated Order Approving Class Settlement by Elizabeth Burmaster, Department of Public Instruction. (Olsen, Bruce)
706 DECLARATION of Bruce A. Olsen in Support of Motion for Leave to File, Nunc Pro Tunc, Oversize Reply Brief in Support of State Defendants' Motion for Return of Attorneys Fees Paid to Class Counsel Pursuant to Vacated Order Approving Class Settlement. (Attachments: # 1 Exhibit Proposed Revised Reply Brief)(Olsen, Bruce)
TEXT ONLY ORDER signed by Judge Rudolph T. Randa on 7/3/2012 GRANTING 705 MOTION for Leave to File , Nunc Pro Tunc, Oversize Reply Brief . (cc: all counsel)(cb) (Entered: 07/05/2012)
707 RESPONSE to Motion filed by Elizabeth Burmaster, Department of Public Instruction re 701 MOTION to Strike State Defendants' Reply Brief in Support of its Motion for Restitution of Attorneys' Fees Paid to Class Counsel . (Olsen, Bruce)
708 ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 8/20/2012: GRANTING 680 MOTION for judgment on the pleadings filed by defendants; GRANTING 682 MOTION to vacate order granting interim attorneys' fees and for restitution of attorneys' fees filed by Milwaukee Public Schools; DENYING WITHOUT PREJUDICE 677 MOTION for restitution of attorneys' fees filed by Department of Public Instruction; DENYING 701 MOTION to strike state defendants' reply brief filed by plaintiffs. Matter is DISMISSED. Clerk of Court directed to enter judgment accordingly. (cc: all counsel)(cb) (Entered: 08/21/2012)
709 JUDGMENT approved by Judge Rudolph T. Randa on 8/21/2012, signed by Deputy Clerk IN FAVOR OF Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools, Elizabeth Burmaster, William Andrekopolous AGAINST Biagio R., Bryan E., Jamie S., Melanie V. (cc: all counsel)(cb)
710 MOTION to Alter Judgment Pursuant to Fed. R. Civ. P. 59(e) by Milwaukee Public Schools. (Anderson, Nicholas)
711 ORDER signed by Judge Rudolph T. Randa on 10/3/2012 GRANTING 710 Motion to Alter Judgment. Judgment 709 to include the following language: "Judgment is entered in favor of defendant Milwaukee Public Schools and against Disability Rights of Wisconsin in the amount of $459,123.96." Clerk of Court directed to amend judgment accordingly. (cc: all counsel) (cb) (Entered: 10/04/2012)
712 AMENDED JUDGMENT approved by Judge Rudolph T. Randa on 10/4/2012, signed by Deputy Clerk IN FAVOR OF Department of Public Instruction, Milwaukee Board of School Directors, Milwaukee Public Schools, Elizabeth Burmaster, William Andrekopolous AGAINST Biagio R., Bryan E., Jamie S., Melanie V. (cc: all counsel)(cb)
713 NOTICE OF APPEAL as to 711 Order on Motion to Alter Judgment, 712 Judgment, by All Plaintiffs. Filing Fee PAID $455, receipt number 0757−1580276 (cc: all counsel) (Murphy, Monica)
714 Docketing Statement by All Plaintiffs re 713 Notice of Appeal (cc: all counsel) (Murphy, Monica)
715 7th Circuit Information Sheet re: 713 Notice of Appeal (jv)
716 Attorney Cover Letter re: 713 Notice of Appeal (Attachments: # 1 Docket Sheet)(jv)
717 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 713 Notice of Appeal (jv)
718 USCA Case Number 12−3506 re: 713 Notice of Appeal filed by Biagio R, Aaron V, Melanie V, Bryan E, Jim M, Lamont A, Jamie S, Maiysha Y, David P, Tyler C. (jv)
719 USCA Mandate (certified copy) as to 713 Notice of Appeal filed by Biagio R, Aaron V, Melanie V, Bryan E, Jim M, Lamont A, Jamie S, Maiysha Y, David P, Tyler C USCA Number 12−3506. Upon consideration of the AGREED MOTION FOR VOLUNTARY DISMISSAL, filed on November 12, 2013, by counsel for Appellant Bryan E., IT IS ORDERED that this case is DISMISSED, pursuant to Federal Rule of Appellate Procedure 42(b). (jv)

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03/14/2014 720 NOTIFICATION of Exhibit Release sent to counsel of record. (cms)

04/25/2014

EXHIBITS destroyed. No response to notification received. (cms)

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 4/4/2015

Case Query
Case Query
12-3506 Jamie S., et al v. Milwaukee Public Schools, et al

Associated Case

Short Title

Type

Start

End

Status

Originating Case 2:01-cv-00928-RTR

Lead Case

Filed 09/13/2001

Execution Date

Judgment 10/04/2012

NOA 10/31/2012

Originating Judge Randa, Rudolph T.

Court Reporter

Party S., Jamie E., Bryan V., Melanie Milwaukee Public Schools Milwaukee Board of School Directors Andrekopolous, William

Party Type Plaintiff-Appellant Plaintiff-Appellant Plaintiff-Appellant Defendant-Appellee Defendant-Appellee Defendant-Appellee

Terminated from Case

Attorney Murphy,Monica M. Murphy,Monica M. Murphy,Monica M. Anderson,Nicholas O. Anderson,Nicholas O. Anderson,Nicholas O.

Attorney Murphy, Monica M. Anderson, Nicholas O.

Party Type(s) Represented Plaintiff-Appellant Defendant-Appellee

Representation End

data:text/html;charset=utf-8,%3Cdiv%20class%3D%22pageTitle%22%20style%3D%22text-align%3A%20center%3B%20font-weight%3A%20bold%3B%20font-size%3A%2019.5px%3B%20color%3A%20rgb(0%2C%2… 1/1

4/4/2015

Case Query
Case Query
12-3506 Jamie S., et al v. Milwaukee Public Schools, et al

Associated Case

Short Title

Type

Start

End

Status

Originating Case 2:01-cv-00928-RTR

Lead Case

Filed 09/13/2001

Execution Date

Judgment 10/04/2012

NOA 10/31/2012

Originating Judge Randa, Rudolph T.

Court Reporter

Party S., Jamie E., Bryan V., Melanie Milwaukee Public Schools Milwaukee Board of School Directors Andrekopolous, William

Party Type Plaintiff-Appellant Plaintiff-Appellant Plaintiff-Appellant Defendant-Appellee Defendant-Appellee Defendant-Appellee

Terminated from Case

Attorney Murphy,Monica M. Murphy,Monica M. Murphy,Monica M. Anderson,Nicholas O. Anderson,Nicholas O. Anderson,Nicholas O.

Attorney Murphy, Monica M. Anderson, Nicholas O.

Party Type(s) Represented Plaintiff-Appellant Defendant-Appellee

Representation End

data:text/html;charset=utf-8,%3Cdiv%20class%3D%22pageTitle%22%20style%3D%22text-align%3A%20center%3B%20font-weight%3A%20bold%3B%20font-size%3A%2019.5px%3B%20color%3A%20rgb(0%2C%2… 1/1