by Pamela Wright & Peter Wright
Created: 09/25/07
Jamie S. v. Milwaukee Public Schools (E.D. WI, Case # 01-C-928) began in
September 2001, when the plaintiffs filed a complaint against Milwaukee Public
Schools and the Wisconsin Department of Public Instruction for violations of the
Individuals with Disabilities Education Act.
In November 2002, the plaintiffs filed a motion for class certification, seeking
to proceed on their complaints within the context of a class action. The
defendants opposed the motion. In May 2003, the court directed the plaintiffs to
submit an amended class certification. In June 2003, the plaintiffs filed their
amended motion for class certification.
In November 2003, the Court entered an Order that 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."
The court decided to bifurcate the trial and conduct a trial for expert
witnesses. During the trial in October and November 2005, the Court received
evidence and heard testimony from six expert witnesses.
First Trial: Reports and Testimony from Expert Witnesses
The experts who testified for the plaintiffs included Dr. Diana Rogers Adkinson,
who has expertise in programs for children with emotional disorders; Mark
Mlawer, a consultant with expertise in monitoring and compliance; and Dr. James
Tucker who discussed the oversight responsibility of the Department of
Education.
The experts who testified for the school district and state department of
education were Dr. Eric Hartwig, who specializes in discipline and behavior
concerns; Dr. Elise Frattura, a consultant who worked with MPS; and Dr. Judy
Schrag, an expert in IDEA compliance.
The court advised the parties of the court's initial reaction to the experts'
testimony:
"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 between September 2000 to June 2005 . . . the system
in place at MPS was inadequate to satisfactorily locate and identify children
with special education needs and . . . this was a result of how MPS handled
students with emotional problems and suspended students."
"Similarly, DPI failed to adequately comply with its oversight responsibilities
. . . it knew that MPS was not in compliance in certain areas, but it failed to
impose sanctions sufficient enough to bring MPS into prompt compliance."
Second Trial: Fact Finding and Testimony
The court scheduled a trial to hear testimony by 48 witnesses and received
documents that were submitted into evidence. The second trial began on April 10
and concluded on April 26, 2006.
During the second trial, the court heard testimony about many children with
emotional and behavioral disorders who were suspended but not referred for an
evaluation to determine if they had a disability and needed special education
services.
For example, Melanie V. was a good student until fifth grade when she became
depressed. As her emotional condition deteriorated, she wrote notes about
killing herself. One day, she brought a razor blade to school. Did the school
refer her for an evaluation? No. The principal suspended her for violating the
school's weapon policy, advised her that she could not return to her school, and
sent her to an alternative school.
Ryan O's behavior problems began in the sixth grade. He was admitted to a
private hospital for mental health problems. Ryan was formerly an Honor Roll
student. Within months, he was failing. He had suicidal thoughts. His mother met
with school officials to share her concerns about her son's emotional problems.
Did the school refer him for an evaluation? No. The school suspended him.
Jamie S. began having problems in kindergarten. When Jamie's mother expressed
concerns about her daughter's problems, the teachers advised her to "wait and
see." Jamie did not improve. Her mother repeatedly requested that Jamie be
evaluated. Several years passed before the school evaluated Jamie and concluded
that she had "a low IQ."
In his decision, the Judge described the plight of other children in the class.
For example:
Desmond was suspended 16 times in first grade and 28 times in second grade. If
he had been evaluated and found eligible for special education, the maximum
suspension that could be imposed was 10 days.
Bryan E. struggled with reading and repeated fifth grade. He was often truant.
Beginning in the sixth grade, he was passed from grade to grade although his
report cards indicated that he was "not promoted."
Tennessee was diagnosed with schizophrenia and depression. He had behavior
problems at school, was suspended, and changed schools five times. The school
never referred him for an evaluation or an IEP.
Decision: Milwaukee Public Schools and Wisconsin Department of Public
Instruction Violated IDEA
On September 11, 2007, the court rendered its decision in Jamie S. v. Milwaukee
Public Schools.
Judge Goodstein found that between 2000 and 2005, Milwaukee Public Schools (MPS)
violated the Child Find provisions in IDEA by failing to evaluate students who
had suspected disabilities, failing to review all relevant data to determine the
child's needs, and routinely suspending students instead of determining if they
needed special education services.
Citing the 2005 Supreme Court decision in Schaeffer v. Weast, Judge Goodstein
found that the Wisconsin Department of Public Instruction (DPI) violated the
IDEA by failing to discharge its oversight and supervisory obligations and
failing to ensure that Milwaukee Public Schools was in compliance with the IDEA.
Illogical "Stigma" of a Special Education Label
The judge found that "These children . . . exhibited behavioral and academic
problems in school and often had diagnosed psychological conditions. But
referrals were not made in a timely manner."
Judge Goodstein concluded 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 . . . 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 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 . . . too often the parents default to
the subjective judgment of the educators."
Milwaukee's Failure to Comply with Child Find Violates the IDEA
When the defendants characterized Child Find as a "limited component" of IDEA,
the Judge rejected this argument in finding that: "Child Find . . . functions as
one of the most important elements . . . If a child with a disability is not
found, that child will not receive any special education."
"The Court concludes that . . . 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 . . . MPS failed to adequately identify, locate and
evaluate children with disabilities in need of special education and related
services . . ."
Department of Public Instruction Failure to Enforce Violates the IDEA
The Judge found that the Wisconsin Department of Public Instruction violated the
IDEA by failing to discharge its oversight and supervisory obligations and
ensure the MPS was in compliance with the IDEA.
In his decision, Judge Goldstein posed this question: Did the DPI do all that
was reasonably required to ensure that Milwaukee Public Schools complied with
the law?
"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."
Remedies for Children and Sanctions Against School District
In his decision, Judge Goodstein Judge wrote, ". . . before judgment can be
entered, the court must address the issue of what sanctions/remedies are
appropriate . . . since these students may have suffered educationally as a
result of Child Find failures, are they entitled to some form of compensatory
education?"
The judge also discussed the need for sanctions to bring MPS into compliance
with the IDEA. To avoid further litigation, he asked the parties to attempt to
resolve the case because "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 . . ."
Judge Goodstein scheduled a conference with the parties on September 27, 2007 to
discuss sanctions and remedies.
In Summation
All schools have an affirmative duty to locate, identify and provide services to
children who may have disabilities.
If school district employees know or had reason to suspect that the child had a
disability, or they should have known, then these employees have an affirmative
duty to act on the child's behalf. If they fail to do so, they default on their
obligation to identify, locate and evaluate children with disabilities who need
individualized special education programs.
If a school district fails to comply with the Child Find mandate, several
remedies exist. In exceptional situations, the child may be entitled to monetary
damages, as in W.B. v. Matula.
In Jamie S., the court is considering the remedy of compensatory education for a
large class of students. Compensatory education may provide educational services
that continue beyond the child's twenty-second birthday.
Note from Pam Wright: The Milwaukee Public Schools website has a link to "Legal
Notice - Class Action Lawsuit - Special Education." When I clicked the link, it
was broken. Several other links on the home page were broken too. If you go to
the bottom right corner of the "Professional Support Portal page," you will find
"Class Action Notice" documents in English, Spanish and Hmong. We hope Milwaukee
Public Schools will correct the links on their main page so prospective members
of the class can find the notices that MPS is required to post. (09/26/07 at
8:15 a.m.)
Related Articles and Cases
The Child Find Mandate: What Does it Mean to You?
Appeals Court Rules that School Must Offer an IEP to a Child with Disability
Cases
Jamie S. v. Milwaukee Public Schools, (E.D. WI 2007, Case # 01-C-928)
Knable v. Bexley, 238 F.3d 755 (6th Cir. 2001)
W.B. v. Matula, 63 F.3d. 484 (3rd Cir. 1995)