Corey H, et al v. Bd of Education, et al

Filing 777

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 7/14/2011: Mailed notice (gds, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
COREY H., LATRICIA H., ANDREW B., and
JASON E., by their parents and next friends,
SHIRLEY P., BEVERLY HL, SHARON B., and
STEPHEN E., on behalf of a class of similarly
situated persons,
Plaintiff,
v.
THE BOARD OF EDUCATION OF THE CITY
OF CHICAGO, and THE ILLINOIS STATE
BOARD OF EDUCATION,
Defendants.

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No. 92 C 3409
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER DENYING CHICAGO BOARD’S
OBJECTION TO AN APPEAL OF THE ISBE’S 10TH DISTRICT-WIDE FINDINGS
This litigation began 19 years ago, when plaintiffs filed a class action complaint on
behalf of children with disabilities in the Chicago public school system, claiming in essence that
defendant Board of Education of the City of Chicago (“Chicago Public Schools” or “CPS”)
segregated pupils with disabilities who were entitled to special education, and provided them
with inferior educational programs in violation of the Individuals with Disabilities Education
Act. 20 U.S.C. §1414, et seq. (“IDEA”). In February 1993, Judge Leinenweber, to whom this
case had originally been assigned, certified a class defined as all children who are enrolled in the
Chicago Public Schools and are or will be classified by CPS as having a disability.
Shortly thereafter, the parties, including CPS and defendant Illinois State Board of
Education (“ISBE”), retained a panel of three experts to shape a settlement to correct the IDEA
violations that were apparent in the CPS system. When that effort failed in 1995, shortly after
the undersigned judge was appointed to the bench and was assigned this case, CPS wisely

negotiated a Settlement Agreement, which was approved by the court at a fairness hearing in
January 1998. ISBE, however, decided to litigate its responsibility to educate children with
disabilities in Chicago in the least restrictive environment (“LRE”), as required by the IDEA.
That effort failed when this court, after a trial on the issue of liability, ruled against ISBE in
February 1998. See Corey H. v. Board of Education, 995 F. Supp. 900 (N.D. Ill. 1998).
After further proceedings concerning the appropriate remedy against ISBE, that agency,
like CPS before it, negotiated a Settlement Agreement that was approved by the court at a
fairness hearing in November 1998. Both the CPS and ISBE Settlement Agreements required
the development of complex implementation plans, and also provided that the court appoint a
Monitor to oversee the challenging obligations required by the respective Settlement Agreements
and implementation plans. The original Monitor appointed by the court was the Honorable
Joseph Schneider who, along with his able staff, served admirably until his retirement in 2003.
The court then appointed Kathleen Yannias as Judge Schneider’s successor, and she has served
in that capacity for the past approximately eight years.
Over the years, certain modifications and refinements have been made in connection with
the Settlement Agreements. These have generally been developed by the Monitor and approved
by the court, due to the complexity, scale and importance of the reforms agreed to by the parties.
These modifications included specifically defined “Benchmarks” to be met by CPS and
monitored by ISBE, which was required to issue annual District-Wide Findings (“DWFs”)
measuring compliance with certain indicators identified in the ISBE Settlement Agreement as
well as the later-established Benchmarks, based on a sample of schools examined by ISBE
monitoring personnel.

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Naturally, in an enterprise of this size and importance, many disagreements arose over
the course of the post-settlement years, ranging from the development of the Benchmarks
themselves, to the methods employed by the Monitor and ISBE in monitoring and reporting on
the progress (or lack of progress) by CPS in fulfilling its obligations under its Settlement
Agreements and the IDEA, to various extensions of the Settlement Agreements. Both Settlement
Agreements provided that disputes first be brought to the Monitor for resolution, and then to the
court if necessary. Many such disputes have been resolved amicably, many others by the
Monitor without the court’s involvement, and still others after appeal to the court from decisions
by the Monitor.
In late 2010, at the court’s urging, the parties negotiated and reached agreement to bring
this litigation to a conclusion. Pursuant to the court’s orders of November 18, and November 29,
2010 (Doc. Nos. 728, 730, 773, 734), the ISBE’s Settlement Agreement will expire on August 1,
2011, and CPS’s Settlement Agreement will expire on September 1, 2012. After the
terminations of the respective Settlement Agreements, the Monitor will prepare reports on the
level of compliance for each of the defendants. The parties may then file objections to the
Monitor’s final report, and the court will rule on any such objections after briefing by the parties.
The court anticipates that by mid-2013, this litigation will finally will come to what all parties
concerned hope is a successful conclusion.
This opinion addresses CPS’s objection to ISBE’s 10th District-Wide Findings that were
issued on January 4, 2011.1 This follows CPS’s objections to several other District-Wide

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CPS has also requested that its objections to the 10th District-Wide Findings be applied
to the 11th District-Wide Findings, which are scheduled to be released later this month.
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Findings, the latest being to ISBE’s 9th District-Wide Findings, which objections were denied by
this court on June 2, 2011. CPS’s latest objections repeat many of its past (rejected) positions,
and appear to represent a preemptive attempt to temper the impact of the Monitor’s final report
on CPS’s performance of its obligations under its Settlement Agreement, rather than a serious
attack on the 10th District-Wide Findings.
Indeed, in its reply, CPS acknowledges that its principal arguments are repetitive of
objections that it has advanced, and have been rejected, in its previous objections to ISBE
District-Wide Findings. Claiming that ISBE and the Monitor are biased against CPS and select
the schools on which the DWFs have been based in a manner that will result in findings of
noncompliance, CPS suggests that to “right the wrong that has been perpetrated against [CPS]
for the past decade” the court should revisit and reverse its prior decisions rejecting CPS
objections. CPS further requests that the court:
should order the renaming of the [DWFs] as ISBE’s [insert applicable year, such
as “Tenth”] Summary of Monitoring Done Pursuant to its Corey H. obligations”
Correspondingly, the specific findings in the reports would be renamed to
accurately reflect how they were calculated and what they truly represent. . . .
[They] would be labeled to represent specified findings as to “Schools Subjected
to Full Two - Year Visits With Less than 80% compliance Rate on the Probes
Concerning [insert finding . . .].
This somewhat radical request is rejected. The ISBE District-Wide Findings describe in
detail which schools were monitored, how they were monitored, and the resultant findings. They
do not profess to be a report on every school and do not suggest that great progress has not been
achieved in many CPS schools. The court fails to see how the nomenclature of the DWFs could
result in an “unconscionable . . . travesty of justice,” as CPS stridulously claims. As this court
held in its 1999 ruling, ISBE, as the Illinois State Educational Agency, is “responsible for

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assuring that the requirements of the [IDEA] are carried out” to ensure that all children with
disabilities are educated in the least restrictive environment. Corey H., 995 F. Supp. at 904
(citing 20 U.S.C. § 1412(5), (6)). The court has consistently approved the methodology and
manner employed by ISBE with respect to the DWFs for the past ten years. CPS’s latest
objections, portraying it as a victim of a purported decade-long design by ISBE and the Monitor,
aided by plaintiffs’ counsel and indeed this court, to cast a negative light on CPS’s efforts to
reform its special education programs, are misplaced and unconvincing.
Turning to the merits of the objections, CPS first complains that the 285 schools that
ISBE has monitored for many years are not “representative of the district as a whole” because
they do not include “better performing schools.” As plaintiffs, ISBE and the Monitor point out
in their responses, this objection is untimely and has been rejected repeatedly by the court, which
finds no reason to alter its earlier rulings.
Similarly, CPS’s objection to ISBE’s decision not to include schools that were not
evaluated in its calculations of compliance was specifically rejected in this court’s June 2, 2011,
order. The court finds no reason to revisit that decision, and no error in ISBE’s method of
determining compliance as of the date the monitoring visit occurred rather than at some later
date at which CPS claims the school had become compliant.
CPS also complains that ISBE’s methods supporting its DWFs are subjective and
incomprehensible, and cites a number of examples in an attempt to make its point. Again, these
complaints are untimely and repetitive of previous objections that have been rejected by the
Monitor and the court. As the Monitor points out, to the extent CPS required further guidance
regarding ISBE’s methodology, and could not get a satisfactory response from ISBE, CPS was

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instructed to contact the Monitor to facilitate a resolution. Yet, the Monitor reports that “[n]o
such contact was made.” This objection thus appears to be another attempt to make a record for
some future dispute in this or some hypothetical future litigation. In any event, after reviewing
the parties’ and the Monitor’s briefs regarding this objection, the court adopts in full the
Monitor’s recommendations and reasoning. (Doc. No. 773, pp. 7-13.)
Finally, CPS’s objections to ISBE’s finding of procedural failures is without merit. As
explained by the Monitor (Doc. 773, pp. 13-14), procedural safeguards such as lack of required
parental consents for placements, notification to parents and the like are serious matters that are
properly included in DWFs. As also noted by the Monitor, similar objections were rejected with
respect to the 5th District-Wide Findings in 2006, and CPS’s complaint that the evaluation of 70
schools was insufficient is wholly inconsistent with CPS’s support (confirmed by the court over
plaintiffs’ strong objection) of a “40 school approach” for the 8th District-Wide Findings.
One final matter requires mention in this opinion. In support of its objection to the
sampling method employed by ISBE in connection with the 10th (and 11th) District-Wide
Findings, CPS has filed a “Statistical Report” prepared by David B. Blanchflower. Plaintiffs
claim that the proffer of such expert testimony at this late stage in the proceedings came as a
surprise, especially since the court (and presumably the parties) had no notice that CPS had
retained a new expert to offer an opinion about statistical sampling methods. For the reasons
expressed above, Dr. Blanchflower’s opinions are irrelevant to this court’s decision with respect
to CPS’s objections to the 10th District-Wide Findings. What is most disturbing to plaintiffs
about Dr. Blanchflower’s report, however, is his conclusion that ISBE should have included in
its sample more schools with a lower percentage of African-American students because those

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schools were likely to have experienced fewer violations of CPS’s obligations under its
Settlement Agreement. Plaintiffs claim that this suggests that schools with predominately black
populations were likely to experience greater violations than schools with predominately white
populations, thus injecting a disturbing notion of potential racial discrimination in the provision
of special education services within CPS.
In its reply in support of its objections to the Tenth District-Wide Findings, CPS strongly
denies any notion of racial discrimination in Dr. Branchflower’s report or otherwise, arguing that
the report in its entirety supports its position that ISBE’s sample of CPS schools is
unrepresentative of the district as a whole. Plaintiffs disclaim any past accusation of racial
discrimination in connection with this case, and suggest that they might seek further discovery
now that Dr. Blanchflower has raised the issue. The court regards this dispute as an immaterial
distraction, especially given the current schedule to bring this case to a close, and will deny any
request to take such discovery.
Because of that schedule, it is imperative that the parties work towards completing their
assigned tasks by the expiration of the respective Settlement Agreements governing ISBE and
CPS. Further posturing, personal attacks on opposing counsel, and needless objections and
litigation will not fulfill the intention of the court, the Monitor, and the parties themselves, to
bring this case to as successful a conclusion as possible as outlined in the schedules and orders
by the court.
CPS’s objections to the 10th District-Wide Findings are denied. ISBE is directed to issue
its 11th District-Wide Findings forthwith.

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ENTER:

July 14, 2011

__________________________________________
Robert W. Gettleman
United States District Judge

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