Special Education Victory in Greece, NY

Jonathan Feldman February 01, 2008

February 1, 2008

Author: Jonathan Feldman

The Greece Central School District, a suburban district outside of Rochester, NY, is the eighth largest district in the state, with enrollment of approximately 13,000 students, of whom 1,300 are classified as students with disabilities pursuant to federal law.  See Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. (2004).  In 2003 and 2004, our office began receiving complaints that the District was imposing unacceptable limitations upon special education services.  As the Wall Street Journal has explained, “Upset at what they describe as the district’s increasing refusal to provide services, a group of [Greece] parents began meeting and comparing notes.  They suspected that the district was . . .  simply capping the number of students eligible for services.  Some children who were classified as special-education students were declassified and placed in regular classrooms with little or no additional help.”  John Hechinger, Schools Accused of Pushing Mainstreaming to Cut Costs, Wall Street Journal (Dec. 14, 2007, at A1).

Our office saw a pattern of systemic violations, and we began to develop a class action lawsuit.  Before we could proceed, however, we had to await the outcome in J.S. v. Attica Central Schools, 386 F.3d 107 (2d Cir. 2004), a case in which we participated as amicus.  There, a school district faced with a class action lawsuit had asserted that individual class members were required to exhaust administrative remedies before the class action could proceed.  Fortunately, the Second Circuit rejected this theory, and held that special education plaintiffs who asserted systemic violations within a school district could bypass administrative hearings and file directly in federal court.

With the green light to go forward, we began interviewing parents, and ultimately eight families came forward to represent the class.  We filed the class action complaint in K.B. v. Greece Central School District in May of 2005, and asserted that the District had denied a free appropriate public education to the plaintiff class by imposing illegal caps on the number of students classified and by curtailing the services and supports made available to classified students.

Shortly after we filed, a new Board of Education was elected in Greece, and a new superintendent came on board, as well.  The new administration expressed a strong interest in attempting to settle the case, and toward that end the parties employed a novel settlement mechanism: we agreed to use a joint expert, who would report to both sides, and who was charged with investigating the allegations of systemic violations and issuing recommendations to cure any illegal practices.  The parties drafted an agreement governing the joint expert’s role, and both sides agreed to negotiate in good faith to try to reach a settlement after the joint expert had issued her report.

The parties selected Professor Margaret (Maggie) McLaughlin of the University of Maryland to play this role.  She came to Greece to conduct interviews and data analysis during the spring and summer of 2006, and she issued her report in August of that year.  Although we had agreed to keep her findings confidential, we were able to rely upon her report in attempting to negotiate a comprehensive settlement with the District.  For one year following the promulgation of her report, we met regularly with the District and were able to move closer and closer to settlement.

Finally, in August of 2007, the parties reached agreement on all issues and presented the proposed consent decree to Judge Larimer, U.S. District Judge, W.D.N.Y., for his approval.  Although the consent decree stipulated that a class should be certified, the parties jointly moved the judge to waive the notice and hearing usually required for class action settlements.  We relied on precedent which allowed for such a waiver when the terms of the settlement provide near complete relief to the plaintiffs, and there is no evidence of collusion between the parties.  Doe v. Perales, 782 F.Supp.  201, 206-7 (W.D.N.Y. 1991).  On August 27, 2007, after oral argument, Judge Larimer granted this motion and “so-ordered” the proposed consent decree with no modifications.

The consent decree is a victory for the students, for the District has pledged to provide all existing special education students, as well as students who should be found eligible, the supports and services to which they are entitled, based upon each student’s individual needs.  The consent decree will remain in effect for a minimum of two years, and a maximum of four, depending on the District’s progress in achieving full compliance.  It provides for our ongoing monitoring during this period, as counsel for the plaintiff class.  The class is represented by Trilby de Jung and myself, and contributions have also been made by Jane Gabriele, Beth Trittipo, and Bryan Hetherington.

The Greece case raised some interesting legal issues (exhaustion of administrative remedies, use of a joint expert, and waiver of notice and hearing in class action settlements), and showed what can be accomplished for children and their parents when both sides are interested in achieving a comprehensive settlement.