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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MIKEISHA BLACKMAN, et al., Plaintiffs v. DISTRICT OF COLUMBIA, Defendants, CIVIL ACTION NO. 97-1E29 (PLF) JAMES JONES, et al. (formerly SHAQUETTE CURTIS), Plaintiffs v. DISTRICT OF COLUMBIA, et al., Defendants, CIVIL ACTION NO 97E2402(PLF) (Consolidated Case) SECOND SUPPLEMENT TO JANUARY 10, 2000, OBJECTIONS TO PROPOSED REVISED SETTLEMENT AGREEMENT On February 10, 2000, this counsel informed this Court, on information and belief, that DCPS had determined to offer a purported "Summer S.T.A.R.S. Comp-Ed Academy" in lieu of tutoring and other compensatory services. This counsel also informed this Court of his understanding that DCPS'S purported Summer S.T.A.R.S. Comp-Ed Academy had met with enthusiastic support from class counsel. On February 28, 2000, class counsel responded that "class counsel have not lent their enthusiastic support to the Summer STARS COMP-Ed Academy". This counsel has just received a copy of DCPS's Summer STARS ESY Services and Comp-Ed Academy Student Registration Form, attached hereto as Exhibit 1. That incredible document, in exceptionally small type, just slightly larger than used below, provides as follows: Program Selection(s):_____ ESY (6:30-12:30)_____ COMP-ED (8:30-4.00) COMP-ED (l:00-4:00) Signature ___________________________________________ Relationship _____ Date ______ Permission is granted for my child to attend Summer STARS Program. I agree to send my child to Summer STARS on a daily basis throughout the duration of the program. I further agree that my child's participation and attendance in the Comp-Ed Academy satisfies any and all outstanding claims, to date. for Compensatory Education. Where possible, I understand that DCPS will place my child in his/her neighborhood school to minimize transportation issues. Now back to more readable type size. The crucial language, which should be in capitalized bold faced type, reads as follows: I FURTHER AGREE THAT MY CHILD'S PARTICIPATION AND ATTENDANCE IN THE COMP-ED ACADEMY SATISFIES ANY AND ALL OUTSTANDING CLAIMS, TO DATE, FOR COMPENSATORY EDUCATION. If a child attends DCPS's as yet never before tried Comp-Ed Academy (whatever that is), that attendance satisfies any and all outstanding claims. Surely the most aggressive case hardened insurance claims adjuster would at least slightly wince as he held out his pen to the victim to sign away all outstanding claims for so little. Gone is all hope for tutoring. Gone is all hope for any other type of compensatory services. Gone is all hope for any opportunity to receive any realistic make up for what DCPS has taken from a disabled child, that is years of a free, appropriate public education. This document is being presented to represented parents, without counsel's knowledge. This document came into this counsel's possession only after DCPS was unable to reach the parent without counsel's knowledge or consent. DCPS forwarded this document to counsel only as a last resort, in order to meet a DCPS headquarters imposed deadline for response. If this latest DCPS travesty is allowed to stand, thousands of this city's most fragile children will be deprived of the compensatory services to which they are entitled. Some, including this counsel's own clients, have been deprived by DCPS for many years or any special education. Now, all may be lost by the single stroke of a pen, a pen thrust into their unsuspecting and trusting hands, not by an aggressive case hardened insurance claims adjuster, but by DCPS. If a parent just slips and signs, all may be lost. However, when presented with this document by DCFS officialdom, how many will be strong enough to resist? How many of us, trained in the law, could resist, if DCPS held the very future of our own children in its hands, and we did not know where else to turn? This is a miscarriage of justice. It is carried out by DCPS under the auspices of the proposed settlement Agreement in this case. At best, this document, if allowed to stand, will simply clog this Court's docket, as parents learn what DCPS has taken from them, in small print, and seek to overturn it, if they can find counsel, given DCPS's imposed attorney's fees cap. At worst, this Court's docket will not be so clogged, and the harm will simply lie where it was intentionally inflicted by DCPS, on the backs of the most weak and the most vulnerable among us. The harm continues. Surely it is time to say, enough, enough I plead once again with this Court. Stop DCPS. Stop the harm. Respectfully submitted; IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MIKEISHA BLACKMAN, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants, Civil Action No.97-1629 (PLF/JMF) STATUS REPORT Plaintiffs, through their counsel and with the participation of the Special Master, have recently addressed an issue related to class members’ rights to compensatory education. Because of the significance of the actions taken, plaintiffs seek to inform this Court of what has transpired. By way of background, the issue of compensatory education is before this Court in both the Petties and the instant Blackman/Jones class action cases. With respect to Blackman/Jones, the Revised Settlement Agreement pending approval by this Court provides a procedure for determining appropriate compensatory education. If the Revised Settlement Agreement is approved, the District of Columbia Public Schools (DCPS) must provide "a written proposal specifying the compensatory education it will agree to provide each Jones class member...." Revised Settlement Agreement, §6. The procedure described in the Revised Settlement Agreement also allows a parent not satisfied with DCPS’ offer of compensatory education to request a due process hearing. Implicit in the Revised Settlement Agreement is a requirement that DCPS implement all of the provisions in a manner consistent with the Individuals with Disabilities Education Act (IDEA). The IDEA mandates that all educational programs and support services be individualized to meet the unique needs of each student. As plaintiffs have already stated to this Court, "[n]othing in the agreement relieves DCPS of their obligations under IDEA to provide compensatory education instruction and services that are individualized and appropriate. . . . DCPS’s compensatory education scheme would have to satisfy the requirements of both the proposed Revised Settlement Agreement and the IDEA." Plaintiffs’ Response to Ron Drake’s Supplement to January 10, 2000 Objections to Proposed Revised Settlement Agreement, at 1. On May 4, 2000, counsel were informed by the office of the Special Master that, in April, DCPS had mailed to parents the "District of Columbia Public Schools Summer Stars ESY [Extended School Year] Services and Comp-Ed Academy Student Registration Form." Exhibit I. DCPS also sent out a cover letter (the version sent to parents of children in private schools is attached as Exhibit II), and other descriptive literature. Also distributed to an unknown group was the attached one-paragraph "Summer Stars 2000 Early Childhood ESY/Compensatory Education Program: Program Description," which specifically references the Jones class. Exhibit III. Of utmost concern to Blackman/Jones plaintiffs was the waiver contained in the application form: "I further agree that my child’s participation and attendance in the Comp-Ed Academy satisfies any and all outstanding claims, to date, for Compensatory Education." Plaintiffs were concerned that parents were being asked, in legal jargon many would not understand, to waive their children’s rights to compensatory education prior to—and perhaps instead of—DCPS complying with the compensatory education provisions of the Revised Settlement Agreement. Among the additional concerns were that the offer of compensatory education had not been individualized, quantified, or presented with notification of the right to a due process hearing. Through a conference call with the Special Master, the waiver issue has been resolved. Defendants agreed to revise the application form without the waiver paragraph and to distribute a cover letter indicating that parents who had already submitted application forms containing the waiver paragraph would not, in fact, have waived any rights. In addition, the Assistant Superintendent for Special Education, Anne Gay, represented that all decisions regarding ESY and summer programs for compensatory education would be decided by the IEP team. After review by both Blackman/Jones and Petties counsel, the correction letter was prepared for distribution by DCPS to parents. Exhibit IV. It is unfortunate that such an incident occurred at a time when defendants are striving to improve the special education program in general and the summer program in particular. Plaintiffs trust that defendants will work to improve communication and cooperation with class counsel so that future plans for compensatory education and other important elements of remediation are not jeopardized by similar unilateral actions. Because of the significance of these activities to the remedy phase of this case, Blackman/Jones class counsel are bringing them to the attention of the Court. Respectfully submitted, Ky E. Kirby Ira Burnim UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MIKEISHA BLACKMAN. et al., Plaintiffs v. DISTRICT OF COLUMBIA. et al., Defendants. Civil Action No. 97-1629 (PLF) JAMES JONES, et al., Plaintiffs v. DISTRICT OF COLUMBIA, et al., Defendants. Civil Action No. 97-2402 (PLF) (Consolidated Case) The Court recently received two filings in these consolidated class actions, one from attorney Ronald L. Drake an behalf of individual class members and one from class counsel on behalf of the class as a whole. Both filings indicate that there is, or perhaps was, a dispute regarding a registration form being used by District of Columbia Public Schools ("DCPS") to register special education students for extended school year services, i.e., summer school. Counsel are particularly concerned about a cryptic sentence located just below the signature line of the registration form which appears to indicate that by signing the form and enrolling a child in summer school, the parent or guardian waives all of that child's outstanding legal claims for compensatory education in return for DCPS's provision of compensatory education during this year's summer school. Class counsel's filing indicates that after discussions among counsel for both parties and Special Master Elise Baach, this issue has been resolved. Apparently, defendants agreed to revise and redistribute the application form without the waiver language. Defendants ostensibly have now redistributed the application with a new cover letter indicating that any parent or guardian who signed the old form did not waive any of the child's rights and that anyone who signs either form in the future will not waive any rights. The Court has not received any confirmation directly from defendants that this is the case. Accordingly, it is hereby ORDERED that on or before Thursday, May 18, 2000, at 4:00 p.m., defendants shall file and hand-deliver a copy to Chambers, class counsel, Ronald L. Drake and the special master a memorandum accompanied by appropriate affidavits or declarations (1) explaining why the waiver was included in the first place; (2) describing precisely what steps have been taken to notify students, parents or guardians, class counsel and other plaintiffs' counsel of the removal of the waiver; and (3) providing assurances that under no circumstances will any parent or guardian who signed the original or revised Summer Stars ESY Services and Comp-Ed Academy Student Registration Form be deemed to have waived any right accorded to them under the law. The affidavits or declarations shall be signed by the Assistant Superintendent-DCPS Division of Special Education, DCPS General Counsel, and/or the Corporation Counsel or an appropriate Assistant Corporation Counsel; and it is FURTHER ORDERED that if defendants do not submit the memorandum by 4:00 p.m on May 18, or if defendants are unable to attach the required affidavits or declarations because the statements noted above are untrue, a hearing will be held on Friday, May 19, 2000, at 2:00 p.m. in courtroom 17. If the Court receives the memorandum and affidavits or declarations in a timely manner and is satisfied with their contents, the Court will cancel the hearing and so notify the parties. SO ORDERED PAUL L. FRIEDMAN |
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