Case 2:10-cv-04049-JCZ-KWR Document 296 Filed 03/25/15 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
P.B., by and through his next friend,
Cassandra Berry, et al.
Plaintiffs,
vs.
JOHN WHITE, et al.,
Defendants.

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Civil Case No. 2:10-cv-04049
Section A
Judge Jay C. Zainey
Magistrate Judge Karen Wells Roby

CONSENT JUDGMENT

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Table of Contents
Page
I. PARTIES ....................................................................................................................................3
II. INTRODUCTION ...................................................................................................................3
III. DEFINITIONS .......................................................................................................................3
IV. SUBSTANTIVE PROVISIONS ............................................................................................6
V. INDEPENDENT MONITOR................................................................................................15
VI. REPORTING REQUIREMENTS ......................................................................................17
VII. ENFORCEMENT ...............................................................................................................17
VIII. CONSTRUCTION, IMPLEMENTATION, AND TERMINATION ...........................18
IX. CLASS NOTICE ..................................................................................................................19
X. ATTORNEYS’ FEES ............................................................................................................20
XI. MEDIA ..................................................................................................................................20
XII. MISCELLANEOUS ...........................................................................................................21

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I. PARTIES
This Consent Judgment (“Agreement”) is entered among and between the Settlement
Class (defined below); the Louisiana State Superintendent of Education (in his official capacity);
the Louisiana Department of Education; the Louisiana Board of Elementary and Secondary
Education; and the Orleans Parish School Board.

II. INTRODUCTION
1.

The Plaintiffs filed this action on behalf of New Orleans students with disabilities
pursuant to the Individuals with Disabilities Education Improvement Act of 2004
(“IDEA”), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973
(“Section 504”), 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. This Agreement was entered into to resolve this
litigation, and the Parties stipulate that nothing in this Agreement constitutes an
admission of liability or evidence of liability.

2.

The Plaintiffs are the named Plaintiffs, P.B., D.B., N.F., A.J., T.J., K.J., M.M., L.M.,
D.T., and L.W., on behalf of themselves and as representatives of the Settlement Class.

3.

The State Defendants are the Louisiana State Superintendent of Education (in his official
capacity); the Louisiana Department of Education; and the Louisiana Board of
Elementary and Secondary Education (collectively, “State Defendants”).

4.

The Defendant-Intervenor is the Orleans Parish School Board (“OPSB”).

III. DEFINITIONS
1.

“ADA” refers to Title II of the Americans with Disabilities Act, as amended, 42 U.S.C.
§§ 12131-12165.

2.

“BESE” refers to the Defendant Louisiana Board of Elementary and Secondary
Education. BESE oversight responsibilities include the approval and adoption of rules,
by-laws, and regulations for the government of the public elementary and secondary
schools and other public schools and programs under its jurisdiction.

3.

“Child Find” refers to the IDEA’s requirement that children with 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).

4.

“Days” are measured in calendar days; weekend days are included.
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5.

“Deidentified” means edited to remove information that could be used, alone or in
combination with other information, to allow a recipient of student educational records to
personally identify any current or former student of a Louisiana public or nonpublic
elementary, middle, or high school. Deidentification of student educational records shall
include the removal of student names, phone numbers, electronic mail addresses, social
security numbers, birth dates, physical addresses, biometric identifiers, and photographic
images.

6.

“Disciplinary removal” means an out-of-school suspension, or any other removal of a
student from class during which the student (i) is not afforded the opportunity to continue
to appropriately participate in the general curriculum; (ii) does not receive the services
specified on the student’s IEP; or (iii) does not continue to participate with nondisabled
children to the extent they would have in their current placement.

7.

“Effective Date” means the date the Court enters an order approving this Agreement.

8.

“Good cause” means fair and honest reasons, regulated by good faith on the part of either
party, that are not arbitrary, capricious, trivial, or pretextual.

9.

“IDEA” refers to the Individuals with Disabilities Education Act, as amended, 20 U.S.C.
§ 1400 et seq.

10.

“Include,” “includes,” or “including” means “include, but not be limited to” or
“including, but not limited to.”

11.

“LDOE” refers to the Defendant Louisiana Department of Education, the state
educational agency in Louisiana responsible for supervising the provision of public
elementary and secondary education in the state of Louisiana.

12.

“LEA” refers to local educational agency, as defined by 20 U.S.C. § 1401(19):
“[A] public board of education or other public authority legally constituted
within a State for either administrative control or direction of, or to
perform a service function for, public elementary schools or secondary
schools in a city, county, township, school district, or other political
subdivision of a State . . . .”
LEAs in this settlement include OPSB as a single school district, each Type 2 charter
school in New Orleans, and each Type 5 charter school in New Orleans.

13.

“Monitor” means an individual selected by the Parties to oversee implementation of the
Agreement and to report to the Court on the implementation of the Agreement.

14.

“Noncompliance” means the failure to act in accordance with the requirements of the
IDEA and its implementing regulations.
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15.

“Nonterminal grade” means any grade level at a particular LEA except for the final grade
level served by the LEA (e.g., in a high school serving 9th-12th grade students, students in
the 9th, 10th, or 11th grade levels are in a nonterminal grade).

16.

“OPSB” refers to the Orleans Parish School Board, a local educational agency under the
IDEA, which administers multiple schools within Orleans Parish.

17.

“Parent” refers to “parent” as defined by 20 U.S.C. §1401(23).

18.

“Plaintiffs’ counsel” refers to any attorney or group of attorneys approved by the Court to
provide legal representation to the Settlement Class.

19.

“RTI” refers to Response to Intervention, which is a general education program to
provide research-based interventions for struggling students who are failing to respond to
traditional classroom instruction. Most RTI models involve three “tiers” of increasingly
intensive interventions, from Tier I to Tier III.

20.

“RSD” refers to the Recovery School District, an intermediate unit of the LDOE subject
to the oversight of the State Board of Elementary and Secondary Education. Pursuant to
La. Rev. Stat. § 17:1990, the RSD is responsible for overseeing the Type 5 charter
schools in its jurisdiction.

21.

"School Building Level Committee" (SBLC), or similarly named committee, refers to "a
general education, data-driven, decision-making committee" as further defined by La.
Adm. Code tit. 28, pt. CI, Louisiana Bulletin 1508, § 303.

22.

“Section 504” refers to Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 701 et seq.

23.

“Settlement Class” or “Class” means Subclass 1, Subclass 2, Subclass 3, Subclass 4,
Subclass 5, Subclass 6, and Subclass 7, collectively and as defined below.

24.

“Settlement Class Members” or “Class Members” means the set of members of the Class.

25.

“Subclass 1” means present and future New Orleans students who have requested a
special education evaluation at a New Orleans LEA, and whose request has not or will
not be completed because the student is no longer at that particular LEA.

26.

“Subclass 2” means present and future New Orleans students who have requested but not
been provided with a special education evaluation because they have not completed a
“Response to Intervention” program.

27.

“Subclass 3” means present and future New Orleans students who have requested but not
been provided with a special education evaluation and instead given a Section 504 Plan.

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28.

“Subclass 4” means present and future New Orleans students with disabilities attending
RSD direct-run or Type 5 charter schools who have been or will be removed for more
than 10 days in a school year without the timely provision of the disciplinary safeguards
required by the IDEA.

29.

“Subclass 5” means present and future New Orleans students with disabilities who have
not or will not be provided a related service that is contained in their Individualized
Education Programs (IEPs)

30.

“Subclass 6” means present and future New Orleans students with disabilities who have
been or will be denied admission or instructed not to apply to a public school in New
Orleans on the basis of their disabilities.

31.

“Subclass 7” means present and future New Orleans students with mobility impairments
who have been or will be denied access to the programs and services of a New Orleans
LEA as a result of structural or architectural barriers.

32.

“Substantial Compliance” means a level of compliance that does not significantly deviate
from the terms of this Agreement. Noncompliance with mere technicalities, or temporary
failure to comply during a period of otherwise sustained compliance, shall not constitute
failure to maintain substantial compliance. Temporary compliance during a period of
otherwise sustained noncompliance shall not constitute substantial compliance.

33.

“Type 2 charter school” refers to a new school or a preexisting public school converted
and operated as the result of and pursuant to a charter between the nonprofit corporation
created to operate the school and the State Board of Elementary and Secondary
Education.

34.

“Type 5 charter school” refers to a preexisting public school transferred to the Recovery
School District and operated as the result of and pursuant to a charter between a nonprofit
corporation and the State Board of Elementary and Secondary Education.

IV. SUBSTANTIVE PROVISIONS
A. CHILD FIND
1.

The State Defendants, after conferring with the Defendant-Intervenor, shall develop a
schedule identifying the assignment of Child Find responsibilities within New Orleans.
a. The schedule shall allocate responsibility for identifying, locating, and evaluating
individuals, aged 3 - 21, suspected of having a disability, including individuals
who are: not currently enrolled in school; enrolled in a non-public school in New
Orleans; detained in a juvenile detention center or adult correctional facility in
New Orleans; and/or housed in a public or private hospital, institution, or other
health care facility in New Orleans.

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b. The schedule shall include procedures for ensuring that an evaluation initiated at
one New Orleans LEA is completed within applicable timelines, even where a
child moves to another New Orleans LEA.
c. Within thirty (30) days of the assignment of an Independent Monitor, the State
Defendants shall submit the schedule to the Independent Monitor for review and
approval. The Independent Monitor will provide comments on the schedule to the
Parties within twenty-one (21) days. The Parties may provide comments on the
Independent Monitor’s comments within seven (7) days. The Independent
Monitor will consider the Parties’ comments, mediate any disputes, and approve
documents with any changes within fifteen (15) days.
2.

The State Defendants shall require that the charter application and renewal processes for
Type 2 and Type 5 charter schools in New Orleans require each organization seeking
issuance or renewal of a charter to provide a description of the charter school staff and/or
outside contractors who will provide pupil appraisal services, including a description of
qualified pupil appraisal personnel designated to serve on each organization’s School
Building Level Committee.

3.

The State Defendants shall annually calculate the rate at which each LEA in New Orleans
identifies new students as eligible for services under the IDEA (“annual new
identification rate”). Using this rate, the State Defendants shall annually select LEAs for
targeted monitoring. As part of targeted monitoring, the State Defendants shall conduct
file reviews of a random, representative sample of students who: have Section 504 Plans;
are in the RTI process; are under consideration by a School Building Level Committee;
failed two (2) or more academic subjects in the prior school year; or are subject to more
than ten (10) days of disciplinary removal during the school year. LEA selection, student
file selection, file reviews, staff interviews, and school site visits shall be conducted
consistent with the processes detailed in Addendum A. If the State Defendants’ targeted
monitoring results in the identification of noncompliance, the State Defendants shall
require each LEA with validated noncompliance to undertake corrective actions sufficient
to remedy the noncompliance and to reasonably ensure that such noncompliance does not
reoccur, as detailed in Addendum A.
a. The annual new identification rate for each LEA shall be calculated by dividing
the number of students each LEA identifies for initial eligibility under the IDEA
between July 1 and June 30 by the total number of students enrolled in the LEA
on October 1.
b. The targeted monitoring activities described above and in Addendum A shall
supplement, not supplant, the annual monitoring activities undertaken by LDOE
pursuant to its general supervisory responsibilities under the IDEA. The
monitoring of an LEA pursuant to the monitoring obligations identified in this
Agreement shall not influence LDOE’s selection of that LEA for monitoring
pursuant to LDOE’s general IDEA monitoring protocols.

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4. The State Defendants shall annually disseminate written guidance to New Orleans LEAs
explaining the Child Find responsibilities of Louisiana LEAs. The guidance shall be
consistent with the schedule identified in Paragraph IV.A.1.
a. The guidance shall also explain that when a parent requests an evaluation for
special education, the LEA must: (1) conduct an initial evaluation of the child; or
(2) provide written reason(s) why a disability is not suspected. This guidance
shall reference the general sixty (60) business day timelines for an initial
evaluation in Louisiana Bulletin 1706, § 302(C) and Louisiana Bulletin 1508. If
the LEA does not suspect a disability, this guidance shall explain that the LEA
must provide the parent written reasons for its decision within thirty (30) business
days of the parent request for evaluation.
b. The written guidance shall explain that an evaluation cannot be delayed because
of the student’s current or potential participation in a Response to Intervention
(RTI) program.
c. The guidance shall further explain that a Section 504 Plan is not a substitute for a
child who is in need of an evaluation under the IDEA.
d. The guidance shall be provided to the chief executive of each LEA in New
Orleans annually by August 1 for the duration of this Agreement.
e. The State Defendants shall provide the guidance to the Independent Monitor for
review and approval annually by May 1 for the duration of this Agreement. The
Independent Monitor will provide comments on the guidance to the Parties within
twenty-one (21) days. The Parties may provide comments on the Independent
Monitor’s comments within seven (7) days. The Independent Monitor will
consider the Parties’ comments, mediate any disputes, and approve documents
with any changes within fifteen (15) days.
B. RELATED SERVICES
1.

The State Defendants shall require that the charter application and renewal processes for
Type 2 and Type 5 charter schools in New Orleans require each organization seeking
issuance or renewal of a charter to provide a description of:
a. the organization’s plans for offering the full array of related services to students
with qualifying disabilities who are or may come to be enrolled at the charter
school, including without limitation the following categories of related services:
physical therapy, occupational therapy, counseling services, orientation and
mobility services, speech-language pathology, audiology services, school
health/nurse services, special transportation, and adaptive physical education; and
b. the charter school staff and/or outside contractors who will provide such services.

2.

The State Defendants shall annually calculate the rate at which each LEA in New Orleans
provides related services to students eligible for such services under the IDEA (“service
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provision rate”). Using this rate, the State Defendants shall annually select LEAs for
targeted monitoring. As part of targeted monitoring, the State Defendants shall conduct
file reviews of a random, representative sample of students with disabilities at the
selected LEAs. LEA selection, student file selection, file reviews, staff interviews, and
school site visits shall be conducted consistent with the processes detailed in Addendum
A. If the State Defendants’ targeted monitoring results in the identification of
noncompliance, the State Defendants shall require each LEA with validated
noncompliance to undertake corrective actions sufficient to remedy the noncompliance
and to reasonably ensure that such noncompliance does not reoccur, as detailed in
Addendum A.
a. The service provision rate shall be calculated by dividing the total number of
minutes of related services per week identified in the IEPs of each student with a
disability in an LEA on October 1 by the total number of students with disabilities
enrolled in the LEA on October 1.
b. The targeted monitoring activities described above and in Addendum A shall
supplement, not supplant, the annual monitoring activities undertaken by LDOE
pursuant to its general supervisory responsibilities under the IDEA. The
monitoring of an LEA pursuant to the monitoring obligations identified in this
Agreement shall not influence LDOE’s selection of that LEA for monitoring
pursuant to LDOE’s general IDEA monitoring protocols.
C. DISCIPLINE
1.

The State Defendants shall, within 60 days of the implementation of this Agreement,
review the code of conduct and/or discipline policy of each Type 2 or Type 5 charter
school in New Orleans for compliance with the IDEA. The State Defendants shall
require that the codes of conduct and/or discipline policies for each Type 2 or Type 5
charter school in New Orleans contain, at a minimum: (a) a written description of the
IDEA’s disciplinary procedural protections and procedural safeguards for students with
disabilities, which should be written in plain language that parents/guardians, students,
and the general public can understand; and (b) a plan for supporting school behavior and
discipline in compliance with the requirements of La. Rev. Stat. § 17:251-252.
a. For the duration of this Agreement, the State Defendants shall, on the anniversary
of the initial reviews described above:
i. require each Type 2 or Type 5 charter school in New Orleans to submit a
written assurance that the code of conduct and/or discipline policy for the
school has not changed since the State Defendants last reviewed the code
or policy; or,
ii. review, for compliance with the IDEA, the code of conduct and/or
discipline policy of each Type 2 or Type 5 charter school in New Orleans
that is unable to provide such an assurance.

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2.

The Defendant-Intervenor shall, within 60 days of the implementation of this Agreement,
review the code of conduct and/or discipline policy of each school under its jurisdiction
for compliance with the IDEA. The Defendant-Intervenor shall require that the codes of
conduct and/or discipline policies for each school under its jurisdiction contain, at a
minimum: (a) a written description of the IDEA’s disciplinary procedural protections and
procedural safeguards for students with disabilities, which should be written in plain
language that parents/guardians, students, and the general public can understand; and (b)
a plan for supporting school behavior and discipline in compliance with the requirements
of La. Rev. Stat. § 17:251-252.
a. For the duration of this Agreement, the Defendant-Intervenor shall, on the
anniversary of the initial reviews described above:
i. require each school under its jurisdiction to submit a written assurance that
the code of conduct and/or discipline policy for the school has not changed
since the Defendant-Intervenor last reviewed the code or policy; or,
ii. review, for compliance with the IDEA, the code of conduct and/or
discipline policy of each school under its jurisdiction that is unable to
provide such an assurance.

3.

The State Defendants shall provide annual technical assistance to each Type 2 or Type 5
charter school in New Orleans regarding the prohibited practice of undocumented
suspensions and shall develop and broadly disseminate information to parents of students
at each Type 2 or Type 5 charter school in New Orleans about the prohibited practice of
undocumented suspensions. Additionally, the State Defendants shall provide annual
professional development to each Type 2 or Type 5 charter school in New Orleans on
disciplinary procedures for students with disabilities and on best practices to reduce
suspensions and expulsions for students with disabilities.
a. The State Defendants shall provide the required technical assistance and
professional development to each Type 2 or Type 5 charter school in New
Orleans annually by October 31 for the duration of this Agreement.
b. The State Defendants shall provide information detailing the methods and
materials to be used to provide the required technical assistance and professional
development to the Independent Monitor for review and approval annually by
June 1 for the duration of this Agreement. The Independent Monitor will provide
comments on the materials to the Parties within twenty-one (21) days. The Parties
may provide comments on the Independent Monitor’s comments within seven (7)
days. The Independent Monitor will consider the Parties’ comments, mediate any
disputes, and approve documents with any changes within fifteen (15) days.

4.

The Defendant-Intervenor shall provide annual technical assistance to each school under
its jurisdiction regarding the prohibited practice of undocumented suspensions and shall
develop and broadly disseminate information to parents of students at each school under
its jurisdiction about the prohibited practice of undocumented suspensions. Additionally,
the Defendant-Intervenor shall provide annual professional development to each school
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under its jurisdiction on disciplinary procedures for students with disabilities and on best
practices to reduce suspensions and expulsions for students with disabilities.
a. The Defendant-Intervenor shall provide the required technical assistance and
professional development to each school under its jurisdiction annually by
October 31 for the duration of this Agreement.
b. The Defendant-Intervenor shall provide information detailing the methods and
materials to be used to provide the required technical assistance and professional
development to the Independent Monitor for review and approval annually by
June 1 for the duration of this Agreement. The Independent Monitor will provide
comments on the materials to the Parties within twenty-one (21) days. The Parties
may provide comments on the Independent Monitor’s comments within seven (7)
days. The Independent Monitor will consider the Parties’ comments, mediate any
disputes, and approve documents with any changes within fifteen (15) days.
5.

The State Defendants shall annually calculate the rate at which each LEA in New Orleans
removes students with disabilities for disciplinary purposes for more than ten (10)
cumulative days in an academic year (“extended disciplinary removal rate”). Using this
rate, the State Defendants shall annually select LEAs for targeted monitoring. As part of
targeted monitoring, the State Defendants shall conduct file reviews of a random,
representative sample of students with disabilities who received six (6) or more Office
Discipline Referrals or three (3) or more suspensions (in- or out-of-school) in a school
year. LEA selection, student file selection, file reviews, staff interviews, and school site
visits shall be conducted consistent with the processes detailed in Addendum A. If the
State Defendants’ targeted monitoring results in the identification of noncompliance, the
State Defendants shall require each LEA with validated noncompliance to undertake
corrective actions sufficient to remedy the noncompliance and to reasonably ensure that
such noncompliance does not reoccur, as detailed in Addendum A.
a. The extended disciplinary removal rate shall be calculated by dividing the total
number of students with disabilities who experienced disciplinary removals for
more than ten (10) cumulative days between July 1 and June 30 by the total
number of students with disabilities enrolled in the LEA on October 1.
b. The targeted monitoring activities described above and in Addendum A shall
supplement, not supplant, the annual monitoring activities undertaken by LDOE
pursuant to its general supervisory responsibilities under the IDEA. The
monitoring of an LEA pursuant to the monitoring obligations identified in this
Agreement shall not influence LDOE’s selection of that LEA for monitoring
pursuant to LDOE’s general IDEA monitoring protocols.
D. ENROLLMENT

1.

The State Defendants shall annually disseminate to each Type 2 and Type 5 charter
school in New Orleans policy guidance describing the legal obligations of each Type 2
and Type 5 charter school in New Orleans to enroll and serve students with disabilities
pursuant to federal law. The State Defendants will request that the principal of each Type
2 and Type 5 charter school acknowledge receipt of this guidance. The guidance will, at a
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minimum, contain: (a) a summary of the legal obligations of the school to provide
necessary services and accommodations to students with disabilities; (b) a statement
describing the obligations of the school to enroll students with disabilities without regard
to their disabilities; (c) a statement advising the school that its staff is prohibited from
informing or suggesting to parents of students with disabilities that the parents should not
enroll their child in the school because the school does not provide the services or
placement necessary for the child or because the child’s disability would be better served
at another school; and (d) a statement notifying the principal that he or she can incur
personal monetary damages for intentional discrimination and operating in bad faith due
to noncompliance with Section 504.
a. The State Defendants shall disseminate the required policy guidance to each Type
2 or Type 5 charter school in New Orleans annually by March 1 for the duration
of this Agreement.
b. The State Defendants shall provide the policy guidance to the Independent
Monitor for review and approval annually by December 1 for the duration of this
Agreement. The Independent Monitor will provide comments on the guidance to
the Parties within twenty-one (21) days. The Parties may provide comments on
the Independent Monitor’s comments within seven (7) days. The Independent
Monitor will consider the Parties’ comments, mediate any disputes, and approve
documents with any changes within fifteen (15) days.
2.

The Defendant-Intervenor shall annually disseminate to each school under its jurisdiction
policy guidance describing the legal obligations of each school under its jurisdiction to
enroll and serve students with disabilities pursuant to federal law. The DefendantIntervenor will require the principal of each school under its jurisdiction to acknowledge
receipt of this guidance. The guidance will, at a minimum, contain: (a) a summary of the
legal obligations of the school to provide all necessary services and accommodations to
students with disabilities; (b) a statement describing the obligations of the school to enroll
students with disabilities without regard to their disabilities; (c) a statement advising the
school that its staff is prohibited from informing or suggesting to parents of students with
disabilities that the parents should not enroll their child in the school because the school
does not provide the services or placement necessary for the child or because the child’s
disability would be better served at another school; and (d) a statement notifying the
principal that he or she can incur personal monetary damages for intentional
discrimination and operating in bad faith due to noncompliance with Section 504.
a. The Defendant-Intervenor shall disseminate the required policy guidance to each
school under its jurisdiction annually by March 1 for the duration of this
Agreement.
b. The Defendant-Intervenor shall provide the policy guidance to the Independent
Monitor for review and approval annually by December 1 for the duration of this
Agreement. The Independent Monitor will provide comments on the guidance to
the Parties within twenty-one (21) days. The Parties may provide comments on
the Independent Monitor’s comments within seven (7) days. The Independent
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Monitor will consider the Parties’ comments, mediate any disputes, and approve
documents with any changes within fifteen (15) days.
3.

The State Defendants shall require that each Type 2 and Type 5 charter school in New
Orleans annually develops a written description of its special education program,
including, at a minimum: (a) the name and contact information of the special education
coordinator for the school; (b) a description of how pupil appraisal, special education,
and related services are provided by the school; (c) a description of how the school plans
to provide the continuum of special education placements for students whose IEP
placement is outside of the regular education setting; (d) the current enrollment rate of
students with disabilities served by the school; (e) the current suspension rate of students
with disabilities served by the school; (f) the number of students with disabilities who are
removed for disciplinary reasons for more than 10 school days in one academic year; and
(g) an indication of the school’s accessibility to individuals with mobility impairments.
The State Defendants shall require that the program descriptions for all Type 2 and Type
5 charter schools in New Orleans are made available to parents of students with
disabilities at each school site and on each school’s website. RSD’s website will provide
a link to the descriptions available on each school website, and parents who express an
interest will be guided to this portion of RSD’s website when completing enrollment at an
RSD Family Resource Center.

4.

The Defendant-Intervenor shall annually develop a written description of OPSB's special
education program, including, at a minimum: (a) the name and contact information of
special education contacts at the district level and at the school level; (b) a description of
how pupil appraisal, special education, and related services are provided; (c) a description
of how the OPSB plans to provide the continuum of special education placements for
students whose IEP placement is outside of the regular education setting; (d) the current
enrollment rate of students with disabilities served by each OPSB school; (e) the current
suspension rate of students with disabilities served by each OPSB school; (f) the number
of students with disabilities who are removed for disciplinary reasons for more than 10
school days in one academic year; and (g) an indication of the OPSB schools’
accessibility to individuals with mobility impairments. The Defendant-Intervenor shall
require that the OPSB special education program description is made available to parents
of students with disabilities at each school site, on each school’s website under its
jurisdiction, and on OPSB’s website.

5.

The State Defendants shall require each Type 2 and Type 5 charter school in New
Orleans to develop a written complaint investigation protocol describing the school’s
process for investigating allegations of discrimination on the basis of disability. The
protocol shall include the contact information of the individual at the school responsible
for investigating complaints of alleged discrimination; a process by which parents may
make complaints; a timeline for the school to conduct an investigation; the steps to be
taken or the process by which the school will conduct the investigation; the process by
which the school will disseminate the outcome of the investigation; and corrective action
that may be undertaken as a result of noncompliance. A summary description of the
protocol shall be widely disseminated to parents of students with disabilities enrolled at
the school. The complaint investigation protocols shall be developed for the sole purpose
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of investigating allegations of enrollment discrimination arising under Section 504 of the
Rehabilitation Act or Title II of the ADA and shall not supplant the complaint
management system or due process complaint procedures pursuant to the IDEA.
a. The State shall develop a model written complaint investigation protocol that
meets the requirements identified in this section. This model will be available to
any school upon request, and will be provided to each Type 2 and Type 5 charter
school by March 1, 2015 and every school year thereafter.
b. Upon receipt of a complaint related to the enrollment practices of Type 2 and
Type 5 charter schools, the State will: (i) provide the complainant in writing,
either via electronic or U.S. Mail, with the contact information for the Office of
Civil Rights and low cost legal services providers; and (ii) where required under
IDEA, initiate an investigation of the complaint.
6.

The Defendant-Intervenor shall develop a written complaint investigation protocol
describing the Defendant-Intervenor’s process for investigating allegations of
discrimination on the basis of disability for all schools within its jurisdiction. The
protocol shall include the contact information of the division of OPSB responsible for
investigating complaints of alleged discrimination; a process by which parents may make
complaints; a timeline for the Defendant-Intervenor to conduct an investigation; the steps
to be taken or the process by which the Defendant-Intervenor will conduct the
investigation; the process by which the Defendant-Intervenor will disseminate the
outcome of the investigation; and corrective action that may be undertaken as a result of
noncompliance. A summary description of the protocol shall be widely disseminated to
parents of students with disabilities enrolled in schools under the jurisdiction of the
Defendant-Intervenor. This complaint investigation protocol shall be developed for the
sole purpose of investigating allegations of enrollment discrimination pursuant to Section
504 of the Rehabilitation Act and Title II of the ADA, and shall not supplant the
complaint management system or due process complaint procedures pursuant to the
IDEA.

7.

The State Defendants shall annually calculate the rate at which students with disabilities
choose not to reenroll at each LEA in New Orleans each school year (“mobility rate”).
Using this rate, the State Defendants shall annually select LEAs for targeted monitoring.
LEA selection, student file selection, file reviews, staff interviews, and school site visits
shall be conducted consistent with the processes detailed in in Addendum A. If the State
Defendants’ targeted monitoring results in the identification of noncompliance, the State
Defendants shall require each LEA with validated noncompliance to undertake corrective
actions sufficient to remedy the noncompliance and to reasonably ensure that such
noncompliance does not reoccur, as detailed in Addendum A.
a. The mobility rate shall be calculated by dividing the total number of students with
disabilities who are enrolled in a nonterminal grade at an LEA in New Orleans
between September 1 and May 31 and are not enrolled at the LEA on October 1
of the following school year by the total number of students with disabilities
enrolled in the LEA on October 1.
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b. The targeted monitoring activities described above and in Addendum A shall
supplement, not supplant, the annual monitoring activities undertaken by LDOE
pursuant to its general supervisory responsibilities under the IDEA. The
monitoring of an LEA pursuant to the monitoring obligations identified in this
Agreement shall not influence LDOE’s selection of that LEA for monitoring
pursuant to LDOE’s general IDEA monitoring protocols.
V. INDEPENDENT MONITOR
1.

The Parties shall cooperatively select an Independent Monitor to oversee implementation
of the Agreement. Within thirty (30) days of the implementation of this Agreement, the
Plaintiffs and State Defendants shall exchange lists of at least three (3) individuals whom
they believe are qualified and available to serve in the capacity of the Independent
Monitor. The Plaintiffs and State Defendants shall also provide a copy of such lists to the
Defendant-Intervenor. If the Plaintiffs and State Defendants cannot reach consensus
regarding the designation of the Independent Monitor, the Parties shall confer within
fourteen (14) days of written notice of a disagreement, and an Independent Monitor will
be selected by the Plaintiffs and State Defendants therein. If the Plaintiffs and State
Defendants do not agree upon an Independent Monitor after conferring, the matter shall
be submitted to the Court for resolution. Should the Monitor position become vacant
and the Plaintiffs and State Defendants are unable to agree on a replacement using the
selection procedures identified above, the Plaintiffs and State Defendants shall
recommend candidates to the Court, and the Court will appoint the Monitor from the
names submitted by the Plaintiffs and State Defendants.

2.

No Party, nor any employee or agent of any party, shall have any supervisory authority
over the Monitor’s activities, reports, findings, or recommendations.

3.

Should all the Parties agree that the Monitor is not fulfilling his or her duties in
accordance with this Agreement, the Parties may petition the Court for the Monitor’s
immediate removal and replacement. One party may unilaterally petition the Court for
the Monitor’s removal for good cause, and the other Parties will have the opportunity to
respond to the petition. Good cause for the purposes of this Agreement shall mean, but
not be limited to, the following: gross neglect of duties; willful misconduct; conflicts of
interest; inappropriate personal relationship with any Party or their employees; or any
criminal conduct during the pendency of this Agreement.

4.

Monitor Qualifications: The Monitor shall have appropriate experience, education, and
training related to the subject areas covered in this Agreement.

5.

Monitor Access: The Monitor shall have full and complete access to the records and data
necessary to determine compliance with the terms of this Agreement. All information
obtained by the Monitor shall be maintained in a confidential manner.

6.

Monitor Ex Parte Communications: The Monitor shall be permitted to initiate and
receive ex parte communications with all Parties.
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7.

Monitor Distribution of LDOE Documents, Reports, and Assessments: The Monitor
shall provide any reports, assessments, and compliance-related documents within seven
(7) days of a request by any Party.

8.

Initial Monitor Meeting: Within three (3) weeks of the date that the Independent Monitor
is retained, counsel for all parties and the Monitor will schedule a meeting with the Court
to discuss the activities of the Monitor under this Consent Judgment.

9.

Monitor’s Reports: The Monitor shall file with the Court and provide the Parties with
reports describing the steps taken by the State Defendants and the Defendant-Intervenor
to implement this Agreement and evaluate the extent to which the State Defendants and
the Defendant-Intervenor have complied with each substantive provision of the
Agreement.
a. Timing of Reports: The Monitor shall issue an initial report 60 days after the
implementation date of this Agreement, and then every 60 days thereafter for the
remainder of the first year, and every 120 days thereafter following the end of the
first year. The reports shall be provided to the Parties in draft form for comment
at least 14 days prior to their issuance. The Monitor shall consider the Parties’
responses and make appropriate changes, if any, before issuing the report. These
reports shall be written with due regard for the privacy interests of the students.
b. Content of Reports: The Monitor shall evaluate the state of compliance for each
relevant provision of the Agreement using the following standards: (1) Substantial
Compliance and (2) Noncompliance. In order to assess compliance, the Monitor
shall review a sufficient number of pertinent documents to accurately assess
compliance and interview any necessary staff or personnel. The Monitor shall be
responsible for independently verifying representations from the State Defendants
or Defendant-Intervenor regarding progress toward compliance, and examining
supporting documentation. Each Monitor report shall describe the steps taken by
the Monitor to assess compliance, including documents reviewed and individuals
interviewed, and the factual basis for each of the Monitor’s findings.

10.

Reports issued by the Monitor shall not be admissible against the State Defendants and
the Defendant-Intervenor in any proceeding other than a proceeding related to the
enforcement of this Agreement initiated and handled exclusively by the State Defendants,
the Defendant-Intervenor, or the Plaintiffs’ counsel.

11.

Technical Assistance by the Monitor: The Monitor shall provide the State Defendants
and the Defendant-Intervenor with technical assistance as requested by the State
Defendants and the Defendant-Intervenor. Technical assistance should be reasonable and
should not interfere with the Monitor’s ability to assess compliance.

12.

Each party shall identify a single point of contact to serve as an Agreement Coordinator
throughout the duration of this Agreement. Each party’s Coordinator will serve as a
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liaison between that Party and the Monitor. In addition, the Defendants’ Coordinators
will facilitate the provision of data, documents, and materials and provide access to
appropriate personnel to the Monitor and Parties, as necessary. Each party shall provide
the Monitor and other parties with notice of the initial assignment and any subsequent
changes in the assignment of its Agreement Coordinator.
13.

The State Defendants and the Defendant-Intervenor shall jointly bear all costs incurred in
connection with Section V of the Agreement. The costs shall be divided pro rata between the
State Defendants and the Defendant-Intervenor based upon total student enrollment in
schools under the jurisdiction of each in New Orleans. The division of costs shall be
determined annually based on the October 1 student count.

VI. REPORTING REQUIREMENTS
1.

The State Defendants and the Defendant-Intervenor shall maintain sufficient records to
document that the requirements of this Agreement are being properly implemented and
shall make such records available to the Monitor within seven business days of request
for inspection and copying. In addition, the State Defendants and the DefendantIntervenor shall maintain and provide to the Monitor upon request, all records or other
documents that verify that they have taken the actions described in their compliance
reports (e.g., policies, procedures, protocols, checklists, training materials, monitoring
reports, investigations, corrective action plans).

2.

Plaintiffs’ counsel shall have access to data and documents described within this
Agreement and/or developed as a result of this Agreement, including but not limited to
any data, reports and other documents examined by the State Defendants during their
monitoring activities; the State Defendants’ and the Defendant-Intervenor’s policies and
procedures developed in contemplation of this Agreement; and directives, program
instructions, and non-privileged communication and training documents. The State
Defendants may replace student names contained in the data with unique identifiers
and/or may redact student names from records as necessary. At any time during the
duration of this Agreement, the Plaintiffs have the right to petition the Court to seek the
un-redacted documents.

3.

The Parties agree to respond to inquiries, written communications, and requests for
information from any other Party or the Monitor in a timely manner.

VII. ENFORCEMENT
1.

The Parties agree that the terms of this Agreement shall be submitted to the Court for
approval and the Court shall retain jurisdiction to enforce the terms of this Agreement.

2.

During the period that the Agreement is in force, if the Monitor or Plaintiffs’ counsel
determines that State Defendants or the Defendant-Intervenor are not taking good faith
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steps towards obtaining Substantial Compliance with the terms of the Agreement,
Plaintiffs’ counsel may initiate contempt or enforcement proceedings against State
Defendants or the Defendant-Intervenor, respectively, for an alleged failure to fulfill an
obligation under Sections IV through VIII of this Agreement in Court.
3.

Before taking judicial action to initiate contempt or other enforcement proceedings,
Plaintiffs’ counsel shall give State Defendants or the Defendant-Intervenor written notice
of its intent to initiate such proceedings, and the Parties shall engage in good-faith
discussions to resolve the dispute and may petition the Court for a status conference to
assist in resolution. If the dispute has not been resolved within 30 days of Plaintiffs’
written notice to State Defendants or the Defendant-Intervenor, Plaintiffs’ counsel may
take judicial action to initiate contempt or other enforcement proceedings.

VIII. CONSTRUCTION, IMPLEMENTATION, AND TERMINATION
1.

The State Defendants and the Defendant-Intervenor shall implement all reforms, as
designated within the provisions of this Agreement, that are necessary to effectuate this
Agreement. The implementation of this Agreement will begin immediately upon the
Effective Date.

2.

The State Defendants shall be released from the terms of this Agreement when they have
achieved Substantial Compliance with each provision of the Agreement for which they
are assigned responsibility; have maintained Substantial Compliance for a period of two
consecutive years; and subject to Court approval.

3.

The Defendant-Intervenor shall be released from the terms of this Agreement when it has
achieved Substantial Compliance with each provision of the Agreement for which it is
assigned responsibility; have maintained Substantial Compliance for a period of two
consecutive years; and subject to Court approval.

4.

If any unforeseen circumstance occurs that causes a failure to timely carry out any
requirements of this Agreement, State Defendants or the Defendant-Intervenor shall
notify the Monitor in writing within seven days after State Defendants or the DefendantIntervenor become aware of unforeseen circumstance and its impact on the Defendants’
ability to perform under the Agreement. The notice shall describe the cause of the failure
to perform and the measures taken to prevent or minimize the failure. The State
Defendants and the Defendant-Intervenor shall implement all reasonable measures to
avoid or minimize any such failure.

5.

This Agreement, including all addenda, shall constitute the entire integrated Agreement
of the Parties. No prior or contemporaneous communications, oral or written, will be
relevant or admissible for purposes of determining the meaning of any provisions herein,
in this litigation or in any other proceeding.

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6.

This Agreement shall be applicable to, and binding upon, all Parties, their officers,
agents, employees, assigns, and their successors in office.

7.

Failure by any party to enforce this entire Agreement or any provision thereof with
respect to any deadline or any other provision herein shall not be construed as a waiver of
the party’s right to enforce other deadlines or provisions of this Agreement.

8.

If any provision of this Agreement is declared invalid for any reason by a court of
competent jurisdiction, said finding shall not affect the remaining provisions of this
Agreement.

IX. CLASS NOTICE
1.

Promptly after this Agreement has been fully executed, Plaintiffs’ Counsel shall initiate a
joint motion to the Court for entry of the Order for Notice and Hearing, substantially in
the form annexed hereto as Exhibit A. In connection with that application, Plaintiffs’
Counsel shall apply to the Court for preliminary approval of this Agreement and for a
finding that the Class, as defined above, should be certified for settlement purposes.
Plaintiffs’ Counsel shall also request that the Court set a date for a fairness hearing on the
proposed settlement no earlier than February 9, 2015 and to approve the Settlement
Notice, in substantially the form annexed hereto as Exhibit B.

2.

The State Defendants shall cause the notice to be published one time in The TimesPicayune and The New Orleans Advocate, in substantially the form annexed hereto as
Exhibit C as soon as practicable after the Settlement Notice is approved, but in no event
more than five (5) business days after such approval.

3.

The State Defendants and the Defendant-Intervenor shall within the later of five (5)
business days of the date of the Court’s Order for Notice and Hearing and January 8,
2015, cause a one-page summary of the Settlement Notice to be posted in all public
schools in New Orleans until at least February 8, 2015.

4.

The State Defendants and the Defendant-Intervenor shall within ten (10) business days of
the date of the Court’s Order for Notice and Hearing cause a one-page summary of the
Settlement Notice to be mailed via first class mail to the proposed Settlement Class.

5.

The State Defendants and the Defendant-Intervenor shall within five (5) business days of
the date of the Court’s Order for Notice and Hearing cause the Settlement Notice to be
posted prominently on the websites of LDOE, BESE, and OPSB until at least February 8,
2015.

6.

Plaintiffs’ Counsel shall within five (5) business days of the date of the Court’s Order for
Notice and Hearing cause the Settlement Notice to be posted on the website of the
Southern Poverty Law Center, at its own cost, until at least February 8, 2015.

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7.

Plaintiffs’ Counsel may disseminate the Settlement Notice to other media outlets, provide
it to other community organizations, or otherwise disseminate the Settlement Notice as it
sees fit, all at its own cost.

8.

The State Defendants and the Defendant-Intervenor shall bear all the costs incurred in
connection with subparagraphs 2-4, with State Defendants responsible for all costs
associated with activities pertaining to non-OPSB schools, LDOE, and BESE.
X. ATTORNEYS’ FEES

1.

The State Defendants will seek a legislative appropriation in the 2015 legislative session
for $700,000.00, not to be paid from any state or federal education funds designated for
the education of students with disabilities, to pay the State Defendants’ share of
Plaintiffs’ attorneys’ fees and costs. State Defendants shall use their best efforts with the
Louisiana legislature to obtain a sufficient appropriation to make payment to Plaintiffs by
the close of 2015. The State Defendants’ payment of $700,000.00 shall be in full
satisfaction of its share of Plaintiffs' attorneys' fees and costs for all purposes under this
agreement.

2.

If the Louisiana legislature does not appropriate sufficient funds to pay State Defendants'
share of Plaintiffs' attorneys’ fees and costs, the State Defendants and the Plaintiffs agree
to meet and confer to discuss options for fulfillment of this element of the
Agreement. If the State Defendants and Plaintiffs cannot resolve this matter directly,
they will seek non-binding mediation to discuss options regarding the State Defendants'
share of fees and costs, including, if agreed to by Plaintiffs, the timing of payments to
Plaintiffs beyond 2015. If no such agreement can be reached, Plaintiffs may seek an
action for payment of said $700,000 in accordance with applicable jurisprudence.
However, any such payment shall not be taken from state or federal education funds
designated for the education of students with disabilities.

3.

Within 180 days of the approval of the State Defendants’ requested appropriation, the
Defendant-Intervenors will make payment to Plaintiffs’ Counsel in the amount of
$100,000.00 for Defendant-Intervenors’ share of Plaintiffs’ attorneys’ fees and
costs. The Defendant-Intervenors' payment of $100,000.00 shall be in full satisfaction of
its share of Plaintiffs' attorneys' fees and costs for all purposes under this agreement.

XI. MEDIA
1.

The parties and their counsel agree to issue a joint public statement concerning this
Agreement at the time it is presented to the Court for approval (“joint statement”). The
joint statement will indicate that the case has been resolved by mutual agreement of the
parties and will portray the settlement and all parties in a positive light. The joint
statement will be widely distributed and placed on the Defendants’ and counsel for the
Plaintiffs’ respective websites. To the extent practicable, any party offering a public
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comment concerning this Agreement separate from the joint statement shall use
reasonable efforts to notify the other parties of the form, nature, and extent of the press
release or public comment prior to its issuance. None of the parties will make any public
statement regarding this Agreement that in any way disparages or criticizes another party
or the Agreement.

XII. MISCELLANEOUS
1.

This Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed and delivered, shall be
an original, and all such counterparts together shall constitute one and the same
agreement. This Agreement may be executed by facsimile or by original. A facsimile
transmission of a signed original shall have the same effect as delivery of a signed
original.

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 Case Document 296

r.

FOLETHE TIFF SETTLENIENT CLASS:
'3 
?4571, .

Eden B. Heilrnan

Jennifer Coco

Jerri Katzerman

SOUTHERN POVERTY CENTER
1055 St. Charles Avenue, Ste. 505
New Orleans, LA 70130

(504) 486-8982

 

FOR THE STATE DEFENDAN TS:

 

John White

State Superintendent of Education
LOUISIANA DEPARTMENT OF EDUCATION
PO. Box 94064

Baton Rouge, LA 70804?9064

(225) 342?3572

 

Joan Ellen Hunt

General Counsel

LOUISIANA DEPARTMENT OF EDUCATION
PO. Box 94064 

Baton Rouge, LA 7 0804-9064

(225) 342?3572

Filed 03/25/15 Page 22 of 25

FOR THE ORLEANS PARISH SCHOOL BOARD:

 

Wayne T. Stewart

Robert L. Hammonds

HAMMONDS, SILLS, ADKINS GUICE, LLP
2431 S. Acadian Thruway, Ste 600

Baton Rouge, LA 70808

(225) 923-3462

Case 2:10-cv-04049-JCZ-KWR Document 296 Filed 03/25/15 Page 23 of 25

FOR THE PLAINTIFF SETTLEMENT CLASS:

Eden B. Heilman
Jennifer Coco
Jerri Katzerman
SOUTHERN POVERTY LAW CENTER
1055 St. Charles Avenue, Ste. 505
New Orleans, LA 70130
(504) 486-8982

FOR THE STATE DEFENDANTS:

J ()an Ellen Hunt
General Counsel
LOUISIANA DEPARTMENT OF EDUCATION
P.O. Box 94064
Baton Rouge, LA 70804-9064
(225) 342-3572

FOR THE DEFENDANT-INTERVENOR, ORLEANS PARISH SCHOOL BOARD:

Wayne T. Stewart
Robert L. Hammonds
HAMMONDS, SILLS, ADKINS & GUICE, LLP
2431 S. Acadian Thruway, Ste 600
Baton Rouge, LA 70808
(225) 923-3462

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FOR THE PLAINTIFF SETTLEMENT CLASS:

 

Eden B. Heilman

Jennifer Coco

Jerri Katzerman -
SOUTHERN POVERTY LAW CENTER
1055 St. Charles Avenue, Ste. 505
New Orleans, LA 70130

(504) 486-8982

FOR THE STATE DEFENDANTS:

 

John White

State Superintendent of Education
LOUISIANA DEPARTMENT OF EDUCATION
PO. Box 94064

Baton Rouge, LA 70804-9064

(225) 342-3572

 

Joan Ellen Hunt

General Counsel

LOUISIANA DEPARTMENT OF EDUCATION
PO. Box 94064

Baton Rouge, LA 70804-9064

(225) 342?3572

FOR THE DEFENDANT-INTERVENOR, ORLEANS PARISH SCHOOL BOARD:

  

Wayne T. Stewart

Robert L. Hammonds

HAMMONDS, SILLS, ADKINS GUICE, LLP
2431 S. Aeadian Thruway, Ste 600

Baton Rouge, LA 70808

(225) 923-3462

 

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March
So ORDERED this ___________ day of ______________________,
2015.

______________________________
The Honorable Jay C. Zainey
United States District Judge

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