Case Document 1 Filed 10/26/10 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA

 


P.B., by and through his next friend, 

Cassandra Berry; D.B., by and through his 
next friend, Leskisher Luckett; N.F., by and 
through his next friend, Kelly Fischer; A.J. 
by and through his next friend, Rosezina
Jefferson; T.J., by his next
friend, Jeanette Johnson; K.J., by and
through his next friend, Kimberly Jones;
M.M., by and through his next friend,
Nancy McSween; L.M., by and through his
next friend, Shelton Joseph; D.T., by and
through his next friend, Chanell Thomas;
and L.W., by and through his next friend,
Parker, on behalf of themselves and
all similarly situated students,

Plaintiffs, Case No.


PAUL PASTOREK, Louisiana State COMPLAINT-CLASS ACTION
Superintendent of Education in his of?cial
capacity; LOUISIANA DEPARTMENT
OF and LOUISIANA
BOARD OF ELEMENTARY AND

 

SECONDARY EDUCATION,
Defendants.
COMPLAINT
1. This is a class action to vindicate the rights of all New Orleans students With

disabilities ?led pursuant to the Individuals with Disabilities Education Improvement Act of

2004 20 U.S.C. 1400 et seq; 504 of the Rehabilitation Act of 1973 (?Section

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Case Document 1 Filed 10/26/10 Page 2 of 60

504?), 29 U.S.C. 794; and Title II of the Americans with Disabilities Act (?Title 42 U.S.C.
1210rersag.1

.2. In 1975, Congress enacted what is now called the IDEA to protect the educational
rights of the more than eight million students with disabilities in the United States Whose
educational needs were neglected. Section 1 of Act Nov. 29, 1975, PL. 94?142, 89 Stat. 773.
This statute focuses on correcting two evils: the exclusion of children with disabilities from
public schooling and the'provision-of inadequate education to those children already admitted to
the classroom. Pursuant to the IDEA, state educational agencies?like the Defendants? are
required to ensure that schools and school districts have policies and practices in place to ensure
the pro-active identi?cation of students with disabilities. This is known as the ?child ?nd?
mandate. State educational agencies must also ensure that eaCh child with adisability receives an
individualized education plan that is reasonably calculated to confer educational bene?t.
IEPs must include the provision of any related services necessary to ensure that a child makes
academic progress. Related services include counseling, speech therapy and other similar
supports. For some students, IEPs must provide for transitional services to help aide in the
transition from student to productive adult. The IDEA also includes numerous procedural
safeguards to protect children '?om school discipline practices that punish them for behaviors

related to their disabilities.

 

1 Section 504 of the Rehabilitation Act and Title II of the ADA prohibit entities from discriminating against
individuals on the basis of their disabilities, and both laws? anti-discrimination mandates use nearly identical
language. See Section 504 at 29 U.S.C. 794(a) (1973) and Title II at 42 U.S.C. 12132 (1990). The only
meaningful difference between Section 504 and Title II is that Section 504.app1ies only to federally-funded
recipients. Hence, when applying both laws in the context of state actors receiving federal funding for the provision
of elementary and secondary education, the Fifth Circuit has concluded that the rights and remedies under both
statutes are the same, and that both statutes may be used interchangeably. Pace v. Bogalusa City Sch. Bd, 403 F.3d
272, 287-88 (5th Cir. 2005).

 

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3. Students with disabilities are also protected by Section 504 of the Rehabilitation
Act which prohibits entities that receive federal funding?including. state Departments of
Education?from discriminating against people on the basis of their disabilities. section 504 7
mandates that state educational agencies provide students with disabilities with access to the
same educational opportunities that are provided to non-disabled students.

4. Defendants State Superintendent of Education Paul Pastorek, the Louisiana
Department of Education and the Louisiana Board of Elementary and Secondary
Education bear ultimate responsibility for ensuring that every school district and every
school within the state of Louisiana complies with these federal laws. The Defendants have
abdicated this responsibility and as a result, the rights of New Orleans public sChool students
With disabilities are violated in four general ways:

First, students with disabilities are denied admission to public schools on the basis 
of their disabilities because the Defendants have failed to ensure that public schools offer
disabled students the same variety of educational programs and services as are available to non-
disabled children. Thesevpractices constitute nothing less than disability discrimination.

6. Second, students with disabilities are denied the protections and services to which
they are entitled under federal law because the Defendants have not promulgated and enforced a
child ?nd policy that would (1) apply uniformly throughout all New Orleans Public schools and
(2) ensure that all students who are in need of special education services are identi?ed, located
and evaluated in a timely fashion.

7. Third, students with disabilities are denied educational opportunities that confer a

meaningful educational benefit because Defendants have failed to ensure that IEPs are

U.)

 

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developed, reviewed and revised for each New Orleans public school student with a disability,
and have failed to provide access to ?related and transition services. 

8. Fourth, students with disabilities are punished for manifestations of their
disabilities and unlawfully excluded. from educational programs and bene?ts because the
Defendants have failed to implement policies, procedures and practices related to school
discipline that protect these students? federal procedural safeguards and shield them from
discrimination on the basis of their disability.

.9. The Plaintiffs are ten students who represent a class of approximately 4,500 New
Orleans students with disabilities. On behalf of themselves and a class of all similarly situated
New Orleans students with disabilities, Plaintiffs seek declaratory, preliminary and permanent
injunctive relief requiring Superintendent Pastorek, LDE, and BESE to cease their unlawful
policies, procedures, customs, patterns, and/or practices that deprive Plaintiffs and all similarly
situated children with disabilities their statutory rights to (1) receive a free appropriate public
education and (2) be free from discrimination 0n the basis of their disabilities.

JURISDICTION

lO. 1 Jurisdiction is conferred upon this Court 'by 20 U.S.C. l415(i)(3)(A) and-29
U..S.C. 794 which provide the district courts of the United States with jurisdiction over any
action pursuant to the above section(s) without regard to the amount in controversy, and .28
U.S.C. 1331, based upon the federal questions raised herein.

ll. Plaintiffs and the class they represent have no adequate remedy at law and have
suffered and will continue to suffer irreparable harm unless defendants, including their agents,

representatives and/or employees, are restrained from continuing its unlawful practices.

 

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VENUE

12. Venue is proper under 28 U.S.C. 1391(b)(2) because a ?substantial part of the
events or omissions giving rise to the claim[s] occurred? in this district. This Court is authorized
to grant declaratory relief under :28 U.S.C. 2201 and 2202, and injunctive relief pursuant to
Rule 65 of the Federal Rules of Civil Procedure.



A. REPRESENTATIVE PLAIN TIFFS

?13. Plaintiff PE. is a 15?year-old resident of the city of New Orleans, who loves to
play football, listen to music and spend time with his grandmother. He is not currently enrolled
in school, but he~began the 2010?11 school year enrolled in the seventh grade at Pierre A.
Capdau Charter School, a charter school operating as an independent local education agency
P.B. has a diagnosis of bipolar disorder and attention de?cit hyperactivity disorder
(ADHD), and was identi?edas a student with a disability under Section 504. He'brings this
action by and through?his mother, Cassandra Berry. 

14. Plaintiff -D.B. is a nine-year?old resident of the city of New Orleans, who loves to
draw, dance, and learn about history. He is currently enrolled. in the fourth grade at Langston
Hughes Academy Charter School, a charter school operating as an independent LEA. D.B. has
been identi?ed as a student with an emotional disability under IDEA. I?le brings this action by
and through his mother, Leskisher Luckett.

15. Plaintiff NF is a nine?year?old resident of New Orleans, currently enrolled in the
fourth grade at Lafayette Academy Charter School, a charter School operating as an independent
LEA. During the 2009-10 school year, he was enrolled at Mary D. Coghill Elementary School, a

traditional public school in the state-run Recovery School District N.F. loves Dr. Seuss
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books and he likes to sing and swim. He has been identi?ed as a student with multiple
disabilities under IDEA: autism and total visual impairment/blindness. NF. brings this action by
and through his mother, Kelly Fischer.

16. Plaintiff A.J. is a 10-year-old resident of New Orleans, who likes to swim, listen
to music, play video games, and take care of his baby brother. He is currently enrolled in the ?fth
grade at Lagniappe Academy Charter School, a charter school operating as an independent LEA.
During the 2009?10 school year, A.J .1 was enrolled at Albert Wicker Elementary Schoo1, a
traditional public school in the RSD. has a diagnosis of ADHD, and was identi?ed as a
student with a disability under section 504. He. brings this action by and through his mother,
Rosezina Jefferson. I

17. Plaintiff T.J. is a 13-year-old resident of New Orleans, who enjoys playing
football and basketball and who loves spending time working around the house with his
grandfathen He is currently not enrolled in school because his mother is unable to locate a school
placement for him in New Orleans. During the 2009-10 school year, T.J. was enrolled in the
fourth grade .at Fannie C. Williams Elementary School, a traditional public school in the RSD.
TI.J. has .a diagnosis of dyslexia and ADHD, but he has not yet been identi?ed as a student with a -
disability. He brings this action by and through his mother, Jeanette Johnson.

18. Plaintiff K.J. is a 14-year?old resident of New Orleans, currently enrolled in the
eighth grade at Samuel Green Charter SChool, a charter school operating as an independent
LEA. He loves sports, playing video games and spending time with his family. was
identi?ed as a student with a Speci?c learning disability and ADHD under Section 504. He

brings this action by and through his mother, Kimberly Jones.

 

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A 19. Plaintiff M.M. is a seven-year?old resident of New Orleans, currently enrolled in
the second grade at Benjamin Banneker Elementary School, a traditional public school in the
RSD. He has been identified as a student with multiple disabilities under IDEA, including acute
cognitive delays and severe seizure disorder. M.M. is just learning to walk and enjoys
accompanying his mother to their local ?sh market. He brings this action by and through his
mother, Nancy McSween. I

20. Plaintiff L.M. is a 15?year-old resident of New Orleans, who likes to play
basketball, use the computer, and help out around the house; He hopes to join the United States
Army after high school. L.M. is currently enrolled in theninth grade at Sci Academy Charter
School, a charterschool operating as an independent LEA. Duringthe 2009-10 school year, he 
was enrolled'at Joseph A. Craig Elementary School, Dr. Charles R. Drew Elementary SchoOl,
Douglass-Eighth Grade Academy, and Hope Academy, all state?run public schools in the RSD.
L.M. has been identified as a student with an emotional disability under IDEA. He brings this
action by and through his great uncle and legal guardian, Shelton Joseph.

.21. Plaintiff D.T. is a seven-year?old-resident of New Orleans, currently enrolled in
the second grade at Fannie C. Williams Elementary School, a traditional publicschool in the
RSD. During the 2009?1 ?0 school year, he was enrolled at Langston Hughes Academy Charter
SChool, a charter school operating as an independent LEA. D.T. loves totake karate, play video
games, and go to the park with his mother and grandinother. He has been identi?ed as a student
with an emotional and behavioral disability under Section 504. He brings this action by and
through his mother, Chanell Thomas.

22. Plaintiff L.W. is a 16-year-old resident of New Orleans, who likes to fix broken

things and help his grandmother out around the house. .He hopes to be a policeman after 
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completing school. L.W. is currently enrolled in the ninth grade at KIPP Renaissance High
School, a charter school operating as an independent LEA. During the 2009-10 school year, he
attended KIPP Believe College Prep, a charter school operating as an independent LEA, and
Douglass Eighth Grade Academy, a traditional public school in the RSD. L.W. has been
identi?ed as a student with Other Health Impairments (OHI) under IDEA. He brings this action
by and through his grandmother and legal guardian, Parker.
B. DEFENDANTS

23. Defendant PAUL PASTOREK is the Louisiana State Superintendent of
Education. As State Superintendent, Defendant Pastorek serves as the executive head and chief
administrative of?cer of the Louisiana Department of Education, and has responsibility for
implementing educational policies for the administration, control, and operation of the functions,
programs, and affairs of the Department. La. 36:644. The State Superintendent also
executes and implements those educational policies and pro grams. under the supervision and
control of the Louisiana Board of Elementary and Secondary Education and the laws affecting
schools under the jurisdiction of theBoard. La. RS. 17.222. Defendant Pastorek is sued here in
his of?cial capacity. 

24. Defendant LOUISIANA. DEPARTMENT OF EDUCATION is
responsible for providing public education for the people of the state of Louisiana and is the
agency through which the state administers. the functions of the superintendent of education and
the Board of Elementary and Secondary Education. La. RS. LDE is also
responsible for performing the state?s responsibilities relating to the education of exceptional
children, including the administration and distribution of all federal funds received, in

accordance with the law. La. R.S. 36:649. See also La. R.S. 17:24. As the state educational
. 8 . . .

Case Document 1 Filed 10/26/10 Page 9 of 60

agency LDE has the ultimate responsibility for ensuring that all public schools in the
state of Louisiana comply with the IDEA. 20 U.S.C. 1412(a)(11)(A). Pursuant to La. RS. 63'
362642, LDE has the authority to sue and be sued. LDE is sued here in its of?cial capacity.

25. Defendant LOUISIANA BOARD OF ELEMENTARY AND SECONDARY
EDUCATION is responsible for the oversight of the Louisiana Department of
Education and the Louisiana Recovery School District. 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,
which shall not be inconsistent with state and federal law, pursuant to La. R.S. 17:7. Pursuant
to La. R.S. 17:10.5, BESE functions as the local school board for the traditional public
schools, promulgating and enforcing local policy and supervising the Superintendent. Pursuant to
La. R.S. 17.6, BESE has the authority to sue and be sued. BESE is sued here in its of?cial
capacity only. 0

CLASS ACTION ALLEGATIONS

26. Pursuant to Federal Rules of Civil Procedure 23(a) and the Plaintiffs bring
this action on behalf of themselves and all other present and future New Orleans students who
are identi?ed or who should be identi?ed as students with disabilities pursuant to the Individuals 
with Disabilities Education Improvement Act of 2004 20 U.S.C. 1400 at set};
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and Title II of the Americans
with Disabilities Act (?Title 42 U.S.C. 12101 et seq. 

27. The proposed class is so numerous that joinder of all members is impracticable.
The class members include the approximately 4,500 New Orleans students with disabilities (both

identi?ed and unidenti?ed) who are currently enrolled in public school and the countless
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students with disabilities who will enroll in the future. Given the number of youth who are
members of the proposed class, joinder is not just impracticable it is impossible.

28. There are questions of law and fact common to the class. These common
questions include whether the Defendants have violated the IDEA, Section 504, and Title II. 

29. The claims of the Plaintiffs are typical of the claims of the proposed class in that
the named Plaintiffs, like other members of the class, allege ?that LDE and BESE have failed to
comply with their obligations pursuant to the IDEA, Section 504, and Title 11. As a result, the
Defendants fail to ensure that class members are properly evaluated and identi?ed for special
education services. Class members are also denied a free appropriate public education, meaning
they do not receive individualized education plans (lEPs) that provide appropriate related and
transitional services and that are reasonably calculated to confer educational benefit.
Furthermore, the Defendants fail to protect class members with the required precedural
safeguards related to school discipline. Finally, the Defendants fail to ensure class members are v,
not discriminated against on the basis of disability and are provided access .and accommodations
to the same programs and services as equally as they are available to non-disabled students.

30. The Plaintiffs will-fairly and adequately represent the interests of the class. The
Plaintiffs possess a strong personal interest in the subject matter of the lawsuit, and are
represented by experienced counsel with expertise in special education and disability'law, class 7
actions, and civil rights litigation. i

31. Defendants have acted and refused to act on grounds generally applicable to the
class. LDE and BESE have failed to comply with their general supervisory responsibilities by
failing to appropriately monitor, identify, and compel the New Orleans public schools to

eliminate the numerous systemic violations of IDEA, Section 504 and Title II. Defendants?
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customs, policies, procedures, patterns and/or practices have a similar impact upon the plaintiffs
and the class they seek to represent. Correction of these violations will bene?t all class
members. The relief sought herein applies to the class as a whole and not merely to any
particular individual or group of individuals.
NEW ORLEANS SCHOOL GOVERNANCE FRAMEWORK

(32. As a result of the unique structure of public education in New. Orleans, students
with disabilities face insurmountable Challenges when attempting to access educational services.
Under federal law, special education services are administered by a local education agency
(?LEA?)?traditionally a single school serves as the centralized point of authority
and accountability for schools. As a result of the education reforms that occurred in the city
during the aftermath of Hurricane Katrina, no such single entity exists in New Orleans.

33. Immediately following Hurricane Katrina, the state-operated Recovery School
District a division of the LDE that is overseen by BESE, became responsible for
roperating low performing schools that were previously run by the Orleans Parish School Board
Under this new structure, OPSB retained control of 16 schools including 12 charter

schools. RSD gained control of all other schools. Once a public school is transferred to the
it can be Operated by a private entity known as a charter school.

34. Currently, the RSID directly operates 23 schools and has overseen the chartering
of 49 schools. Each of these 49 schools operates as its own LEA. There are 51 distinct LEAs
that operate?within the city of New Orleans. Over 70 percent of New Orleans public students
attend charter schools?more than anywhere else'in the country. Stacy Teicher Khadaroo,

A?er Katrina, How Charter Schools Helped Recast New Orleans Education, Christian Science

Monitor, August 29, 2010, available at
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Case Dodument 1 Filed 10/26/10 Page 12 of 60

Education/201 0/ 0 82 


35. For purposes of administering special education services, each of these charter
schools functions as an independent school district or LEA. By functioning as an LEA, a single .
charter school assumes the responsibility of an entire school district. Under federal law, the
Defendants must ensure that each charter school has the appropriate resources, policies and
procedures to provide the full panoply of special education services ?om evaluations to related
services and supports.

STATUTORY AND REGULATORY FRAMEWORK
A. IDEA REQUIREMENTS .

36. i The Individuals with Disabilities Education Improvement Act of 2004 (IDEA),
requires that a state providea free appropriate public education to. all its students with disabilities
including children With?disabilities Who have been suspended or expelled .?om school. 'See 20
1412(a)(1)(A); 34 C.F.R. 300.101. The IDEA establishes a system of procedural and
substantive requirements to which the state educational agency must adhere to ensure that each
child witha disability receives afree appropriate public education. 20 U.S.C. 1401 et seq.

37. The state educational agency has the ultimate responsibility for ensuring that all
public schools in the state of Louisiana comply with the IDEA. 20 U.S.C. 1412(a)(11)(A).
Accordingly, LDE and BESE are responsible for implementing policies and procedures to ensure
that LEAs are monitored for implementation and compliance With the IDEA. 34 CPR. 
300.600. If the state'determines that. an LEA is not in compliance, the IDEA requires the state to

take necessary action to enforce compliance. 34 300.608.

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I

38. In addition to their general supervisory responsibilities, LDE and BESE have the
responsibility to ensure implementation and compliance with speci?c provisions of the IDEA.
First, they must ensure that each LEA take steps to make certain that its children with disabilities
have available to them the variety of educational programs and services available to non-disabled
children in the area served. 20 U.S.C. 1412(a)(2); 34 C.F.R. 300.110. They must also have
in effect policies and procedures to ensure that all children with disabilities, who are in need of
special education and related services, are identi?ed, located, and evaluated. 20 U.S.C. 
1412(a)(3); 34 C.F.R. 300.111. LDE and BESE must ensure that an individualized education
program is developed, reviewed and revised for each child with a disability to enable the
child to receive a free appropriate public education. 20 U.S.C. 1412(a)(4); 34 C.F.R. 
300.112. Finally, they must ensure that children with disabilities are afforded the procedural
safeguards described ?by IDEA when disciplinary action is contemplated. .20 U.S.C.. 
34 CPR. 300.150. IDEA requires the state to examine LEA data to determine if 
signi?cant discrepancies exist in the rates of suspensions and expulsions of children with I
disabilities. If discrepancies exist, the state must review?and revise its policies, procedures and
practices relating to the development of IEPs, the use of positive behavioral interventions and
supports, and procedural safeguards, to ensure that the state is in Compliance with the IDEA. 2'0
U.S.C. 1412(a)(22); 34 CPR. 300.170.

39. As the SEA, Defendants LDE and are jointly responsible for overseeing,
monitoring, and enforcing the coordination and provision of special education services in New
Orleans. This obligation applies to students who attend all publicschools that operate in the city

of New Orleans, including the 49 charter schools that ?inction as 49 independent school districts,

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the 23 schools Operated by the state under the Recovery School District (RSD) and the 12 charter
schools and 4 publicly run schools operated by the Orleans Parish School Board.
B. SECTION .504 AND TITLE II REQUIREMENTS

40. Section 504 of the Rehabilitation Act and Title II of the Americans with
Disabilities Act prohibit public entities from discriminating against individuals with disabilities.
Pursuant to Section 504 and Title 11, public schools are prohibited from excluding students with
disabilities ?om participating in, or receiving the bene?ts of a school?s programs, activities, and
bene?ts] To the extent a student is excluded from programs, activities, and bene?ts, it 
constitutes disability discrimination. 42 U.S.C. 12132; 29 U.S.C. 794(a). Accordingly, each
student with a disability must be provided access to all programs provided to non?disabled Ir
students. 42 U.S.C. 12132; 29 U.S.C. 794; 34 CPR. 104.21. Furthermore, SectiOn 504
and Title II require that each disabled student be proVided reasonable accommodations and
modi?cations designed to provide meaning?tl access to educational bene?ts, or as necessary to 
avoid discrimination on the basis of disability 34 C.-.FR. 104.33; 28 CFR. 

41. Section 504 and Title nearly identical anti-discrimination mandates apply to
quali?ed individuals with disabilities. In the elementary and secondary. education context, the 
term ?quali?ed individual?l refers to

a handicapped person of an age during whichnonhandicapped persons are provided

[public preschool elementary, secondary, or adult educational services] (ii) of any'age

during which itfis mandatory under state law to provide Such services to handicapped

persons, or to whom a state is required to provide a ?'ee appropriate public education

under [the 34 CPR. 104.3 (1980). .

42. Furthermore, Section 504 and Title II de?ne ?disability? as ?a physical or mental

impairment that substantially limits one or more of the major life activities.? 42 U.S.C. 

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12102(2) (2008); 29 U.S.C. 705 (1973). Quali?ed students with disabilities can demonstrate
that their state education agency discriminated against them pursuant to the following analysis:

The plaintiff-student is disabled, according to the common de?nition;

The plaintiff-student is otherwise quali?ed to participate in school activities;

State education agency receives federal ?nancial assistance; and

The plaintiff-student was excluded from participation in, denied the bene?ts of, or subject
to discrimination at the school.



43. Section 504 also mandates that each child with a disability in New Orleans
receive a ?ee appropriate public education including the provision of regular or special
education and supplementary aids and services to meet the needs of the student. 20 U.S.C. 
794; 34 CPR. 104.33.

44. The United States Department of Education?s Of?ce for Civil Rights (OCR) has
routinely determined - that, as recipients of federal ?nancial assistance, the state educational
agency is ultimately responsible for ensuring the provision of a ?ee appropriate public education
to each quali?ed person in?its jurisdiction under Section 504. Individuals with Disabilities Educ.
L. Rep, 352:627-631, 628-29, OCR Ruling: Complaint No. 03-88-1024 West Virginia
Department of Education.

C. STATE REQUIREMENTS I

45. LDE and obligations to students with disabilities under IDEA, Section
504 and Title II are reinforced in Louisiana state law. Pursuant to RS. 17:1941, the state
educational agency has. a duty to

provide a free appr0priate public education to every child with an exceptionality who

is a resident therein. Out of recognition that included within any population one will ?nd

some children who require special education and related services, it is the purpose of this

Chapter to provide for a ?exible and uniform system of special education for all children

requiring such services; to provide a ?exible and nondiscriminatory system for

identifying and evaluating the individual needs of the child; to determine the
appropriateness of the special education services; to conduct a periodic evaluation of the

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services and their bene?t to the child; to prevent denials of equal educational

opportunities on the basis of national origin, sex, economic status, race, religion, and

physical or mental disabilities/impairments or other exceptionalities in the provision of

free appropriate public education; and to provide such special education services herein

described and related services in the least restrictive educational placements.
SYSTEMIC ALLEGATIONS AND EXHAUSTION OF ADMINISTRATIVE REMEDIES

46. The Plaintiff class hasdetailed widespread systemic failures of IDEA compliance. I
As a result they are not required to exhaust their administrative remedies available under the
I IDEA. Given that the administrative system cannot provide the Plaintiff-class with the requested
class-wide declaratory and injunctive relief, exhaustion would be futile.

STATEMENT 

747?. Defendants systemically deny New Orleans students with disabilities a free
public education by failing to ensure that the educational programs provided to I
public .schoOl students in Orleans Parish meet the requirements of the IDEA, Section 504, and
Title II. i

48. Since the New Orleans public schools were restructured over ?ve years ago, the
Defendants have conducted only two cursory monitoring visits. The Defendants assessed IDEA
compliance in only 10 out of ?59 local education agencies operating across the city. Despite the
serious de?ciencies in the scope of the Defendants? monitoring, these. Visits documented
substantive IDEA violations. Nevertheless, the Defendants have failed to compel New Orleans
public schoolsto comply with federal law by pr'omul gating and enforcing policies and practices
that would ensure compliance. 

49. Defendants have further failed to provide suf?cient oversight and monitoring of

the special education services provided in New Orleans? 51 LEAs. As a result of Defendants?

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failures, New Orleans students with disabilities suffer the following systemic violations of
federal law: 1) discrimination on the basis of disability and denial of access to educational
services; 2) failure to develop and implement child find procedures; 3) failure to provide a free
and appropriate education that confers a meaningful educational bene?t; andv4) failure to provide
students with discipline-related procedural safeguards.

A. SYSTEMIC VIOLATION 1: DISCRIMINATION ON THE BASIS OF
DISABILITY AND DENIAL OF ACCESS TO EDUCATIONAL SERVICES

50. The New Orleans public Sohool system is built around the concept of ?school
choice.? As. stated on Defendant website basic belief inherent in public charter
schools is that parents, students; and teachers would be more likely to achieve success when they
choose where they go to school or where they work. For parents and students, this allows them
to choose schools that more appropriately met the needs of Children.? (available at


.51. Defendants fail to provide students with disabilities with the same educational
choices provided to non?disabled students. Because the Defendants have failed to execute their
general supervisory authority, many local education agencies are unable or unwilling to provide
Ispecial education and related services. As a result, students with disabilities are unlawfully
denied admission to schools solely on the basis of their disabilities.

I 52. While non-disabled students can choose froma wide. variety of public schools,
studentswith disabilities have signi?cantly limited options and can only attend those schools that
(1) arewilling to accept students with disabilities and (2) provide related services and necessary

accommodations.

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Case DocUment 1 Filed 10/26/10 Page 18 of 60

53. The Defendants have failed to promulgate and enforce policies and practices that
will ensure each local education agency operating in Orleans Parish Offers students with
disabilities the same educational programs and services available to non-disabled students.
Because the Defendants have failed to provide local educations agencies with suf?cient training,
monitoring, and compliance oversight, students with disabilities are refused admission to public
schools because of their disabilities. Some students with disabilities are admitted to public
schools, but are counseled to leave once their disability begins to manifest. All students with
disabilities have signi?cantly fewer school choice Options than their non?disabled peers.

.54. Children with disabilities are signi?cantly underrepresented in many public
schools in New Orleans. Students with disabilities comprise 12.6 percent of the student
population in the 'RSD?direct run schools. Charter schools enroll signi?cantly fewer students
with disabilities?on average 7.8 percent of charter school students have disabilities. Louisiana
Department of Education, State Special Education Data Pro?le (2008-2009), available at
17133 .pdf. Eleven charter schools reported that ?ve
percent or less of their student population is comprised of students with a disability.

55. When charter schools violate their contractual obligations and deny enrollment to
children with disabilities, Defendant LDE fails to take appropriate action to remedy this
violation. For example, Pierre A. Capdau Charter School enrolled a student body comprised of .
just over three percent of students with disabilities. Instead of enforcing the federal obligations to
ensure that a school provides equal access to disabled students, in 2010 LDE granted Capdau a
three-year charter extension because it met academic performance standards.

56. Had LDE investigated the exclusion of students with disabilities at Pierre A.

Capdau Charter School it would have uncovered the plight of students like Plaintiff P.B., who is 
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identi?ed as a student with a disability under Section 504. ?On October 3, 2010, a school
administrator told his mother that P.B. was no longer welcome to return to school because of a
manifestation of his disability. Since that time, mother has attempted to locate a New
Orleans public school that will enroll him. Every school has turned her away and PB. remains
out of school to this day. 
57. Plaintiff T.J., a student with dyslexia and ADHD, has also been denied admission

to a. number of schools that post 10w enrollment rates for students with disabilities. mother
attempted to enroll him in AP. ?Tureaud Elementary School, Nelson Elementary School,
Abramson Science and Technology Charter School, Sarah T. Reed Elementary School, and -
Gentilly Terrace Charter school. All ?ve schoolsrefused to enroll T.J. because of his disability.
He is currently not attending school. i I

58. Plaintiffs NHF, who has autism and a complete visual impairment, and M.M., who
has acute cognitive delays and a severe seizure disorder,were informed by several public school
of?cials that their schools could not accommodate students with Severe disabilities. 

59. M..M, who is wheelchair?bound, wanted to apply to the Lafayette Academy
Charter School. However, the school?s facilities are not Wheelchair aCcessible?so his
application would have been futile.

B. SYSTEMIC VIOLATION 2: FAILURE TO DEVELOP AND INIPLEMENT 
CHILD FIND PROCEDURES

60. The Defendants have failed to promulgate and implement policies, practices and
procedures to ensure that New Orleans students with disabilities are identi?ed, located and-
evaluated. In an average Louisiana school district, 12.2 percent of all students are identi?ed as

having disabilities. Louisiana Department of Education, Special Education Performance Pro?le

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(2008-09), available at In contrast, only 8 percent
of public school students in New Orleans are identi?ed as eligible for special education services.
Similar school districts across the country have identi?ed almost twice the number of . students
. with disabilities. As a result of the Defendants? failures, children with disabilities remain
unidenti?ed and they are denied the educational services and procedural safe guards to which
they are entitled under federal law.

A 61. A survey conducted by Educational Support Systems, Inc. Survey?) further
documents systemic child ?nd Violations in New Orleans public schools. The survey evaluated
the special education programs and services of 23 New Orleans charter schools. The survey
?nds that ?an astonishing number of 504 plans? have been developed in New Orleans in .
comparison to other urban jurisdictions, and ISpecial education coordinators at several sChools
?estimated that at least 30% of students with 504 plans would qualify for special education
I eligibility.? EducatiOnal Support Systems, 'lnc., The Special Education Project: A Study of .23
Charter Schools in the Recovery School District (2008). Local education agencies have fewer
legal obligationsto students who are only identi?ed pursuant to Section 504. The ESS survey
suggests that schools under?identify students with disabilities in a effort to escape their legal
obligations under the IDEA.

62. . The report concludes that ?the unusual application of 504 plans. suggests a.
possible misinterpretation and use ?of Section 504 of the Rehabilitation Act and could make
charter schools liable for failure to conduct Child Find and provide aFree Appropriate Public
Education (F APE) under IDEA as de?ned by special education regulations.?

'63. In the absence of signi?cant policy modi?cations, training, oversight and

monitoring, Defendant child ?nd policies cannot be implemented in the majority of the
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local education agencies located in New Orleans. Pursuant to LDE policy each charter school
must ?regularly employ certi?ed pupil appraisal personnel to conduct individual evaluations?
and ?retain full responsibility for the individual evaluation.? Quali?ed pupil appraisal personnel
includes: assessment teachers/educational consultants/educational diagnosticians, certi?ed
school quali?ed school social workers, speech/language pathologists, adapted
physical education teachers, audiologists, certi?ed school nurses, and occupational therapists.
The Defendants have failed to ensure that local education agencies have the resources and
expertise to perform necessary evaluations. As a result, many charter schools refer students to the
RSD for evaluations. I

64. Yet even at the RSD, which is directly run by-Defendant LDE, Defendant 
child ?nd procedures are, unworkable. Students referred to they RSD for initial evaluations
frequently must wait mOnths before an evaluation occurs?losing valuable educational time
during the wait.

65. Defendant child ?nd policy further charges a local education agency with
the responsibility to document ?child ?nd. activities for students who are enrOlled in an
educational program operated by or under the jurisdiction of a public agency; (2) enrolled in a
private school program within the geographic jurisdiction of a public agency; and (3) not
enrolled in school. i

66. The child ?nd policy fails to recognize that New Orleans lacks a public agency
that has jurisdiction over all students residing in?the geographic area. New Orleans is the only
geographical region in the state in which students cannot receive child'?nd services until they are
actually admitted and enrolled in a public school. The Defendants have further failed to appoint a

public agency that is responsible for evaluating students who are homeless, migrant or who
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attend private schools. As a result, many children with disabilities are unidenti?ed because no
appropriately-resourced local entity bears responsibility for ensuring compliance with the child
?nd mandate.

6'7. . The Defendants? failure to comply with child ?nd mandate causes
irreparable harm to a number of the named Plaintiffs. D.T. is a seveneyear-old who has been
denied access to educational services as a result of the Defendants? failure to comply with
child ?nd mandate. While 'he was identi?ed as a student with an emotional and
behavioral disability under Section 504 of the Rehabilitation Act during the 2008-09 school year,
Langston Hughes Academy Charter School ignored clear indiCations that he should be evaluated -
for eligibility for special education services under the IDEA. behavioral manifestations
signi?cantly affected his academic performance, and he has persistently failed" to make
educational progress. Because he is unidenti?ed as a studenteligible for IDEA services, D.T.
was'd'enied access to a regular classroom with special education supports, and instead attended
school in the ?in?school suspension?_ room where he was given ?work'packets? that were net
calculated to confer meaningful education bene?t.

68. Plaintiff P.B. is similarly identi?ed as eligible for Services under Section 504. A
July 2010 evaluation diagnosed him with ADHD and bipolar disorder. He is currently repeating
.the seventh grade for the third time and struggles 'to control manifestations of his disabilities. 
DeSpite clear indications that he is eligible for special education and related services under. the
IDEA, he remains unidenti?ed and unable to access the procedural protections to which he is
entitled.

69.? Plaintiff K.J. is identi?ed as a student with a Speci?c learning disability and

ADHD under Section 504. Beginning in 2009, on numerous occasions, his mother requested that
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he be evaluated for special education and related services under the IDEA, but no school has
responded to her request and conducted an evaluation. Kl has been held back in both the sixth
and seventh grades and he is frequently disciplined for manifestations of his disability.

70; Plaintiff . is diagnosed with ADHD and is eligible as a student with a disability
under Section 504. After was suspended for a total of 40 days, mother requested an
evaluation for special education and related services. _Well over one year later, the evaluation has
not occurred. As aresu'lt, who is ten years old, is functioning on a ?rst grade level in
reading.

71.. In 2004, Plaintiff TJ. was evaluated by a private medical provider and found to
have a specific learning disability. New Orleans public schools have wholly ignored this private
evaluation and refused to condUct an educational evaluation to determine his eligibility for
special education services. As a result he ?is several years behind his peers academically and is
repeatedly punished for manifestations of his disability. I
SYSTEMIC VIOLATION 3.: FAILURE. TO PROVIDEA FREE APPROPRIATE 

PUBLIC EDUCATION THAT CONFERS A MEANINGFUL EDUCATIONAL

BENEFIT . - 

72. In order for a child witha-disability to receive afree appropriate public education, 
the child must receive special education and related services designed to confer education-
bene?t. Federal law requires the development of an individualized education plan. (IEP) in order
to ensure that students with disabilities. received educational bene?t.

73. IEPS must include (1) a statement of the student?s present levels of academic
achievement and functional performance; (2) a statement of measurable annual academic and
functional goals; (3) a description of how the'student?s progress will be measured, and when

periodic progress reports will be provided; (4) a statement of the special education and related
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services that will provided to the student; (5) an explanation of the extent, if any, to which the
student will not participate in regular classes; (6) a statement of any individual appropriate
accommodations necessary to measure the academic achievement and functional performance of
the student; (7) the projected start date for any related services; and (8) transition services for
students who have reached the age of 16. 20 U.S.C. l4l4(d)(3).

74. An IEP is considered reasonably calculated to. confer educational bene?t if it is
?likely to produce progress, not regression or trivial educational advancement.? In short, the
educational bene?t that an IEP is designed to achieve must be ?"meaning?l Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d'245, 247-48 (5th Cir. 1997) I 

75. Related services are also ,a fundamental aspect of a free appropriate public
education. Federal law mandates that related services, including transportation, developmental, 
corrective, and other supportive services such as speech language therapy, 
services, physical and occupational ?therapy, social work services, counseling serviCes,
orientation and mobility services, and medical services be provided as needed to assist a child to
bene?t from special. education. 20 ULSC. 1401(22). To the extent these services assist a child
in receiving an appropriate education, schools are required to make these services available at no
cost to the student. I i

76. Students with disabilities aged 16 years and older are also entitled to receive
transition services that Will help them transition from school to adulthood, by focusing on 
deve10ping skills needed for employment, post-secondary education, vocational training, or
independent living. 20 U.S.C. 1401(34); ?34 CPR. 300.43. The student?s IEP team is

required to develop a transition services plan in the IEP.

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77. Because the Defendants have failed to promulgate and enforce policies that
. ensure the development and implementation of individualized education plans, related services,
and transition services that confer meaningful bene?t, New Orleans students with disabilities are
denied a free appropriate public education.

78. The abysmal graduation and school completion rates?for students with disabilities
who are enrolled in the RSD underscore the Defendants? failure to ensure that these students
receive educational bene?t. On. average, across the state of Louisiana, 19.4 percent of all students
with disabilities graduate with a diploma. In comparison, only 6.8 percent of RSD students with
disabilities graduate with .a high school diploma. Almost 50 percent of RSD students with
disabilities fail to complete school?a number much higher than the state average of 31.4
percent. Louisiana Department of Education, Special Education Performance Pro?le (2008- 09),
available at http: doe. state. la.us/lde/eia/21 15 ..htm1 I

'79. A The above-referenced ESS Survey documented numerous IDEA violations related
to educational bene?t. Out .of 60 relevant ?les, 37 percent indicated that the students were
funCtioning ?well below grade level.? An additional 49 percent of the ?les indicated student
functioning in the ?below grade level? rangemclear evidence that many ?students eligible for
special education are not making academic progress. Despite low academic achievement, at
least 60 percent of students With disabilities surveyed had the cognitive potential to achieve at
grade level. Educational Support Systems, Inc., The Special Education Project-A Study of 23
Charter Schools in the Recovery School District (2008).

80. The results of the eighth grade Louisiana Educational Assessment Program
also demonstrates the Defendants? failure to ensure that New Orleans public school

students with disabilities are provided educational bene?t. In 2007-08, 94.6 percent of all RSD
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eighth grade students with disabilities failed the LEAP assessment. During the same year, 78.37
percent of all eighth grade charter school students with disabilities failed the test. LDE has
documented that most of the students who failed the eighth grade LEAP were functioning
anywhere from two to seven grade levels below the eighth grade in reading and in math.

81. Defendant LDE monitored the New Orleans public schools for IDEA compliance 
and discovered wide?spread, systemic inadequacies in IEP development. Despite this fact, LDE
has taken no action'to ensure that IEPs developed by New Orleans Public Schools are reasonably
calculated to confer educational benefit. I

82. . The ESS Survey found that many schools failed to provide the appropriate related
services to students with disabilities, specifically students with emotional disabilities. Each of
the schools surveyed described the overwhelming need for mental health support for its students.
Still, only 15 of the 23 schools provided social work-or counseling as a related service, and one
school reported proViding no related services at all. Six schools surveyed rely on the RSD for
the provision of related services. All six! . reported that RSD .clim'cians infrequently
communicated and collaborated With them, sporadically attended VIEP meetings, and failed to
communicate with the teachers to ensure that service delivery related back to the classroom and
learning. The survey further concluded that the number of speCial education students receiving-
Counseling as a related service was substantially low, especially considering that many New
Orleans students live with trauma caused or exacerbated by Hurricane Katrina. Educational
Support Systems, Inc., The Special Education Project: A Study of 23Charter Schools-in the
Recovery School District (2008). I 

83. The ESS Survey also documented that students with-disabilities in?New Orleans

received very limited transition services as part of their IEPs. The report cites the overwhelming
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lack of vocational programs, internships, and resources available in New Orleans to support
special education students in need of transition services.

84. When Defendant LDE conducted focused monitoring of the RSD and charter
schools in February 2009, it reported similar ?ndings. The monitoring team reviewed 27 records
of RSD students ages 16 years and older and discovered that only nine of the 27 were found to
have coordinated, measurable, annual IEP goals and transition services that would reasonably
enable the students to meet-postsecondary goals. For the charter schools, nine student records
were reviewed and only two of the nine students had coordinated, measurable, annual IEP goals
and transition services that would reasonably enable the students to meet postsecondary goals.
When the monitoring team conducted their follow-up'visit in March 2010, it again documented
evidence of continuing noncompliance. .

85. Named Plaintiff N.F. arrived in New Orleans from Indiana with an IEP that
speci?ed that he required individualized paraprofessional support and related services including
social work and counseling servicesas well as. orientation and mObility services. New
Orleans school had a copy of the IEP .and understood its obligation to provide N.F. with these
services. But the school informed mother that it was too shortestaffed and could not
provide him with related services. As a result, mother was ferced to attend school with 7
him each day to help him navigate his surroundings

86. Plaintiff D.B. is nine years old, yet he ?inctions on ?rst grade level in language
arts and on kindergarten level in social studies. IEPs reveal why he struggles to make any
academic progress. For the past several years, his IEPs have lacked any discussion of his
and contained no description of his current level of academic achievement and

functional performance. The goals contained in his IEPs are immeasurable, generic, and lack the
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objectives that are required in order to evaluate his progress. The evaluation that determined
D.B. was eligible for special education-services clearly indicates his need for related services?
including counseling. Yet, D.B. has been continuously denied suf?Cient levels of related
services. Since he is not receiving the services he needs, his ?behaviOr has regressed. 
Consequently, D.B. fails to make meaningful academic progress.

87. After Hurricane Katrina, Plaintiff L.M. moved to, Georgia. While there, he was
identi?ed as a student with a speci?c learning disability and emotiOnal disability and determined 
to be eligible for special education services under the IDEA. His Georgia IEP provided that he
receive individualized instructions, behavior modi?cations and supplemental reading services.
When L.M. eventually moved back to New Orleans, the schools here failed to either implement.
his existing IEP or convene an IEP team to develop a new IEP. LM .has attended numerous
RSD direct 'run'and charter school in New" Orleans. Every school has failed to. implement an IEP
or provide him with related services. He has failed to make any academic-progress. At ?fteen
years old, he functions on a second?to?third grade level. A

788. Plaintiff LW. is 16-years old and functioning on .a second grade level in reading
and a ?fth gradelevel in mathematics. His lack of educational progress is directly related to his
inadequate IEPS. 2009 IEP is a hand-written, illegible document that lacks a statement
of measurable goals and objectives, a list of necessary accommodations, or'a description of
special education, relatedservices, and supplementary aids and services to be provided. His
previous IEPs contain goals that are not tailored to his speci?c level of performance or his
Unique needs." Despite exhibiting problem behavior that interfered with his academic progress,
LW. was never provided related services such as social work, counseling, or 

services that would help him obtain some educational bene?t. As a result, L.W. has continued to
28 

 

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struggle academically and he has continued to experience problem behaviors that have prevented
him from achieving his educational, goals.

89. Not one of the named Plaintiffs who is eligible for transition services has been
provided with an IEP that contains adequate transition planning.

D. SYSTEMIC VIOLATION 4: FAILURE TO PROTECT 
PROCEDURAL SAFEGUARDS IN THE DISCIPLINARY PROCESS

90.- In order _to ensure that each child with a disability is provided with a ??ee I
appropriate public education, the IDEA has established a number of procedural safeguards that
must be provided to a student with a disability who is subject to disciplinary removals.

91. After a child is removed from his or her current placement for more than 10
cumulative school days in a school year, procedural protections and services must be provided to
the student. 20 U.S.C. l415(k)(l)(B). .A school cannot impose a long-term suspension or
expel a child if the behavior for which he or she is being disciplined was .a ?manifestation? of his
or her disability. 20 U.S.C. If the child?s. behavior is determined _tobe a
manifestation, the child must be permitted to' return or remain at his current school placement
and-Ibe-provided With behavioral supports in including a functional behavior assessment (FBA) to

. determine the function or cause of the child?s disability and a behavior intervention plan (BIP) to
support and reinforce .a child?s positive behavior. 20 

92. 7 There are certain behaviors for which a school can change a student?s placement
to an ?interim alternative educational setting? for up to 45 days. The behaviors subject to a
possible 45 day change of placement are restricted to incidents of 1) carrying a dangerous
weapon to school; 2) knowingly possessing, using or selling illegal drugs at school; or 3)

in?icting serious bodily injury on another individual at school. Nevertheless, the interim

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Case Document 1 Filed 10/26/10 Page 30 of 60

alterative educational setting must still provide the child a free appropriate public education. The
placement must also include services to address the behavior for which the student is being
suspended. 20 U.S.C. 

93. ?disciplinary protections extend to students who the school knew or should
have known are students with disabilities. If a school is considered to have knowledge that a
child has a disability, the child is entitled to assert?the same disciplinary protections available to
students who have been identi?ed as students with disabilities under IDEA. 20 U.S.C. 
1415(k)(5).

94. New Orleans public school students with disabilities are punished and excluded

from the classroom at rates that are among the highest in the state. New Orleans students with

disabilities are much more likely to be subject to out-of-school suspensions than their non-

disabled peers. Despite the existence of these discrepancies, the 'Defendants? have failed .to revise

and enforce policies, procedures, and practices relating to the development and implementation

of OIEPs, the use of positive behavioral interventions and supports, and the protection of 
procedural safeguards in compliance with federal law. 

95. For the 2008?09 school year, the RSD suspended 26.8 percent of all students with
disabilities?a rate 63 percent higher than the statewide average. Louisiana Department of
Education, Special Education Performance Pro?le (2008-09), available at 
15.ht1nl. 

96. Sadly, many of the New Orleans charter schools posted some of the highest

discipline rates for students with disabilities in the state. Sojourner Truth Academy suSpended

53.8 percent of all students with disabilities?a staggering 228 percent higher than the statewide

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average, and New Orleans College Prep Charter School suspended 52.2 percent of all students
with disabilities? 218 percent higher than the statewide average

97. Some schools? numbers are even more alarming when they are compared with the
out-of?school suspension rates for general education students. For example, FirstLine Schools,
operating Samuel .J. Green Charter School and ArthurAshe Charter School, reported an out?of?
school Suspension rate of 41.5 percent for students with disabilities 153 percent higher than the
. state average, but an out-of?school suspension rate for regular educatiOn students of 30.6 percent.
Similarly, McDonogh 42 Elementary Charter School suspends special education students at a
rate 'of 38.5 percent, .185 percent higher than the statewide average, yet their out?of?school
suspension rates for regular education students is remarkably less at 20.5 percent. - Langston
Hughes Academy-Charter School?s out-of-school suSpension rate for students with disabilities is
30.8 percent, :87 percent higher than the state average. Yet, their out-of-school suspension rate
for general education students is 12.3 percent. Lafayette Academy Charter School ?suspends
special education students at a rate of 22.7 percent, 88 percent higher than the state average,
while regular education students are suspended at a rate of 16.7 percent. The remarkably high
and signi?cantly disproportionate out-of-school suspension rates for New Orleans students with i
disabilities re?ect pervasive noncompliance with disciplinary provisions. Louisiana.
Department of Education, Special Education Performance Pro?le (2008-09), available at


98. The ESS Survey demonstrates the Defendants? failure to enforce policies and
practices that would protect New Orleans students with disabilities from unlawful classroom
exclusions. The survey revealed that when students exhibited behavioral manifestations of their

disabilities, schools frequently failed to intervene with behavior intervention plans. Educational
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Support Systems, Inc., The Special Education Project: A Study of 23 Charter Schools in the
Recoveiy School District (2008).

99. LDE monitored New Orleans public schools in March 2010 and discovered
multiple violations and areas of noncompliance. The monitoring team reviewed the records of
22 students with more than 10 days of out-of-school suspensions (088) and determined that each
of the 22 students were denied continued educational and related services after the 10th day of
suspension in violation of IDEA. Of the 22 students reviewed, 17 of these students did not have
an appropriate behavior intervention plan, and the monitoring team observed that schools were
not implementing positive behavioral supports.

100. The discipline policies in effect in New Orleanspublic schools demonstrate?the
.Defendants? failure to ensure that local education agencies comply with federal law regarding the
disciplinary procedural protections. For example, the discipline policy for Arise Academy
Charter SchoOl states that if a child?s individualized education program does not contain
?disCiplinary guidelines? then the child with a disability is subject to the same disciplinary.
removals as non?disabled children. The discipline policy-for Pride College Prep Charter School
Istatesthat students with disabilities may be subject to the same discipline rules as non-disabled
students. Neither policy makes any mention of a manifestation determination review or due
process protections. Similarly, Martin Luther King Jr. Charter School?s discipline policy states
that disciplinary action for a child with a disability may consist of the same consequences for
regular education students, but if the child is expelled, the parent must sign a manifestation
determination form. These policies directly contradict federal law and demonstrate the schools?
failure to understand and implement the procedural protections of IDEA related to manifestation

determination reviews (MDRs).
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101. Andrew H. Wilson Charter School has a discipline policy that similarly violates
critical components of the IDEA. The policy provides that students with disabilities can be
removed from school for up to 45 days if a student ?represents a safety concern.? This policy is
directly contrary to the IDEA which states that if a- child is found to have carried or possessed a
weapon, possessed or used drugs while on school grounds, or in?icted serious bodily injury upon
another person, that child may be removed ?om school for 45 days or less. 20 U.S.C. 
1415(k)(1)(G); 34 CPR. No child eligible for IDEA services can be removed
from school without (1) due process and (2) a plan for providing educational services in an
interim alternative educational setting during the 45 day removal. 34 C.F.R. 300.53 

102. Lafayette Academy Charter School?s discipline policy states that a child with a"
disability may be suspended for up to 15 days. However, once a child is suspended for more
than 10 days, the IDEA requires a manifestation determination review to determine if the child?s
behavior is related to his disability. 20 U.S.C. 1415(k)(1)(E). IDEA also deems any
suspension in excess of 10 days as constituting a ?change in placement? and requires that the
child continue to receive special education services and have his IEP updated to include a new
?functional behavioral assessment.? 20 U.S.C. Many charter schools,
including Lusher Charter School, Milestone SABIS Charter School, Thurgood Marshall Charter
School, International School of Louisiana, Einstein Charter School, Edward Hynes Charter
School, Benjamin Franklin High School, New Orleans College Prep, and Warren Easton High
School have school discipline polices that entirely-omit the disciplinary protections afforded to
students with disabilities.

103. Plaintiff P.B. has experienced the devastating consequences of the state?s failure

to ensure that IDEA-compliant discipline polices are in place. His school removed him from the
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classroom permanently, telling his mother that he was no longer welcome. The school never
convened a manifestation determination review to determine ?whether the alleged behavior was a
manifestation of disability, nor did they provide him with documentation regarding his
removal or his basic due process rights to a hearing on the matter. As a result, PB. has now been
out of school for over 15 days without educational services or a behavior support plan so that he 
may progress educationally.

104. Plaintiff K.J. has been identi?ed as astudent with a disability under Section 504.
During the 2009-10 school year, was removed from school for well over 10 school days.
Despite these removals, the school never developed a functional behavior assessment or a
behavior support plan to assist -K.J. with his behavior problems. The school also never
conducted a manifestation determination review to determine if behaviors were related to
his disability.

105., During "the 2009-10 school year, A..I. was suspended more than 10 times for a
total of more than 40 school days. His school never conducted a manifestation determination
review and neVer developed a functional behavioral assessment or a behavior intervention plan
in accordance with IDEA. As a. result, he Cumulatively missed over two months of school with
no procedural protections inplace to ensure that he was receiving educational services. -

106. Plaintiff D.B. is a student identi?ed with an emotional disability under IDEA.
. Whenever DI.B. engaged in behaviors that were deemed inappropriate by the school but that were
clear manifestations of his disability, D.B. was punished, sometimes physically, and removed
from the school without the disciplinary protections afforded to him under IDEA. During the
2009-10 school year, he was removed from'school well over 10 days for behavior, yet a

manifestation determination review was never conducted. On multiple occasions, the school-
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resorted to isolation and physical restraints in attempt to control behavior. These
disciplinary practices left D.B. with permanent physical and injuries.

107. Similarly, Plaintiff D.T., a student with an emotional disability, was repeatedly
suSpended from school for behaviors which were manifestations of his disability. During the
2009?10 school year, he received approximately 22 days of out?of?school suspensions, including
10 days of undocumented removals where the school would simply demand that his mother pick
him up from school. Instead of developing a behavior intervention plan based on the principles
of positive behavioral interventions and supports, as required under IDEA, the schOol developed
a ?behavior plan? that required that D.T. spend '80 percent .of the day in in-school?suspension and
then slowly work his way out of this placement. The sChoo?l never conducted .a manifestation
determination review to determine if his behaviors Were related to his disability and never
provided him with the behavior supports he needed tosuoceed in school. 

108. Finally, Plaintiff L.M., a student identi?ed as 'a having an emotional disability,
has been repeatedly suspended and removed from school for behaviors which are manifestations
of his disability and Without the procedural protections he is afforded underIDEA. During the 
2009-10 school year, L.M. received over :30 days of suspensions and was
ultimately expelled, yet his schools never conducted manifestation determination reviews to
determine if his behaviors were related to his emotional disability. Moreover, he never received
a functional behavior assessment or behavior. intervention plan to address his behavioral needs.

NAMED INJURIES I

109. Summarized below are the violations of federal 'law suffered by the named

Plaintiffs as a result of the Defendants failure to comply with their general supervisory

re3ponsibilities by .failing to appropriately monitor, identify, and compel the New Orleans public
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schools to. eliminate the numerous systemic violations of IDEA, Section 504, and Title II. These
violations illustrate the speci?c irreparable harm suffered the Plaintiff class as a result of the
Defendants? failure to comply with federal law.

I Plaintiff BB.

110. RE. is a 15-year-old seventh grade student, who has been identi?ed as a student
with bipolar disorder and ADHD under Section 504. He began the 2010-11 school year enrolled 
at PierreA. Capdau Charter School, but on Sunday, October 3, 2010, a school administrator told
his mother,? Ms. Berry, that RB. was no longer welcome to attend school. Since then, has
been out of school despite his mother?s effort to enroll him in another New Orleans public
school.

111. Pierre A. 'Capdau Charter SchoOl?has had reason to suspect that?P.B. is a student
with a disability who also needs special education and related services under IDEA, but the-
school has failed to exercise its'af?rmative duty to evaluate and provide him with the appropriate
special education services in accordance with federal law. ?20 U.S.C. 1412(a)(3); 34 CPR. 


112. In July 2010, PB. Was evaluated by a local who diagno?d P.B. with
bipolar disorder and ADHD, and requested that his school conduct an educational evaluation to
determine his eligibility for special education under IDEA. mother and grandmother
submitted this evaluationto school of?cials. P.B-. has. struggled to make academic progress. The
school had clear indications that he needed special education services. lDespite these indications

and his mother?s clear request for an evaluation, the school has failed to perform an evaluation.

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113. PB. has also not been provided the free appropriate public education and
necessary a?commodations he is entitled to under Section 504. As a result, he continues to suffer
severe academic deficits.

1114. PB. was held back once in the fourth grade and he has been held back twice in
the seventh grade. As a 15-year-old student in the seventh grade for the third time, it is clear that
P.B. has experienced a multitude of academic setbacks. He is functioning signi?cantly below
grade level and he is failing most of his academic courses. Yet, the school has consistently failed
to provide the necessary accommodations and supports so that .P.B. would be able to receive a
free appropriate public education. I

115. P3. was permanently excluded from his school without due process for allegedly
threatening a'teacher. The school made no efforts to determine if the alleged misconduct was a
manifestation of a disability. Nor did the sChool provide P.B. With his due process rights.

116.. On October 14, 2010?, ?Ms. Berry went to the school to reduest academic
records. School officials toldiheri?that unless she signed a ?withdrawal form? she could not
access her child?s records. Ms. Berry made it clear to school officials that she did not wish to

?withdrawal her son from school, but she was informed that he was no longer allowed to attend
. the school. Desperate to get Son enrolled in another svchool, she signed the withdrawal forrn'so
thatshe could access her son?s records. -

117. Following these events, Ms. Berry and a. parent ?advocate have attempted to

identify and locate .a school for PUB to attend. Ms. Berry and the advocate have contacted
approximately 20 charter schools and the RSD, informing them that PE. is a student with a

disability not enrolled in school. None of the schools have indicated that they have the capacity 

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or willingness to accept him, and the RSD has not returned Ms. Berry?s phone calls. As a result,
he remains out of school and without educational services in violation of federal law.

118. PB. has been out of school and denied educational instruction for over 15 days.
He has been subject to discrimination on the basis of his disability by being excluded ?om 
attending Pierre A. Capdau Charter School, and he has been denied the bene?ts available to
other non-disabled students in New Orleans to choose their educational program in violation of
Section 504 and Title II. I

Plaintiff K.J.

119. is a 14-year-old eighth grade student at Samuel J. Green Charter School. He
was identi?ed as a student with a speci?c learning disability and ADI-ID under Section 504 of
the Rehabilitation Act. KI. has been denied special education and related services in violation
of child ?nd mandate? and he has been denied a free and appropriate public education
under Section 504 and Title n. i I

120. The school has hadreason to suspect that KI is a student With a disability who
also needs special education and related services. under IDEA, but they failed to eXercise their
af?rmative duty to evaluate him and ?pl?OVide him with the necessary special education services in
- accordance with federallaw.? See 20 .34 CPR. 

121. mother has, on numerous occasions during the 2009-10 school year and at
the beginning of the 2010-11 school year, requested that KJ. be. evaluated for special education
services and related services under IDEA. An educational evaluation has still not been initiated

in violation of the timelines and procedures of IDEA.

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122. Because has not been identi?ed under IDEA as a child with a disability and
because the school has failed to provide him with appropriate accommodations under Section
504 and Title II, KJ. continues to experience academic and behavioral dif?culties.

123. During the 2009-10 school year, K.J. received nine documented out of school
suspensions and countless undocumented suspensions for behaviors that were manifestations of
his disability, such as willful disobedience and treating authority with disrespect. He received
?ve suspensions because he had accumulated 1.5 or more behavior ?marks? or referrals in the
course of one week for minor school violations. On a number of occasions, school of?cials
simply demanded that leave the school campus after his disability manifested in behaviors
that violated minor school rules. On those occasions, K.J. was not provided any paperwork or a
formal explanation for?these removals. I

I 124. behavioral dif?culties have continued to manifest during the 2010-11
school year. His schodl has imposed on him four undocumented suspensions and countless
referrals for behaviors directly related to his disability, such as talking in class and causing a
classroom disturbance. I I

125. The school?s failure to appropriately identify and evaluate KJ. for a disability
under IDEA .and the school?s failure to provide him with accommodations under Section 504 and 
Title II has also adversely affected his. academic progress, ultimately resulting in a denial of a
free appropriate public education. He was held back in the sixth grade and seventh grade,
scoring an unsatisfactory on his Louisiana'Educational Assessment Program (LEAP) test in both
English Language Arts (ELA) and Mathematics. He receives failing grades and continues to

exhibit dif?culty reading and comprehending classroom material. school offers an

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academic enrichment program to assist students With their schoolwork but the school
threatened to bar him ?om the program because of behavioral manifestations of his disability.
.126. DeSpite clear evidence that disability prevents him from achieving
academic gains, his school has failed to appropriately identify him and has left him without the
accommodations, services, and protections that would help him achieve academic success.
Plaintiff 
127. Al. is?a lO-year?old ?fth grade student at Lagniappe Academy Charter School.
He has a diagnosis of ADHD, and was identi?ed as a student with a disability under Section 504
of the Rehabilitation Act during the 2008?09 school year. A.J. has been denied special education
and related services in violation of child ?nd mandate, and he has been denied .access to
necessary educational accommodations and modi?cations under Section 504 and Title II. 
128. As a result of his disability, AI. is easily distracted, has dif?culty following
directions, and becomes agitated when forced to. sit-still for extended periods of time. During the
2009-10 school year, Al. was enrolled at Albert Wicker Elementary School, a traditional public
school operated by 'the'RSD. He was suspended more than 10 times for a total of more than 40 i
school days. All of his suspensions were for behaviors related "to his disability, such as running .
in the halls, refusing to sit down, disrespect for authority, leaving the classroom without
permission, and causing a class disturbance. A
129. disability has also contributed to his continuing academic struggles. In
addition to receiving failing grades in almost all of his classes, AI. is functioning well below

grade level in all academic content areas.

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130. Despite his demonstrated need, A.J. has never been provided any behavioral
I-interventions or accommodations such as a functional behavior assessment or a behavior
intervention plan so that he may make educational progress.

131. After observing her son?s continued struggles in school, mother-requested
that the school evaluate him for special education services, and echoed this
request. In December 2009, Ms. Jefferson 'signed a consent form authorizing-an evaluation for
special education services. IDEA requires that the initial evaluation be conducted within 60 days,
of receiving parental consent. The evaluation never occurred.

132. When AJ. began at Lagniappe Academy Charter School in August 2010, Ms.
Jefferson again requested an evaluation for special education services but was told that the
School would not initiate any new evaluations until the school occupies its new building. AJ.
remains unevaluated and unidenti?ed for Special education and related services under IDEA.

Plaintiff T.J.

133. T.J. is a 1.3-year-old ?fth grade student, who has been denied access to public
school because of his disability. T.J.. is not currently enrolled Cir-attending school. From the 2007'?
08 school year through the 2009?10 school year, T.J. was enrolled in Fannie C. Williams
Elementary School.

134. T.J. was evaluated by Daughters of Charity in72004 and determined to have a
speci?c learning disability. For the past four years, T.J. has also manifested behaviors typical of
a child with ADHD and/or possibly an emotional disability. He has dif?culty controlling his
behavior and impulses as well as trouble communicating with peers and adults in an appropriate
manner. Despite these ongoing and severe academic de?cits, T.J. has never been

evaluated to determine if he is a student with a disability under IDEA or Section 504.
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135. TI. was retained twice in the second. grade and once in the third grade. He has.
demonstrated dif?culty learning in school and he receives mostly failing grades. In addition to
his academic struggles, disability makes it dif?cult for him to control his impulsive and
sometimes disruptive behavior. This resulted in disciplinary removals ?om school related to his
disability. On April 1, 2010, he was expelled from Fannie C. Williams Elementary School,
without ever being evaluated for a disability. T.J. was not provided an Opportunity to attend an
alternative school, and therefore he went without educational instruction and services for the
remainder of the 2009-10 school -

136. Beginning the 2010?11 school year, mother has unsuccessfully attempted to
enroll him in a number of schoolsin New Orleans; After speaking With personnel at the
Recovery SchoOl District about schools, Ms. Johnson, who lacks transportation, took
the city bus or walked to ?ve different schools: 'Tureaud Elementary School, Nelson
Elementary School, Abramson Science and, TechnOlogy Charter School, Sarah T. Reed
A Elementary School, and Gentilly Terrace Charter School. All ?ve schools told her that 
could not enroll in their school. Ms. Johnsc'm .has left repeated messages forpersonnel at RSD
about her inability to enroll in school. She has received no response.

. Plaintiff D.T. -

137. D.T. is a seven?year-old second grade student at Fannie C. Williams Elementary
School. He was ?rst identi?ed as a student with an emotional and behavioral disability under
Section 504 of the Rehabilitation Act during the 2008-09 school year while attending Langston
Hughes Academy Charter School. D.T. has been denied special education and related services in
violation of child-?nd mandate, and he has been denied access to necessary educational

accommodations and modi?cations under Section 504 and Title II.
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138. As a result of his disability, D.T. is often impulsive and anxious. He has
dif?culty following directions and ?equently becomes agitated when he feels threatened by
adults. During the 2009-10 school year he received approximately 22 days of out-of-school
suspension: 12 days of documented out-of-school suspensions, and approximately 10 additional
days of undocumented suspensions. During the undocumented suspensions, school of?cials
would request that his mother immediately remove him from the school campus without formal I
notice or documentation of the removal. D.T. received these suspensions for behaviors directly
related to his disability such as disruptive behavior, noncompliance, causing a class disturbance,
leaving school without permission, and refusing to do assigned work.

139. Based on known, disability and behavioral manifestations, Langston
Hughes Academy Charter School has reason to suspect that D.T. is a student with a disability
who also needs Special education and related services under IDEA, but the school has. failed to
exercise its af?rmative duty to evaluate and provide him with the appropriate special education
and related services in accordance with .federal law. 20 U. S. C. 1412(a)(3); 34 CR R. 
300.1 1 

140. DeSpite frequent behavioral manifestations resulting in constant disciplinary
removals from the classroom, D.T. was never provided with the supports and services to enable
him to make-educational progress.

141. In fact, most recent behavior intervention plan, dated May 3, 2010, states
that D.T. will remain in Iii-Slchool-Suspension (ISS) for 80 percent of the day, where he will be
given worlc packets without classroom instruction, and he will be required to slowly work his

way back in to the regular classroom setting. The plan provides no counseling, mental health

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services, or other effective behavioral interventions. Unsurprisingly, D.T. ?s behavior intervention
plan did little address ?3 unique educational and behavioral needs.

142. As a result of the school?s failure to provide D.T. with appropriate educational
services, his behavior has regressed and his academic progress suffered. Over the course ?of the
2009-10 school year, school staff brutally restrained D.T. approximately ?ve times as a
consequence for manifestations of his disability. In December 2009, .a teacher removed D.T.
from the classroomand shoved him into a brick wall with such force that he sustained a head
injury that required medical attention. His mother ?led a report with the New Orleans Police
Department and the Office of Community Services. On three separate occasions, D.T. was
physically removed horn the classroom and dragged down the hallway to the band room where
he was locked in a dark closet and kept there for approximately one hour on each occasion.

.l43. These harmful restraintand seclusion techniques have caused behavior. to
regress. He exhibits aSsociated withtrauma. He has developed an intense fear of
K, school and has nightmares and wets the bed several times per week. The school?s abusive
restraint and seclusion techniques violate speci?c provisions of IDEA that require the use of
positive behavioral interventions and support strategies to address student behavior. 20 U.S.O. 
3'4 C.F.R. 

If Plaintiff NF. 7

144. N.F. is a nine-year?old fourth grade student .at Lafayette Academy Charter School.

He has been identi?ed as a student with multiple disabilities under IDEA: autism and total visual

impairment/blindness.

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Case Document 1 Filed 10/26/10 Page 45 of 60

145. Prior to the 2009?10 school year, NF. attended school in Indiana. His IEP there
complied with IDEA and stated N.F. would receive the assistance of a paraprofessional to
provide him with individualized support in the classroom.

146. Under IDEA, if a child with a disability transfers from another state, the new
school must provide services comparable to those described in the child?s IEP from the previous
school, until a new IEP is developed and implemented. See 34 C.F.R. When NF.
began the 2009?10 school year at John Dibert Elementary School in New Orleans, his mother
met with his IEP team, advised the team of disabilities and requested a child-speci?c
paraprofessional. The school claimed that it was too short?staffed and denied this request. As a
result, mother was forced to attend school with him on a daily basis to help him navigate
the stairs at the school, and to provide one-on-one instruction assistance and support in the
classroom.

147. Frustrated with the lack of services provided to NE, his mother sought a new
placement. She ultimately settled on. Coghill Elementary School, Which had previous experience
serving students with visual impairments. The IEP team there did in fact recognize the extent of
needs. His January 13, 2010 IEP explains that N.F. requires full support throughout the
day and it states that he needs individualised paraprofessional support. Despite the mandate of
his IEP and his mother?s numerous attempts to secure this service from the RSD, N.F. did not
receive his one-one-one paraprofessional support he needed to make academic gains and to
successfully navigate his physical environment.

148. December 3, 2009 evaluation states that he needs related services to help
him develop necessary social skills. However, he is not currently provided any social work or

counseling related services making his academic and behavioral goals and objectives
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impossible to reach. Similarly, total visual impairment reflects a need for orientation and
mobility serVices, but N.F. went for over four months without receiving orientation and mobility
services.

Plaintiff NP. and Plaintiff M.M.

149. As described above, N.F. has autism and total visual impairment. Plaintiff M.M.
is a seven-year-old second grade student, who also lives with multiple disabilities; including
acute cognitive delays and severe seizure disorder. Because of his extensive disabilities, is
non?communicative and has limited mObility. He currently attends Benjamin Banneker
Elementary School. Both NP. and M.M. have been denied access to educational programming
because of their disabilities in violation of IDEA, Section504, and Title II.

- 150. In mid-March 20l0,? and mothertogether visited public
schools throughout New Orleans to determine which schools could best accommodate their
children. Mrs. Fischer and Mrs. McSween quickly discovered that their sons did not have access
to the variety of educational opportunities available to non-disabled students in New Orleans as
required by federal. law. -

?151. ?First, Mrs. Fischer and Mrs. McSween Visited Esperanza Charter School where
they were informed that the school staff lacks the necessary training to serve children with severe
disabilities and that the school staff could not accommodate NF. for M.M. A school staff member
encouraged the mothers to present their son?s IEPs to the school?s Board of Directors so the
Board could consider NP. and Special needs and make anultimate admissions decision.
Both parents completed an application and attached their. sons? IEPs. Neither parent ever

received a response from the school.

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152. Next, Mrs. Fischer and Mrs. McSween visited Samuel J. Green Charter School,
operated by FirstLine Schools, which also Operates Arthur Ashe Charter School. They were
informed that neither Samuel J. Green Charter School nor Arthur Ashe Charter School could
accommodate children with severe disabilities.

153. Finally, Mrs. FiSCher and Mrs. McSween visited Andrew Wilson Charter School.
They were told by school personnel that they would need to meet with the school?s special
education. coordinator to determine whether the school could accommodate or 
special needs. The special education coordinator was unavailable, but the mothers left detailed
messages informing her about their sons? needs. The school failed to respond to either parent.

154. Mrs. McSween, attempted to contact several other schools to discuss the
educational programs and services that could be provided to M.M. She telephoned Audubon
A Charter School twice and asked to speak with the special education coordinator or the faculty
member in charge of Coordinating special education programs. She was told- that there was no
such faculty member at Audubon Charter School. Mrs. 'McSween then visited Lafayette
Academy Charter School. There, she was welcomed by school personnel who appeared
committed to serving children with disabilities, but the? school?s facilities are not wheelchair
accessible so M.M. was again barred from equal educational opportunities.

Plaintiff D.B. 

155. DUB is a nine-year-old fourth grade student at Langston Hughes Academy

Charter School. He has an emotional disability under IDEA. and has been eligible for special

education and related services since the 2007?08 school year.

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156. DE. has not received the individualized education plan (IEP) or related services
that are necessary to ensure that he receives educational bene?t. He has also been unlawfully
removed from the classroom for manifestations of his disabilities.

157. According to his recent IEP, D.B. is functioning well below grade level in all
academic subjects. He functions on a first grade level in English Language Arts (ELA),
mathematics, andscienCe, andhe is on a kindergarten level in social studies. He has clearly
made little academic progress since .he was identi?ed as a student with a disability. This is in
part due to the inadequacies of his IEPs, which have failed to comply with the mandates of
I federal law. I

158. His September 23, .2008 IEP Contains no description of 
discussion of parental concerns, no description of his academic, developmental, and functional
needs, and no real description of his current level of academic achievement and functional
performance. His 2008 and 2009 IEPs list goals that are immeasurable, generic, and that entirely
ignore and weaknesses.

1?59. behavioral needs have been Similarly neglected. His disability manifests
itself inemotional ?meltdowns? that-occurred at school threeto fourtimes per week, increasing
in frequency throughout theicOurs'e of the 2009?10: school year. Despite his increased need for .
interventions, IEP did not change during this time period. The IEP team entirely failed to
address the possible causes of his emotional responses and failed to make. necessary adjustments
to his behavior support plan. Even when adjustments were made to his behavior support plan at
the beginning of the 2010?1l school year, the school has failed to implement the behavior

support plan as written.

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160. As a result of the de?ciencies in IEP, his behavior has regressed and his
academic progress has suffered. D.B. has not been provided with a free appropriate public
education as de?ned by IDEA, largely because his IEPs are not reasonably calculated to confer
meaningful educational bene?t. .

161. evaluation clearly describes his critical need for related services 
speci?cally social skills assistance and counseling. Unfortunately, he has never received
adequaterelated services. During the 2008-09 school year, D.B. received no related services at

all, and during the 2009-10 school year, D.B. received a mere 30n1inutes once a week of
counseling. As behavioral manifestations of his disability increased during the 2009-10 school
year, DB?s-related service levels remained unchanged. The lack of ?related services has
effectively denied him an opportunity to avoid repeated disCiplinary removals from school and
cut short his changesof making any real educational gains. 20 U.S.C. 34 C.F.R..
300.34. I if 

162. D.B. was subject to approximately 15 days of out-o?f-school removals, during the
2009-10 school year as a censeduence fer behaviors that were manifestations of his disability.
Some of these suspensions "were undocumented removals during which the school would call 
mother andask her to pick him up ?rom school for the day. Although DB. was removed
from school forwell over lOcumulative school days, the school. never conducted a manifestation
determination review, nor did it provide him with any educatiOnal services during these unlawful
removals, in violation of IDEA. 20 U.S.C. 1415(k); ?34 C.F.R. 300.530-3 6.

163. DE. was also brutally restrained and held against his will in an isolation room .
approximately 10 times throughout the course of the, school year as a consequence for

manifestations of his disability. Each incident caused D.B. to decompensate. On April 8, 2010,
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DB. was distressed crying and mumbling unintelligibly when the behavior interventionist at
Langston Hughes approached him. initially calmed down, but when the behavior
interventionist began escortinghim to the in-school?suspension (IS S) room, D.B. began to panic.
When he fell to the ?oor sobbing, the behavior interventionist grabbed him by his arms and
dragged him six feet into the ISS room. This was done with such'force that face and
mouth slammed into the ground, chipping his tooth. .After sustaining this injury, D.B. panicked
?irther and the behavior interventionist physically restrained him for. ?fteen minutes before
carrying him toa small, soundproof closet, where he was held for another 30 minutes.

164. Similarly, on May 1.2, 2010, DB. allegedly refused to follow directions. In,
resPonse, the Dean of Students and a paraprofessional physically carried him to the isolation
room. D.B. panicked upon entering the isolation room and the paraprofessional physically
restrained him. The paraprofessional told D.B. that if he was unable to calm down, he would be
handcuffed and tasered. The paraprofessional then sat on top of DB. constricting his breathing
and eventually causing him to urinate on himself. A i

165. These harmful restraint and seclusion techniques have continued during the 2010? 
11 school year causing DB. ?3 behavior to regress, exacerbating his disability and causing him to
fear school. . The school?s abusive restraint and seclusion techniques violate the explicit
provisions of IDEA that require the use of positive behavioral intervention and support strategies-
to address student behavior. 20 U.S..C 34 C.F.R 

Plaintiff L.M.

166. L.M. is a 15-year-old ninth grade student currently enrolled at New Orleans

Charter Science and Math Academy (?Sci Academy?). He is identi?ed as a student with an

emotional disability and he is eligible for special education services under IDEA.
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167. L.M. has failed to receive IEPs reasonably calculated to confer educational
bene?t, and he has not been provided with the types and levels of related services or the
necessary and appropriate transition services to allow him to bene?t ?om special education. In
addition, L.M. has been subject to repeated illegal disciplinary removals without the procedural
safeguards guaranteed by federal law.

- 168. Following his evacuation .?om New Orleans after Hurricane Katrina, L.M.
enrolled in an Augusta, Georgia school. There he was identi?ed as a student with a Speci?c
Learning Disability (SLD). His IEP speci?ed that he was to receive individualized instruction, a
variety of academic and behavioral modi?cations, and pullout reading services. The Georgia
IEPteam also deve10ped a comprehensive behavior intervention plan (BIP).

169. When returned to New Orleans for the 2008-09 school year, he enrolled in 
Joseph Craig Elementary School. His legal guardian, Mr. Joseph, provided the staff at Craig
Elementary with a copy of the Georgia IEP and requested the convening of an IEP team. The
staff failed to comply with these requests, and services and supports were interrupted.
This interruption occurred in violation ef the IDEA which requires the new public agency to
provide comparable IEP services to those received from the out?of?st'ate public agency until a
new IEP can be developed, if necessary. See 34 CPR. 300.323 

170. As a result of the lack of services he received at Craig Elementary, L.M. began to
experience substantial academic and behavioral dif?culties. During the fall 2008 semester, L.M..
failed all of his classes at Craig Elementary, he was recommended for expulsion twice, and he
received over 40 days of out-of?school-suspensions for behaviors that were a manifestation of his

disability. 20 use. 1415(k); 34 can. ?.300.530-36.

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171. On December 17, 2008, L.M. was again recommended for expulsion for an
alleged altercation with a teacher. The student hearing of?Cer expelled L.M., even though the 
school failed to complete a legally required manifestation determination review to determine if
the behavior was a manifestation of his disability. L.M. was assigned to attend Schwarz
Alternative School for the spring 2009 semester. He never attended Schwarz, but instead
returned to Georgia in January 2009 to live with his grandmother until she died in April 2009.

172. After his grandmother?s death, L.M. returned to New Orleans to live with Mr.
Joseph. Shortly following his return in August 2009, L.M. sustained a gunshot wound while
playing outside with his friends. As a result, L.M. was hospitalized at Children?s Hospital for
approximately 30 days. I Children?s Hospital staff conducted a detailed 
evaluation and determined?that L.M. Was in need of comprehensive special education and related
services. In September 2009, Children?s Hospital provided a detailed report to the RSD and
school with extensive recommendations for nocommodations and behavior modi?cation
strategies to assist him in school. The staff at Children?s Hospital even scheduled a meeting with
school personnel at Hope Academy to .review the results of the evaluation and report. i

173. Despite the hospital?s efforts, the school did not develop an updated IEP, and
utterly failed to provide L.M. with special education and related services. As .a result of these
failures, L.M. continued to suffer academic and behavioral setbacks. 'In fact, he was bounced
around to four different RSD schools during the 2009-10 school year before ending up at the
RSD alternative school. He received over 30 days of out-of?school suspension, a
recommendation for expulsion, and multiple school-initiated arrests, yet he was never provided

with the behavior supports and services needed for him to receive educational bene?t.

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174. His records indicate that he has been functioning on the second grade level in
reading and the third grade level in math for several years. He has failed to make any academic
progress while enrolled in school in New Orleans. 

i 175. It was not until May 21, 2010 that L.M. received a new evaluation and IEP.
?While the updated IEP included some provision of related services, consisting of '30 minutes
once per week of counseling and social work and 30 minutes once per week of speech and
language therapy, these levels are inadequate considering the'nature of disability and the
extent of his academic de?cits and behavioral functioning. I

176.? While L.M. was provided with a transition plan as part of his May 21, 2010 IEP,
the plan fails to address his transition needs. The services described on his transition plan are not
speci?c to. post-secondary school interest, nor are they speci?c to his unique 
and abilities. Instead, the transition plan is generic and fails to specify any concrete services to.
allow L.M. to sucCeed in a-post-seco'ndary setting. Consequently, he has been denied appropriate
educational services as a result of the school?s failure to provide the necessary and appropriate
transition services. -

177. Even following. evaluation and subsequent IEP, he has continued to
experience frequent and excessive out-of?school removals for behaviors that are manifestations
of his disability. For the 2010?11 school year, he has alreadybeen suSpended from: Sci Academy
in excess of ten school days. He is currently not being provided his speech and language therapy
related services, and he has been excluded ??om participation in school events solely on the basis
of his disability in violation of Section 504 and Title II. school recently received
recognition from Oprah Winfrey and the students were permitted to attend a screening of the

presentation in a nearby auditorium. L.M. was not permitted to attend because of his emotional
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disability. School of?cials left him behind at the school while the other students were given the
opportunity to participate in the-event.
Plaintiff L.W.

178. L.W. is a 16-year-old?ninth grade student currently enrolled at KIPP Renaissance
"High School. He is diagnosed with ADHD and is identi?ed as eligible for special education
services under IDEA. .

179. L.W. has not been provided with IEPS reasonably calculated to confer educational
bene?t, nor has he been provided the appropriate related, services or transitional services in
violation of IDEA. In addition, the schOol has failed to conduct his reevaluation in accordance
with the timelines and procedures mandated by IDEA.

180. L.W. began the 2009-10 school year enrolled at KIPP Believe College Prep.
When it came time for L.W. to undergo his triennial reevaluation, KIPP Believe failed to.
reevaluate L.W. in accordance with the timelines and procedures mandated by IDEA. 20 U.S.C.
1414(a)(2); 34 CPR. I

.181. AlthoughKIPP Believe-received parental consent for a full evaluation in all areas
of suspected disability on August 28, .2009, the eVaIuation had not been completed when LW.
'Withdrew from KIPP Believe in January 2010. In fact, educational records indicate that
KIPP Believe failed to secure the necessary personnel to conduct evaluation.

182. After L.W. left KIPP Believe andenrolled in Douglass Eighth Grade Academy, a
traditional RSD-run school, on March 2010, his grandmother and guardian gave written
consent fOr afull evaluation. The evaluation was conducted and disseminated on June 4, 2010,
and it changed eligibility ruling from Other Health Impaired (OHI) to Mild Mental

Disability. Yet, the results of the evaluation were never reviewed with grandmother and
54

 

Case Document. 1 Filed 10/26/10 Page 55 of 60

1?

she was unaware of the change in eligibility until an IEP meeting that was recently held on
October 18, 2010. The school?s failure to review the results of the evaluation and the change .in
eligibility determination violate theievaluation procedures required in accordance with IDEA.
See 34 C.F.R. 300.306.

183. L.W. has also not been provided with IEPs reasonably calculated to confer -
educational bene?t. His October 2009 IEP from KIPP Believe is a handwritten, illegible
document that fails to meet IDEA criteria. See 34 CPR. .3 00.323. Speci?cally, the IEP does
not include a statement of measurable annual goals and objectives, a list of any necessary
accomnmdations, or a description of the special education, related-services, and supplementary
aids and services to be provided.

184. His previous. IEPs ?om KIPP Believe contain generic goals that were not tailored
to level of performance or his unique needs. No accompanying Iobj ectives were listed for
any of his goals. He never received a Functional Behavior Assessment (FBA) or Behavior
Intervention Plan (BIP) despite the fact that behavior routinely interfered with his academic
progress and is characteristic of his disability. 

.185. educational program at KIPP Believe failed to confer meaningful
educational bene?t as required by IDEA. Since 2006, L.W. has made no progress in reading?he
reads at the second grade leVel. He has made only moderate progress in mathematics. L.W.
scored unsatisfactory on his LEAP exams, he received failing grades in almost all of his courses,
and his teachers at KIPP reported that he was making unsatisfactory progress in all areas.

186. Despite suffering from the associated with ADHD, including extreme
impulsivity, distractibility, low ?ustration tolerance, and frequent eff-task behavior, L.W. was

not provided with any related services at KIPP Believe. School of?cials frequently disciplined
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Case Document 1 Filed 10/26/10 Page 56 of 60

L.W. and told him that the behavioral manifestations of his disability were major contributors to
his academic challenges. Nevertheless, IEP team at KIPP Believe never included related
services such as social work, counseling, or services that would help him obtain
some educational bene?t. Even now, L.W. is only receiving 30 minutes of counseling once a
week, These levels are woefully inadequate given his constant behavioral manifestations. As a
result, L.W. has continued to struggle academically, and he has continued to experience problem
behaviors that have prevented him'from achieving educational goals.

187. Finally, L.W. has been denied the necessary and appropriate transition services
that will prepare . him for employment, post?secondary education, vocational training, and
independent living. IEPs have lacked a transition plan or transition services so that he

may achieve his post secondary goals.

CAUSES OF ACTION 
188. Representative Plaintiffs and the proposed class-incorporate by reference all of the
above factual allegations to support the following rclaims: i
- Count I

DECLARATORY AND INJUNCTIVE RELIEF .TO REMEDY VIOLATIONS OF THE
INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT OF 2004

189. As set forth above, Defendants Pastorek, and BESE have'failed to provide
Plaintiffs and similarly situated children with a ?ee appropriate public education, both
procedurally and substantively, as mandated under the Individuals with Disabilities Education

Improvement Act of 2004 (20 U.S.C. 1400 et seq, 34 CPR. 300 et? seq.).

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Case Documentl Filed 10/26/10 Page 57.0f 60

190. Defendants Pastorek, LDE, and BESE have also failed to comply with their
general supervisory responsibilities by failing to appropriately monitor, identify, and compel the
New Orleans public schools to eliminate the numerous systemic violations of IDEA

191. Plaintiffs and the proposed class seek a declaratory judgment and a permanent
injunction prohibiting the Defendants from engaging in the unlawful conduct described herein.

Count II

DECLARATORY AND INJUNCTIVE RELIEF TO REMEDY VIOLATIONS OF
SECTION 504 OF THE REHABILITATION ACT OF 1973

192. By their foregoing actions and inactions, Defendants Pastorek, LDE and BESE
are liable pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794 et seq., 34
CPR. 104 et seq.) for discriminating against Plaintiffs and the class they seek to represent by
depriving them of appropriate accessibility to essential services and programming available to
non-disabled students, by Virtue of their status as individuals with disabilities.

193. As set forth above, Defendants have also failed to provide Plaintiffs and similarly
situated children with a free appropriate public education and/or reasonable accommodations
pursuant to Section 504 of the Rehabilitation Act of 1973.

194. Representative Plaintiffs and the proposed class seek a declaratory judgment and
a permanent injunction prohibiting the Defendants ?om engaging in the unlawful conduct

desoribed herein.

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Case Document 1 Filed 10/26/10 Page 58 of 60

Count 

DECLARATORY AND INJUNCTIVE RELIEF TO REMEDY VIOLATIONS OF TITLE
II OF THE AMERICANS WITH DISABILITIES ACT

195. By their foregoing actions and inactions, Defendants Pastorek, LDE and BESE
are liable pursuant to Title II of the Americans with Disabilities Act (42 U.S.C. 12101 et seq.)
for discriminating against Plaintiffs and the class they seek to represent by depriving them of 
apprOpriate accessibility to essential services and reasonable modi?cations necessary to avoid
discrimination on the basis of their disabilities. 42 U.S.C. 12132.

196. Representative Plaintiffs and-the proposed class seek a declaratory judgment and
a permanent injunction prohibiting the Defendants ?om engaging in the unlawful conduct
described herein. I

NECE-SSITY FOR RELIEF

197. .I The Defendants have acted and continue to act in Violation of the laW as explained 
above. The named Plaintiffs and the class they seek to represent do not have an'adequate remedy
at law. As a result of the policies, practices, actions and omissions of the Defendants, the named
Plaintiffs and the class they seek to represent have suffered and will continue to suffer
irreparable harm unless Defendants, including its agents, representatives and/or employees, are

restrained from continuing its unlawful practices.

PRAYER FOR RELIEF

the Plaintiffs respectfully request that the Court:

1. Assume jurisdiction over this matter;
2. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and
60(2);

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Case Document 1 Filed 10/26/10 Page 59 of 60

3. Enter a judgment declaring that the polices, procedures, customs, patterns
and/or practices of Defendants deprive Plaintiffs of their statutory rights, .
are illegal and/or invalid, and are in contravention of the Defendants?
statutory duty to assure that Plaintiffs and Similarly situated children
receive a free appropriate public education.

-4. Issue preliminary and permanent injunctions requiring ?Defendants to (1)
make its facilities, programs and services accessible to all students with
disabilities; (2) timely and adequately identify and evaluate potentially
disabled children; (3). implement appropriate education placements,
services, and accommodations on their behalf; and (4) provide all students
with disabilities a ?ee .apprOpriate public education;

5. issue an order directing Defendants to pay the costs and disbursements
incurred by Plaintiffs in commencing and maintaining this action, and
reasonable attorneys? fees pursuantto 29 U.S.C. 794(a) and 20 U.S.C. 

1415(e)(4); 

6. I Grant any other relief the Court shall deem just and proper.

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Case Document 1 Filed 10/26/10 Page 60 of 60

Dated this 26th day of October, 2010.

Pro Hac Vice Motions to be ?led

Respectfully submitted,

 

s/Eden B. Heilman La. Bar No. 30551

Sheila A. Bedi, Miss. Bar. No. 101652*
Southern Poverty Law Center

4431 Canal Street

New Orleans, Louisiana 70119
eden.heilman@3plcenter.org
sheilabedi@splcenter.org
504-486?8982 (phone)

504-486?8947 (fax)

James Comstock?Galagan, La. Bar. No. 05880 .
Southern Disability Law Center

.4431 Canal Street

New Orleans, Louisiana 70119

galagan@sdlcenter. org

"504,-486-8982 (phone)

- 504-486-8982 (fax)

Davida Finger, La. Bar. No. 30889

Stuart H. Smith Law Clinic and Center for Social Justice
Loyola University New Orleans College of Law 
7214 St. Charles Avenue, Box 902

New Orleans, Louisiana 70118

I

504-861-5596 (phone)

504-861-5440 (fax)

.1 on Greenbaurn, D.C. Bar No. 489887*
"Brenda L. Shum, Or. Bar No. 961146 
Jennifer M. Coco, 111. Bar No. pending*
Lawyers? Committee for Civil Rights Under Law
1401 New York Avenue NW, Suite 400
Washington, District of Columbia 20005



jcoco @lawyerscommittee.org
202-662-8600 (phone)

202-783-0857 (fax)

60