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Case Name James O. v. Marston CW-NH-0002
Docket / Court No: 86-6-S ( D.N.H. )
State/Territory New Hampshire
Case Type(s) Child Welfare
Disability Rights-Pub. Accom.
Education
Attorney Organization NDRN/Protection & Advocacy Organizations
Case Summary
This action involving children placed in New Hampshire's state facilities and programs who are in need of special education was filed on January 17, 1986, in the U.S. District Court for the District of New Hampshire. The plaintiff class, educationally handicapped students who are or were placed in ... read more >
This action involving children placed in New Hampshire's state facilities and programs who are in need of special education was filed on January 17, 1986, in the U.S. District Court for the District of New Hampshire. The plaintiff class, educationally handicapped students who are or were placed in state facilities or programs pursuant to the state's Revised Statutes 169-B, 169-C, or 169-D regarding respectively, Juvenile Delinquency, Neglect and Abuse, and Children in Need of Services (RSA 169), and are or were not receiving appropriate public education, were represented by Disabilities Rights Center and the Center for Law and Education. They sought declaratory and injunctive relief against the New Hampshire Department of Education for the purposes of securing the entitlements of students under the Education for All Handicapped Children Act (now known as the Individuals with Disabilities Education Act) and also securing Equal Protection and Due Process rights under 42 U.S.C. 1983.

On June 5, 1986, the court granted class certification, which included subclasses for children whose parents have been or may be held liable for some or all of the placement costs, children whose educational programs are not being provided under a legally liable school district, children whose educational programs are not provided in conformity with an Individualized Education Program (IEP), and children who need a surrogate parent but do not have one.

The complaint alleged that the defendants failed to provide appropriate services for educationally handicapped students under IDEA, and that the defendants failed to take adequate steps to ensure that students placed in state facilities pursuant to RSA 169 who are or may be educationally disabled received free and appropriate public education.

After much negotiation, the court approved an agreed-upon Consent Decree on August 23, 1991. The Decree applies to all educationally disabled students who are or were placed in state facilities or residential programs pursuant to the N.H. RSA 169. For purposes of the Decree, the Division for Children and Youth Services (DCYS) is also listed as a defendant. The Decree states that:

  • Regarding pre-placement and placement review procedures, the defendants agree to make best efforts to ensure that a child being placed in the state's facilities and programs pursuant to the state's RSA 169 will be provided with a residential program or placement allowing continuation of the child's then current educational program and placement, and the defendants will adopt regulations effectuating an interagency agreement.
  • Regarding free appropriate public education at Tobey School, Philbrook Center, Detention Unit of the Youth Services Center, and Youth Development Center (YDC), the defendants will complete an audit regarding such facilities to determine if there are any deficiencies that need to be addressed and to create a written plan ensuring that all remaining deficiencies in the educationally related physical plant will be corrected and made available. The written plan must also attract and retain sufficient numbers of certified personnel and correct shortcomings regarding the availability of extended school year programs. Additionally, the DCYS will implement a plan and policy that requires all educationally disabled students placed at Tobey School, Philbrook Center, Detention Unit of the Youth Services Center, and YDC, attend school with sufficient staff and receive a specified educational program. DCYS will also ensure that no educationally disabled student placed at these facilities may be expelled from education, though suspensions are available.
  • Regarding surrogate parent procedures, the defendants will enter an interagency agreement that requires DCYS to identify at the time of placement whether any educationally disabled student, placed in a residential program or facility pursuant to the state's RSA 169, does not have a surrogate parent but may need one. The Department of Education will appoint a surrogate parent when the parent is determined to be unknown or unavailable.
  • The Decree will also implement procedures to ensure that class members are provided special education and related services at no cost to them and their parents.
  • The defendants will create a data system that combines information from the Children's Information System and the Special Education Information System. The plaintiffs' counsel will be given access to certain information in order to ensure that each educationally disabled student placed under RSA 169 receive free appropriate public education.
  • For at least 3 years, the defendants will assign an employee to monitor compliance of the Decree on a weekly basis.
  • The Decree does not resolve any claims against local education agencies that individual class members may have for relief.
  • The Decree also does not address attorneys' fees.
  • Lastly, the Consent Decree is set to expire on January 1, 2000.

    In December of 2000, the parties agreed to the continuation of the Consent Decree. According to information on the Child Welfare League of America's website, the court approved the continuation, but in the time since, the Decree has now been dismissed.

    Alice Liu - 11/16/2012


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Auditing
Monitoring
Reasonable Accommodation
Recordkeeping
Reporting
Defendant-type
Jurisdiction-wide
General
Access to public accommodations - governmental
Classification / placement
Education
Foster care (benefits, training)
Juveniles
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Reasonable Accommodations
School/University Facilities
School/University policies
Special education
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action State law
Indv. w/ Disab. Educ. Act (IDEA), Educ. of All Handcpd. Children Act , 20 U.S.C. § 1400
42 U.S.C. § 1983
Defendant(s) Division for Children and Youth Services
New Hampshire Department of Education
Plaintiff Description Plaintiffs are educationally handicapped students who are or were placed in the state's facilities or residential programs pursuant to the state’s RSA 169-B, 169-C, OR 169-D (Juvenile Delinquency, Neglect and Abuse, and Children in Need of Services).
Indexed Lawyer Organizations NDRN/Protection & Advocacy Organizations
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 1991 - 2000
Case Closing Year 1991
Case Ongoing No
Additional Resources
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Case Studies Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

  Making Child Welfare Work: How the R.C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families
By: Bazelon Center for Mental Health Law (Bazelon Center)
Citation: (1998)
[ Detail ]

Docket(s)
No docket sheet currently in the collection
General Documents
Consent Decree 08/23/1991 (D.N.H.)
CW-NH-0002-0001.pdf | Detail
Stipulation Regarding Continuation of the James O. Consent Decree and Corrective Action Plan 12/20/2000 (D.N.H.)
CW-NH-0002-0002.pdf | Detail
Judges McAuliffe, Steven J. (D.N.H.)
CW-NH-0002-0002
Stahl, Norman H. (D.N.H., First Circuit)
CW-NH-0002-0001
Monitors/Masters None on record
Plaintiff's Lawyers Cohen, Richard A. (New Hampshire)
CW-NH-0002-0002
Deslauriers, Christina (New Hampshire)
CW-NH-0002-0002
Lospennato, Ronald (New Hampshire)
CW-NH-0002-0001 | CW-NH-0002-0002
Pressman, Robert Peter (Massachusetts)
CW-NH-0002-0001
Defendant's Lawyers Bird, Harry H. (New Hampshire)
CW-NH-0002-0001
Chevrefils, Richard (New Hampshire)
CW-NH-0002-0001
Gray, Emily (New Hampshire)
CW-NH-0002-0001
Marston, Charles (New Hampshire)
CW-NH-0002-0001
Shumway, Donald (New Hampshire)
CW-NH-0002-0001
Smith, Nancy J. (New Hampshire)
CW-NH-0002-0002
Other Lawyers None on record

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