University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
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.
Attorney Organization NDRN/Protection & Advocacy Organizations
Case Summary
On January 17, 1986, this putative class action complaint against the New Hampshire Department of Education was filed in the U.S. District Court for the District of New Hampshire by students with disabilities who were placed in state facilities or programs. They alleged that New Hampshire state ... read more >
On January 17, 1986, this putative class action complaint against the New Hampshire Department of Education was filed in the U.S. District Court for the District of New Hampshire by students with disabilities who were placed in state facilities or programs. They alleged that New Hampshire state facilities and programs violated the children's rights under Education for All Handicapped Children Act (EAHCA), now known as the Individuals with Disabilities Education Act (IDEA), and state law. The plaintiffs also sued under 42 U.S.C. § 1983 alleging a violation of their rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution. Specifically, the plaintiffs alleged that defendants had failed to take adequate steps to ensure that students who were or might become educationally disabled-and who were placed in programs pursuant to New Hampshire RSA 169-B, 169-C, or 169-D-receive a free appropriate public education along with other procedural protections guaranteed by the applicable Federal and State laws. The plaintiffs, represented by the Disability Rights Center and the Center for Law and Education, sought declaratory and injunctive relief against the New Hampshire Department of Education to secure these entitlements.

On June 5, 1986, the Court granted class certification, defining the class as: "all educationally handicapped students in New Hampshire who are or were placed in a facility pursuant to proceedings under New Hampshire RSA 169-B, 169-C, or 169-D, and who are not receiving or did not receive, a free appropriate public education."

The class included four subclasses, including: children whose parents have been or may be held liable for all or a portion of the costs of placement; children whose educational programs were not being provided under the supervision and direction of a legally liable school district; children whose educational programs were not being provided in conformity with an Individualized Educational Program; and children who were in need of a surrogate parent but did not have one.

We do not have the docket for this case, so our information is limited. After some years of negotiations and pretrial motions, some of which resulted in the Court dismissing some of the plaintiff's claims for relief under Section 1983, the Court approved a consent decree on August 23, 1991, which settled all claims for injunctive or declaratory relief as well as all claims for costs of residential placements of class members made prior to September 1, 1991. For the purposes of the consent decree, the Director of the New Hampshire Division of Children and Youth Services (DCYS) was joined as a defendant. The consent decree covered a wide range of procedures and actions that defendants would take to ensure that students received a free appropriate public education. An overview of the different sections of the decree follows:

With regard to pre-placement and placement review procedures, the defendants agreed: that after a new placement, they should allow continued attendance at the same school whenever possible; that new procedures would be implemented to ensure the appropriate school district is assuming responsibility; that the New Hampshire Board of Education and DCYS would both assume certain responsibilities during any period of time that the appropriate school district was still being determined; that school districts would be notified of any new placements and would conduct full evaluations of those students who were not yet determined to be educationally disabled. It also established comprehensive procedures for making this determination, including a student evaluation and placement team that would meet prior to placement to ensure that the change in residence or placement was appropriate and students were placed in the least restrictive environment while also ensuring that an appropriate Individualized Education Program would be in place for each student. Parents were given a right to be heard in any court or administrative proceedings on the issue of the placement or proposed placement. The placement team was also required to file a report in the state district court with the team's recommendations regarding placement.

With regard to certain specific facilities (The Tobey School, The Philbrook Center, The Detention Unit of the Youth Services Center, and the Youth Detention Center {YDC}) the defendants agreed to conduct an audit of the facilities and issue a report of findings and corrective actions pertaining to each facility. These reports were required to: specify the personnel needed based on the population and existing programs at each facility; identify any deficiencies in educationally related physical plant, services, and materials; identify any deficiencies in the qualifications of staff under the IDEA, New Hampshire Standards, and state law; and finally, to identify any procedure that excluded children with disabilities from receiving a five hour and fifteen minutes per day education program (five hours and thirty minutes for high school students). Within the next three months, specifically by November 1, 1991, DCYS and the New Hampshire Department of Education were required to have a written plan in place to address these issues.

This section of the consent decree also ordered defendants to implement a new plan and policy by September 1, 1991 to address the suspension or expulsion of students with educational disabilities. That policy was required to specify that no student with a disability at these facilities would be expelled from education. With regard to suspension procedures: except in cases of emergency, no educationally disabled student could be suspended from his or her educational program for acts not committed in the course of the educational program. Even if the acts were committed in the course of the educational program, suspension was not appropriate if (i) there was a relationship between the conduct and the student's disabling condition; (ii) the educational placement or program in the facility is inappropriate; or (iii) the student's Individualized Education Program was not being fully implemented. Other provisions were included, but in short, the new policy at these facilities would require brief removal from class or other alternatives in lieu of suspension or expulsion of students with educational disabilities. A variety of procedural protections were also required, including most significantly: a provision that prevented classroom teachers from imposing emergency suspensions without consulting a qualified member of the clinical or administrative staff; and a comprehensive set of procedures requiring a Special Education Evaluation Placement Team to be involved with reviewing these disciplinary decisions.

With regard to surrogate parent procedures, the consent decree required the DCYS and Department of Education to enter into an interagency agreement that included a procedure requiring DCYS to identify at the time of placement, and at least once annually thereafter, whether any student with educational disabilities who does not have a surrogate parent may need a surrogate parent. If the child's parent was unknown or unavailable, or the child was a ward of the state, the Department of Education was required to appoint a surrogate parent in accordance with New Hampshire Standards and state law. Additionally, DCYS would be required to notify the Department of Education of any instance in which an appointed surrogate parent had failed to competently advocate for the student. The Department of Education was also required to amend state regulations so that the process for appointment of a surrogate parent would not exceed forty days from the date on which the Department of Education receives the referral from DCYS, unless a parent or guardian objects to the appointment in which case the decision whether to appoint a surrogate parent must be made with fifty-five days of the date on which the Department of Education received the referral.

With regard to procedures for reimbursement or waiver of placement costs, DCYS waived its statutory right to recover costs associated with RSA 169-B, 169-C, or 169-D residential placements of class members incurred between January 1, 1986 and January 7, 1988 for which recovery had not yet been sought. The consent decree also established notice requirements for any claims for reimbursement that DCYS may pursue. Finally, this section of the consent decree required defendants to establish comprehensive procedures to ensure that class members were provided special education and educationally related services for free, at no cost to them or their parents. These procedures included a claims process for class members or their parents to seek reimbursement of costs.

Next, the consent decree required defendants to establish an Integrated Data System. This system would combine information from the Children's Information System (CIS), operated by the Department of Health and Human Services, and the Special Education Information System (SPEDIS), operated by the Department of Education. The defendants were also required to provide plaintiffs' counsel and authorized individuals within each department with access to certain specific data collected in each separate system.

With regard to implementing and monitoring the class-wide relief, the consent decree required counsel for the parties to develop a training program and make such training available to State district court judges, school districts, DCYS, Department of Education, Department of Mental Health and Developmental Services, and State district court personnel. The defendants were also required to report to plaintiffs' counsel on the status of each of the named plaintiffs and class members listed. By May 1, 1992, the Defendants were required to provide the Disability Rights Center with a report on the progress of implementation of the consent decree. Additionally, the defendants were required to provide annual reports on September 1 of each year until 1999.

The consent decree originally provided for the Court to retain jurisdiction until midnight on January 1, 2000. In December of 2000, the parties stipulated to the continuation of the Consent Decree. The stipulation provided for the court to retain jurisdiction until July 1, 2002. It also set certain compliance targets which, if not met by the defendants, would trigger further continuation. According to the Child Welfare League of America, the Court (1) approved the stipulation for continuation; and (2) later dismissed the consent decree and closed the case. The Clearinghouse does not know when the consent decree terminated (the extension suggests the termination date was July 1, 2002).

Alice Liu - 11/16/2012
Chris Pollack - 02/18/2019

compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Discrimination Prohibition
Provide antidiscrimination training
Reasonable Accommodation
Mental impairment
Disability (inc. reasonable accommodations)
Access to public accommodations - governmental
Classification / placement
Foster care (benefits, training)
Government Services (specify)
Individualized planning
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Reasonable Accommodations
School/University Facilities
School/University policies
Special education
Medical/Mental Health
Intellectual/Developmental Disability
Mental Disability
Intellectual/developmental disability, unspecified
Plaintiff Type
Private Plaintiff
Type of Facility
Causes of Action 42 U.S.C. § 1983
Indv. w/ Disab. Educ. Act (IDEA), Educ. of All Handcpd. Children Act , 20 U.S.C. § 1400
State law
Defendant(s) Division for Children and Youth Services
New Hampshire Department of Education
Plaintiff Description Plaintiffs are students with educational disabilities 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 outcome Granted
Filed Pro Se No
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 - 2002
Filed 01/17/1986
Case Closing Year 2002
Case Ongoing No
Additional Resources
click to show/hide detail
  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

Court Docket(s)
No docket sheet currently in the collection
General Documents
Consent Decree
CW-NH-0002-0001.pdf | Detail
Stipulation Regarding Continuation of the James O. Consent Decree and Corrective Action Plan
CW-NH-0002-0002.pdf | Detail
show all people docs
Judges McAuliffe, Steven J. (D.N.H.) show/hide docs
Stahl, Norman H. (D.N.H., First Circuit) show/hide docs
Plaintiff's Lawyers Cohen, Richard A. (New Hampshire) show/hide docs
Deslauriers, Christina (New Hampshire) show/hide docs
Lospennato, Ronald (New Hampshire) show/hide docs
CW-NH-0002-0001 | CW-NH-0002-0002
Pressman, Robert Peter (Massachusetts) show/hide docs
Defendant's Lawyers Bird, Harry H. (New Hampshire) show/hide docs
Chevrefils, Richard (New Hampshire) show/hide docs
Gray, Emily (New Hampshire) show/hide docs
Marston, Charles (New Hampshire) show/hide docs
Shumway, Donald (New Hampshire) show/hide docs
Smith, Nancy J. (New Hampshire) show/hide docs

- click to show/hide ALL -

new search
page permalink

- top of page -