University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Berry v. Pastorek ED-LA-0003
Docket / Court 10-CV-04049 ( E.D. La. )
State/Territory Louisiana
Case Type(s) Education
Attorney Organization Lawyers Comm. for Civil Rights Under Law
MacArthur Justice Center, New Orleans
Southern Poverty Law Center
Case Summary
On October 26, 2010, a group of students with disabilities filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana against the Louisiana Department of Education and the Orleans Parish School Board. The plaintiffs, represented by the Lawyers' Committee for Civil Rights Under ... read more >
On October 26, 2010, a group of students with disabilities filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana against the Louisiana Department of Education and the Orleans Parish School Board. The plaintiffs, represented by the Lawyers' Committee for Civil Rights Under Law, Southern Poverty Law Center, and private counsel alleged that the defendants acted and continue to act in violation of the Individuals with Disabilities Education Improvement Act (IDEA) of 2004, 20 U.S.C. § 1400, § 504 of the Rehabilitation Act (ADA) of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12101. The plaintiffs sought to represent a class consisting of all New Orleans students with disabilities.

Plaintiffs alleged that the New Orleans public schools had denied admission to disabled students; refused to evaluate needs for special education; failed to implement individualized education plans; and used abusive restraint techniques on disabled students. They sought a declaratory judgment and preliminary and permanent injunctions requiring the defendants to: (1) make their facilities and programs be accessible to all students with disabilities; (2) adequately evaluate disabled children; (3) implement appropriate education accommodations; (4) and provide students with disabilities with a free appropriate public education.

On March 12, 2014, there was a hearing on the motion for class certification. The District Court (Judge Jay C. Zainey) ordered a stay for filing post-hearing briefs pending the outcome of settlement negotiations between the two parties.

The parties engaged in settlement negotiations during the spring and summer of 2014. On December 19, 2014, the parties submitted a proposed Consent Judgment. The Consent Judgment defined the affected class as present or future New Orleans students who have requested but not received a special education evaluation; have disabilities, attend charter schools, and have been removed from school for 10 days or more without the timely provision of the disciplinary safeguards required by IDEA; have not received services contained in their Individualized Education Plans; have a disability and have been denied admission or told not to apply to a public school because of their disability; and have mobility impairments and have been denied access to programs and services of New Orleans schools because of physical barriers. Judge Zainey issued preliminary approval of the Consent Judgment on January 8th, 2015.

Following preliminary approval of the settlement, in early February, 2015, several parents of class members submitted objections to the Consent Judgment. Before the final hearing on the Judgment, plaintiffs' counsel met with those parents to discuss their concerns. On March 25, the court entered an order granting final approval of the Decree.

The Judgment required schools to develop processes for finding and evaluating students with disabilities for special education services; implementing special education services and related services; review and reform disciplinary policies; and educate charter schools about their legal obligation to enroll students with disabilities. It also dictated reporting requirements and appointed an Independent Monitor to periodically assess defendants' progress. The Judgment was to be in effect until the state had achieved substantial compliance with the terms of the agreement for two consecutive years. The state was ordered to cover the costs of the Independent Monitor.

The first report of the Independent Monitor was submitted in June of 2016. The most recent report as of this writing dates from May 2017, and indicates that the state has achieved substantial compliance with the provisions governing finding and evaluating students for special education services, but that progress toward disciplinary reform and enrollment increases for students with disabilities has been mixed.

Consistent with the agreement, the court retains jurisdiction for enforcement purposes.

David Cho - 10/17/2014
Lauren Latterell Powell - 11/08/2017


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Issues and Causes of Action
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Issues
Content of Injunction
Auditing
Develop anti-discrimination policy
Discrimination Prohibition
Goals and Timekeeping
Monitoring
Reporting
Defendant-type
Elementary/Secondary School
Disability
disability, unspecified
Hearing impairment
Mental impairment
Mobility impairment
Visual impairment
General
Individualized planning
Special education
Medical/Mental Health
Intellectual disability/mental illness dual diagnosis
Intellectual/Developmental Disability
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Indv. w/ Disab. Educ. Act (IDEA), Educ. of All Handcpd. Children Act , 20 U.S.C. § 1400
Protection and Advocacy of Individual Rights (PAIR), 29 U.S.C. § 794e
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Defendant(s) Louisiana Board of Elementary and Secondary Education
Louisiana Department of Education
Orleans Parish School Board
Plaintiff Description Individual students with disabilities in New Orleans
Indexed Lawyer Organizations Lawyers Comm. for Civil Rights Under Law
MacArthur Justice Center, New Orleans
Southern Poverty Law Center
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 2015 - n/a
Case Ongoing Yes
Additional Resources
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  Montgomery Public Schools
http://www.bazelon.org
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Blackman. v. District of Columbia
http://www.bazelon.org/blackman-v-district-of-columbia/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  S.S. v. Springfield Public Schools
http://www.bazelon.org/springfield-massachusetts-school-system/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Doe v. Pasadena Unified School District
http://www.bazelon.org/doe-v-pasadena-unified-school-district/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  A.J. v. Cesar Chavez Public Charter Schools
http://www.bazelon.org/a-j-v-cesar-chavez-public-charter-schools-et-al/
Date: 2017
By: Bazelon Center (Bazelon Center)
[ Detail ] [ External Link ]

Docket(s)
2:10−cv−04049 (E.D. La.)
ED-LA-0003-9000.pdf | Detail
Date: 11/07/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint - Class Action [ECF# 1]
ED-LA-0003-0001.pdf | Detail
Date: 10/26/2010
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 295] (E.D. La.)
ED-LA-0003-0002.pdf | Detail
Date: 03/25/2015
Source: PACER [Public Access to Court Electronic Records]
Consent Judgment [ECF# 296] (E.D. La.)
ED-LA-0003-0003.pdf | Detail
Date: 03/25/2015
Source: PACER [Public Access to Court Electronic Records]
Status Report [ECF# 339]
ED-LA-0003-0004.pdf | Detail
Date: 06/20/2016
Source: PACER [Public Access to Court Electronic Records]
Status Report [ECF# 354]
ED-LA-0003-0005.pdf | Detail
Date: 12/06/2016
Source: PACER [Public Access to Court Electronic Records]
Status Report to the Court [ECF# 359-1]
ED-LA-0003-0006.pdf | Detail
Date: 05/25/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Berrigan, Helen Ginger (E.D. La.)
ED-LA-0003-9000
Roby, Karen Wells (E.D. La.) [Magistrate]
ED-LA-0003-9000
Zainey, Jay C. (E.D. La.)
ED-LA-0003-0002 | ED-LA-0003-0003 | ED-LA-0003-9000
Monitors/Masters Mlawer, Mark (California)
ED-LA-0003-0004 | ED-LA-0003-0005 | ED-LA-0003-0006
Plaintiff's Lawyers Adler, Krista Dawn (New York)
ED-LA-0003-9000
Banky, Poopak (New York)
ED-LA-0003-9000
Bedi, Sheila A. (Mississippi)
ED-LA-0003-0001 | ED-LA-0003-9000
Callahan, Elizabeth L. (New York)
ED-LA-0003-9000
Cavanaugh, William Francis Jr (District of Columbia)
ED-LA-0003-9000
Coco, Jennifer M. (Louisiana)
ED-LA-0003-0001 | ED-LA-0003-0003 | ED-LA-0003-9000
Comstock-Galagan, James E. (Louisiana)
ED-LA-0003-0001 | ED-LA-0003-9000
Cruz, Alejandro H. (New York)
ED-LA-0003-9000
DiPaolo, John K. (District of Columbia)
ED-LA-0003-9000
Faridi, Muhammad U. (New York)
ED-LA-0003-9000
Felicello, Rosanne E (New York)
ED-LA-0003-9000
Finger, Davida (Louisiana)
ED-LA-0003-0001 | ED-LA-0003-9000
Gelernter, Eugene M. (New York)
ED-LA-0003-9000
Greenbaum, Jon M. (District of Columbia)
ED-LA-0003-0001 | ED-LA-0003-9000
Heilman, Eden B. (Louisiana)
ED-LA-0003-0001 | ED-LA-0003-0003 | ED-LA-0003-9000
Katzerman, Jerri (Alabama)
ED-LA-0003-0003 | ED-LA-0003-9000
Kurland, Thomas P. (New York)
ED-LA-0003-9000
Mallick, Sumit (District of Columbia)
ED-LA-0003-9000
Schmedlin, William F. (New York)
ED-LA-0003-9000
Schwartzmann, Katie M (Louisiana)
ED-LA-0003-9000
Shum, Brenda L. (District of Columbia)
ED-LA-0003-0001 | ED-LA-0003-9000
Sykes, Matthew D. (District of Columbia)
ED-LA-0003-9000
Waters, Timothy (New York)
ED-LA-0003-9000
Defendant's Lawyers Freel, Angelique Duhon (Louisiana)
ED-LA-0003-9000
Hammonds, Robert L. (Louisiana)
ED-LA-0003-0003 | ED-LA-0003-9000
Hunt, Joan E. (Louisiana)
ED-LA-0003-0003 | ED-LA-0003-9000
Manieri, Tyrell T. (Louisiana)
ED-LA-0003-9000
Moog, Audrey E. (District of Columbia)
ED-LA-0003-9000
Sneed, Maree F. (District of Columbia)
ED-LA-0003-9000
Stewart, Wayne Thomas (Louisiana)
ED-LA-0003-0003 | ED-LA-0003-9000

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