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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) Disability Rights-Pub. Accom.
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 Consent Judgment.

The Consent Judgment required schools to develop processes for finding and evaluating students with disabilities for special education services, implement 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 state would cover the costs of the Independent Monitor. It also provided for the State defendants to seek $700,000 in legislative appropriations to cover their share of plaintiff's attorneys' fees. Additionally, the intervenor defendants, the Orleans Parish School Board, would pay $100,000 to plaintiff's counsel for their share of attorneys' fees.

The Consent Judgment would remain in effect until the state achieved substantial compliance with each of the substantive provisions for two consecutive years. In a July 17, 2018 order regarding the status of the proceedings, the court noted that this meant defendants must first achieve substantial compliance and then maintain that compliance for an additional two consecutive years. The court also clarified that substantial compliance would be interpreted with regard to the compliance with the Consent Judgment itself, not individual compliance with the IDEA.

As of this writing, the most recent Independent Monitor's report was submitted on August 9, 2018. This report found that the defendants had been in substantial compliance with each of the Settlement Agreement's substantive provisions for both the 2016-2017 period, and for the 2017-2018 period. Compliance during the 2017-2018 period marked the first of the two consecutive years of continuing substantial compliance that was required for the agreement to terminate.

The court held a status conference on October 2, 2018, during which the court noted that schools were then being selected for random monitoring during the fall 2018 season. We don't know what else has happened since, but the lack of docket activity indicates that the parties are likely awaiting the results of the 2018-2019 Independent Monitoring report.

David Cho - 10/17/2014
Lauren Latterell Powell - 11/08/2017
Chris Pollack - 03/20/2019


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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 (e.g., for hiring, admissions)
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 Plaintiffs filed action on behalf of New Orleans students with disabilities. Settlement class was divided into seven subclasses, comprised of present and future New Orleans students with disabilities as well as present and future New Orleans students who have requested but not been provided with a special education evaluation.
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
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2015 - n/a
Filing Year 2010
Case Ongoing Yes
Additional Resources
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Docket(s)
2:10−cv−04049 (E.D. La.)
ED-LA-0003-9000.pdf | Detail
Date: 11/27/2018
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]
Order Concerning Status of Case [ECF# 387] (E.D. La.)
ED-LA-0003-0007.pdf | Detail
Date: 07/18/2018
Source: PACER [Public Access to Court Electronic Records]
August 2018 Independent Monitor's Report to Court [ECF# 388]
ED-LA-0003-0008.pdf | Detail
Date: 08/13/2018
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Roby, Karen Wells (E.D. La.) [Magistrate] show/hide docs
ED-LA-0003-9000
Zainey, Jay C. (E.D. La.) show/hide docs
ED-LA-0003-0002 | ED-LA-0003-0003 | ED-LA-0003-0007 | ED-LA-0003-9000
Monitors/Masters Mlawer, Mark (California) show/hide docs
ED-LA-0003-0004 | ED-LA-0003-0005 | ED-LA-0003-0006 | ED-LA-0003-0008
Plaintiff's Lawyers Adler, Krista Dawn (New York) show/hide docs
ED-LA-0003-9000
Banky, Poopak (New York) show/hide docs
ED-LA-0003-9000
Bedi, Sheila A. (Mississippi) show/hide docs
ED-LA-0003-0001 | ED-LA-0003-9000
Callahan, Elizabeth L. (New York) show/hide docs
ED-LA-0003-9000
Cavanaugh, William Francis Jr (District of Columbia) show/hide docs
ED-LA-0003-9000
Coco, Jennifer M. (Louisiana) show/hide docs
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Comstock-Galagan, James E. (Louisiana) show/hide docs
ED-LA-0003-0001 | ED-LA-0003-9000
Cruz, Alejandro H. (New York) show/hide docs
ED-LA-0003-9000
DiPaolo, John K. (District of Columbia) show/hide docs
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Faridi, Muhammad U. (New York) show/hide docs
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Felicello, Rosanne E (New York) show/hide docs
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Finger, Davida (Louisiana) show/hide docs
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Gelernter, Eugene M. (New York) show/hide docs
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Greenbaum, Jon M. (District of Columbia) show/hide docs
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Heilman, Eden B. (Louisiana) show/hide docs
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Katzerman, Jerri (Alabama) show/hide docs
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Kurland, Thomas P. (New York) show/hide docs
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Mallick, Sumit (District of Columbia) show/hide docs
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Schmedlin, William F. (New York) show/hide docs
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Schwartzmann, Katie M (Louisiana) show/hide docs
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Shum, Brenda L. (District of Columbia) show/hide docs
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Sykes, Matthew D. (District of Columbia) show/hide docs
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Waters, Timothy (New York) show/hide docs
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Defendant's Lawyers Forest, Candice Richards (Louisiana) show/hide docs
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Freel, Angelique Duhon (Louisiana) show/hide docs
ED-LA-0003-9000
Fruge, Robert Christopher (Louisiana) show/hide docs
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Hammonds, Robert L. (Louisiana) show/hide docs
ED-LA-0003-0003 | ED-LA-0003-9000
Hunt, Joan E. (Louisiana) show/hide docs
ED-LA-0003-0003 | ED-LA-0003-9000
LeBlanc-Smith, Willa Rebecca (Louisiana) show/hide docs
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Manieri, Tyrell T. (Louisiana) show/hide docs
ED-LA-0003-9000
Moog, Audrey E. (District of Columbia) show/hide docs
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Sneed, Maree F. (District of Columbia) show/hide docs
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Stewart, Wayne Thomas (Louisiana) show/hide docs
ED-LA-0003-0003 | ED-LA-0003-9000
Zolman, Kathe R. (Louisiana) show/hide docs
ED-LA-0003-9000

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