On January 29, 1995, in the U.S. District Court for the District of Columbia, plaintiffs, minor students eligible for special education and their parents sued the District's public school system, sought a preliminary injunction, and sought to certify a class of students with disabilities who were entitled to or received special education instruction and services from the District of Columbia Public Schools ("DCPS"). Plaintiffs had private counsel and attorneys from University Legal Services and the National Disability Rights Network.
On March 17, 1995, District Judge Paul L. Friedman found that the plaintiffs' complaint and preliminary injunction proof established, as the complaint alleged, that the defendants had placed numerous DCPS students in private special education facilities pursuant to the district's obligation to provide an appropriate placement for these students; that the defendants had entered into contracts or other agreement with private firms or other entities for the provision of special education related services to students attending public schools within the DCPS system; that the defendants were required by law to maintain these students' placements and related services by paying the costs thereof; but that the defendants had not paid the costs of private special education placements or related services either fully or on a current or timely basis for at least the 1994-1995 school year. Consequently, Judge Friedman found that the defendants violated the Individuals with Disabilities Education Act ("IDEA") and other laws and regulations intended to ensure that DCPS students with special education needs received a free, appropriate education. He adjudged that, unless the defendants fully and immediately funded all DCPS students then in private special education placements and/or receiving related services from private providers and, in addition, gave adequate written assurances that such payments would be made on a current basis in the future, many, if not all of those students would have those placements and/or services terminated, and with no indication that appropriate alternative placements would be available, leaving students' individual needs unmet. The court issued its' preliminary injunction, obligating DCPS to make timely payments to the special education facilities, and also certified a class, described as "all [DCPS] students currently placed in private special education schools or receiving special education and/or related services from a private third party provider, all [DCPS] students placed in public schools who currently are receiving related services from private providers, and all [DCPS] students who have been determined by an administrative decision or by agreement with the DCPS to be eligible to receive services from private providers (including private placements)." Petties v. District of Columbia, 881 F. Supp. 63 (D.D.C. 1995). This was but the start of long, sometimes contentious litigation.
A second case against DCPS making similar allegations on behalf of a child with learning and emotional disabilities, and his mother, also resulted in a similar order from the court. Plaintiffs in both cases moved, little more than a month after the preliminary injunctions issued, to have the defendant held in contempt, based upon the DCPS' announcement that it intended to terminate funding for tuition and transportation for the private school placement of these special needs children. In a single ruling applicable to both cases, the court held the district in contempt upon that basis (rejecting other grounds asserted to also make a contempt finding). Judge Friedman directed that the defendant notify the private schools that its termination of payment announcement would not apply to them. He further ordered payment within 14 days of sums owed to these facilities and that the DCPS provide transportation for the special needs students to the private schools. Petties v. District of Columbia, 888 F. Supp. 165 (D.D.C. 1995).
Part of the reason the judge rejected other asserted bases for holding DCPS in contempt was that some students' special education placements were funded by the District of Columbia's Department of Human Services (DHS), rather than by DCPS, making it unclear whether the court's orders included these students. Consequently, plaintiffs moved to amend the class description and to modify the preliminary injunction to make it clear that DHS-funded special needs students were within these orders' terms. Judge Friedman granted these modifications on July 21, 1995, ruling that IDEA applied to DHS-funded special needs students, as well as those funded directly by DCPS. Petties v. District of Columbia, 894 F. Supp. 465 (D.D.C. 1995).
As the new school year approached, defendants' counsel obtained an extension of time to gather data to ensure payments were made to education service providers, as required by the court's earlier orders but, when the school year began, numerous providers had not been paid, the extension period had elapsed, and services were being, or were about to be, denied to some in the plaintiff class. An emergency hearing occurred, at plaintiffs' request, to impose contempt sanctions against DCPS and its' management. These defendants were again found in contempt of the court's orders and in violation of IDEA. The court issued an order directing defendants to make specific payments to specific providers by certain dates and imposing a fine of $25,000 for each calendar day that the defendants did not comply with the payment order. Petties v. District of Columbia, 897 F. Supp. 626 (D.D.C. 1995).
For several years afterward, the parties had a consent order allowing for payment of plaintiffs' attorneys' fees based upon periodic submissions by plaintiffs' counsel of amounts owed. An appropriates act was passed for the District of Columbia containing a section that the defendants' counsel argued precluded payment of these fees, and modification of the consent order was sought by the defense. Judge Friedman rejected the effort, ruling that the plaintiffs case was brought under 42 U.S.C. § 1988, making the IDEA provision for attorney fee payment inapplicable and thereby also making the payment limitation in the appropriations act inapplicable. Accordingly, the court ordered payment of plaintiffs' attorneys' fee submissions which had gone unpaid since the effective date of the appropriations act. Petties v. District of Columbia, 55 F. Supp.2d 17 (D.D.C. 1999) (Judge Paul L. Friedman).
On August 7, 2000, the court accepted the parties' consent order addressing transportation and other issues concerning provision by DCPS of services to the special needs student plaintiff class. One aspect of the order created a school transportation administrator for a limited term. The parties reached an agreement to extend that term but, late in 2001, without notice to the plaintiffs, the defendants decided not to extend that term and to eliminate the transportation coordinator position. Plaintiffs then moved, on an emergency basis, for a court order to preserve the status quo and to extend the coordinator's term for 60 days, but Judge Friedman denied their requests on February 6, 2002. He chided the defendants for their reneging and lack of notice to plaintiffs, but said that as the position and its limits had been created through the parties' agreement, he had no authority to extend the position. He noted that the defendants still had the obligation of providing transportation services to the plaintiff class and their decision that they could do so without the continuation of a transportation coordinator's services was a permissible judgment. Petties v. District of Columbia, 183 F. Supp.2d 73 (D.D.C. 2002). An unpublished order March 13, 2002, by Judge Friedman denied plaintiffs' motion regarding a show cause hearing at which defendants might be (again) found in contempt, this time for violation of a July 10, 2001, consent order; however, we have no copy of that consent order nor of the plaintiffs' motion and do not know the precise nature of this particular dispute.
Transportation of these special needs students continued to raise issues. By 2002, a Special Master existed in the case and had made reports to the court on compliance by the defendants. One report prompted the court to issue an order on July 17, 2002, obligating the defendant school district to provide, on an on-going basis, the Special Master with updated, detailed, and accurate information about students transported and to keep and to make available for review logs of "dry run" transportation efforts. The order provided that defense failure to keep and provide this information would result in fines. Petties v. District of Columbia, 211 F. Supp.2d 141 (D.D.C. 2002). Later in the year, plaintiffs sought and obtained another preliminary injunction, evidently prompted by the DCPS' failure to pay for services and transportation for students attending two particular private facilities. On November 14, 2002, in a preliminary injunction, Judge Friedman ordered DCPS to make payments of one-and-one-half million dollars to each facility, to make regular monthly payments thereafter, to negotiate with the facilities, and to be monitored by the Special Master, in resolving past due and future payment obligations. He also ordered that procedural due process be provided prior to changes in students' educational placement which may result from failure to resolve the payment issues. While the injunction itself was not published, at first, the court's opinion supporting the injunction appears at Petties v. District of Columbia, 238 F. Supp.2d 88 (D.D.C. 2002). The opinion notes that the parties had consented to an August 28, 1996, plan for structured periodic payments to private education service providers to ensure that late or partial payments to these providers did not re-occur. To Judge Friedman, disregard of this 1996 plan, incorporated then in an unpublished court order, and continued violation of IDEA obligations could not be excused by the District's financial constraints. Id. Later, both the opinion and the injunction were published at Petties v. District of Columbia, 238 F. Supp.2d 114 (D.D.C. 2002).
Students, parents, and education service providers were not the only ones complaining of ill treatment by DCPS. The Special Master in the case, Elise T. Baach, had to make a request to the court for an order requiring the defendants to produce information to her regarding student transportation issues and defendants proposed closure of certain objectives established in the Exit Plan by which the DCPS might achieve an end to court supervision. The court noted that, after the Special Master's request had been frustrated by the defendants and she had to make the request through the court, she received the information. Thus, Judge Friedman made no contempt or other finding at that time, but he cautioned defense counsel to review the July 8, 1997, opinion and order of reference in the case and to fully comply with each provision therein, or risk sanction by the court. Petties v. District of Columbia, 263 F. Supp.2d 55 (D.D.C. 2003).
In the summer of 2003, the parties and the Special Master agreed that an independent transportation administrator should be appointed to operate and improve the DCPS' transportation obligations to disabled students. The court issued an unpublished consent order making this appointment on June 25, 2003. Among other things, the order provided the administrator authority over a $60 million transportation budget. Payment of invoices for non-transportation educational services would sometimes be delayed or contested by DCPS, in part because of a policy it adopted in December 2002, to supposedly encourage higher attendance rates by students at the private facilities. Such disputes led to a ruling by Judge Friedman that the policy had been invalidly enacted. Petties v. District of Columbia, 298 F. Supp.2d 60 (D.D.C. 2003). Disputes over DCPS failures in payment of invoices or reimbursement of expense would, at times, be resolved by hearings held by the Special Master or by hearing officers she appointed. Examples of the results of such hearings can be reviewed in the database for this case at the documents dated March 23, 2004, and November 7, 2006, and designated as document ED-DC-1-0006 and ED-DC-1-0007, respectively.
On April 21, 2006, Judge Friedman's unpublished order confirmed, over defense objection, that the Transportation Administrator had the authority to negotiate and enter into collective bargaining agreements on behalf of the DCPS Division of Transportation. The U.S. Court of Appeals for the District of Columbia Circuit affirmed this ruling in an unpublished per curiam decision on May 1, 2007.
The docket sheet for this case reflects continued payment dispute and Special Master report activity through mid-2007. The case continues to be monitored.Mike Fagan - 06/18/2008