Berry, et al. v. Pastorek, et al (E.D. La.2:10-cv-04049)
In New Orleans, an estimated 4,500 students with disabilities are denied equal access to educational opportunities, routinely pushed out of school, and subject to discrimination on the basis of their disabilities. On October 26, 2010, the Lawyers’ Committee filed a federal class action against the Louisiana Department of Education, the Board of Elementary and Secondary Education, and State Superintendent Paul Pastorek to enforce their rights under federal and state law (Berry, et al. v. Pastorek, et al. (E.D.La. 2:10-cv-04049)). Plaintiffs represent all present and future students with identified and unidentified disabilities in New Orleans schools. The Plaintiffs are represented by the Lawyers’ Committee for Civil Rights Under Law, Patterson Belknap Webb and Tyler, the Southern Poverty Law Center, the Community Justice Clinic at the Loyola University New Orleans School of Law, and the Southern Disability Law Center.
Following Hurricane Katrina, the landscape of public education in New Orleans was transformed. Some assert the charter-dependent system which emerged does less to meet the needs of certain students than the failing system it was designed to replace. The Louisiana Department of Education formed the Recovery School District (“RSD”), which is responsible for operating low-performing schools previously run by the Orleans Parish School Board (“OPSB”). Under this new system, the RSD operates 23 public schools and oversees 49 charters, each of which functions as its own local district. The Orleans Parish School Board retained control of only 16 schools, 12 of which are charters. This means that over 70 percent of New Orleans students attend charters, more than anywhere else in the country. Unfortunately, too many students with disabilities face insurmountable challenges when trying to access educational services in this highly decentralized system.
In the summer of 2010, the Southern Poverty Law Center filed an administrative complaint with the Louisiana Department of Education on behalf of students with disabilities. That complaint alleged that students with disabilities had been either completely denied enrollment on the basis of their disability, or forced to attend schools unwilling or unable to meet their educational needs. The unique challenges faced by students with disabilities have been the subject of numerous news reports, state monitoring reports, and independent studies. The parties were unable to mediate an agreement, forcing students to file for injunctive and equitable relief in federal court. The Lawyers’ Committee joined Southern Poverty and partners in filing a complaint against Louisiana in October of 2010.
In Berry v. Pastorek, plaintiffs assert that defendants must ensure that students with disabilities have equal access to educational opportunity pursuant to IDEA, Section 504 of the Rehabilitation Act (“Section 504”), and Title II of the Americans with Disabilities Act (“Title II”). Defendants bear ultimate responsibility for ensuring every New Orleans public school complies with federal law. They have failed to do so. First, Defendants have failed to ensure that New Orleans schools offer plaintiffs the same variety of educational programs and services available to their non-disabled peers as mandated by Section 504. Second, defendants have failed to promulgate and enforce a “child find” policy to locate, identify and evaluate students in need of special education services in a timely fashion. Third, plaintiffs are denied a free appropriate education as required by IDEA. Finally, plaintiffs are unlawfully disciplined and excluded from educational programs due to defendants’ failure to implement discipline policies and practices that adhere to IDEA. Plaintiffs request preliminary and permanent injunctions requiring defendants to make facilities, programs and services accessible to all students with disabilities, the timely identification and evaluation of students with disabilities who may qualify for special education services, appropriate educational placement and services for students with disabilities, and provision of FAPE as required by law.
To read the complaint, please click here.
To read the Lawyers’ Committee and Southern Poverty Law Center’s press release announcing the filing of Berry, et al. v. Pastorek, et al., please click here.
On March 30, 2011, the Lawyers’ Committee and partners received an Order (Docket 81) from the judge denying Defendants’ Motion to Transfer Venue (Docket 18). The Order further set the hearing on Defendants’ Motion to Dismiss (Docket 19) for April 26, 2011.
On April 26, 2011, the Lawyers’ Committee and partners won the hearing on Defendants’ Motion to Dismiss (Docket 86), allowing Plaintiffs’ to proceed with the action brought on behalf of thousands of New Orleans students with special needs.
To learn more about the hearing, please click here.
In June 2012, the US Government Accountability Office submitted a report to Congress entiled “Charter Schools: Additional Federal Attention Needed to Help Protect Access for Students with Disabilities.” As the Washington Post reported, one of the report’s key findings was that charter schools enroll fewer students with disabilities (about 8%) than public schools (about 11%).
Furthermore, in terms of enrolling students with intellecutal disabilities, public schools enroll nearly twice as many as charter schools. As the Post mentioned in its article, “[p]ublic schools that accept federal money, including charters, are required by law to provide a ‘free appropriate’ education to all disabled children. They cannot exclude disabled students or otherwise discriminate against them.” The New York Times and Education Week also posted articles on the subject.
A September 2013 Newsweek article discusses this case and profiles one of the named plaintiffs, Lawrence Melrose. The article lays out some of the pitfalls of the post-Katrina New Orleans education system.
A November 14th NOLA article reports that the use of the OneApp, a computerized school-match enrollment process, doubled on the first day of New Orlean’s enrollment for the 2015-2016 school year.