July 31, 2008

Chicago School Board’s Failure To Comply With Court Monitor’s Rule Limiting Disabled Student Population Not Justiciable

About 16 years ago, a group of disabled students sued the Illinois State Board of Education. Among other things, the students claimed the Chicago Public School System, for which the State Board allegedly was responsible, improperly assigned disabled students to schools and classrooms solely according to their disability classification. That practice, the students argued, violated the Individuals with Disabilities Education Act.

The State Board of Education signed a consent decree with the students. The decree (1) provided for appointment of a Monitor to oversee implementation of the order; (2) extended the Federal District Court’s jurisdiction to oversee the consent order.

The Monitor ruled that no Chicago public school could have more than 20 percent students with disabilities. But when the deadline for the Monitor’s rule arrived, there were 96 schools that did not meet the requirement. The Chicago School Board asked for a waiver of the rule, but supplied no information supporting the request. Nor had the Monitor set criteria for a waiver.

The Monitor reported to the district court the school board’s failure to comply, and suggested that the court extend the time it would oversee the case. The students supported the Monitor’s suggestions. The district court (1) agreed to extend its jurisdiction through the end of the 2009-2010 school year and (2) confirmed the Monitor’s 20 percent rule. The court allowed for the Chicago Board to apply for a waiver of the rule.

The Chicago Board appealed the district court’s order confirming the Monitor’s 20 percent cap. The 7th Circuit Court of Appeals ruled that the issue was not justiciable — i.e., ripe for decision by the court — and thus dismissed the appeal.

The Chicago Board argued the appeal was justiciable because the 20 percent rule left it with unacceptable alternatives: violate the rule in derogation of the consent order or comply by making wholesale transfer of disabled students, which ultimately would violate state and federal law.

The appellate court rejected the board’s argument, explaining:

[T]he Chicago Board completely ignores that it will suffer this injury only if the schools are not granted waivers from the cap − an event that has yet to occur … Even more, we cannot venture to express an opinion as to whether the Chicago Board could successfully seek waivers because … there is nothing in the record explaining the waiver process or criteria. Thus, the most we can say at this point is that the Chicago Board’s asserted injury is squarely grounded on events that “may not occur at all" … namely, the denial of its waiver requests.

Get the whole opinion, Corey H. v. The Board of Education of the City of Chicago, No. 07-2084 (7/17/08), by clicking here.

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