The opinion of the court was delivered by: WEINSTEIN
A class action was brought predicated on claims that the constitutional and statutory rights of many students in the New York City school system were being violated by the procedures and facilities afforded for the education of children whose emotional problems resulted in severe acting out and agressive behavior in school. After extensive evidence taken in court, visits to schools and examination of the literature in the field, the court held that the process of evaluating students to determine if they should enter special day schools violated the students' statutory and due process rights. It found that the system was racially segregated and discriminatory. The court also held that lack of funds was no excuse for continuing the unsatisfactory practices. See the extensive discussion of the facts and law in Lora v. Board of Education of City of New York, 74 F.R.D. 565 (E.D.N.Y.1977); Lora v. Board of Education, 456 F. Supp. 1211 (E.D.N.Y.1978), remanded, 623 F.2d 248 (2d Cir.1980).
The court ordered extensive retraining of teachers and others in addition to the preparation of special materials for in-house training to remedy the illegalities. It also suggested using experts in communications, education and other fields to assist in the preparation of readily understandable explanations to parents and children of their rights. It commended the efforts of the school authorities to meet communication and other problems. It required reports by the City on action taken to comply with the court's directive and it requested that representatives of the New York State Department of Education and of the United States Department of Health, Education and Welfare participate in conferences to provide necessary standards and training programs.
To assist the parties, the court appointed a special Lora Advisory Panel of independent experts to serve without fee, but with reimbursement for travel expenses and an honorarium of $100 a day each for time spent on panel meetings. Two members each were selected by the plaintiffs, the New York City Board of Education and the United States, and one by the Public Education Association, amicus. An eighth member was appointed to serve ex officio. The court met with the Panel in chambers with counsel present and discussed the need for appropriate standards.
A number of drafts of proposed standards were developed. Some were rejected by the court as inappropriate with the request that the parties and Panel continue their work. A number of intermediate orders and amendments to the court's decrees were adopted by stipulation as practical problems were revealed in the field.
Funds for the project and necessary studies were provided in large measure by HEW because it was expected that the standards would be a model for other parts of the country. Technical assistance was afforded by HEW and the Civil Rights Division of the Department of Justice. New York State Education authorities also provided assistance. The City of New York supplied an office and other facilities at the headquarters of the Board of Education. The Board's many experts and teachers expended thousands of hours on meetings and training courses. Private citizens such as those associated with the Public Education Association also gave many days to the project.
The members of the Panel were: Hannah Flegenheimer, Associate Coordinator for Regional Programs, New York State Department of Education; Dr. Jeanette E. Fleischner, Department of Special Education, Teachers College of Columbia University; Dr. Robert Guarino, Director of Division of Supervision, New York State Department of Education; Dr. Joseph R. Jenkins, Experimental Education Unit, University of Washington, Seattle; Dr. John L. Johnson, College of Education and Human Ecology, University of the District of Columbia; Dr. Carmen Ortiz, Director of Bilingual Special Education Program, Special Education Department, Bank Street College of Education; Norman S. Rosenberg, Esq., Co-director of Developmental Disabilities Rights Center, Mental Health Law Project, Washington, D.C.; and Dr. Frank H. Wood, Professor of Educational Psychology and Special Education, University of Minnesota. The Panel staff consisted of Marilyn Nixon, Consultant on Educational Affairs and Richard James, Assistant to the President, Bronx Community College.
While it has taken considerable time for the court's orders to be carried out, the time has been well spent by the parties. They have worked assiduously over the years in developing and perfecting a variety of programs and standards. The court wishes particularly to commend counsel, amicus curiae and the members of the Lora Advisory Panel who assisted in this project.
The parties have now entered into a stipulation implementing a program of "Non-Discriminatory Standards and Procedures." See Appendix and Appendix A, attached. The court is pleased to approve this stipulation. The cooperative work of the various attorneys, school personnel, experts and city, state and federal authorities provide a wholesome example of how disputes of this kind can be peaceably resolved. A minimum of adversarial litigation by lawyers and maximum utilization of the goodwill of experts and others intersted primarily in the welfare of the children have benefited both the children and the public.
The case will be closed subject to receiving the reports as required by the stipulation. Any party may move to reopen the case at any time. This constitutes a final judgment.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
ISAAC LORA, et al., Plaintiffs, against THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants, UNITED STATES OF AMERICA, Amicus Curiae
IT IS HEREBY CONSENTED TO AND AGREED BY AND BETWEEN THE UNDERSIGNED ATTORNEYS FOR THE PARTIES THAT:
1. Defendants shall issue and implement the standards and procedures contained in Appendix A, henceforth referred to as the Non-discriminatory Standard and Procedures, not later than September 30, 1984.
2. The Chancellor shall monitor the progress made and the problems encountered by the Sub-Committees on the Handicapped and Community School Districts in implementing the Non-discriminatory Standards and Procedures and shall report to the Board of Education the results of this monitoring on the following timetable:
Upon submission by the Chancellor, the Board of Education shall provide these reports to the plaintiffs, amici curiae and the Court.
3. Defendants shall disseminate, in a variety of appropriate media, and in a form to be understood by the major language groups, as defined by the Chancellor, information regarding the referral procedures to be followed by parents, by instructional personnel, and by community agency personnel.
4. a. Defendants shall continue to train instructional personnel in the referral process. The training shall be designed to ensure that staff members give careful and sensitive attention to linguistic, cultural and ethnic identification of students during the referral process.
b. Defendants shall continue to train assessment personnel in acceptable professional standards with periodic review and shall provide adequate supervision.
c. Defendants shall continue to train assessment personnel to be familiar with and sensitive to the linguistic, cultural and ethnic identification of students. Assessment personnel shall use this knowledge and sensitivity in identifying the language in which the student shall be assessed, in selecting the procedures to be used to assess the student's personal and social adjustment and in interpreting the data collected.
5.Defendants shall establish procedures for the collection, filing and retrieval of referral data.
a. Defendants shall monitor and regularly examine the number of general education students referred by schools staff, by parents, and by other sources.
b. Defendants shall establish procedures to collect data on the ethnicity of general education students referred for assessment. The referrals for each ethnic group shall be compared with the ethnic enrollment of the local school district or other relevant school population, provided that comparison shall not be made on a regional basis except as a means of supplementing other comparisons for other than the high school regions. Where there is a statistically significant difference, further analysis shall be conducted and appropriate action taken.
c. Defendants shall establish procedures to collect data on the ethnicity of students classified as emotionally disturbed and placed in public and private special education. The classifications and placements of each ethnic group shall be compared with the ethnic enrollment of the local school district or other relevant school population provided that comparisons shall not be made on a regional basis except as a means of supplementing other comparisons for other than the high school regions. Where there is a statistically significant difference, further analysis shall be conducted and appropriate action taken.
d. Defendants shall continue to monitor periodically the appropriateness of eligibility and placement decisions made by School Based Support Teams and the District Sub-committees on the Handicapped.
6. Until such time as defendants fully implement the Child Assistance Program ("CAP") data system, defendants shall collect and analyze the data required by paragraphs 5(b) and 5(c) in the following manner:
a. During the period of transition to the CAP data system, defendants shall continue to collect data on the data bank on the ethnicity of students who complete the evaluation process. Defendants shall perform data comparisons and analyses based on the data available on the data bank.
b. During this period of transition, defendants shall add school districts to the CAP data system in order to develop a data base on the ethnicity of all students referred for assessment regardless of whether or not they complete the evaluation process. Defendants shall perform data comparisons and analyses on the ...