United States District Court, E.D. New York
J.G., by and through her parent and next friend, F.B., et al., Plaintiffs,
RICHARD MILLS, et al., Defendants
Order Filed: December 28, 2010
Decided January 21, 2011
For J.G., by and through her parent and next friend, F.B., A.S.1, by and through his parent and next friend, V.S., J.S., by and through his parent and next friend, A.S.2., A.M., by and through his parent and next friend, O.M., individually and on behalf of all others similarly situated, J.S.1, Plaintiffs: Cynthia M. Godsoe, LEAD ATTORNEY, Advocates for Children, New York, NY; David F. Owens, Dewey Ballantine, LLP, New York, NY; Matthew Lenaghan, Advocates for Children of New York, Inc., New York, NY; Nancy Rosenbloom, The Legal Aid Society, New York, NY.
For C.H., Plaintiff: Cynthia M. Godsoe, LEAD ATTORNEY, Advocates for Children, New York, NY; David F. Owens, Dewey Ballantine, LLP, New York, NY; Matthew Lenaghan, Advocates for Children of New York, Inc., New York, NY.
For N.H., N.H.1, Plaintiffs: David F. Owens, Dewey Ballantine, LLP, New York, NY; Matthew Lenaghan, Advocates for Children of New York, Inc., New York, NY.
For JM, Plaintiff: David F. Owens, Dewey Ballantine, LLP, New York, NY; Matthew Lenaghan, Advocates for Children of New York, Inc., New York, NY; Nancy Rosenbloom, The Legal Aid Society, New York, NY.
For Plaintiffs, Plaintiff: Matthew Lenaghan, Advocates for Children of New York, Inc., New York, NY; Nancy Rosenbloom, The Legal Aid Society, New York, NY.
For Intervenors N.S., T.M., I.M. and J.M., Intervenor Plaintiff: Cynthia M. Godsoe, LEAD ATTORNEY, Advocates for Children, New York, NY; David F. Owens, Dewey Ballantine, LLP, New York, NY.
For Richard Mills, in his official capacity as Commissioner of the New York State Education Department, Defendant: Michael R. Klekman, LEAD ATTORNEY, State of New York, Office of the Attorney General, New York, NY.
For Joel Klein, in his official capacity as Chancellor of the New York City school District, New York City Board of Education, New York City Department of Education, Defendants: Abigail Lynne Goldenberg, LEAD ATTORNEY, NYC Law Department, New York, NY; Janice L. Birnbaum, New York City Law Department, New York, NY.
For JM, Defendant: Abigail Lynne Goldenberg, NYC Law Department, New York, NY.
Allyne R. Ross, United States District Judge.
The court has received the Report and Recommendation on the instant case dated December 28, 2010 from the Honorable Steven M. Gold, United States Magistrate Judge. No objections have been filed. Accordingly, the court has reviewed the Report and Recommendation for clear error on the face of the record. See Advisory Comm. Notes to Fed.R.Civ.P. 72(b); accord Edwards v. Town of Huntington, No. 05 Civ. 339 (NGG) (AKT), at *6 (E.D.N.Y. July 11, 2007); McKoy v. Henderson, No. 05 Civ. 1535 (DAB), at *1 (S.D.N.Y. March 5, 2007). Having reviewed the record, I find no clear error.
Pursuant 28 U.S.C. § 636(b)(1), I hereby adopt Judge Gold's recommendation that plaintiffs' motions for intervention and class certification be granted. At defendants'
request and with plaintiffs' consent, I will hold plaintiffs' motions for preliminary approval of settlement and for notice and hearing in abeyance until after February 11, 2011.
REPORT & RECOMMENDATION
STEVEN M. GOLD, United States Magistrate Judge.
Plaintiffs, New York City public school students, bring claims on behalf of themselves and other students similarly situated, alleging that defendants violated their rights under federal and state laws by depriving them of educational services while at or upon returning from court-ordered settings.  The parties have agreed to the terms of a proposed Stipulation of Settlement that defines a court-ordered setting as any " juvenile delinquency or 'juvenile offender' placement ordered by the Family, Criminal or Supreme Court, with the New York City Department of Juvenile Justice (" DJJ" ) . . ., the New York State Office of Children and Family Services [" OCFS" ], or an agency with whom OCFS contracts." Stipulation, Docket Entry 168-2, ¶ 1(b). Plaintiffs' primary allegation is that students have been denied timely and appropriate re-enrollment to New York City community schools upon their discharge from court-ordered settings. Sec. Am. Compl., Docket Entry 36, ¶ 1.
The parties have been involved in extensive settlement discussions for several years. The Court has had significant involvement in those discussions. Now that the parties have reached agreement upon the terms of a settlement, plaintiffs move for intervention of seven additional named plaintiffs, class certification, preliminary approval of the settlement, and approval of class notice. Docket Entries 168, 178. Plaintiffs' motion for class certification is largely unopposed with one exception -- the issue of standing. With limited exceptions, defendants contend that neither the named plaintiffs nor the proposed intervenors have standing and are therefore not adequate class representatives.
The Honorable Allyne R. Ross has referred plaintiffs' motions to me for a report and recommendation. For the reasons stated below, I respectfully recommend that plaintiffs' motions be granted.
As explained in my Report and Recommendation on plaintiffs' motion for a preliminary injunction,
When students are charged as juvenile offenders or juvenile delinquents, they may be . . . placed into pre-adjudication detention. While . . . in detention, students . . . receive educational instruction through a New York City Department of Education program called " Passages Academy" (" Passages" ). Those students who are ultimately found to be offenders or delinquents and sentenced to some time in further custody are usually placed in facilities operated by the New York State Office of Children and Family Services (" OCFS" ), which becomes responsible for their care and education.
Report and Recommendation, Docket Entry 138 at 3. Plaintiffs' Second Amended Complaint essentially asserts three claims on behalf of students attending or released
from Passages or OCFS facilities: 1) defendants do not provide adequate educational instruction to students at Passages Academy; 2) defendants fail to re-enroll students in community schools promptly and in appropriate classes after their discharge from court-ordered settings, and fail to award students appropriate credit for course work completed while in court-ordered settings; and 3) defendants fail to provide special education services to students at Passages and upon release from court-ordered settings as required by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (" IDEA" ).
The proposed Stipulation of Settlement provides for various remedies, including the following injunctive relief: 1) a requirement that a student released from a court-ordered setting be given a community school placement within five school days of seeking re-enrollment, 2) a requirement that the placement provide appropriate credit-granting course work and all legally mandated special education services, 3) a procedure for developing a new individualized education program (" IEP" ) for special education students returning from OCFS custody, 4) a procedure for the transfer of student records between court-ordered settings and the New York City Department of Education (" DOE" ), 5) the creation of a Best Practices Guide to assist school personnel in their efforts to obtain records from court-ordered settings, make programming determinations, and award credits for course work completed while in a court-ordered setting, and 6) a procedure for providing special education services at Passages. In addition, the Stipulation provides compensatory relief for students who were not timely re-enrolled upon their discharge from a court-ordered setting. The Stipulation also includes a monitoring provision pursuant to which defendants are to conduct audits of their records designed to measure compliance with the Stipulation's terms.
As stated in the Stipulation of Settlement, the parties propose to certify a class defined as follows:
Students aged 7-21 without a high school diploma who, during the period from December 14, 2001 through the end of the Stipulation period, are or were residents of the City of New York; and either (a) are or were enrolled at Passages Academy (" Passages" ), or (b) seek or sought to re-enroll in New York City public schools after being discharged from the custody of the New York State Office of Children and Family Services (OCFS).
Stipulation ¶ 5. The parties further seek to certify six subclasses defined in the Stipulation as follows:
" Subclass A" is defined as Class Members who attend or have attended Passages Academy.
" Subclass B" is defined as Class Members who seek or sought to re-enroll in New York City public schools after being discharged ...