Citations
- 519 F. Supp. 2d 870
Full opinion text
DECISION AND ORDER
AARON E. GOODSTEIN, United States Magistrate Judge.
I. CHRONOLOGY
On September 13, 2001, the plaintiffs filed their complaint, alleging violations under the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) and related state statutes, Wis. Stat. §§ 115.758, et seq. Upon the written consent of the parties to the exercise of jurisdiction by the magistrate judge, the case was reassigned to this court on November 28, 2001. The court then issued its scheduling order establishing a time frame for pretrial discovery and for filing a motion seeking class certification. On November 7, 2002, the plaintiffs filed their motion for class certification seeking to proceed on their claims within the context of a class action. The defendants filed their opposition to the motion, and on May 23, 2003, the court, in its Decision and Order Regarding Class Certification, directed the plaintiffs to submit an amended class certification motion because the court determined that a number of the plaintiffs’ claims were subject to the exhaustion of administrative remedies requirement, pursuant to the IDEA. 20 U.S.C. § 1415((). As stated in that decision, this court determined that the plaintiffs’ proposed class definition included claims for which exhaustion would be required. The court concluded that some of the plaintiffs’ claims were not systemic in nature, identifying these as “post-determination” claims. The court reasoned that these claims were subject to administrative exhaustion because they are individual and substantive in nature and each alleged wrong could be potentially remedied through the administrative process outlined in the IDEA. The court identified the other claims as “predetermination” claims and concluded that these could be systemic or procedural in nature. As such, these claims had the potential for class certification. The plaintiffs were required to file an amended motion for class certification limited to the pre-determination claims.
On June 23, 2003, the plaintiffs filed their amended motion for class certification, which sought class certification based upon the claims as narrowed by the court’s May 23, 2003 order. On August 1, 2003, the court issued a second Decision and Order, which directed the plaintiffs to file a second amended motion for class certification because, in the court’s opinion, both the plaintiffs and the defendants misconstrued the May 23, 2003, decision and order. Ultimately, on November 14, 2003, this court entered its third Decision and Order, and at that time, defined the class as follows:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
At this point, a number of other motions were filed, including the defendant MPS’s motion to dismiss certain claims as not typical of the class and the plaintiffs’ motion to compel production of materials from the United States Department of Justice. The court ruled on these motions • and then met with the parties to discuss appropriate notice to the class, and a discovery schedule for expert witnesses. After notice to the class was given and expert discovery completed, the court requested that the parties file a joint stipulated statement of facts, together with summaries of their respective expert witnesses. Based upon the submissions, and in an effort to avoid the time consuming process involved in summary judgment motions, the court decided to bifurcate trial proceedings, and first conduct a court trial for expert witnesses. After some rescheduling, the court trial involving expert witnesses (referred to as Phase I) was commenced on October 18, 2005, and completed on November 2, 2005 (the trial did not run continuously during that period). The court heard from six experts.
On November 28, 2005, the court held a hearing at which time the parties were advised of the court’s initial reaction to the experts’ testimony and conclusions drawn therefrom. The court informed the parties that it would be necessary to proceed to Phase II, which would consist of the factual presentations upon which the experts formed their respective opinions. The trial to the court in Phase II began on April 10, 2006, and was concluded on April 26, 2006. The testimony of 48 witnesses was presented, and numerous documents were received in evidence. Post trial submissions were filed by the parties in June, 2006. The court is now in a position to render its decision.
II. FACTUAL SUMMARY
In preparation for the trial in Phase I of this case, the parties submitted a joint stipulated statement of facts. (Docket No. 267). The document contains 257 stipulated facts. In addition to the stipulated facts, the parties also submitted statements of facts in dispute. The agreed upon facts present a thorough foundation for the litigation in this case. The time line under consideration in this litigation is the period from September, 2000 to June, 2005. Following is a modified recitation of a portion of the statement of stipulated facts that are germane to the court’s decision. Since not all facts contained in the statement have been reproduced, the numbering that appears herein does not correspond with that found in the statement of the parties. This factual statement applies to the years under consideration in this litigation.
1. All school districts in the State of Wisconsin, including Milwaukee Public Schools (“MPS”) are required annually to submit data to the Wisconsin Department of Public Instruction (“DPI”). This includes data concerning students in special education.
2. As part of its obligations regarding special education, MPS requires each individual school to develop a School Educational Plan (“SEP”) that outlines how each school will be working towards increasing student achievement throughout the school year. The foundation of all school based planning and decision making is guided by the SEP. The SEP is developed at the building level by a team of individuals usually called the “Learning Team”. The SEP is developed to incorporate the district’s mission and teaching and learning targets which are aligned with state standards into a working document to guide the day-to-day activities of each school. School-based administrators are trained and offer in-service opportunities on the development of the SEP throughout the school year. The SEP is intended to be a roadmap and a working document for each school to use during the school year to support its efforts in increasing student achievement. The ten sections of the SEP guide the school’s efforts in developing and implementing an effective educational plan. The development of the plan is supported by the central administration through the provision of workbooks, electronic support, and personal training seminars to ensure that schools have the tools available to them to develop a meaningful plan aimed at boosting the achievement of all students.
3. As part of its oversight responsibilities regarding special education, DPI monitors school districts for compliance with federal and state law. DPI’s July 17, 2001 letter to MPS summarizing its 2000-2001 on-site monitoring findings observed that MPS needed an effective system of administrative accountability at the school building level in order to resolve the compliance issues DPI had found through on-site monitoring and its other oversight activities. The letter expressed DPI’s pleasure that MPS had agreed to develop and implement such a system by September 1, 2001. MPS did not develop and implement a system of administrative accountability at the school building level by September 1, 2001.
4. In October, 2001, DPI engaged a consultant, Dr. Lee Greenwald, to assist MPS in creating a centralized system of specialized education accountability within the district’s decentralized service delivery system. The plan was completed in April, 2002 and entitled, “Milwaukee Public Schools Special Education Oversight Action Plan.” The parties and witnesses in this case frequently refer to the plan by its initials — “SOAP.”
5. DPI’s 2001-2002 on-site monitoring of MPS in May, 2002, revealed that MPS had not corrected the implementation errors found in DPI’s 2000 on-site monitoring, and had not corrected the implementation errors identified in the five Consolidated Corrective Action Plans (“CCAPs”) created in 2000 and 2001. CCAPs are corrective action plans centered around broadly-defined themes of placement, non-attendance, discipline, speech and language, and individualized education program (“IEP”) services, identified in monitoring findings and IDEA complaint findings.
6. The IEP is a written statement for each child with a disability that is developed, reviewed and revised in accordance with the requirements of the IDEA. 20 U.S.C. § 1414(d).
7. During the 2002-2003 and 2003-2004 school years, DPI focused its oversight activities on assisting MPS to build the effective, centrally administered system of special education procedural oversight and accountability mechanisms within MPS, and the mechanisms to be implemented at each school building, that DPI had ordered in its June 18, 2002 monitoring report to MPS.
8. With minor modifications, Dr. Greenwald’s SOAP plan was adopted by the Milwaukee Board of School Directors on June 27, 2002, with instructions to MPS administrators to implement SOAP as soon as possible.
9. One of the essential features of SOAP is the establishment of direct lines of authority and accountability in the district’s special education program. The Director of Special Services was charged with the accountability for SOAP with the authority equal to the Director of Leadership Services who provides comparable directions, support, and oversight of the district’s general education program.
10. SOAP makes each school principal accountable for the provision of special education services and for the implementation of program improvements in his/her school. Under SOAP, the building-based oversight and evaluation of the delivery of special education services takes place through the SEP, which is developed each year by a school committee. SOAP requires that the special education component of each school’s SEP be reviewed and approved by the Special Education Supervisor and the Special Education Leadership Liaison (“SELL”) assigned to that school.
11. According to MPS policy, all school administrators, teachers, psychologists, building coordinators, SELLs, health professionals, counselors, pupil services central office staff, among others in MPS, are responsible for meeting the district’s Child Find obligations required by the IDEA and related state statutes. Child Find deals with the identification, location and evaluation of children with suspected disabilities, who may be in need of special education.
12. Ultimate oversight responsibilities for Child Find rest with the MPS Superintendent and the School Board. The Chief of Pupil Services is third behind the School Board and the Superintendent in ensuring that MPS meets its Child Find obligations. A majority of the oversight duties regarding Child Find activities have been delegated to the Director of Special Education and that office.
13. Because Child Find is an important responsibility, MPS assigned a specific SELL to oversee district-wide Child Find activities, even though the responsibilities for referral and evaluation are with the schools.
14. MPS publishes a Parent/Guardian Rights and Responsibilities Handbook which is distributed to the parents and guardians of MPS students at the beginning of each school year, and is also provided to parents when their students enroll in the district during the school year.
15. MPS policy requires that when a parent requests a special education referral, the district must evaluate the student, develop an IEP for eligible students, and send the student’s parents a notice of educational placement, within 90 days of the receipt of the referral.
16. MPS policy requires that any time a parent or other individual inquires, verbally or in writing, about a referral for special education services or expresses concern regarding a possible disability, the parent or individual must be provided with information about how to initiate a referral.
17. MPS policy requires that when the district receives correspondence from any person requesting an evaluation for a student and the correspondence does not state that the reason for the evaluation is a suspected disability, or does not identify the request as a special education referral, the district must determine if the correspondence is a special education referral. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
18. MPS policy requires that, in order to make a determination within a reasonable time after receipt of such correspondence, the district must inform the correspondent of their right to make a special education referral and how to make a written referral. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
19. MPS policy assigns responsibility for processing initial referrals for special education to the building coordinator at each school.
20. MPS policy requires that parents be provided with written notice of their procedural rights at the time they are notified that a referral has been received. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
21. MPS policy requires that parents be given the opportunity to participate in the review of existing data on the child, and in identifying what additional data, if any, are needed to complete the evaluation. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
22. MPS policy requires that IEP Team meetings include the following participants: one or more of the student’s parents; at least one regular education teacher familiar with the student; at least one special education teacher; a qualified, knowledgeable representative of the local educational agency (“LEA”) with authority to commit the district’s resources; and under some circumstances, other specified individuals. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
23. MPS policies restrict requests for extensions of time beyond 90 days to complete the IEP Team process and determine placement to a specific set of reasons, require that the reasons be documented, require that the requests be approved by a supervisor, and limit the number of extension requests to two per case. This policy is documented in MPS’s IEP Team Procedural Handbook, revised September 2004.
24. MPS disseminates Child' Find information in a variety of ways throughout the community. MPS sends information about special education forums that are held periodically throughout the year to various community organizations. MPS sends a packet of Child Find information to clinics and doctor’s offices upon request. The packet is available in English, Spanish and Hmong languages. The packet includes a referral form, school and district contact information, and a booklet on the special education process, including a statement of parental rights.
25. MPS has a Parent Center located at its central office. The Parent Center staff answer calls and meet in-person with parents. Their role is to direct parents to the proper resource with MPS to have their issues resolved. The staff is trained in Child Find and other special education issues. The school application that the staff assists the parents in completing asks whether a child has special education needs. If a parent requests a special education referral, it is MPS policy that the Parent Center process that request.
26. The 2004-2005 MPS district policy regarding disciplinary removal procedures requires MPS staff to consider, in situations where a student has been removed for more than ten days in a school year, whether the child should be suspected of having a disability. Paragraph 8 of the policy provides,
“if the student does not have an IEP and is not in the referral process but has been removed more than 10 days, the student may be in need of consideration for a special education or Section 504 evaluations. In such cases, the staff will need to consult with the building coordinator or Special Services Supervisor/Administrator regarding possible “Child Find” obligations under IDEA and Section 504.”
27. Weekly truancy reports are generated by school and central office administrators, including principals, vice principals, and special services administrators. Each school is required to have a building Truancy Intervention Coordinator (i.e., social worker, psychologist, or another identified person) who is responsible to monitor these weekly reports, contact and meet with the parents, work with regular education teachers, and encourage students to attend school.
28. MPS has numerous programs and policies that target at risk students in the general education school population that may need special education or non-special education assistance in order to succeed at school.
29. It is MPS policy that each school principal is responsible for implementing and monitoring a dispute resolution process in them schools. Parents with a complaint may file an MPS complaint with their school principal. If a principal cannot resolve a complaint within five school days of the receipt of the written or verbal complaint, immediate intervention is requested from a SELL. The SELL must resolve the matter within five days of the request for intervention and may consult with the leadership specialist for that school, if necessary.
30. Under federal law, formal complaints can be filed with DPI. When an IDEA complaint is received by DPI, it is forwarded to MPS and, in accordance with the procedures in place, it is then sent to the appropriate school principal with directions to investigate and resolve the complaint. If the complaint is substantiated by DPI, the citywide program support teacher assists the school in implementing the corrective action plan in a timely manner.
31. The IDEA was re-authorized in the summer of 1997, before the beginning of the third year of DPI’s new six-year on-site review schedule. Because of the numerous changes to special education law, DPI’s six-year on-site review process was suspended and compliance review efforts were refocused to assist Wisconsin school districts to understand and implement the new provisions of IDEA.
32. DPI found in the Spring of 1998 that 17% of MPS students with disabilities did not have a current IEP in effect. In addition, the evaluation logs MPS submitted to DPI showed that only 81.1% of evaluations during the 1997-98 school year had been timely completed.
33. Throughout the 1998-1999 school year, DPI required MPS to take corrective action with respect to these issues, and required MPS to regularly provide DPI with data that reflected the extent of MPS’s compliance with the requirements to have current IEPs in effect and to timely complete student evaluations.
34. On June 1, 1999, DPI notified MPS that 7.4% of MPS students did not have current IEPs recorded in the district database as of December 1, 1998, and that many of its evaluations were untimely. As a result, DPI notified MPS that the district would not receive $604,206 of its IDEA funds. DPI further informed MPS that it would approve the use of IDEA discretionary funds only to resolve outstanding compliance issues. DPI directed MPS to have a current IEP in effect for all children and to eliminate the evaluation backlog prior to the beginning of the 1999-2000 school year.
35. Also in June, 1999, DPI first consolidated its oversight of the corrective actions MPS had been ordered to take in response to substantiated IDEA complaints from individual students on the issue of timely evaluations. On June 28, 1999, DPI sent a letter to MPS, stating: “As you know, the department has five open complaints against MPS regarding timely evaluations (94-044, 98-050, 98-059, 99-009, 99-014.) The department will consolidate its oversight of necessary corrective action in those complaints and close each of the complaints when MPS documents: (1) compliance with any child-specific directive(s) in the decision, and (2) compliance with the two relevant directives issued in Superintendent Bensons’ letter of June 1,1999.”
36. Since June 1999, DPI has also continued to follow up on MPS’s duty to timely complete evaluations. In May 2000, DPI on-site monitoring revealed that 95.6% of MPS sampled evaluations were completed timely. In July 2000, MPS evaluation logs submitted for DPI’s review showed that 98.1% of evaluations initiated in January through March were completed timely. Although DPI informed MPS in July 2000 that the issue of timely evaluations was resolved, DPI has continued to require MPS to submit IEP team evaluation logs since the resolution of the issue.
37. DPI conducted its 1999-2000 on-site review of MPS by visiting three elementary schools, three middle schools and three high schools. Ten student records were reviewed for each site. DPI reviewers evaluated the soundness of MPS’s self-assessment of its IDEA 1997 compliance, and also interviewed parents, regular education teachers, special education teachers, the building principal, and the special education supervisor for each site. Implementation errors were found, and in October, 2000, DPI approved MPS’s CAP regarding the 1999-2000 on-site review.
38. DPI conducted an on-site review during the 2000-2001 school year. DPI’s July 17, 2001 letter to MPS summarizing its on-site monitoring findings observed that MPS needed an effective centralized system of administrative accountability that reached down to the school level in order to resolve the compliance issues DPI had found through on-site monitoring and its other oversight activities. DPI stated that it was encouraged that MPS had agreed to develop and implement such a system by September 2001, and expressed its pleasure that the initial focus of the accountability system would be on the unresolved compliance issues DPI and MPS had been discussing.
39. One of DPI’s findings in its 2000-2001 monitoring report specifically related to an MPS policy and procedure that could potentially delay the referral of a student suspected of being a child with a disability. The district’s policies in effect at the time might have required district staff to take actions when making a referral that are not required in the law (i.e., a reasonable cause determination). These actions might delay a referral by a staff member or interfere with the duty to make a referral. DPI instructed MPS that the district’s policies and procedures must make clear that these actions may not delay the referral when the referring person reasonably believes the child is a child with a disability. While MPS policies correctly explained the 90-day evaluation time limit requirement following referrals from parents and others, it did not clarify that the requirement also applies to referrals from district staff. DPI therefore directed MPS to add a clarification that any licensed school staff member who reasonably believes that a child has a disability is required to make a special education referral. In addition, DPI directed MPS to add new policy language clarifying that any physician, nurse, psychologist, social worker, or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability is required to refer the child for an evaluation. Moreover, DPI directed MPS to add policy language to clarify that when persons other than the school district staff make a written referral to the district, the receipt of the written referral by any MPS staff person marks the beginning of the 90-day time line. MPS complied with DPI’s directives.
40. On October 2, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in four open complaints where MPS had been directed to take steps to provide children with a free and appropriate public education within a reasonable amount of time after the district learns that a child with a disability is not attending school. DPPs consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Non-Attendance Consolidated Corrective Action Plan (CCAP).”
41. On October 11, 2000, DPI informed MPS that it was consolidating its oversight of required corrective action in five complaints where MPS was determined to have unlawfully failed to provide a free and appropriate public education by repeatedly suspending or excluding children with disabilities. DPI’s consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Discipline Consolidated Corrective Action Plan (CCAP).”
42. On August 10, 2001, DPI informed MPS that it was consolidating its oversight of required corrective action in three open complaints involving speech and language issues. DPI’s consolidated oversight regarding this issue came to be referred to by DPI and MPS as the “Speech and Language Consolidated Corrective Action Plan (CCAP).”
43. On October 3, 2001, DPI issued a decision in IDEA Complaint No. 01-058, finding that MPS failed to provide services to a student consistent with the requirements of the student’s IEP.
44. During the 2002-2003 school year, DPI focused its MPS oversight activities on building MPS compliance capacity through the implementation of SOAP and the development of the MPS Internal Audit Action Plan. During that same school year DPI did not conduct on-site monitoring activities using the on-site monitoring model acknowledged by the United States Department of Education Office of Special Education Programs (“OSEP”) in its 2000 monitoring of DPI’s oversight. Where DPI found any compliance problems at this time, it ordered corrective action through the -mechanism of IDEA complaint decisions and directives, and their modifications to the CCAPs.
45. In the 2002-2003 school year, MPS used the IEP checklist system in 18 pilot schools. At the completion of the pilot, MPS did not provide DPI with a report on the assessment or the results.
46. In November 2003, the internal audit plan was renamed “MPS Continuous Improvement and Focused Monitoring Action Plan” (“MPS CIFM Action Plan”), and was revised to reflect the completion of activities during the 2002-2003 school year and to add additional activities for the 2003-2004 school year. The format of the MPS CIFM Action Plan was also changed to specifically identify whether an activity had been completed, and to specify the target dates for DPI’s verification of the efficacy of the required corrective activities. A self-assessment pursuant to this plan was conducted in each MPS school in March, 2004.
47. Once the March, 2004 self-assessments of each school were completed, the Special Education Supervisors and SELLs scored each of the 62 checklist items measured by the school as requiring one of three levels for monitoring support. Some schools were at different levels of support for different checklist items.
48. Following receipt of their school data, the principals were required to develop a plan, including goals and actions, to remediate or address any of the 62 checklist or non-checklist items that were measured below 95% compliance. Principals were not required to develop a remediation plan for compliance items assessed at 95% or higher compliance (“periodic review” level of support), even though the district goal is 100% compliance in all schools. This plan was incorporated into the Special Education Section of each school’s overall SEP. The SELLs and the Special Education Supervisors conducted follow-up meetings with school principals and SEP representatives, as needed, for the purpose of amending or strengthening the special education component of the SEP.
49. The results of the overall assessment indicate compliance concerns including the following findings. The following findings are not limited to the allegations in this lawsuit.
a. Half of MPS schools (50.6%) merit ongoing oversight.
b. 10.9% need intensive monitoring, including 25% of high schools and 28% of middle schools.
c. 61.5% of MPS schools either merit intensive monitoring or ongoing oversight.
50. A September 2004 MPS CIFM Action Plan required MPS to evaluate the same specific checklist and non-checklist items as were in the original September, 2002 internal audit system action plan. This was to be done in the March, 2005 self-assessment.
51. In regard to data concerning untimely evaluations, MPS produced two reports. The first report covers referral dates from June 1, 2003 to July 8, 2004. The second report covers a time period from August 23, 1995 to June 30, 2003.
52. The first report documents 114 IEP placement offer dates that were over the 90-day time fine. Past-due days range between 1 and 267 days. 58 children had evaluations that were overdue between 1 and 20 days. 44 children had IEP evaluations that were completed between 21-60 days past due. 5 children had evaluations that were completed more than 90 days overdue. One child had an initial evaluation that was 267 days past due. No information is provided regarding the reason for the delay in initial evaluation. The average number of days past due was 30 days.
53. The second report documents special education evaluations that are past the legally required 90 day time line for completion. This report is dated November 18, 2003, but covers an earlier period from August 23, 1995 through June 30, 2003. This report indicates that there were 978 past due initial evaluations from June, 2000 through June, 2003. Overdue days range from 1 to 579. Sixty eight children had their evaluations completed 100 or more days past due. Two children had initial evaluations that took 600 or more days to complete. The average days past due is 37.
DPI notified MPS that it had seven open complaints regarding MPS’s failure to provide services consistent with the IEPs, and notified MPS that DPI was consolidating its oversight of the required corrective action in the seven open complaints. DPI’s consolidated oversight regarding this issue area came to be referred to by DPI and MPS as the “IEP Consolidated Corrective Action Plan (CCAP).”
54. Nationally, DPI has received periodic guidance from OSEP about its special education oversight activities. In 2003, OSEP moved from a Continuous Improvement Monitoring Process (“CIMP”) to the Continuous Improvement and Focused Monitoring System (“CIFMS”), and provided technical assistance to states.
55. During the second semester of the 2003-2004 school year, DPI established a pilot statewide CIFMS, in order to test new protocols in order to achieve positive results for children with disabilities.
56. The IDEA was reauthorized by the passage of H.R. 1350, the Individuals With Disabilities Education Improvement Act of 2004, in December, 2004.
III. ANALYSIS
A. CHILD FIND OBLIGATIONS UNDER THE IDEA
The parties are not in disagreement over the applicable federal and state law. Nevertheless, the court will very briefly highlight the provisions which constitute the legal foundation in this case. In order to be eligible for federal funding under the IDEA, each state must meet Child Find obligations, which the statute defines as follows:
All children with disabilities residing in the State ... regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
20 U.S.C. § 1412(a)(3)(A) (1997) (emphasis added). As can be seen, the certified class implicates the Child Find obligations of the IDEA. The class, as stated earlier, is defined as,
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
The ultimate obligations for ensuring that a state’s obligations, including Child Find, are met rests with the state education agency. See 20 U.S.C. § 1412(a)(11). In the case of Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), the Supreme Court stated that “[s]tate educational authorities must identify and evaluate disabled children.” Id. at 53, 126 S.Ct. 528. The state agency in this case is the defendant Wisconsin Department of Public Instruction. Regulations promulgated pursuant to the IDEA require each state agency to ensure that each local educational authority establishes and implements the obligations required under the IDEA. 34 C.F.R. § 300.530. The local educational agency in this case is the defendant Milwaukee Public Schools. In order to effectuate the requirements of the IDEA, state statutes have been enacted to see that these obligations are met. For example, in regard to Child Find, MPS must identify, locate and evaluate “all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age.” Wis. Stat. § 115.77(1m)(a).
Once a child with a disability who may be in need of special education has been located and identified, that child is to be referred for an initial evaluation. The task of locating and identifying the child falls on a number of people, not only those associated with the school administration. Here, the child’s parents play an important role. As acknowledged by the Supreme Court, “[pjarents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act... .Parents are included as members of the TEP teams.’ ” Schaffer, at 53, 126 S.Ct. 528.
When a child has been referred for an evaluation, the law requires that an IEP team be appointed. The team must consist of certain persons, which include the parent or guardian of the child, one regular education teacher of the child, one special education teacher or provider and a knowledgeable representative of the LEA. Other individuals with knowledge of the child can also be members of the IEP. Wis. Stat. § 115.78(1m). Moreover, during the time period being considered in this case, Wisconsin law required that the child’s evaluation be completed, and an IEP placement be offered, within 90 days after the date the school district received the referral. Extensions of the 90 days, under certain conditions, may be granted. Wis. Stat. § 115.78(1m). The IDEA and related state statutes now requires that the evaluation take place within 60 days. 20 U.S.C. § 1414(a)(1)(C)(I) (effective July 1, 2005); Wis. Stat. § 115.78(3)(a) (2005-2006).
B. POSITIONS OF PARTIES — AN OVERVIEW
It is the position of the plaintiffs that MPS has failed to meet its obligations under the IDEA, specifically in regard to Child Find. In particular, the plaintiffs have concentrated on the following areas: 1) the failure to refer children with a suspected disability in. a timely manner; 2) the failure to review all relevant data to determine the appropriate needs at the child’s initial evaluation; 3) the pattern of improper extensions of mandated time lines; and 4) the use of suspensions during the pre-referral process, which impede the child’s initial evaluation. The plaintiffs contend that MPS, especially during the period in question, systematically delayed and illegally denied special education services for children.
In regard to DPI, the plaintiffs cite the IDEA, which places the ultimate implementation and enforcement obligations on the state education agency. Plaintiffs submit that DPI has failed its Child Find obligations in the Milwaukee public schools.
In response, MPS first contends that the plaintiffs have failed to establish a systemic violation of the Child Find provisions of the IDEA. MPS submits that any individual alleged violations were susceptible to resolution through the administrative hearing process. MPS also argues that its policies and practices in regard to Child Find comply with the IDEA. DPI acknowledges that the IDEA imposes certain obligations regarding Child Find on the state education agency. It contends that the various oversight procedures it instituted satisfied its obligations under federal law. DPI also joins MPS in its position that the plaintiffs have failed to establish a systemic violation of the law.
C. SYSTEMIC VIOLATIONS/EXHAUSTION REQUIREMENTS
During the lengthy process eventually resulting in class certification, this court dealt with the issue of systemic violations vis-a-vis satisfying the exhaustion requirement of the law. In its several decisions, the court engaged in a discussion of the post-and pre-determination stages. (See Decisions of May 23, 2003, August 1, 2003, and November 14, 2003.) In particular, individual complaints arising after the post determination stage, i.e. after the initial evaluation has been made, are susceptible to resolution through the administrative hearing process. The court stated that no challenge had been raised to the adequacy of the due process procedure itself. For example, if the parents had a complaint regarding the appropriateness of the education being provided to their child, procedures for addressing their complaint are in place. Therefore, the plaintiffs were unable to present challenges of a systemic nature that warranted the creation of a class to address those problems. On the other hand, the court found that the challenges focusing on the pre-determination stage did allege systemic violations, violations that were not amenable to individual exhaustion. These were complaints for which the due process format did not provide an adequate remedy, and they were basically in the area of Child Find. As a result, the court ultimately defined and certified the class as follows:
Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.
The defendants now claim that, upon a review of the evidence presented at trial, the court should conclude that MPS has not systemically violated the Child Find provisions of the law. First of all, MPS argues that a claim is not systemic if it deals with only a “limited component” of a program. Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 682 (9th Cir.1997). MPS correctly states that this court did refer to Doe v. Arizona in its initial decision of May 23, 2003, when discussing a systemic violation. This court stated, “[A] claim is ‘systemic’ if it implicates the integrity or reliability of the IDEA dispute resolution procedures themselves or requires restructuring the education system itself in order to comply with the dictates of the Act; but that it is not ‘systemic’ if it involves only a substantive claim having to do with limited components of a program, and if the administrative process is capable of correcting the problem.” (Decision of May 23, 2003 at 4 (quoting Doe, 111 F.3d at 681)).
Addressing the court’s prior statement, the evidence presented at trial clearly established that Child Find functions more than as a limited component of the IDEA; it functions as one of the most important elements in the pre-determination stage. If a child with a disability is not found, that child will not receive any special education. This court thus declines to accept the defendant’s characterization of Child Find as merely a “limited component” of the program.
Next, the evidence established that certain deficiencies existed in the MPS system itself that adversely affected its ability to fully implement the requirements of Child Find. As argued by the plaintiffs, these deficiencies are structural in nature. In other words, whether or not one agrees or disagrees with the professional judgment exercised by an MPS professional in any individual case, and despite policies and procedures that look adequate on paper, during the period under challenge, MPS continually failed to comply with its Child Find obligations. As will be discussed in greater detail, the 90 day time limit to complete evaluations is illustrative of a systemic problem. Exhibit 336 sets forth the non-compliance figures on this issue. The defendants contend that the percentages of non-compliance are small, approximately 3%, and arguably the violations are not pervasive. To this court, 3% still represents a significant number of students, but more importantly, the exhibit shows that there was no substantial improvement over time. Even if the defendants submit that this is a minor problem, something is wrong with a system that is unable to correct the problem, despite alleged improvements in procedures to foster compliance.
Returning to the MPS argument that the individual cases presented during Phase II of the trial are precisely the type of cases that can be resolved through the administrative process, as opined by one of the plaintiffs’ experts, Dr. Rogers Adkin-son, these cases are simply illustrative of many more. This court is not faced with the factual situation discussed in the case of Hoffman v. East Troy Community School District, 38 F.Supp.2d 750 (E.D.Wis.1999), wherein Judge Adelman addressed the general policy of trying other interventions before making a special education referral. In that case, the judge agreed with the district that it did not have enough specific information regarding the student to suggest the need for an evaluation, so that there was “no reasonable cause to suspect that Joseph was emotionally disturbed.” Id. at 766. As will be seen from the facts presented in the instant class action, the warning signs in the representative cases discussed were far more severe and occurred over a greater duration of time, all of which belie continuation of any conservative other interventions approach.
The cases presented in this litigation reflect a system that has failed to adequately address its Child Find responsibilities; these situations do not defeat, but support the certification of a class in order to address and hopefully remedy the systemic Child Find problems at MPS.
The court will subsequently discuss the facts and expert testimony upon which its conclusions are based, but at this juncture, it is the opinion of the court that the plaintiffs have satisfied their burden to establish a systemic problem with the MPS program.
D. PHASE I CONCLUSIONS
Phase I of the trial involved the presentation of expert witness testimony, limited to the matters set forth in the respective expert’s report. The subject matter of the experts’ reports were the issues raised by the plaintiffs in this lawsuit. As stated earlier, after the conclusion of the testimony in Phase I, the court held a conference with the parties, advising them of the court’s initial reaction and conclusions from the testimony and exhibits received during Phase I. Briefly, the parties were advised that the court found the conclusions reached by the plaintiffs’ experts more persuasive than those offered by the defendants’ experts. The court indicated that the plaintiffs’ experts identified the following three categories of violations: 1) non-compliance with the 90 day time limit for completing evaluations; 2) failure to identify, or untimely identification, of children with disabilities who were in need of special education, including students who had been subjected to excessive periods of suspension; and 3) potential problems with record keeping.
The trial in Phase II has been completed and the court has now had the opportunity to fully consider the testimony of the experts, the testimonial and documentary facts from which the expert opinions were drawn, and the post trial arguments and briefs of counsel. Since the trial presentation was bifurcated, the court believes that it makes sense to follow a similar format with this decision and first analyze and discuss the expert testimony.
Experts regarding MPS liability
The plaintiffs presented the testimony of Dr. Diana Rogers Adkinson, an expert in the area of special education, with a particular expertise regarding programs for children with emotional disorders. Dr. Rogers Adkinson reviewed records for two categories of children: children whose evaluations extended beyond the 90 day timeline required by federal law; and children experiencing high rates of suspension, greater than 10 days. Concentrating on the time period in question, Dr. Rogers Adkinson requested 200 cumulative files of students involving extensions, but received 152. MPS was unable to locate 30 files. For suspensions, she requested 90 cumulative files and received and reviewed 70.
Before discussing the testimony of Dr. Rogers Adkinson, it should be noted that, while the defendants disagree with Dr. Rogers Adkinson’s conclusions, they produced no evidence to rebut her findings of the records she reviewed. In other words, the defendants did not offer the testimony of any expert who stated that he or she reviewed similar records, but reached contrary conclusions. The defendants argue that Dr. Rogers Adkinson only reviewed files; she never spoke to the children involved or their parents; and she never evaluated these children. It is true that Dr. Rogers Adkinson conducted a records review, and from that review, concluded that certain patterns were evident. The court is not persuaded by this challenge to the findings of Dr. Rogers Adkin-son. Much of this case is about record keeping. In fact, a primary way in which the defendant DPI attempted to fulfill its duty under the IDEA was by reviewing records, records that were generated from the same type of cumulative files the plaintiffs expert reviewed. As such, there is no compelling reason not to accept the findings of Dr. Rogers Adkinson concerning the records she reviewed.
The defendants also urge the court to disregard the findings of Dr. Rogers Ad-kinson because she failed to utilize any recognized scientific method in reaching her conclusions. There is no dispute, not even from the plaintiffs, that Dr. Rogers Adkinson did not use a scientific methodology for her analysis. One of the primary tests for scientific research is that another expert would be able to replicate the results. Dr. Rogers Adkinson used her professional judgment in reviewing the files selected and drew certain conclusions. So, if another expert reviewed the same files and exercised his or her professional judgment, the conclusions drawn might be different. As pointed out earlier, no expert on behalf of the defendants was called upon to engage in such an exercise. Instead, the defendants simply argue that the court should not consider the conclusions of Dr. Rogers Adkinson.
Dr. Rogers Adkinson engaged in what has been described as a qualitative analysis. This is a recognized methodology, but it has a different goal than a scientific analysis. The goal of a qualitative analysis is to ascertain certain patterns or trends. That is what Dr. Rogers Adkinson did. Her report and testimony sets forth the patterns she found from the files she reviewed, and she then projected those patterns over the entire MPS district. She testified that she believes that the same trends would appear if a scientific or true random sampling of files had been conducted. In fact, the type of analysis conducted by Dr. Rogers Adkinson is not dissimilar from the analysis engaged in by DPI in monitoring MPS. For example, Jack Frye-Osier, former assistant director of Special Education for DPI testified that for the school years 2000-2001 and 2001-2002, records from a total of nine schools were reviewed. MPS choose three of the schools and DPI chose six. From this review, DPI believed it obtained a representative district-wide sampling, upon which it could determine whether or not MPS was in compliance in certain areas. Furthermore, the schools selected for 2001-2002 were not the same as those selected for the prior school year. And yet, upon this less than scientific methodology, DPI was willing to reach certain conclusions regarding compliance by MPS with IDEA requirements.
The court accepts the qualitative analysis methodology used by Dr. Rogers Ad-kinson. The court further accepts her Child Find trends or patterns and applies them system wide to MPS. In particular, MPS failed to conduct initial evaluations within the required 90 day period and granted extensions more than once, often without a valid reason being placed in the file. This failure was largely the result of not conducting evaluations during the summer months and often waiting until the following October. Even though MPS subsequently remedied this problem in the summer of 2003, until that time, the practice of extending evaluations over the summer and beyond the 90 day time period constituted a violation of the IDEA.
Dr. Rogers Adkinson also found that MPS engaged in a pattern of suspending students as a way of coping with the discipline and behavioral problems of students. However, as established by the Phase II evidence, the more appropriate approach for many of these students who were later found to be suffering from an emotional behavioral disorder, would have been a referral for an evaluation. Here, it should be noted that Dr. Rogers Adkinson utilized more of a random sampling of MPS elementary and middle schools. Phase II evidence established the factual reality of the system wide pattern of violations that Dr. Rogers Adkinson found from a review of the records.
As previously noted, MPS presented no expert witness to directly contradict or refute Dr. Rogers Adkinson’s review of the records. However, MPS did present two experts who attempted to soften the impact of the findings of Dr. Rogers Adkin-son. In regard to dealing with behavioral problems, Dr. Erie Hartwig, who specializes in discipline and behavior concerns, testified. Dr. Hartwig visited two schools, one that utilized a “problem solving” approach, and the other that did not. It was Dr. Hartwig’s opinion that the best way to deal with a student who exhibits disciplinary or behavioral traits is the problem solving or intervention approach. In this way, the school might be able to avoid suspending the student. Dr. Hartwig also testified that not all disciplinary problems warrant special education referrals.
No one disputes Dr. Hartwig’s last statement, but his testimony fails to advance the resolution of the issues in this litigation. First of all, Dr. Hartwig limited his testimony to two schools, but still attempted to project his findings to the whole of MPS. Looking at two schools out of 160 is of no statistical significance. He also limited his visits to one point in time, November-Deeember, 2004. More importantly, regardless of the merits of the problem solving approach, it does not obviate the school district’s obligation to locate children in need of special education. The law requires the district to identify children with special education needs and then make a referral. When asked how long a particular child might be subject to the problem solving approach, Dr. Hartwig said this was a qualitative determination. In other words, it is not over until it is over. In the meantime, the referral may be unduly delayed. In the opinion of the court, Dr. Hartwig’s testimony failed to establish that the problem solving approach meets the district’s Child Find obligations.
The second expert called by MPS was Dr. Elise Frattura, a consultant who assisted the district in moving from centralization to decentralization. This is a process whereby the school itself, becomes responsible for the services delivered. According to Dr. Frattura, if the school becomes responsible for the services it delivers, it will become more responsive and implement appropriate and effective changes in the area of special education. Since the principal is in charge of his or her school, the major burden on implementing the decentralization process fell on the principals. This reorganization included an entire hierarchy of support staff and services. The decentralization process began in the 2000-2001 school year. In regard to the delivery of special education services, the process was described in various plans, referred to by their acronyms. For example, there was SEP (“School Education Plan”) and SOAP (“Special Education Oversight Plan”).
Dr. Frattura described the Child Find aspects of the process within the school and how the 90 day period was monitored. She also discussed Child Find when truancy problems are involved. She acknowledged that the most difficult thing to do is find a child eligible for special education when no referral has been made. She indicated that since Child Find is a “proactive obligation,” a “broad net” must be cast. In her opinion, MPS was meeting federal and state Child Find standards.
Unfortunately, the underlying refrain of Dr. Frattura’s testimony was that this is “a process.” In other words, nothing happens immediately. Dr. Frattura indicated that SOAP was a “good recipe” to create change. In the opinion of the court, while it may be a good recipe, the proof is in the pudding, and the evidence from reports generated from MPS gathered data show that during the period in question, MPS was not in compliance in regard to its obligations under Child Find. Even Dr. Frattura was unable to adequately support her' opinion regarding compliance. For example, when cross examined about a statement in her report that IEP meetings are scheduled jointly with parents, a legal requirement, Dr. Frattura admitted that there was no specific data to support this statement. Or, when presented with statistics that the suspension rate increased between 2002 and 2004, she said that each building must be concerned with this.
Basically, Dr. Frattura relies on the structure of the plan itself. She says the plan strives toward success, and success is improvement toward goals. When asked to give a reasonable time frame for improvement, Dr. Frattura could not answer the question. Now that the school is responsible, she said it depends on the individual school and the particular problem. When pressed, she opined that it usually takes five to, seven years for deep change, and at the time of her testimony, MPS was only in year four. However, under the IDEA compliance obligations, “it depends” is not a satisfactory response.
To determine whether or not MPS was in compliance with the law, SOAP included a plan to assess the data, and this was jointly developed by MPS and DPI. This was referred to as the building based assessment process which was initially used during the 2002-2003 school year. It continued into the 2003-2004 year. The process used a checklist to measure compliance and involved taking a point-in-time snapshot of the compliance of each school. The plaintiffs presented the testimony of Mark Mlawer, a consultant in special education, with an expertise in the area of monitoring and compliance.
Mr. Mlawer concentrated his attention on the MPS building based assessment process and concluded that, in regard to the IDEA compliance issues raised in this litigation, the process was deficient in many respects. He also concluded that there was no way to measure the accuracy of the data used in the process. For example, Mlawer testified that the only issue in this case measured by the building based assessment process is the 90 day evaluation timeline, and compliance is the only aspect measured. Parenthetically, this fits into the method of analysis conducted by Dr. Rogers Adkinson, since she was only able to select files which indicated that the 90 day timeline was exceeded. Mr. Mlawer said that the assessment process did not monitor the IDEA requirement to identify, locate and evaluate all students with disabilities.
Regardless of the accuracy of the data used by MPS, these are the numbers that DPI used in fulfilling its monitoring and compliance obligations. Based' on these numbers, DPI determined that MPS continued to experience compliance problems. As discussed by DPI’s expert witnesses, in school year 2003-2004, it was decided to establish and impose a different type of monitoring process for MPS; this was known as the Continuous Improvement Focused Monitoring System (“CIFMS”).
Experts regarding DPI liability
The plaintiffs called Dr. James Tucker to discuss the oversight responsibility of DPI. Dr. Tucker’s report and testimony focused on whether DPI had adequately fulfilled its role regarding oversight of MPS in the area of Child Find. In a word, Dr. Tucker’s conclusion was “no.” Dr. Tucker testified that DPI had created a system that only dealt with reporting, but not one that would assure compliance. Dr. Tucker explained that DPI would receive reports from MPS, determine noncompliance, impose a corrective action plan for MPS to implement, but then fail to followup. DPI would order many corrective action plans, give deadlines, but if MPS failed to meet the deadline, DPI set another deadline. Dr. Tucker stated that DPI failed to impose any sanctions on noncompliance by MPS, sanctions which could include public reprimand or loss of funds.
According to Dr. Tucker, DPI created a Child Find procedural checklist for MPS to follow, but failed to have a method in place to determine if the checklist was correctly completed. Further, this was only a checklist, rather than a comprehensive screening, which is the only way in which to identify and locate disabled children. Based upon his analysis, Dr. Tucker concluded that DPI does not understand the nature of its oversight role and thus cannot fulfill it.
Dr. Tucker was especially critical of the building based assessment plan. He stated that the building-based assessment plan, as it was used by DPI, was ineffective particularly because different buildings were evaluated each year and there was no year-to-year comparison of the same building. Included in Dr. Tucker’s report are several recommendations for improving DPI’s oversight responsibilities. One is to create a focused monitoring plan. He said that this is the best way to check for compliance, because it is a plan that does not end with the collection of the data, but analyzes it and establishes priorities and action plans. Also, that in creating priorities and action plans, input from a “stakeholders’ group” or advisory council is very important. Interestingly, at the time of his report, DPI was in the initial stages of developing its focused monitoring plan and had just established a stakeholders’ group.
Directly contrasting Dr. Tucker’s characterization of DPI’s oversight efforts as “all procedure and no substance,” was Dr. Judy Schrag, also an expert in the area of IDEA compliance. She was engaged by the defendant DPI to review its systems, procedures and programs and render her opinion as to whether DPI was complying with its legal oversight responsibilities relating to the issues presented in this case. As part of her analysis, she looked at MPS under the procedures of SOAP, but she did not review any individual student record and offered no opinion as to whether any of the plaintiffs’ rights were violated.
Dr. Schrag stated that each state agency is required to have appropriate practices and procedures in place to assure that the children in th