Baltimore’s Jarndyce v. Jarndyce

Your editor had a look at the federal case file in that most macabre of all cases, Vaughn G. v. Board of Commissioners, involving special education in Baltimore City.(84 Civ.1911 (D.Md.)),which has lasted for 18 years, created two new bureaucracies, cost an estimated $50 million,and provided a Special Master with a $200,000+ salary (To assuage readers’ disbelief, pleading numbers are included). The case began in 1984, and was brought by a federally-subsidized disability rights group on behalf of several schoolchildren under the Individuals with Disabilities Education Act, which conditions some rather meager federal grants–less than 10% of the cost of special education programs-on compliance with conditions designed to ‘mainstream’ handicapped students. The Act mandates no particular levels of services, but merely requires that each learning-disabled student have an individual education plan, be placed in the least restrictive possible setting, and not be suspended from school for more than 10 days without formal due process. Advocacy groups were confronted with a scratch team from the City Solicitor’s Office. It was claimed that the plaintiffs were slowly classified by the city, and were not promptly given the services called for by their plans; one of the plaintiffs received two 20-minute sessions per week of occupational therapy instead of two thirty-minute sessions; another was placed in a residential school, but only after an arrest and two suspensions. In February 1988, after three years of skirmishing, the City unwisely entered into a consent decree providing a $65,000 fund for services to the named plaintiffs, and establishing various 30 and 45 day deadlines for assessments and individual education plans, as well as a three-year deadline for the provision of “appropriate” education to handicapped students. Judge Alexander Harvey struck from the consent decree a provision certifying the case as a class action, expressly noting that “Plaintiffs have not satisfied the requirements of Rule 23” of the federal civil rules.

“If you give the devil your little finger, he takes the whole hand.” When it was found that many of Baltimore’s 180-odd public schools were not complying with the deadlines, contempt motions were filed, which were repeatedly “settled” by the grant of further relief. One disastrous provision required the City to introduce a centralized computerized tracking system within 12 months, thus removing responsibility from principals while imposing on them new data collection and transmission requirements. Another required quarterly reports, and their review by a court-appointed monitor, whose costs were to be borne by the City. (135) The decree was amended to apply to future as well as currently pending cases (136). A Ms.Felicity La Velle was installed as Monitor and plaintiffs’ counsel were awarded $73,000. in attorneys’ fees at private law firm rates of $175 per hour (154). By 1991, the Monitor had acquired a $50,000 fund and the right to hire two lawyers for $60,000. In 1992, Superintendent Amprey declared at a deposition that the City’s major focus with respect to the consent decree was on “frustration…rather than monitoring she was prescribing…for files being kept,records being kept.” The plaintiffs and Monitor sought control over the special education budget. An interim order was entered (201)appointing an independent consultant.An order was entered extending duration of the decree; an appeal from it was dismissed by the Fourth Circuit as premature. (230). After a three-day visit to Baltimore to consult with the plaintiffs and Monitor but not the school system, his recommendations led the Monitor to seek to hire five persons for six months for $75,000. Judge Harvey, however, set aside as beyond the Monitor’s jurisdiction a direction by her that the City supply a policy on dismissal of special education students. The Monitor’s budget was approved (223)

A more combative Assistant Solicitor, Frank Derr, took issue with a direction by the Monitor requiring the public schools to provide a claimant whose services had been delayed with “either two baseball tickets or their monetary equivalent within 10 days.” This Judge Harvey found “does not meet the fundamental test of rationality, does not draw its essence from the consent decree, and constitutes an abuse of arbitral power.” (245). The Monitor however, remained in place, In early 1994, the City moved unsuccessfully to remove her, noting that in less than five years working on a part-time basis she had billed $413,565 in hourly fees and $247,588 in expenses (267,279).. Plaintiffs counsel received in 1993 a second fee award of $131,199 at lawyers’ rates of up to $200 per hour and paralegal rates of up to $95.

In late 1993, the City hired private counsel, a former civil rights official, who negotiated a further consent decree committing the City to triple the amount spent on private providers, and providing for a Special Assistant for Compliance and a support team including persons from the University of Maryland, the State Education Department, and advocacy groups. (295 ff.) A stipulation in early 1994 provided for what amounted to a partial receivership of Baltimore City special education under a Management Oversight Team consisting of Amprey, State Superintendent Grasmick, and a representative of the plaintiffs, as well as an advisory committee including three plaintiffs and a community organization of parents. The MOT promptly demanded the right to pass on the appointment, removal or reassignment of all school system personnel above the rank of teacher-715 positions in all (299). In July 1994, the court ruled that if the MOT objected to any such personnel change by the Superintendent,the court would rule on the objection.(303). In July 1994, Judge Harvey, after complimenting monitor Lavelle and reserving jurisdiction over fee applications, transferred the case to Judge Marvin Garbis.

A whirlwind of orders ensued. Fuller quarterly reports by the City were ordered.(314) . The MOT was allowed to interview all new employees above the rank of teacher (315). Plaintiffs’ counsel were awarded an additional $230,000 in attorneys’ fees.(315) In October 1994, the court, sua sponte, entered an order directing Superintendent Amprey to show cause why the court should not ask the U.S.Attorney to prosecute him for criminal contempt, due to incomplete data entry and erroneous entries by schools. After the plaintiffs recommended that the school system’s information and data entry activities be placed in receivership, and State Superintendent Grasmick recommended the appointment of an expert to analyze the data system,(328) the court engaged Andrew Johnson-Laird as its consultant, his fees to be paid by the City. Eight years later, he is still rendering bills. Amprey was then held in civil contempt, and was told he could purge his contempt by submitting data by November 30,1994. On receipt of this data, the court ordered the auditing of data at two schools and the sampling of data at 16 others(346). The court then received the semi-annual report of the Monitor, containing 62 recommendations. Among these were suggestions that responsibility for quarterly reports be delegated to a private entity, and that all computer data be backed up manually.. On April 6,1995 the Court entered a restraining order against any interference with the Court Monitor and directed that she be given office space and computer support at City expense, and noted that any settlement must incorporate an agreed statement declaring the computer tracking system to be inadequate per Johnson-Laird’s findings. On April 10, 1995, following intervention by Mayor Schmoke, a new consent decree provided for an Administrator of Special Education reporting directly to the Mayor who would be appointed with the consent of all parties, including the Court, plaintiffs, and the State Superintendent, and who would replace Superintendent Amprey on the Management Oversight Team. This person could remove all special education personnel including teachers.

Sister Kathleen Feeley, former President of the College of Notre Dame, was appointed Special Administrator, indicating that her tenure would be limited to one year, and became Administrator on July 10,1995(375). Plaintiffs immediately moved to oust the school system’s data processing manager, Terry Laster(379). A dispute then arose between Amprey and the MOT arising from Amprey’s refusal to impose sanctions on four administrators for faulty data transmission, Amprey pointing out that one was about to retire, a second had just been placed in charge of a difficult school, a third had identified some of the problems, and a fourth was guilty only of nominating a principal who improperly suspended students. The court ordered Amprey to impose sanctions, declaring that it would appoint special counsel if necessary to avoid any conflict of interest and that its order “was not intended to eliminate any right employees have to contest the sanctions.”(381).

The plaintiffs then turned on Sister Feeley, demanding a receivership for the entire school system and a ‘whistleblower program’ providing $1000 rewards for School Improvement Teams of schools reporting data transmission problems. The State Board, through its counsel Valerie Cloutier, then supported plaintiffs’ demand for a ‘total restructuring'(398) and Judge Garbis ordered joint hearings in this federal case and a case in state court challenging school financing brought by the ACLU.(388).

At this point the system’s data processing administrator, Terry Laster, vigorously defended the existing tracking program, urging that any deficiencies were due to the inherently imprecise nature of the data being entered and to the fact that administrators at 180-odd schools had some responsibilities other than those for data collection and transmission. Pleadings noted that “those upset included the Director with pride of authorship and the ARD Managers [who] had already been required to enter 17,000 records into new systems twice in the last two years.”(393). On March 7, 1996, in a striking act of lese-majeste, a demonstration of school system employees took place at which a flyer was distributed declaring that “Millions of our tax dollars have been spent to support a program that is currently working. Our city tax dollars are being wasted to pay people who have no vested interest in Baltimore City.”

The Court’s response to this was an ex parte order enjoining Laster “from any action that has the effect of undermining the transition to a new data gathering and reporting system.” This order became one of only two orders appealed to the Court of Appeals for the Fourth Circuit in the eighteen-year history of the case; on August 1,1997, Judge Garbis was reversed, the court noting that the judge had acted on the basis of a sealed affidavit, that his order “failed to set out in specific terms the reason for its issuance” and that nothing could excuse “issuance of an injunction without notice.”(603).

On March 7,1996, beset on all sides by the Monitor, MOT, State Superintendent, and Court, the city filed a Motion to Dissolve the Consent Decree, declaring that it had satisfied the 1992 modified consent decree and the orders entered in April 1995.(408) “The MOT and the Court Monitor present added layers of review and delay.” Already 20% of the school budget was being spent for the 15% of students in special education. Further compliance as requested by plaintiffs would cost $7 million, including $4 million for a new computer system. An affidavit by Sister Feeley attempted to introduce a bracing note of common sense into the proceedings:

“The enforcement of the decrees is resulting in the building of an increasingly separate system that is contrary to sound educational practice. Funding Consent Decree requirements…results in fewer resources for regular education, thus increasing the need for special education. 95% of each report details all the process errors or omissions. Comments on the classroom observation are usually contained in one paragraph. We must strike a better balance between process and product.. BCPS is overloaded with external inputs.”

Under pressure from the court, Laster had been replaced as data processing manager by Craig Richburg. In June 1996, plaintiffs went so far as to seek a contempt order against Elizabeth Collette, one of the City’s counsel, alleging that she had improperly harassed Richburg by releasing to the press information about dubious statements in his resume.(460). In October 1996, Richburg was removed by Amprey and Feeley, who found him “not truthful in relating the facts”; there had been a welter of sexual harassment and other complaints against him.. In September and October 1996, its Motion to Dissolve having met with no favor, the City entered into a stipulation relating to compensatory goods and services under which two parents of ‘disabled’ children were added to the Monitor’s staff at city expense(500); in October 1996 a Long Term Compliance Plan was negotiated pursuant to which 26 subplans and 41 other products, including needs assessments, analyses, manuals and lists of criteria were to be developed(506). An order was also entered imposing a contempt fine of $25 per day for late delivery of any file to the Monitor(507). In November 1996, a consent decree provided for elimination of the MOT and for a new Monitor. In March 1997, another consent decree gave the Monitor authority over lists of goods and services to be given as compensatory awards, the power to interview new personnel, and three positions for parents of disabled students.(578). In October 1997, yet another consent decree appointed a Grace Lopes as Special Master at $85 per hour, with an office in the Federal Courthouse to be paid for by the City.(626).

In January 1998, the city disputed salary increases sought by the Monitor. Although the City had agreed to hire only three employees, the Monitor had come to head an Office of Compensatory Services with 16 full time and three part time employees.”Almost every person with the OCS is currently working at the maximum salary allowed by BCPS…she has requested salary adjustments for everyone.”(626). On March 31,1998, the Monitor resigned; evidence of serious abuses led to a consent order dated April 3,1998 providing that “televisions, VCRs and video cameras will not be offered as compensatory awards.”(668).

In April 1998, William Krehnbrink wrote a letter to the Court, pointing out that Judge Nickerson had held in other litigation involving one of the counties that an oral individual educational plan sufficiently complied with the federal law and that placement and programming can be accomplished without written documents(Civ.97-1829). In September 1998, the City moved to modify the long term plan (706) urging that the plaintiffs, notwithstanding the consent decree providing for joint city-state operation of the BCPS sought to “Hang the millstones from the prior administration around the necks of the New Board and Executive Officer.”. In December 1998, a new Consent Order extended deadlines for compliance with the long-term plan to June 2002, and adopted a schedule of measurable outcomes. As we will see, these the BCPS was programmed to fail.

In July 1999, the State unsuccessfully objected to the Special Master’s budget, which was approved in full.(825). It objected to “substantial amounts that are being paid to the Special Master and her deputy for their time and expense in commuting to full time employment”, charged that she “retained private counsel to prepare a lengthy account of her tenure in the position”, and noted that “The Special Master is among the most highly compensated public servants in the State of Maryland…it has proved to be a drain on public education dollars that exceeds the expectations of these defendants and can only damage the public’s perception of this case.”. The 1998-99 budget provided for compensation to Lopes of $178,335, together with $3811 commuting expenses and $2479 parking, to her deputy of $101,530 compensation, $4017 commuting and $2633 parking, for approximately $35,000 to a secretary and $30,000 for consultants, one of whom billed 13 hours for a site meeting, including 5 hours 15 minutes for a one-way trip to his residence in Harrisburg.

In September 1999, under pressure from the Court, the BCPS issued a Management Memo severely restricting, far beyond the requirements of the federal legislation, the circumstances in which ‘disabled’ students could be disciplined (see attached memo). Subsequently, the Court overturned as insufficient a $5440 arbitration award in favor of a blind student, and directed that it be heard before a different arbitrator. Later in the year, after mediation by Judge David Tatel of the D.C.Circuit, a Consent Order Approving Ultimate Measurable Outcomes was entered into, replacing in its entirety the previous compliance plan.(950). This required an increase in the high school completion rate of special education students from 50% to 57.2% in three years, and a 30% increase in the graduation rate, from 32% to 41.6%. It also required a 96% accuracy rate in student files comparing 15 variables.

In June 2000, the new BCPS data manager, Morales, resigned.(973). The 2000-2001 budget of the Special Master provided for $190,000-$230,000 compensation, $18,000 travel and $10,050 food and lodging for the Special Master, $91,000 for a deputy master, and $40,000 for a special assistant. Actual expenses included $148,448 in compensation for Master Lopes, $88,956 for her successor, Amy Totenberg, and $108,391 for Deputy Master Roche, in addition to approximately $4500 in travel and parking expenses for Lopes and $11,000 for Totenberg. An office assistant received approximately $42,000, and experts received an additional $85,756, for total expenditures of $513,803.(1001). Later, on January 16,2001, the Court approved a budget providing for $171,079 in expert fees to Drs.Michael Rosenberg, Philip Burke, Elana Rock, Jay Gottlieb and Andrew Johnson-Laird, each at the rate of $1,000 per day, together with $45,000 for 400 to 450 two-hour “observations.” (1036).In early 2002, the court entered a show cause order relating to the computer system requiring the personal attendance of Superintendent Russo and the new computer manager; as of 2002, the much maligned Terry Laster’s system is still in use. Given the Court’s resistance to modification or dissolution of the decree, the elaborate plans with unrealizable targets, and the BCPS’ curious reluctance to stand and fight by appealing a contempt order or involuntary injunction to the Fourth Circuit, the end is not in sight.

This entire enterprise rests on an illegitimate foundation, the court having granted class action relief without the requirements for such, including common interest and an appropriate representative, having been met. It has imposed burdens on Baltimore imposed on no other Maryland jurisdiction, and probably none in the country. An inherently decentralized enterprise-teaching-is made the subject of a centralizing paper chase. Classroom discipline, not only of disabled students, but of all students, has been undermined. (See box). A culture of entitlement rather than cooperation has been fostered among parents, and the United States District Court now presides over what amounts to a gift shop with a catalogue which at various times has distributed baseball tickets, VCRs, television sets, and cash as ‘compensation’ for delays in providing services which federal law does not require to be provided at any particular level. Two patronage operations have been established, one at the U.S.Courthouse and one at BCPS employing persons in accordance with no particular rules and subject to no normal standards of pay comparability or accounting. The data processing staff of the BCPS has been demoralized, capable persons discharged and incapable ones hired in their place, and compliance has been sought to be instilled through encouragement and protection of informers, not a particularly enlightened management technique.

The more than 1000 pleadings leave two problems largely unaddressed. The first is the over-enrollment in special education including more than 25% of BCPS middle school students, many of whom suffer from a grave ‘learning disability’: adolescence. The second is the failure to recognize that all Maryland jurisdictions suffer from a shortage of special education teachers by reason of uniform union pay schedules. According to MSDE’s 2001-2003 Teacher Staffing Report, (pg.23) the statewide projected staffing pool for special education teachers for 2001-2002 is 891, as against 1226 projected new hires, and the available staffing pool for the severely handicapped is 7% of those needed and for the visually impaired 19% of those needed. USDOE’s 2002 Annual Report on Teacher Quality shows that 20% of Maryland’s special education teachers have never been certified, as against 9% nationally.(at p.62)The work of special education teachers is more onerous than that of ordinary teachers, requires special training, and is rendered more onerous still by the District Court’s paper chase. Except for Sister Feeley’s effort, dehors the union contract, to provide entering special education teachers with three extra years of seniority credit, there has been no change in rigid union pay scales. Providing better teachers, and educating classroom teachers to recognize disabilities and refer students only where essential, is the way to improve special education in Baltimore’s schools. The funds to do so have been wasted on judicial imperialism.

The decree cannot be fine-tuned. Judge Garbis must be given credit for good intentions. He now should be invited to address to himself, or the Fourth Circuit invited to address to him, the words of Leo Amery to Neville Chamberlain in 1940: “You have sat too long here for any good you have been doing.” -GWL

Posted in: Education, Special Report