Revisiting the ‘Three Ring Circus’

In our February 2005 issue, we reviewed three ancient and venerable lawsuits: the Bradford school financing litigation in Baltimore City, now in its tenth year; the federal special education lawsuit, now aged 21; and another ‘baby’ lawsuit, the federal court housing litigation, now also ten years old. Since our February issue, there have been significant developments relating to each of these extravaganzas:

School Financing

The Maryland Court of Appeals was asked by the State to review the much-ballyhooed August 2004 order of the Circuit Court for Baltimore City which proclaimed that the children of that City were being deprived of their right to a thorough and efficient education; that this would be the case unless the City received at least $225 million in additional annual aid from the State; that the State should phase in Thornton funding on an accelerated basis; that funding should be increased by $30 to 45 million in the coming year; and that the school system not be required to retire its improperly contracted $$58 million deficit by 2006. The Court of Appeals in a unanimous opinion held that all but the last of these declarations were essentially empty bluster which ordered no one to do anything, and that the directive relating to the $58 million was improper, the statute requiring its restitution being entirely constitutional, As for the other declarations, they are “certainly subject to challenge if and when a final judgment is entered, if…still relevant at that time.” The Court of Appeals concluded its opinion with the following stinging slap: “Given the importance of this case and the fact that it has been pending already for nearly eleven years with no end in sight, at least until 2008, we caution the court to be careful in the kinds of declarations and orders it issues.”

Special Education

The 21-year old Vaughn G. special education case continues on as before. It will be recalled that in this case, the City school system, ‘aided’ by a Washington lawyer who is an ‘expert’ on special education, entered into a twenty point consent decree escape from which was thereby rendered impossible. The Special Master continues to file periodic reports detailing the School Board’s compliance, or noncompliance, or usually substantial but never perfect compliance, with such things as “Measurable Outcome 14”, and continues to file and receive payment for monthly fee petitions approximating $15,000 per month. Since the trial court apparently finds this sort of activity boring, it has launched or acceded to two new initiatives: 1) it has conducted ‘emergency’ hearings on the consequences of the City’s budget reductions for summer programs, notwithstanding that the federal act, the purported basis for the litigation, does not require any particular level of funding or services. In the course of so doing, it demanded “reporting and monitoring” of summer services, condemned “hasty, incomplete summer program design”, but conceded that “It would be futile at this late date to order any form of substantive overhaul or expansion of these summer educational programs.” (Baltimore Sun, June 30, 2005, 6A and 2) it has, with the at least partial cooperation of the State Superintendent of Schools, on June 28 intimated that the effectuation of its decree may require a further state ‘takeover’ not only of City Special Education programs but the” transportation, human resources, finance, and general instruction” services ancillary to them. The State Superintendent, not content with her effective veto over the appointment of school board members, and not recalling her failure to provide for any form of financial audit of the new joint Baltimore City system, now proclaims that “the state needs more authority–backed by the enforcement power of the federal court–to assure that services are delivered”. The cure for all ailments is ‘the tail of the dog that bit you.’ A hearing on this preposterous suggestion, which finds no sanction in enacted state law, is now scheduled for July 18.

In the meantime a cloud no bigger than a woman’s hand has gathered over the entire special education enterprise, with its premise that ‘disabled’ children are best educated by disbanding special schools for the disabled, ‘mainstreaming’ them in regular schools, and ‘tracking’ them with ‘individual treatment plans’ and the bureaucracies necessary to prepare them. enforce them, and process them into computers. The woman in question is Lady Warnock, who popularized ‘mainstreaming’ and ‘treatment plans’ in Britain, where they were introduced before spreading to the United States. In the most spectacular recantation by any social scientist since James S. Coleman recanted his view that racial integration, rather than social class or parental background, was an important influence on student learning, Lady Warnock has now concluded that inclusion has failed and has left “a disastrous legacy”. As for the preparation of treatment plans, known in Britain as “statementing”, it has “turned out to be not a very bright idea.”. Obviously, the federal district court cannot disregard the Individuals With Disabilities Education Act because of these new insights. It would be nice, however, if it applied the Act, and its recent significant weakening amendments according to its terms, not beyond its terms; if it displayed somewhat less self-righteousness in rushing over whatever cliffs it feels compelled to rush over; and if it listened more to the responsible city administrators, and the legislatures, whose knowledge of this subject is based on more than the submissions of advocacy groups and of power-hungry state administrators.


The federal court housing discrimination case continues, following the dismissal of the City defendants. The United States Court of Appeals for the Fourth Circuit upheld the District Court’s decision extending its jurisdiction over a partial consent decree beyond its originally scheduled effective date. The decree, however, relates to only a few hundred housing units and is a small matter in relation to the total case. The remainder of the case collapses into ever- greater incoherence. It will be recalled that the District Court, in a 325-page opinion delivered in January 2005, rejected all claims pleaded against Baltimore City, and all claims pleaded against the HUD federal defendants, while suggesting that the federal defendants had failed in a supposed statutory obligation, nowhere pleaded, to promote ‘regionalization’ through its programs. Neither the court nor the plaintiffs have ever intelligibly pleaded what remedy might be granted for these violations, but set a hearing on remedy for the end of 2005, setting off another round of depositions of HUD officials. The court also suggested that there might be a constitutional violation, based on ‘vestiges of segregation’. Asked by the Special Master to file an explanation of their constitutional claim, plaintiffs provided only an unintelligible document repleat with cross-references to other unintelligible documents.

The federal defendants have now moved for summary judgment.

Posted in: Judiciary and Legal Issues, Report