Lawyers file to reopen 1986 class action against Phila. School Dist. that challenged services to foreign-language students

By Jon Campisi | May 28, 2013

More than a quarter-century may have passed since the case of Y.S. v. School District of

Philadelphia first made its way into the courts, but as lawyers representing similar present-day plaintiffs tell it, not much has changed in the district’s policies regarding foreign-language students.

Attorneys from Drinker Biddle & Reath and the Public Interest Law Center of Philadelphia recently announced that they have filed a motion to reopen the class action dating back to 1986, litigation that was initiated by a then-teenage high-schooler from Cambodia who claimed he was misidentified as needing special education services because of the fact that school district officials failed to communicate with him in his native tongue.

The 16-year-old, identified as “Y.S.” in the original complaint, was labeled as “mentally retarded,” and placed in isolation in a special education classroom where he fell even further behind academically, according to the Public Interest Law Center of Philadelphia, which filed to reopen the case in late April.

The plaintiff’s school at the time failed to provide translation or interpretation services to the boy’s parents, who also did not speak English, during his evaluation and placement process, according to the Public Interest Law Center.

The attorneys stated that they had no choice but to seek to reopen the case since the school district has allegedly failed to meet the requirements of a 2010 stipulation amendment arising out of the original litigation in which the district would provide translation and interpretation services during IEP meetings and in special education documents, according to the Law Center.

The term IEP stands for Individualized Education Program, which is something that all teachers of students with special needs must prepare in concert with a student’s parents to address an individual student’s academic goals.

“Y.S. and his family are just one of thousands of families in Philadelphia who have been discriminated against by the District’s failure to systematically address communication issues with non-English-speaking students and their families,” the Law Center’s attorneys stated in announcing their desire to reopen the 1986 case. “In spite of years of compliance monitoring and intervention, the District has persisted in its failure to provide the language support services mandated by federal law and mandates that came out of the original case.”

The original complaint, filed at the federal court in Philadelphia in late August 1986 by Education Law Center attorneys Leonard Rieser and Janet F. Stotland, alleged that the Philadelphia School District “failed to take sufficient steps to address the problems resulting from these students’ and parents’ limited proficiency in English,” and as a result left the students without adequate services in areas including school counseling, English language and/or bilingual instruction, and special education.

The plaintiff, “Y.S.,” brought suit on behalf of himself and others similarly situated. The case was eventually given class certification by a federal judge.

The initial complaint accused the district of violating the Equal Protection Clause of the Fourteenth Amendment, the Civil Rights Act, the Equal Educational Opportunities Act, and various state statutes.

In their May 13 memorandum in support of their motion to reopen the case, the attorneys – they include Sonja Kerr and Michael Churchill of the Public Interest Law Center of Philadelphia, Maura McInerney of the Education Law Center, and Paul H. Saint-Antoine and Chanda A. Miller of Drinker Biddle & Reath – wrote that the plaintiffs in the original lawsuit received only minimal English as a Second Language instruction each school day, and as a result, students with limited English proficiency fell “significantly behind their native-English speaking peers in their educational progress.”

The issue was even more pronounced in students with special needs, the lawyers wrote, “because the District’s lack of interpretation and translation services meant that the family members could not effectively participate in their child’s education,” something that is required by law.

Throughout the course of the litigation, the attorneys wrote in their memorandum, various remedial orders and stipulations were entered to address the claims, and on Feb. 18, 2009, in an effort to bring a closure to the litigation’s remedial process, the parties entered into a stipulation dealing with the district’s English as a Second Language program, an amended stipulation of which was entered in October 2010, the record shows.

Now, the plaintiffs’ attorneys are claiming that the district has failed to comply with the stipulation, which included things like requiring the district to provide specific services to class members.

The amended stipulation also obligates the district to provide “promptly, upon Plaintiffs’ counsel’s request, all documents generated or maintained in connection with the implementation of Amended Stipulation,” the memorandum reads.

The attorneys are now alleging that since the spring of 2011, advocates who regularly attend IEP team meetings for district students have reported that parents of students with IEPs are being denied equal access to the IEP team process.”

The lawyers claim that despite attempts during the past two years to obtain information and documents relating to the district’s compliance with the stipulation, the district has “failed to cooperate in any meaningful way, as outlined by the history of the parties’ communications over the course of the last two years.”

In a four-page response filed on May 16, attorney Miles H. Shore, who represents the district, requested that the court deny the plaintiffs’ attorneys motion to reopen the case, writing that “attorneys should not pursue education reform by civil litigation unless they currently represent clients who have standing to pursue the claims.”

“The named plaintiffs may no longer have standing as class representatives to pursue enforcement of claims against the School District,” Shore wrote. “The School District does not know if the named plaintiffs are alive and well and whether they are currently represented by the attorneys who entered their appearances for them.”

Shore also wrote that the district is requesting that the court order the plaintiffs’ attorneys to produce current authorizations, powers of attorney, engagement letters or fee agreements signed by the named plaintiffs in the 1986 case or their parents, authorizing the lawyers to represent the clients in this case.

Shore also noted that, due to the district’s current “severely-distressed financial condition,” and the fact that major changes have taken place in the governance and management of the district since the amended stipulation was agreed to in 2010, the district is now considering to move to vacate the stipulation.

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