G.T. v. Bd. of Educ. of Cnty. of Kanawha
| Decision Date | 24 August 2021 |
| Docket Number | Civil Action 2:20-cv-00057 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | G.T., by his parents Michelle and Jamie T. on behalf of himself and all similarly situated individuals et al., Plaintiffs, v. THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, Defendant. |
The Court has reviewed the Plaintiffs' Motion for Class Certification (Document 120), the Memorandum in Support of Plaintiffs' Motion for Class Certification (Document 121), the Defendant's Response in Opposition to Plaintiffs' Motion for Class Certification (Document 128), and the Plaintiffs' Reply in Support of Class Certification (Document 133), as well as all exhibits.
In addition, the Court has reviewed the Defendant's Motion to Strike (Document 129), the Plaintiffs' Opposition to Defendant's Motion to Strike (Document 135), and the Defendant's Reply in Support of Motion to Strike (Document 136). The Court has also reviewed the Defendant's Motion to Strike Dr. Elliot's Supplemental Declaration and Supplemental Report (Document 134), the Plaintiffs' Opposition to Defendant's Motion to Strike (Document 137), and the Defendant's Reply in Support of Motion to Strike Dr Elliott's Supplemental Declaration and Supplemental Report (Document 138), as well as all exhibits.
For the reasons stated herein, the Court finds that the motion for class certification should be granted, and the motions to strike should be granted in part and denied in part.
The Defendant seeks to strike several of the exhibits put forth by the Plaintiffs in support of class certification including expert reports, testimony, and reports and articles. It seeks to strike portions of Dr. Judy Elliott's report (Pl.'s Ex. 2) that apply legal standards and draw legal conclusions. It seeks to strike Dr Sara Boyd's report, arguing that she is not qualified to testify regarding Individualized Educational Plans (IEPs) Behavior Intervention Plans (BIPs), or Functional Behavioral Assessments (FBAs). It seeks to strike declarations from parents recounting their children's experiences based on the failure to disclose those witnesses, as well as the majority of a declaration from the former executive director of The Arc of West Virginia, who was disclosed only to offer her experiences with named Plaintiff K.M. It also seeks to strike reports and articles, arguing that they are hearsay, unreliable, and/or irrelevant. Finally, it seeks to strike a supplement to Dr. Elliott's report attached to the Plaintiffs' reply brief, arguing that it was not produced or disclosed within the agreed upon timelines for expert disclosures.
The Plaintiffs argue that the evidentiary rules are relaxed for motions for class certification, and their evidence should properly be considered. They argue that motions to strike pursuant to Rule 12(f) are applicable only to pleadings, not to exhibits to motions for class certification. With regard to Dr. Elliott's supplemental report, they contend that it is not prejudicial and was necessary to correct misinterpretations of her report and deposition testimony asserted by the Defendant.[1]
They further argue that the Court's scheduling order establishing deadlines related to expert disclosure is silent as to supplemental or rebuttal testimony.
The Court finds that the expert reports may be considered for purposes of class certification. To the extent the Defendant objects to the legal standards and conclusions offered by Dr. Elliott, the Court will, of course, determine and apply the appropriate legal standards without regard to Dr. Elliott's opinions. Because this is a motion for class certification considered by the Court, not evidence being presented to a jury, there is little concern that an expert's misstated or mistaken legal conclusion will cause confusion. The Court found Dr. Boyd well-qualified to offer opinions regarding the supports that were offered to K.M. and G.T., as well as the interventions and supports likely to help them succeed. Dr. Boyd has extensive experience evaluating children and youth with disabilities, including intellectual and cognitive disabilities. Direct experience drafting IEPs or BIPs is not necessary for a well-qualified clinical psychologist specializing in work with children with disabilities and behavioral issues to opine regarding the needs and behaviors of children with disabilities.
However, the Court finds that the declarations from parents of students other than the Named Plaintiffs and the declaration of Christina Smith should be disregarded for purposes of this motion.[2] The Defendant indicates that it requested disclosure of all witnesses supporting class certification, and the Plaintiffs failed to disclose these witnesses.[3] The Plaintiffs assert that evidence that would not be admissible at trial may nonetheless be considered for class certification, but do not respond to the assertion that they failed to disclose the witnesses in response to discovery requests. The Court ordered a separate, preliminary discovery process relevant to class certification to allow the parties to conduct the discovery exchanges that permit each to explore and rebut the other's evidence, presenting a record of all evidence and argument relevant to class certification to the Court. That process requires disclosure of evidence and witnesses, and the Court finds it appropriate to exclude those declarations (Documents 120-7 through 120-11) from consideration.
Exhibits 18, 19, 24, and 25 are publications cited by the Plaintiffs. Exhibit 18 is a report on racial disparities in how school systems identify, classify, and support students with disabilities published by the Center for Civil Rights Remedies at The Civil Rights Project, and includes analysis of disciplinary data for students with disabilities. Document 19 is a ProPublica report regarding racial disparity in discipline at Capital High School and Exhibits 24 and 25 are both newspaper articles on the same subject. The Plaintiffs cited Exhibit 18 for disciplinary data, including comparisons between suspension rates for students with and without disabilities in Kanawha County, and between suspension rates for students with disabilities in Kanawha County and in other school districts across the state and country. The Court finds that Exhibit 18 provides background and context that may be helpful in analyzing the class certification factors. Further, such information could be introduced through an expert at trial under Rule 803(18). The data itself appears to be drawn from the United States Department of Education, Civil Rights Division, which could be admissible as a public record. Exhibits 19, 24, and 25 focus solely on racial disparities in discipline. The Plaintiffs' complaint and proposed class definition address disparities based on disability status, not race. Although race may impact the experiences of students with disabilities, it is not the subject of this lawsuit and the Court finds these exhibits irrelevant.
Finally, the Plaintiffs submitted a supplemental expert report, wherein Dr. Elliott responds to the Defendant's experts and to the characterization of her initial report. As the Plaintiffs point out, the Court's scheduling order relevant to class certification did not speak to rebuttal reports. The statements to which Dr. Elliott responds were made in the Defendant's response brief and exhibits thereto. She could not have produced the supplemental report any earlier. It does not contain new or contrary information-it simply engages with the arguments presented by the Defendant, particularly arguments based on the Defendant's interpretation of her words. See, e.g., Romeo v. Antero Res. Corp., No. 1:17CV88, 2020 WL 1430468, at *6 (N.D. W.Va. Mar. 23, 2020) (). Nothing in the Court's orders or the Rules precludes consideration of Dr. Elliott's supplemental report, and the motion to strike it will be denied.
The Plaintiffs, G.T., K.M., and The Arc of West Virginia, assert that Kanawha County Schools (KCS) does not provide adequate behavioral supports to students with disabilities who require such supports to succeed in the classroom. G.T. and K.M. are elementary school students in Kanawha County with Individualized Education Plans (IEPs). Both sometimes exhibit challenging behaviors related to their disabilities, and both have experienced disciplinary removals from the classroom. The Arc of West Virginia is a not-for-profit membership organization focused on disability rights, particularly for those with intellectual and developmental disabilities. Among other services, it provides support for families of children receiving special education services at public schools in West Virginia. The Plaintiffs allege violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C § 1400 et seq., of Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794, of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and of the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. They seek declaratory judgment, preliminary and permanent injunctive relief, appointment of an independent monitor or ombudsman, and attorneys' fees and costs.
A. Data and Expert Assessments of Kanawha County Schools
Kanawha County Schools has a total student population of approximately 4, 200. (West Virginia Education Information System, att'd as Pl.'s Ex. 16) (providing 4, 239 students in 2017-2018, 4, 312 in 2018-2019, and 4, 210 in 2019-2020....
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