Leslie v. Board of Educ. for Ill. School Dist.

• Decision Date: 25 July 2005
• Docket Number: No. 05 C 0760.,05 C 0760.
• Citation: 379 F.Supp.2d 952
• Parties: LESLIE, Eric Daniel, Javy Junior, and Joselyn Delgado, minors, by their parents and next friend, Erika Delgado; Andie, Liza, Maribel, And Mabel Garcia, minors, by their parent and next friend, Maria Garcia; Deonte, Danielle, Daniel, Dinah, And Deanna McFadden, minors, by their parent and next friend, Tracy McFadden; Karen, Rodolfo And Kiara Tapia, minors, by their parent and next friend, Marielena Montoya, Plaintiffs, v. BOARD OF EDUCATION FOR ILLINOIS SCHOOL DISTRICT U-46, Defendant.
• Court: U.S. District Court — Northern District of Illinois

379 F.Supp.2d 952

LESLIE, Eric Daniel, Javy Junior, and Joselyn Delgado, minors, by their parents and next friend, Erika Delgado; Andie, Liza, Maribel, And Mabel Garcia, minors, by their parent and next friend, Maria Garcia; Deonte, Danielle, Daniel, Dinah, And Deanna McFadden, minors, by their parent and next friend, Tracy McFadden; Karen, Rodolfo And Kiara Tapia, minors, by their parent and next friend, Marielena Montoya, Plaintiffs, v. BOARD OF EDUCATION FOR ILLINOIS SCHOOL DISTRICT U-46, Defendant.

No. 05 C 0760.

United States District Court, N.D. Illinois, Eastern Division.

July 25, 2005.

COPYRIGHT MATERIAL OMITTED

Carol Rose Ashley, Robert C. Howard, William W. Thomas, Futterman & Howard, Chtd., Chicago, IL, for Plaintiffs.

Patricia J. Whitten, Michael J. Hernandez, Franczek Sullivan P.C., Chicago, IL, John W. Borkowski, Hogan & Hartson LLP, New Orleans, LA, Maree F. Sneed, Hogan & Hartson, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiffs, minority and limited English proficient ("LEP") students in the Illinois School District U-46 ("District"), have filed a four-count putative class action against defendant Board of Education for the District ("Board"). Plaintiffs' first amended complaint¹ alleges that LEP students are suffering from the District's failure to take "appropriate action" to eliminate language barriers, in violation of the Equal Education Opportunity Act of 1974 ("EEOA"), 20 U.S.C. § 1701, et seq. (Count I). Plaintiffs also allege that Hispanic, African-American, Hispanic LEP, and non-Hispanic LEP students in the District are currently enduring discriminatory burdens and diminished educational benefits not suffered in the same proportion by white students, in violation of the Fourteenth Amendment to the Constitution (Count II), the Equal Protection Clause of the Illinois Constitution (Count III), and the Illinois Civil Rights Act of 2003, 740 ILCS 23/5(a)(1) (Count IV).

Defendant has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that plaintiffs lack standing and fail to state a claim. For the reasons stated below, defendant's motion to dismiss is denied.

FACTS²

Plaintiffs' amended complaint is lengthy³ and includes detailed factual allegations historical information, and statistics. The following is a summary of the facts relevant only to the motion to dismiss.

Plaintiffs are Hispanic and African-American parents and their children who are K through 12 students at schools in the District. Some of the plaintiffs receive LEP services. At least two of the plaintiffs receive special education services, and one also receives LEP services. Defendant District is an Illinois school district operating in the Cook, DuPage, and Kane Counties, and the communities of Bartlett, Carol Stream, Elgin, Hanover Park, Hoffman Estates, Schaumburg, South Elgin, St. Charles, Streamwood, Wayne, and West Chicago. There are seven members on the Board of Education for the District. There are no Hispanic board members, and one African-American board member.

During the 2003-2004 school year the District had an enrollment of approximately 38,285 students in 51 schools. Of the students, approximately 49.3% were white, 36.3% were Hispanic, 7.3% were African-American, and 7.0% were Asian or Pacific Islander. 34.4% of all students were low income, and 24.6%, or nearly 10,000 students, were enrolled in LEP services. According to a bilingual services audit completed for the District by Dr. M Beatriz Arias and released on March 21, 2005 ("Audit"), the number of English Language Learners ("ELL")⁴ in the District has increased at an annual rate of growth of 22% since 1991. Plaintiffs assert that 13 of the 40 elementary schools were racially identifiable during the 2003-2004 school year as white, and 15 were racially identifiable as minority. One of the 8 middle schools was identifiably white, and three were identifiably minority.

In the early 1990s the District was selected for a proactive compliance review by the U.S. Department of Education's Office of Civil Rights ("OCR"). OCR conducted an investigation and required the District to modify its LEP services. OCR released the District from its review in 2003. In approximately 2000 the Illinois State Board of Education ("ISBE") notified the District that it was not appropriately referring, identifying, and providing LEP services to special education students.

In 2000 the voters in the District approved a referendum for school construction. The District implemented a new redistricting plan ("Redistricting Plan"), effective at the start of the 2004-2005 school year. The Redistricting Plan consisted of: (1) redefined attendance boundaries; (2) closing two elementary schools, Woodland Heights and Illinois Park Elementary School ("Illinois Park"); (3) opening three elementary schools in new buildings; and (4) opening a new middle school. According to plaintiffs, all of the new schools were built in "majority" or "predominately" white neighborhoods. School additions were constructed at schools in minority neighborhoods, but there is still insufficient capacity in minority neighborhood schools.

Prior to the Redistricting Plan the District retained Gann-McKidden Demographic Consulting ("Gann-McKidden") to conduct a demography study of U-46. Plaintiffs allege that the District instructed Gann-McKidden not to review racial and ethnic information in conjunction with the demographic analysis, despite information from the District's counsel that race and ethnicity were legitimate and permissible facts to review in preparation for redistricting. In January 2004, Gann-McKidden released a demographic report ("Demographic Report"), a new attendance boundary map, and the recommendation to close two elementary schools, Woodland Heights and Century Oaks. The Demographic Report and proposals were presented to the Board. Approximately two weeks before adopting the Redistricting Plan in March 2004, the Board substituted for school closure Illinois Park, a school with a predominantly minority population and a K through 6 LEP program, and took Century Oaks, a school with a large white student population, off the closure list. By March 15, 2004, the proposed boundaries and the Redistricting Plan were "rushed" through the Enrollment and Facilities Committee, the Citizens Advisory Committee ("CAC"), "perfunctory" public hearings, and Board adoption and approval. Plaintiffs assert that during the development and approval process of the Redistricting Plan, the Board ignored protests and concerns from the community, including several officials from the City of Elgin, the editorial boards of two newspapers, the teachers' union for U-46, and several members of the CAC.

According to plaintiffs, the opening of the three new elementary schools combined with the enforcement of a strict neighborhood attendance boundary assignment system permitted "only students living in white neighborhoods to almost exclusively reap the benefits of the new construction." Plaintiffs also assert that the Board was unconcerned that the Redistricting Plan increased the degree of racially identifiable schools. According to plaintiffs the Redistricting Plan increases the likelihood that one or more of the District schools on the ISBE watch or warning lists will continue not to make the required annual yearly progress under the No Child Left Behind Act, and that the District may opt to close these failing schools rather than risk losing federal funding.

Plaintiffs admit that the Redistricting Plan reduces the busing of minority and Hispanic LEP students, but assert that many students are still bused, in part because there is insufficient capacity in schools in minority neighborhoods. The closure of Illinois Park and Woodland Heights, two schools with LEP services, increased crowding of LEP programs in minority neighborhoods, which exacerbated transportation and placement instability problems. Plaintiffs allege on information and belief that approximately 50% of LEP students in the District are transported out of their neighborhood schools. Seven of the named plaintiffs attended Illinois Park during the 2003-2004 school year. Six of the seven former Illinois Park students received LEP services and are now transported out of their neighborhoods to other schools. One plaintiff would have started at Illinois Park this year, but attended Kindergarten at a school outside her neighborhood. One family of Hispanic plaintiff siblings all receive LEP services, and are currently split between three schools, none of which is in the family's neighborhood. Another family of Hispanic plaintiff siblings all receive LEP services and are split between two schools, neither of which is in the family's neighborhood. At least one of the named plaintiffs has been assigned to three different elementary schools.

In addition to shouldering unequal transportation burdens and suffering from school assignment instability, plaintiffs allege that LEP students receive deficient and discriminatory services. Hispanic LEP students are impermissibly segregated from regular education students for all instruction rather than for specific educational subjects and purposes only, and are denied proper access to special education referrals, reviews and services. Defendant also fails to provide adequate and timely special education services to LEP students. Plaintiffs allege that these deficiencies cause "educational harms to students and interfere[ ] with the LEP students' ability to participate in all of the District's educational programs."

In the summer of 2004, counsel for the named plaintiffs began settlement discussions with the District's counsel. After months of the negotiations, the parties reached a tentative agreement. At the eleventh hour, however, the District chose not to enter a settlement agreement and announced its own efforts to revise the Redistricting Plan. According...