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SWAN V. BYRD BENNETT IN FEDERAL COURT, PART ONE, THE CASE FOR THE SPECIAL ED CHILDREN: Lawsuit against school closings... Three days of testimony against the Chicago school closings based on the needs of special education students

Three days of detailed testimony about the Chicago Board of Education's plans to close more than 50 of the city's real elementary schools took place in federal court in Chicago between July 16 and July 19, 2013. The testimony took place because of two combined lawsuits filed by parents on behalf of children with disabilities who argued that the planning for the closings of the schools and the arrangements for the so-called "welcoming schools" (the schools that will receive the children from the schools that have been closed) will result in a deprivation of the rights of children with disabilities under the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA) and other federal laws.

Synopsis Overview for Plaintiffs’ Witnesses

by Susan Zupan

The following outline and summary listing gives readers an overview of the plaintiffs’ testimony in its entirety. This will assist readers in their ability to scroll down to a particular section with greater ease.

Witness #1: Dr. Pauline Lipman – research on the impacts of school closings on students; racial demographics of CPS closings

Witness #2: Kristine Mayle – overview of special education; implementation at local school levels; and IEPs in particular

Witness #3: Parent Mandi Swan – description of her son’s disability (autism); both her (and his) experience(s) with and impacts thus far regarding the closing of Lafayette

Witness #4: Lucy Witte – expert witness on special education and school closings; IDEA mandates, particularly FAP (free and appropriate public education); analysis of IEPs submitted for lawsuit

Witness #5: Sarah Hainds, CTU Researcher – attempts to speak to and enter certain documents on ADA compliance data into the record were denied; called back briefly after witness #9 but dismissed

Witness #6: Laurie Siegel – information on and impacts of school closings to students related to same for counselors and case managers (often same person) and clinicians, particularly social workers

Witness #7: Professor John Hagedorn – gang expert; violence in Chicago; gang influence on students with disabilities; impacts(s) of school closings; refutation of CPS’s Safe Passage

*Witness #8: Dr. Woods Bowman – financial administration; fiscal non-crisis of CPS

Witness #9: Parent Sherise McDaniel – description of attempt to save and last-minute-averted school closing of Manierre; racial undertones to CPS policy regarding school actions; parent of a child with a disability

*Witness #10: Pavlyn Jankov, CTU Researcher – certain documents allowed “provisionally” on CPS performance data comparing closing schools to receiving schools

The hearings, which are asking for a preliminary injunction barring the closings, ended and the federal judge as of July 22, 2013 was still considering his ruling.

The first day of the preliminary court hearings in the cases -- Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624 -- took place before U.S. District Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Tuesday, July 16, 2013. When Courtroom 1225 of the Dirksen Federal Building, located at 219 S. Dearborn Street in downtown Chicago, filled to capacity (six benches reserved for approximately seven seated “concerned citizens” -- with two other benches in front reserved one each as needed for the defense and plaintiffs), an overflow room was set up where spectators were directed to Courtroom 1719.

The hearing on July 16 brought forth full testimony from more than four witnesses for the plaintiffs. (Two other witnesses for the plaintiffs remained in limbo more-or-less under further court consideration by the day’s end.)

The first witness was Dr. Pauline Lipman, a Professor of Policy Studies in the College of Education at the University of Illinois - Chicago (UIC) for the past seven years. She was questioned by one of the lawyers for the plaintiffs, Matt Farmer. Her background in teaching and research was presented to the degree that one of the designated lawyers for the CPS defense, Sally Scott, stated that there was no objection to tendering Dr. Lipman’s status as an expert witness.

There is not a substantial body of research on the effects of school closings on students, Dr. Lipman stated. There are a number of studies, but they are not large, peer-reviewed, or carried out over time enough to be able to draw larger conclusions. In other words, Chicago Public Schools (CPS) is presently carrying out a policy that is an experiment. Normally, such policies or interventions are piloted on a smaller scale, due to their potential for harm to children. From 2001-2012, CPS closed, consolidated, or phased-out over 100 schools, Dr. Lipman told the court. However, in 2013 the number went up to 50 in one year, the largest she knew of ever in the United States. Research from the Consortium on Chicago School Research indicates that school closings for "under-enrollment" and "under-performance" result in immediate harm in the year of the closings and over the summer regarding student attendance and mobility. In the following year there were no statistical academic gains except for those students who went to the strongest schools -- this number of students being 6 percent of the total. She was asked to define “mobility” (the number of students who leave a school during a given school year), noting further that school districts as a policy track mobility for the exact purpose of trying to reduce it. There is a large, authoritative body of research indicating that mobility is harmful to students academically, socially, and emotionally. Closing a school is defined by mobility. Dr. Lipman then detailed a 2012 study from the Rand Institute showing that school closings for low enrollment and low achievement resulted in “immediate and persistent harm” with negative effects for three years on achievement, attendance, and graduation rates. This was mitigated, as with the previous research cited, only for the students attending the highest schools; otherwise, students did not recover.

Dr. Lipman described the racial components of the present CPS school closings. For the 2012 -2013 school year, 87% of the students affected by the school closings are African-American; in contrast, African-American students are 40% of the total student population in CPS. Presenting the historical pattern, in the past, African-American students more-or-less made up 45% of the total student population of CPS but representing 80% of the students whose schools were closed. Matt Farmer, one of the attorneys representing the plaintiffs, asked for the historical data: “A page of history is worth a volume of logic”, he said, quoting Oliver Wendell Holmes. Lipman's testimony also included details based on what is called "qualitative research." Looking at this in a community context, she said, what CPS has been and continues to do is: close schools that qualitative research identifies as the "anchors in neighborhood communities" already destabilized by poverty, unemployment, and violence. Using CPS’s latest matrix for school performance, schools are labeled with levels of 1, 2, or 3 (top, middle, or lowest/probation). Presently, CPS’s school closing plan will result in: 46 schools’ students splitting half-and-half, with 23 schools moving to receiving schools having the same performance level and 23 schools moving to schools having one performance level higher; and 10 schools moving up two performance levels. (The number total of 56 is due to some schools moving into two different schools instead of one.) Just 7 (or 12.5%) of the schools will be moving to a "top quality school" in which the research indicates we can expect improvement. For 87% of the school closings we can expect no improvement, Dr. Lipman said..

On cross examination, CPS’s Sally Scott reviewed information basically already presented which included: few long term studies; therefore little data on definitive effects of school closings on students either positive or negative; and that mobility was not unique to school closings. The Board's attorney also asked if Dr. Lipman looked at information on the “welcoming schools,” the schools that CPS has assigned the children to. Dr. Lipman said that this was difficult to do, due to CPS not giving full comparisons of the schools re: resources, programs (from special education to enrichment), activities, etc. Ms. Scott referred to Science, Technology, Engineering, and Mathematics Education (STEM) and International Baccalaureate (IB) programs being added to the welcoming schools. Dr. Lipman responded that CPS was “promising” these programs, but they might not outweigh the harm of everything else considered. The plaintiff's attorney, Matt Farmer, redirected by asking if to Dr. Lipman’s knowledge there was any academic research discussing the benefits of having air conditioning, iPads, STEM, and IB programs. Dr. Lipman replied that she was not aware of any.

The judge ordered that the court take a 5-minute break.

Second Witness. Kristine Mayle, Chicago Teachers Union.

The second witness called by the plaintiffs on the first day of the court hearings for a preliminary injunction against the Chicago school closings in the combines cases of Swan v. Byrd-Bennett and McDaniel v. Board of Education City of Chicago came to the witness stand on Tuesday, July 16, 2013. U.S. District Court Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois presided in Courtroom 1225 of the Dirksen Federal Building. The overflow crowd was present in Judge Lee's courtroom and in the "overflow room" in Courtroom 1719.

The second witness that day was Kristine Mayle, a former special education teacher who currently serves as Financial Secretary of the Chicago Teachers Union. She testified about CPS special education procedures for the plaintiffs.

For those who work in the schools or are familiar in any way with special education, this witness basically described and explained what might already be known and practiced; for others, it might perhaps serve as a mini-special education overview.

EXPERIENCE: Questioned by lawyer Matt Farmer, the second witness, Kristine Mayle, stated that she is presently the elected Financial Secretary of the Chicago Teachers Union (CTU). Ms. Mayle taught 5th – 8th grade special education for three years at De la Cruz Elementary School, a school closed down by CPS. (See related articles and reports in back issues on this Substance website on the closing of De la Cruz and other schools prior to this year’s blitzkrieg of CPS closings.)

After the closure of De la Cruz, Ms. Mayle taught 5th-7th grade mostly learning disabled (LD) sped students at John F. Eberhart Elementary School for one year prior to being elected to CTU office. From her teaching positions and via experience in positions prior to teaching, Ms. Mayle has worked with LD students, students with autism, and students with behavior issues (for example, one student with “explosive disorder” aka rage issues).

She noted that Special Education terminology and labels in CPS sometimes differ from the ones used elsewhere. Due to her knowledge and experience, Ms. Mayle has become the “go to” person in CTU for sped issues for CTU members as well as parents. She serves on special education committees within CTU, the Illinois Federation of Teachers (IFT), and is involved with the Clinicians’ Committee of CTU, which includes nurses, social workers, speech pathologists, etc.

LRE and IEP Team: Ms. Mayle described Least Restrictive Environment (LRE) and levels of for the courtroom. LRE 1 describes the level of a sped student integrated in the general education (gen ed) classroom; LRE 2 describes a level that includes participation in pull-out programs; and LRE 3 refers to the need for a separate sped classroom placement. The LRE placement is individualized, depending on the needs of the child. It is determined by the Individualized Education Plan (IEP) Team that meets to review documents and data to make the IEP to help meet and support the student’s needs. The team consists of: the case manager, the sped teacher, a gen ed teacher, the parent/guardian, the student (if age 14 or older), and often, depending again on the individual needs of the student, a social worker, nurse, translator, or paraprofessional, etc.

Ms. Mayle estimated that she worked on over 100 IEPs from her case loads over the years. The IEP Team together determines the “Justification of Placement in LRE” section of the IEP (see below). IEP: Ms. Mayle was asked to review the template of Plaintiff’s Exhibit 92A, an IEP of a child whose mother would be testifying; the IEP was redacted using only the child’s initials. The child had been a student at slated-for-closure Jean D. Lafayette Elementary School. Ms. Mayle said that although the template is now electronic, it is basically the same as from her past teaching experience.

She described “Section 7: General Considerations in the Development of the IEP.” (Often the largest section of the IEP, this section describes and documents student strengths and weaknesses in all areas of his/her school and home experiences and circumstances to the degree possible and necessary.) From her capacity within CTU, Ms. Mayle testified that this section is completed differently within CPS in different schools. CPS does not have a uniform policy in this regard, to Ms. Mayle’s knowledge: in some cases Section 7 is written by the case manager; in others by the case managers and the teachers; and in some schools, the teachers write the whole thing. The next section of the testimony reviewed basic parts/sections of the IEP including but not limited to: student identification information; the label for the disability (which indicates what to expect for school personnel); the date of the IEP meeting, in which the team sat down to put the document together; home language information; a checkbox for procedural safeguards (did parents receive paperwork re their rights?); etc. At the point in which the questions Mr. Cowlin asked pertained to whether or not case managers in CPS received any training, the lawyer for CPS, Michael Warner, raised objections. The answer “No” appeared to be allowed by the judge eventually. To the question of how sped parents were involved, Ms. Mayle described varied parental involvement in her experience - from parents simply listening to the IEP Team to parents providing input. Some parents gave more details while others replied, “No, everything’s fine.” TRANSITION: From another portion of Section 7, Ms. Mayle was asked to explain “Relevant Transition Information.” This referred to student movement: day-to-day, class-to-class, activity-to-activity, etc. She said that this section was especially important for students with autism. Another IEP heading entitled “Transition Services” referred to situations such as: a child entering kindergarten; a student moving from elementary to high school; a student graduating/leaving high school, etc. Transportation needs would also be determined by the IEP Team. When asked if such should be provided in IEPs concerning the closings of schools, the CPS lawyer objected to questions related to this topic. When asked if transportation was added to IEPs at De la Cruz when CPS closed that school, though the CPS lawyer objected, Judge Lee allowed Ms. Mayle’s response of “No.”

IEP MEETINGS: There are different types of meetings related to supporting and meeting the needs of sped students: annual IEP meetings; eligibility meetings every three years in which the IEP Team does a “deeper dive” to review the psychologists’ battery of tests and all other relevant reports to determine the child’s eligibility for continued sped services; meetings for behavior plans, for example, to reconvene if changes might be needed. IEP ACCOMMODATIONS and MODIFICATIONS: This is the IEP section in which the team determines from a wide range of supports those that will lead to the individual child/student being successful. Examples include: communication devices (with input from the speech pathologist), assistance in using the toilet, assistance with eating, scribes, tutors, using calculators, assessment modifications such as tests with less questions, modified grading scales, waived promotion requirements, etc. This section of the IEP is filled in by the case manager with input from other members of the IEP Team, and especially the teachers who see the child’s interactions in the classroom on a daily basis. On the question of which students might receive a continuation of services through summer school, to avoid flat-lining or regression, Ms. Mayle said this would be for the more severe disabilities such as: autism, Down’s Syndrome, cognitively-delayed, and others in a slew of “low incidence disabilities.” IEP GOALS: IEPs contain quarterly benchmark goals determined by the strengths but mostly weaknesses from the picture of the child painted in the other sections of the IEP. There should be at least one goal for every identified/described deficit and/or subject area. The goals are monitored via a quarterly sped report card. One question asked and then addressed throughout the testimony by plaintiff’s second witness, Kristine Mayle, pertained to that of who determines what goes into an IEP. The answer: the IEP Team.

On cross examination, CPS lawyer Michael Warner asked Ms. Mayle if the IEP process varied from school to school? Yes. Did the attendees to the IEP meetings vary from school to school? Yes and no. Did the contents of an IEP vary for each student based on the disability? Yes. However, Ms. Mayle corrected the language used of Mr. Warner by stating that the IEP’s contents were “based on the student not the disability.” How long was an IEP? This also depended on the needs of the student. There were no further questions and no redirect.

Third Witness for the Plaintiffs in the Preliminary Hearing of July 16, 2013 was Mandi Swan.

Parent Mandi Swan, of Swan v. Byrd-Bennett (13-cv-03623), was the third witness called by the plaintiffs before U.S. District Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois for the preliminary hearing held on July 16, 2013 in the Dirksen Federal Building in downtown Chicago. The preliminary hearing also includes that of McDaniel v. Board of Education City of Chicago (13-cv-03624). Courtroom 1225’s three benches reserved for “concerned citizens” were filled (approximately seven people each), with others directed to the overflow Courtroom 1719.

As with the previous two witnesses, the Chicago Public Schools defense team had what appeared to be approximately eight lawyers on hand to the plaintiffs’ seven. This report is on the testimony of the third witness, a parent with a child with a disability. The report gives the general public detailed information about one mother and her autistic son’s circumstances within the context of the Board of Education of the City of Chicago voting on May 22, 2013 to close 49 elementary schools, including Jean D. Lafayette Elementary School.

Mandi Swan told the court that she is the mother of five children ages: 10; 7; 5; 2; and 1. For the court case, her 10 year old son is identified with the initials IO and she, as guardian, is one of the main plaintiffs in the case. According to the mother, "IO" has a disability identified as "mild to moderate autism." Ms. Swan explained to the court that her son has to have a routine every day; he needs consistency. He needs to be helped and watched closely throughout his day. He has a history of “running away” that she characterized more as just not knowing and “wandering off.” There were a few instances in which the police had to be called to help find him. He does not know what is harmful to himself, including touching hot things. Except for certain tasks that he might be happy with, if IO does not have supports in place, he has tantrums and outbursts of rage that, depending, sometimes get physical. He yells and screams but also shuts down, blocking himself off from others. All of the above has occurred both at home and at school. His Individualized Education Plan (IEP) was admitted into the record with no objection. (For further information on IEPs, please see the report on witness Kristine Mayle.)

In IO’s IEP, it states that he maintains a limited awareness of his surroundings "but is not able to distinguish between safe and unsafe situations." IO also has serious "transition issues" going from his house to school on a daily basis. His mother testified that she has to physically put him on the bus, and from the bus he needs to be physically put into the school, usually while yelling and screaming. IO will be in 5th grade for the 2013-14 school year. He has been at Lafayette for four years, since 1st grade. Prior to this he was in a school outside of the CPS system. His mother testified that he had major transition issues at that time of moving into Lafayette, but the issues were different due to his being younger. At Lafayette, IO is a part of a Cluster Inclusion Program. He is in a classroom with 13 students, all diagnosed with autism or significant disabilities, but he goes to a general education classroom with his peers every week. One of the main reasons his mother does not want CPS to close Lafayette is because of the supports in place there that she testified were not in place at what is to be his Chicago Public School’s (CPS) welcoming school such as: a sensory room; a life skills room; and a calming room. Another reason is that she predicts her son will regress, that is, lose the gains that he has made at Lafayette. Presently, IO can identify only basic shapes; he cannot identify colors; he cannot identify the alphabet letters; he cannot read, except to continue work on a few sight words. When his mother says that he has made significant gains at Lafayette, she means the following: he is talking; he is making friends, a very difficult task for him; and he responds to behavior and social cues. When he transitioned from 2nd to 3rd grade, he kept the same teacher and did not regress. However, transitioning to a different teacher (even within the same school) from 3rd to 4th grade resulted in more “bad behavior” (as described above) and regression. When asked by plaintiff’s lawyer Patrick Cowlin if she knows who his teacher will be next year, the response was: No. Ms. Swan testified that the annual IEP Team meeting for IO’s IEP was held on March 20, 2013. She said that at that time no revisions were made regarding transition because they were not yet aware that the school would be closed. In addition to transition issues, she felt that if the school was closing IO would also need a social worker, a support component not presently on his IEP. With parts of IO’s IEP on display on courtroom screens, she was asked if there was anything in his IEP to address any kinds of transitions (moving from class to class, moving in hallways, etc.) to which the answer was: No.

Ms. Swan testified under questioning that she learned about the school closing from letters sent home, the news, and teachers talking. A parent meeting at the end of April discussed the “possibility” of the school closing. In attendance were three representatives from CPS, including a Specialized Support Administrator (SSA) identified by Ms. Swan as Rhonda Stone, who would help with the transition if the school closed. IO’s "welcoming school" had not yet been identified. It was between Frederic Chopin Elementary School and James Russell Lowell Elementary School. At a meeting about a week later, Ms. Swan and her husband (with their three youngest children in tow) met with Ms. Stone where they were told that the welcoming school would most likely be Lowell. This was due to Chopin’s program being full, and CPS wanted to move IO’s program as a whole. She said she was told that for another option they would have to live at a different address.

Ms. Swan has visited Lowell. The first time was to register her kids during the first week in June. When she got there, she observed that the street was barricaded off so that the kids could play in the street for recess. She said she saw one security officer, not near the children. The principal, Gladys Betty Rivera was seated at the security desk. When Ms. Swan inquired, she was told that recess in the street was the norm. She was told that if she did not like this, she could request for her son to stay inside for recess or she could volunteer for recess duty. Ms. Swan also attended an Open House at Lowell. CPS representatives were present, including SSA Rhonda Stone. Was she able to see special education rooms? No. Her son’s future classroom? No. Why not? They didn’t exist yet. Was she able to meet his teachers? No. CPS representatives could not tell her who the teachers might be; they informed her that this was a Human Resources issue. Did IO go with her? Yes. Did he meet other students? No, it was from 4:00 – 4:30, and no one was there. In mid-June parents and students from Lafayette took a “field trip” to Lowell. Were they able to see classrooms? Yes – art, music, gym, and one special education room with two younger students and an adult who might have been the teacher. Ms. Swan was concerned that no one from CPS facilitated any interactions for the Lafayette students with the Lowell students. There were no introductions; it was just walk around and “show and leave.” There were two possible rooms that might become the sensory room (already at Lafayette) that the contractors just came out for. Did she meet any teachers? Only art and music, no special education teachers and no teacher aides. She was very concerned about what she referred to as what she has come to know as “the stare” the Lowell students gave the Lafayette students. She expressed nothing against the Lowell students. She explained that they simply did not understand what to expect, such as was already understood by the general education students at Lafayette where these special education students were already included as part of a class that would graduate together. Did the field trip go smoothly for the Lafayette students? No, not for quite a few of the students. One child screamed getting off the bus and for the entire time there; she could hear him, though he was in the other group in different places in the school. Another child (Ms. Swan is familiar with all of the kids) regressed to saying repeatedly, “I want my mom, I want to go home, call my mom…” It was too much to handle. Since the field trip she has received no notes nor letters from CPS. Principal Rivera has told her that she would like to have all of the Lafayette student aides come to Lowell. However, Ms. Swan is only repeatedly told that that is a Human Resources issue.

As of the day of the preliminary hearing, July 16, 2013, did she know who her son’s teacher would be next year? No. How will this situation affect her son? He will regress, lose progress made with his behavior. Have you seen the calming room? No. The sensory room? No. The life skills room? No. What are you asking of the court? This is not just for her son but for all of the students. Please give them at least one year to meet the teachers and create the program before they are thrown into this new environment to figure out what’s around, what is safe, who is in authority, what is there. Moving from one grade to the next, one room to another room in the same building, one routine to the next are BIG SENSORY OVERLOADS, let alone transitioning from one school to another with a whole new neighborhood, area, and kids. What did she base this on? She based it on “being a mom for 10 years to my son.”

On CPS redirect, Ms. Swan was asked about her son’s original transition from Lyndon Township where he was a student for two years to CPS in first grade. Did he make progress after a month or two? Yes. Did her son’s present IEP meet his needs in the last year? Yes. Is specialized transportation provided? Yes. An aide? Yes. Did she individually meet with Ms. Stone? Yes. Was she told anything about services on the IEP related to the new school? Yes, but at this point Ms. Swan asked if she could add something; the reply was “no,” to just answer the questions. Did IO go on a field trip to the new school? Yes. Did other students go with him? Yes.

And that ended the testimony and cross examination of Mandi Swan.

Plaintiffs’ Fourth Witness for the Preliminary Injunction Hearing of July 16, 2013 was Ms. Lucy Witte, who was brought before the court as an expert on special education. The lawyer representing the plaintiffs during the questioning of Ms. Witte was Michael Persoon (from the law firm Depres, Schwartz, & Geoghegan). Ms. Witte answered the first questions, reporting that she was retained and paid to offer an expert opinion on special education and school closings. The defense, Chicago Public Schools - CPS, objected until “foundation” was established for her to be considered as an expert. Foundation was established quickly. The following are a few items from her curriculum vitae that were presented to the courtroom: BA in education from Indiana University in Bloomington (1975); MA in special education (1978); Director of Special Education (2001); 12 years in various leadership roles; a listing of professional associations; adjunct professor at Butler University (Indianapolis), teaching psychology of the exceptional child (from cognitive delays, autism, social/emotional to gifted); a school board appointment by Indiana Governor Mitch Daniels (with reporter’s note that this refers to the Indiana School for the Deaf); and current Executive Director of West Central Joint Services Cooperative of nine school districts, with currently 52,000 students. She has 37 years of field experience with special education in Indiana. The following have are a few of Ms. Witte’s specific administrative job roles and responsibilities: staff supervision, hiring, and evaluation; reporting to the Assistant Superintendent; overseeing the continuation of services (for general education but also specifically special education students in transition); pulling and reviewing IEPs for compliance… In a nutshell her experience was characterized as: “The special education buck stops with her.” CPS lawyer, Abizer Zanzi (of the law firm Franczek Radelet), accepted her as an expert witness on special education, but objected to her qualifications on school closings. Judge Lee granted her qualification as an expert witness on special education, but requested additional foundation for the school closings.

For her report and testimony, she considered IEPs given to her by the plaintiffs, eligibility determination reports, and documents from CPS’s “Office of Diverse Learner Supports and Services “ (ODLSS). (Note: The latter title replaces CPS’s previously-titled Office of Specialized Services – OSS, which before that was called the Office of Special Education Services). At one point, when asked, Ms. Witte informed the court that only after she completed her report did she consult the deposition of Rebecca Clark, a witness for the defense.

Has she overseen transitions of special education students from school to school? Yes. She is currently overseeing the withdrawal of 4 of the 9 districts in the West Central Cooperative that are pulling out of shared joint services. They began the process in October of 2012 by looking ahead, determining what needed to be done, then taking a year to plan; the transition is not scheduled until August of the 2014-2015 school year. She has also overseen special education students transitioning from one school to another for both year-round and traditional programs. In doing so, she testified, the most significant needs of the students are taken into consideration. She referred to the Least Restrictive Environment (LRE) requirements of the federal law known as IDEA — Individuals with Disabilities Act. (See report on witness #2 for further information on LRE.) The following are some of the requirements to take into account for a seamless transition for special education students moving from one school building to another: building compliance with the American with Disabilities Act (ADA); adequate space in classrooms; the number of wheelchairs; access to restrooms; assessing if the staff is highly qualified; equipment moves; compliance with “FAP,” lingo used in reference to IDEA’s entitlement to a Free and Appropriate Public education; and review of student IEPs.

How and why would student IEPs be reviewed in transitioning special education students from one school to another? Parents were informed via phone calls, then letters, and meetings. Parents would need to know who would be the teacher of their child. Staff needed to review IEPs for preparation in order to ensure a safe transition as well as a successful IEP implementation assuring FAP. This was all completed prior to the transition, she was asked? Yes, absolutely, for her own assurance as well as that of the parents, and for the basic well-being of the child. How long has Ms. Witte been reviewing IEPs for transitioning from one school to another? Including the consideration of transitions from elementary school to middle school to high school, she has done this for 37 years.

Judge Lee overruled the defense’s objection again, and Ms. Witte was accepted by the Court as an expert witness on the impacts of school closings on special education students. CPS objected to her prepared report as hearsay; CPS objected to other documents submitted by the plaintiffs throughout her testimony. The court basically accepted the documents as relevant for her opinion, admitting them to consider what she considered as an expert, not to the truth of the documents. What was the conclusion of her report? The school closings of CPS will most likely cause harm to students with disabilities. Irreparable harm? This is happening too fast; yes, today, that is her opinion. Documents that she considered for her opinion were presented to the court. She reviewed the IEP of the student identified by the initials “IO”, a student with an LRE 3 designation, meaning spending the majority of the day in a self-contained special education classroom. (See Substance report for witness #3 for the testimony of Mandi Swan, the mother of IO.) Ms. Witte’s key consideration in reviewing the IEP was to ask: Was this IEP appropriately calculated for reasonable, educational benefit (aka FAP) for the student? In IO’s IEP she noted that “verbal and physical outbursts” were described in the narrative; however, there was no behavior intervention plan for IO. Thus, the personnel of the CPS “welcoming school” he would attend would not have a firm foundation to know what he needed regarding prompting for his behavior or what was repetitive. Without a behavior intervention plan they would not have strategies to implement for the physical meltdowns identified. There was also nothing related to the impact for IO of transitioning from one school to another. She testified that IO’s IEP described an inability to communicate and lack of interaction and reciprocity with his peers as needs; however, there were no goals and no plans listed to address them. With CPS presently providing for a bus to take IO to and from school, IO’s IEP listed the following as justification for transportation: significantly reduced intellectual development for problem-solving skills as well as negotiating normal social situations; and limitations with questions, directions, and differentiation of safety issues. Did the current IEP have any plan for the transition of IO from one school to the next school, to an unknown building? No, no plan. Should an IEP address if a student wanders off, students referred to as “runners” in the lingo of the field? Absolutely. The new school would need to know the defined supports, the strategies in place for safety, interactions, and communication for any identified needs. Without such, progress cannot be measured for recoup (gain) or regress (loss) of skills. Without such, there is no offer to IO of FAP. Ms. Witte also reviewed Plaintiff’s Exhibit 92E, an IEP for a child identified as VB, also with an LRE 3 designation. Her conclusions were similar to those for IO. The sequence she repeatedly referred to was basically: needs goals services. Ms. Witte testified that there were descriptions of significant intellectual delays/diminished IQ with significant physical aggression including harm to others; however, there were no goals or behavior plan for this. Academic goals lacked required specificity. For example, one of VB’s goals was “identify new sight words” without listing examples of which words. Without a firm IEP, there is not a firm template for the new school to start on. Another goal listed in the IEP presented a mismatch of pointing to a character to tell what might happen next. Based on 37 years of experience in special education, without clear goals for the new school she would expect regression, time loss for figuring out what to do, and safety issues for the student herself as well as for others. Research has documented that for students with autism change is an issue. For students with cognitive delays, negotiating socially is a challenge, let alone in a new school. Were there any transitional supports in the IEP for VB? No. Ms. Witte stated that without necessary supports in place for identified significant needs, there was an inappropriate offer of FAP, and harm could result. Could this be mitigated with time? The CPS defense objected to Ms. Witte referring specifically to CPS when she said that with the time pace of CPS being “light speed,” students would be physically and emotionally harmed. When asked how much time should be taken, she said a minimum of one year, and over 18 months to ensure a successful and appropriate implementation of the IEPs. Who would be responsible for determining all of this? The IEP Team. Not an administrator? That would not be legally compliant. The IEP Team would need to meet in order to review the IEP and specific needs for transition. This was not the role of an administrator? No, the IEP Team needs to meet to review the IEP specific to transition needs. Administrators are authorized to allocate the resources for general education and special education. Plaintiffs’ lawyer Michael Persoon reviewed a series of Chicago Board of Education (CBOE) documents. Re one entitled “Social and Emotional Learning Plan,” Ms. Witte testified that its 6-8 week intervention plan for stress reduction and emotional support was not sufficient for students with autism who would need such supports before and after; and students with significant cognitive delays would also need mental health supports. Did she see any of this in the IEPs? No. Ms. Witte found it “alarming” that one CBOE document described that schools were going to reduce IEP minutes to fit the minutes offered by the welcoming schools. Background: It is limited but there is local principal discretion related to time allocations in a given school day for various subjects. A closing school’s daily schedule might have a different number of minutes for a given subject such as math or reading compared to the welcoming school. In this case, the IEP minutes would be “pigeon-holed to fit the school” by CPS as opposed to meeting the needs of, in these cases, the most fragile LRE 3 students. This would mean that the IEPs did not make an offer of (federally-mandated) FAP. Her opinion? 43 schools being closed by the Chicago Board of Education will likely cause harm to students with disabilities. The CBOE needs more time to ensure a successful transition for these students. The closings are complicated by challenges to the IEPs that have needs listed without goals and no functional behavior plans or goals for students who are known to wander off and/or cause harm to others. Without transitional needs being met, there can be no successful FAP, a free and appropriate public education for students with disabilities.

Under cross examination by CPS lawyer Abizer Zanzi, Ms. Witte was asked if she had experience supervising school closings? Her answer was she has had experience moving students to other schools, one for closing a building but overall for reorganization. Re school closings - has she researched or written a report on the impacts of school closings? No. He counts 2,000 IEPs; she can give an opinion based on her review of 3? Yes. She added that to her knowledge there were 2,459 IEPs. She also looked at other documents. She also based her opinion on data that indicates that students with specific learning disabilities suffer from low self-esteem. Would the IEPs she reviewed be inadequate regardless of the school closings? Yes. She testified that she herself reached out to every parent/guardian and had timelines in place for the transitions. Was she aware CPS had reviewed all of the IEPs? No, she heard it was some. Was she aware CPS had reached out to every parent/guardian? No. That CPS had timelines in place? No. Did she talk to the parents of CB, IO, or VB? No. Did she observe the students? No. Was she aware that the mothers felt the current IEPs met their children’s needs and progress was made? She said she heard the preceding parent in court.

How did she report that 63% or 1,553 sped students suffered from low self-esteem and social/emotional issues? She used a CBOE document on school actions with the disability categories identified, and she made her determination from the characteristics of the disabilities. Students with social/emotional issues refers to mental health issues. Low self esteem would be related to autism (182 students) and cognitive delays. Did she look at all of the IEPs for this information? No, this was based on her knowledge and experience. Upon plaintiff redirect, in between and over an objection sustained, Ms. Witte was asked if she thought, if she reviewed every disabled students’ IEP, would she find any needs listed for transition, and her answer (though not for the record) was: No.

Then the witness stepped down.

Plaintiffs’ Fifth Witness for the Preliminary Hearing on July 16, 2013 was Chicago Teachers Union researcher Sarah Hainds.

What follows is this reporter’s best attempt at trying to report on just what seemed to occur when Chicago Teachers Union (CTU) researcher Sarah Hainds was called to the stand. I am not a lawyer, and though a pretty good note-taker, I’m not anywhere near to being a (miraculous, how do they do that!?) court reporter. Three copies of a memorandum dated July 15, 2013 were posted outside the door of the courtroom warning that photographing, recording or broadcasting was prohibited, and no interviewing may take place in the lobby; there was a designated media area on the first floor, the hearing’s location being up on the twelfth. Lawyer for the plaintiffs’, Robin Potter (of Robin Potter & Associates), began the questioning of CTU researcher Sara Hainds. She has worked at CTU since the fall of 2010, prior to that working for Teamsters Local 743 running an office and researching for contracts. She has an MA in Urban Planning and Policy from the University of Illinois – Chicago (UIC). She did her research there on the need for a master facilities plan in the Chicago Public Schools (CPS). The master facilities plan should assess current construction needs along with future needs based on projected enrollments of population and housing. She is a member of the Chicago Facilities Task Force which reports to the Illinois General Assembly. Other members of the Task Force mentioned included: Representative Cynthia Soto; Representative Heather Steans; Representative Esther Golar; and Senator Iris Martinez; as well as a listing of community organizations (Blocks Together; the Chicago Coalition for the Homeless; Designs for Change; and the Grand Blvd Federation). She said that she reviewed documents on CPS school closings.

This is when the objections from the defense -- Chicago Public Schools lawyers -- started to roll in. That Ms. Hainds could not speak on CPS documents on school closings was overruled. Ms. Hainds stated that she was a member of the CTU Budget Committee as well as the Career and Technology Committee. Regarding budgeting, she mentioned the recent Chicago Board of Education (CBOE) vote on school-based budgeting. The Career and Technology Committee was concerned with issues related to funding and compliance for vocational education.

Did she help prepare data for Laurie Siegel? Yes. (Note: Laurie Siegel would be the next, sixth witness called by the plaintiffs.) The defense objected that this was outside the scope for demographic and safety data. Judge Lee said that he would see where this was going. Ms. Hainds was shown Ms. Siegel’s report. What was used to prepare the charts? A spreadsheet designated the American with Disabilities Act (ADA) needs and concerns school by school; this came from CPS and was shared with the plaintiffs’ legal team. She reviewed capital plan data from CPS’s website, 5-year capital plans for the district projected to 2017 in which the facility renovation plans are prioritized. She reviewed the Welcome School Project Report, in which each of 49 welcoming schools had a 1-page PDF (portable document format) on all capital improvement work, with approximately $2,000,000 going for ADA. She looked at change order logs for construction from the agendas for the CBOE monthly meetings. There were delays and unexpected //… Ms. Hainds was cut off by a defense renewed objection to the ADA information again not being related to demographics and safety. The judge asked how the information on construction was going to be related to demographics and safety. (This was all apparently related to disclosure in a pre-hearing memo on Ms. Hainds’s testimony.) Plaintiffs’ lawyer Robin Potter said that demographics were related to the ADA because that is what provided the safety [related to the special education students]. CPS demographics were not about buildings; it was about people. ADA accessibility was a safety issue, she said. No access is harmful. Judge Lee said that this topic was too broad for the topics of the witness, but he would continue to hear it provisionally and make a determination.

Ms. Potter showed an exhibit to Ms. Hainds. Most if not all of the exhibits presented throughout the hearing were also shown on three screens in the courtroom for public viewing. Ms. Hainds said that the exhibit showed a mismatch related to the history of ADA construction that CPS recognized in closing schools versus the receiving schools in which the closing schools had a lot of work done and the welcoming schools had none. Examples of work such were accessible ramps and modifications to bathrooms; an X showed the work was done. She said that the number 56 was not an accurate count for the number of welcoming schools. A defense objection from CPS attorneys was sustained as to how she knew that. She said something about looking at the CPS website on school actions in which it was monitored that they had added extra schools (she had used the term “unofficial welcoming schools” prior)… The witness was cut off by another CPS objection to "strike this from the record!" The objection was sustained.

Ms. Hainds was presented with a page (p.259) from a working draft document related to the schools Earle and Goodlow and a portion of O’Toole. What safety assessment was done at O’Toole? None. Ms. Potter began to ask about information regarding 10 other receiving schools but once again the defense objected to facts not in evidence. Judge Lee asked Ms. Hainds if she reviewed any documents regarding ADA being needed other than those from CPS. It appeared that Ms. Hainds said something about it not being clear that ADA compliance would be ready by August 26. When the 10 schools were brought up again by Ms. Potter, the defense objected again. Ms. Potter explained that Ms. Hainds created the chart provided by CPS documents available to the public for Ms. Siegel. Ms. Hainds’s testimony would give more on the veracity of ADA for all receiving schools having or not having what was needed, that this information was not in CPS’s plans because it was not formalized. Judge Lee asked if Ms. Hainds aside from compilng the documents, draw conclusions, and creating the chart did any independent studies or witness interviews or something that the court could not get for itself. Ms. Potter said her testimony would create foundation. At this point Judge Lee said that he would save time for both parties and excused the witness for now. The parties would need to meet and confer on the ADA documents. He would hear where they were not in agreement tomorrow.

The sixth witness for the plaintiffs was then called:

As foretold with the fifth witness (who was briefly called back to the stand), Professor Laurie Siegel was called to testify for the hearing on July 16, and she continued into the next day, July 17, 2013. The lawyers in the cases of Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) continued their presentations before U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois. The hearing was held in Courtroom 1225 of the Dirksen Federal Building in Chicago, but because of the large number of people who wanted to attend the hearing, the court had to provide a second room where the public could watch the work of the court on closed circuit TV. Several who attended said it reminder them of Board of Education meetings, where the Board routinely fills the actual "Board Chambers" with its own staff, forcing citizens to go to a "holding room" where the activities are filtered through closed circuit TV.

Ms. Siegel's testimony was given over two days, concluding on July 17.

The lawyer for the plaintiffs was Robin Potter (Potter & Associates); the lawyer for the defense was Sally Scott (Franczek and Radelet).

Professor Siegel reviewed her curriculum vitae and degree information to establish the fact that she was a qualified expert. Her qualifications include: BA in K-9 education; three MAs, including community counseling and school counseling; and a Type 75, which refers to certification for educational leadership as a principal and/or supervision.

Prof. Siegel has been in private practice with the Center for Psychological Services for a few years; she works with children, and adolescents, which includes special education, and adults with “presenting issues.” She is an assistant professor at National Louis University, currently teaching: school and community counseling, theories, and foundational courses, with special education integrated into the curriculum.

Were counselors trained in special education? No. She was employed by Chicago Public Schools (CPS) from 2000-2012 as a counselor/case manager at Mount Greenwood Elementary School. A defense objection to something said about case management not being part of CPS curriculum was sustained.

She said she had testified elsewhere in April that case managers and counselors needed to be separate roles, so that she could be a counselor only.

The judge allowed Professor Siegel to proceed after an objection from the defense. What is a counselor? In CPS counselor responsibilities include: responsibility for the social and emotional aspects of the students in the school; crisis intervention; implementation of the American School Counselors Association (ASCA) model guidance curriculum; 8th grade to high school transitions; high school to career; and other duties.

What did she do as a case manager? Of 980 students in the school, 150 students were without 504s (referring to medical needs); this took up 80% of her time. City-wide, she would attend monthly meetings. Was CPS administration present at these meetings? Yes.

Did they present reports? Yes. What are SSAs? Specialized Service Administrators. They gave power-point presentations [at the meetings]. Regarding the impact of school closings, what documents did she review or prepare? The defense objected on the grounds that Professor Siegel was not an expert, employed as she was in CPS for 12 years and Roosevelt University in an unrelated field for one year. The judge allowed the plaintiffs to proceed when Ms. Potter said that they would lay more foundation.

In her experience did she review IEPs (Individualized Education Plans)? Yes, daily.

Did she supervise the writing of them? Yes, approximately 150 per year for 10 years at Mount Greenwood.

Did she have a responsibility for scheduling IEP meetings? What was her role? Yes, for scheduling re-evaluations, for 504s, for IEPs, and for document creation. A lot of work regarding evaluations is needed to prepare an IEP. She was allowed to proceed after a defense objection on substance.

Did Professor Siegel have experience transitioning students from one school to another? Yes, this was ongoing, including: students transitioning into the school (approximately 30 per year); students from early childhood transitioning into elementary school; and students moving into high school.

In her expertise, could transitioning harm students? Yes.

Did she have the expertise to speak on what should go into, what should be used, regarding an IEP to prevent such harm? Yes, based on 12 years on experience as a case manager and counselor with CPS; and as president of the Illinois School Counseling Association.

The judge overruled two defense objections - on leading the witness and on qualifications.

There being 4-5 IEPs in the court case, in her experience how many IEPs had she reviewed? Approximately 200 a year, so over 2,000 in her years of experience. Did she also write IEPs? Yes. Did she think she was qualified to review such documents? Yes. Ms. Scott at this point told the court that defense would not accept Professor Siegel as an expert witness. She had only been employed in one school and that as a professor at National Louis University she did not teach special education.

Did she have any other professional experiences? Professor Siegel said that in 2002, 50 students transferred into Mount Greenwood E.S. This was due to NCLB (No Child Left Behind) not school closings, but it was transitioning. Had she interpreted scholarly articles? Yes, as a professor and for work in her field. Were these on the impacts of school closings, other than in preparation for them? Quite a few. But not specific to school closings? That is included in reports on transition when changes are made from school to school. Ms. Scott moved to strike Professor Siegel as an expert witness.

The judge announced that the court would recess for the day, with the lawyers staying behind to discuss/work out the exact areas for Professor Siegel’s expert testimony....

When court resumed the next day, Wednesday, July 17, 2013, before Professor Siegel returned to the witness box, the lawyers stood before the bench addressing “legalese housekeeping” issues such as: ground rules that had been established already; admissible evidence; and various stipulations.

Judge Lee reminded Prof. Siegel that she was still under oath.

Robin Potter said that Prof. Siegel was qualified by the court to testify as an expert on staffing of social work positions and the harm or effect on students. Defense objected to a particular copy of a chart that was presented to the court; Ms. Potter apologized and presented another copy with written corrections noted on the sides.

The chart showed a social worker and school counselor staffing analysis from June 30, 2013. Defense (attorneys for the Board of Education) objected on the foundation of Prof. Siegel’s role related the preparing of the document. Ms. Potter said that she did not prepare the document, it was prepared by Pavlyn Jankov at her request.

The defense objection was overruled.

What did it show? That due to school closings, the caseload of clinicians would increase dramatically, for example, 164% for social workers at Yale Elementary School, according to CPS documents.

Defense objected. Judge Lee asked the basis for the numbers. These were the numbers that Mr. Jankov used. The measure was one social worker per special education student. West Pullman would increase 145%. Similar data for four other schools was reviewed – King, Bontemps, Songhai, and Stewart.

Professor Siegel testified that the present CPS ratio for social workers to students was 1:1000.

The National Association of Social Workers recommended a ratio of 1:250. Prof. Siegel said something related to updating IEPs and working with groups; the judge sustained a defense objection that there was not a review of IEPs in her report.

Ms. Potter continued the questioning. Would special education students be harmed by this increase in ratios? Yes, and so would student safety as well as social and emotional issues. An objection was sustained.

What services would not be provided due to the spike in ratios? There would be unmet needs for students related to grief issues, bullying, and social emotional issues. There were at least six defense objections raised and overruled throughout the final part of the witness’s testimony. Would this impact the needs of special education students? Yes. In the servicing of the IEP minutes? Social workers would not have time for much else. Social workers would not be able to address all of the issues that are part of a normal day in a receiving school, such as: individual counseling; crisis intervention; group counseling; as well as revising IEPs for social worker services as part of what needed to be done by the IEP Team.

Special education students would have different needs than those of the general education population? Yes, due to their disabilities. What might they need? Help with what happens during transitioning, with what might trigger issues. Social workers can’t do this now? What does it matter if social workers do not have time? This could result in quite a bit of harm, endangering students emotionally. Professor Siegel testified that she had had to hospitalize students who could not handle the stress of transitions.

Ms. Scott cross-examined the witness. Regarding the chart, did Professor Siegel know how the math was done or the source? CTU employee Jankov got the information from CPS documents. Did she know the enrollment number for disabilities in each school on the chart? No. Did all students with disabilities need grief counseling? No, but every student needed transition counseling. Did she know if social workers would follow students to receiving schools, that many if not all would transition to welcoming schools? An objection by Ms. Potter was overruled. Professor Siegel was not aware of this.

Judge Lee asked the witness how the five schools were selected. She did not know, but she asked Mr. Jankov to select randomly. Professor Siegel’s testimony ended with information for the court that Mr. Jankov would lay further foundation when he was called as a witness for the plaintiffs.

WITNESS NUMBER SEVEN

Seventh Witness for the Plaintiffs in Preliminary Hearing, Day 2, July 17, 2013

The next witness for the plaintiffs was Professor John Martin Hagedorn. He was retained for $5,000 to testify as an expert. Prof. Hagedorn gave some of his background information: PhD in Urban Studies from the University of Wisconsin – Milwaukee; BA in education; MA in sociology; currently at UIC (University of Illinois – Chicago) in the Department of Criminology, Law, and Justice. In particular, he has thirty years of research on gangs, with an extensive history of gangs, and including media stereotypes.

He followed gangs from Milwaukee (where he wrote about People and Folks) to Chicago, and has compared and contrasted gangs in Chicago with those from other parts of the world, including Rio de Janeiro, Cape Town, and Glasgow. He participated in a Guggenheim-funded study of Chicago’s homicide rate (3x higher) compared to New York’s in the 90s. He has written books on gangs (one being The World of Gangs), another being the only book on female gangs. Defense (CPS) attorney Sally Scott did not object generally, but objected to Prof. Hagedorn being an expert witness on school closings and special education.

Judge Lee tendered Professor Hagedorn as an expert witness on school closings, with legalese limitations on things external to CPS workings, but would need further foundation related to special education.

Ms. Potter asked about the current situation with gangs in Chicago related to school closings. Professor Hagedorn replied that changes have made the situation especially dangerous for children. He based his information on interviews with: gang members, parents, police officers, other gang researchers, phone calls to people he knew out in neighborhoods, and others.

All established gangs, for a variety of reasons, were breaking up. Warfare was not organized; new gangs were not affiliated. With things in disarray, violence was spontaneous and unpredictable. An exhibit he created was presented: “Homicide Rates tell the Story of Gangs” (from 1965-2010). He explained two spikes in the line graph as illustrating: first, a lower homicide rate when hierarchical structures had control over members; and second, a high rate for homicides in Chicago at a time when Chicago tore down public housing, diminishing those structures but also not investing in housing, which, compared to New York that during the same time tore down but also invested in housing did not experience the same spike in homicide rates.

Comparing the 1990s to the 2000s, the violence level looks low [on the chart], but the numbers are 2-3x those of New York. Violence used to be a “hit” being put against you; now it is not controlled, it breaks out on the street.

Where did he get the numbers for his data graph? FBI Uniform Crime Report data. The defense objected to the chart as hearsay. Judge Lee allowed it as being a basis for his opinion.

Photos of the old Robert Taylor homes and another housing project were displayed. Professor Hagedorn said that the photos were meant to illustrate that 70,000 people, 99 percent black and 99 percent living in poverty, are not there anymore. Kids were now put in the line of fire that could not be controlled by gang leaders, the police, or community groups. This creates severe risk for moving in unfamiliar neighborhoods.

Was this racial? Absolutely. Black v. Latino tensions are rising everywhere. In this part of his testimony he referred to the past CPS closing of Collins High School (in Lawndale, 4-5 years ago), displacing African-American students into Little Village. He referred to various gangs specific to certain areas throughout his testimony, including here: Young Vice Lords, Latin Kings, and Two Six. At that time he spoke with 20 African-American kids, and the hostility was severely race-related. The defense moved to strike as hearsay. The judge allowed it due to being based on interviews, an established method for his qualitative research.

There were objections as to the questions, with Judge Lee at some points instructing Ms. Potter how to ask the questions or which questions to ask. Ms. Potter asked about Professor Hagedorn’s review of the data. He reviewed maps and documents on school closings, and then superimposed data from the Chicago Crime Commission on the latest gang information.

The first school closing transition area reviewed was a document on Pope to Johnson. Judge Lee overruled when the defense objected that it was given to him by Ms. Hainds (a previous witness). What does it show? He said it was interesting that CPS described a problem with the crossing of Ogden Blvd. His own map showed Albany as walking a very dangerous line of fire.

Gangs referred to here were: Black Souls, New Breed, and north with Traveling Vice Lords. Looking at CPS documents on Safe Passage, School Actions, and Safety Transition compared to his historical data, he predicted imminent violence or death, serious risk of injury and death related to the Pope to Johnson school closing. There were traditional rival gangs with historical, lethal animosity, and, as well as them all fighting among themselves, there were new gangs without affiliations.

Along Albany, there was a risk of violence even for kids who had nothing to do with the gangs. His opinion: CPS is dead wrong on more than one level. Reviewing a CPS Safety Plan for North Lawndale, kids were walking across disputed boundaries, and many kids’ families had ties to these gangs and affiliates. One parent told him, “They are already putting it on Face Book not to come here.” Judge Lee overruled the defense objection that this was based on hearsay; it was based on his interviews.

Ms. Potter asked: For Pope to Johnson, did you see any CPS analysis or research on death or violence? He had not seen this. Was it reasonably likely that students would die? His opinion was that it was dangerous. School closings increased the danger of the likelihood of a child getting shot or killed. He based his opinion on research in Chicago, particularly right in that neighborhood down Albany. (There were quite a few objections both overruled and sustained throughout this line of questioning.)

Were CPS maps inaccurate? Objection. Is there a gang not on the CPS map?

Yes, the Albany Lords. The situation is fluid and dangerous.

He is “mystified” by Safe Passage contracts that are for someone to walk along with the kids. He asked: What do they do if shooting breaks out? Go there today. On a regular basis you’ll hear gun shots. That he would not risk his own child... this was struck from the record.

When the line of questioning pertained to vulnerability for special education students, the defense objections flew. Basically, Professor Hagedorn was not a special education teacher, nor had he studied special education in particular. However, he could testify that classic gang research demonstrated that gangs operated on many different levels. Gangs enticed some young people with cognitive delays because they were vulnerable and could be used for certain purposes by manipulative leadership; these individuals were functional to gangs. In his expert opinion, based on 80 years of available research as well as his own interviews, yes, young cognitively-challenged individuals, typically with issues of self-esteem, would be vulnerable. The research, including his own, shows that the cognitively disabled are recruited, taken advantage of and utilized; it is a pattern in all gangs.

At some point one objection was sustained, another overruled with more background given.

Professor Hagedorn explained that students with special education disabilities did not have the same social “cues” and familiarity [as those without]. For example, before violence might break out, someone else might be able to say, “Oh no, so-and-so is getting a little crazy here,” and they’d look out. Cognitively-impaired individuals would not be familiar with and not be able to read those cues. Regarding school closings, a new neighborhood is added to that. Professor Hagedorn shared an experience he was brought in to testify on behalf of a cognitively delayed young man in Mississippi who was recruited into a gang.

In a situation in which a leader yelled, “Shoot him!” he actually just did it. Regarding a defense objection, Judge Lee allowed Ms. Scott to ask questions on Professor Hagedorn’s qualifications in which he repeated that he had a degree in education but not a specific degree or qualifications in special education, but what he had was extensive knowledge of gangs.

When studying gangs and violence, in all of his research, those studies included who is vulnerable. How did he know who has disabilities or do his research? He repeated that he uses interviews; he is aware of long family and school histories; and when he interviews he is told this and further information as well by others. Is he familiar with IDEA (Individuals with Disabilities Education Act)? He is familiar with it but could not recite it; he has a child with a disability. Does he know what an IEP is? Oh, yes. He repeated that his own child has an IEP.

Did he review any IEPs here from closing or welcoming schools? No. When and did he testify as an expert in Mississippi? Three or so years ago, and the case did not go to trial because there was a plea agreement that removed the death penalty. To one line of questioning about cognitive delay disabilities, Professor Hagedorn stated that there are a lot of kids not in special education that should be, that they are not identified with a disability. Ms. Scott moved that he was not qualified to testify regarding special education. Judge Lee allowed gang recruitment related to special education students, but in the context of this case he needed an offer of proof related to exposure of students to school closings. Ms. Potter asked if gang violence had a special effect on sped students. From his studies over 30 years, one dynamic in gangs was that there were all kinds of people, but one group in particular was people with disabilities. He studies gangs, not the world of disabilities, but he knows how that relates to the world of gangs.

He was asked to give his expert opinion on the CPS school closing [and consolidation] of Hughes to Henson. Again, defense objections were sustained and overruled throughout his continuing testimony. There was a major drug operation with New Breed also splitting in itself that made this a particularly dangerous neighborhood, to which parents, gang leaders, all concurred. When asked about CPS’s plan for safety, Professor Hagedorn asked, “How do you stop a gunshot?”

Chicago Police Department (CPD) arrests afterwards; even they cannot prevent it from occurring.

He was asked to give his expert opinion on the CPS school closing [and consolidation] of Paderewski to Cardenas. There was deep racial animosity with Latin Kings questioning “why are black kids coming into our neighborhood?” Ms. Potter relayed that for this school action CPS determined that there were “no significant safety concerns.” Professor Hagedorn said that that was preposterous. The situation was not only of gangs but racial as well. He was asked about the CPS school closing [and consolidation] in the Austin Lawndale area of Chicago for Peabody to Otis in which CPS’s school safety plan stated that there was no safety issue. He said that Otis was in the heart of the Satin Disciples. Harrison Gents were associated with Peabody. He was astonished that one would be brought into the other’s turf.

What about the other 40 school closings? Can you draw any conclusions? He agreed with CPS when they recognized that 103rd and Halsted was an epicenter of gang violence. But others, such as Peabody to Otis, they did not substantiate. And this was not just in a few schools. There was danger whenever kids crossed gang boundaries, and that was across the whole city. And what would be the impact on school closings on violence? Given the changes in gangs in the last 10 years, the chance for violence is extremely great. Ms. Potter asked if the mayor of city of Chicago or Barbara Byrd-Bennett called to ask for any help to create a plan to avoid this. Objections were sustained, and Judge Lee directed her to ask non-leading questions. Other than our office, did anyone from the Board request your assistance? No. The mayor’s office? No. For final comments, Professor Hagedorn added: maybe in a year or two things might change, but right now the situation is not controlled. [The CPS school closings are] not well advised and some may lead to the death of a child.

On redirect from Ms. Scott, that Professor Hagedorn studied a total of approximately 5 (or 6) school actions was established. He said that he did not pretend to know all Chicago’s neighborhoods. She asked that if gang lines were fluid, then didn’t gang lines change weekly or daily? He replied that yes they were fluid, and they might change monthly, but weekly was a stretch.

She asked, but in one day a gang line might not be there? He said that it would still be there, just fractured in size. He commented that it was also much more complex than just using drug turfs to follow gang lines. Do students cross gang lines all the time? Yes. If a student voluntarily changes schools, are gang lines crossed? Yes. From elementary school to high school? Yes. How many students were in Pope’s attendance boundaries last year? This was reviewed in the documents. Did he know how many students crossed gang lines to get to Pope? No. He did not know the exact numbers. Did he look at mobility rates of students in CPS? No, I study gangs.

Did he know that the mobility rate for Pope in 2012 was 47% and does he know of others? No.

Weren’t both Pope and Johnson primarily New Breed? Yes, but with others (including Black Souls) in between and north on top. Had he heard of or considered CPS’s Gang Intervention Initiative? He is aware of such programs but he is could not lay out the contours. The vendor contract for Safe Passage? Yes, paid community organizers “walking along with kids” amounts to the heart of the contracts and what they provide. Is he aware that CPS is currently using this? Yes. Is he aware that CPS closed 4 elementary schools last year? No. Does he know of the Safe Passage of those closings? No. That no students at the schools were shot? No, but he is happy to hear that, and that four is not exactly//… he was cut off with a question about his knowledge of other school closings for the past 10-12 years and any increase in violence due to those closings? Yes, Collins [High School], and no. Do you believe that students with cognitive delays are vulnerable regardless of school closings? Yes, sure.

Robin Potter rose up for further questions asking Professor Hagedorn to opine on Safe Passage for adequate and effective protection. He said that with so many closings at one time, and with the nature of the violence today, he was happy that with four [closings in the past] no one was shot. But now they were throwing in a lot of kids, and they would not be protected.

The Guggenheim study showed that the removal of the projects caused tensions to break out all over due to issues of the lack of familiarity. He referred to Roseland, that the issues created by the projects being removed lead to increases in violent outbreaks that were unpredictable. Ms. Potter asked: Did gangs go to sleep at 3:00PM? OBJECTION! Sustained. Professor Hagedorn’s final comments were: Today, it is unpredictable, and it is everywhere. There are no longer planned drive-bys in the hood, it is random. Today it is too unstable and too dangerous to protect the lives of children in Chicago.

FINAL WITNESSES FOR THE PLAINTIFFS:

Ninth Witness for the Plaintiffs’ at Preliminary Hearing on July 17, 2013

by Susan Zupan

The preliminary injunction hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) took place from July 16 through July 19, 2013 in Courtroom 1225 of the Dirksen Federal Building before U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois. The plaintiffs called a total of 10 witnesses. Due to time constraints, this reporter will try but may or may not be able to report fully on each of the remaining witnesses for both sides. The testimony of the ninth witness for the plaintiffs, Sherise McDaniel, is reported in detail below.

Briefly for now, on the side of the plaintiffs, the eighth witness called was Dr. Woods Bowman. He spoke from ample experience in public administration, including: former legislator in the Illinois State House of Representative (Evanston); former Chief Financial Officer for Cook Country; and 17 years on the faculty of DePaul University as an associate professor of graduate studies in public services management. When asked for his opinion on if the [Chicago] Board of Education was currently in a fiscal crisis, he replied: “There is no fiscal crisis at present.” The plaintiffs then recalled the fifth witness, Chicago Teachers Union (CTU) researcher Sarah Hainds, to the stand. However, she was quickly challenged again by the defense (read: CPS) and eventually dismissed as a witness by Judge Lee. (See previous report.) The tenth and final witness for the plaintiffs’ was Pavlyn Jankov, a CTU researcher. Similarly to when Ms. Hainds was on the stand, everything moved rather quickly, pertained to issues of legalese, and put defense in attack mode as well as a tizzy. From this lay person’s perspective, it appeared that a certain document was being challenged. The document compared the performance of closing and receiving schools, highlighting the instances in which closing schools outperformed receiving schools. Defense argued against the plaintiffs’ use of certain performance data only; this was argued even though the data utilized was given to parents by CPS about each individual school’s performance and was located on the CPS website. On technicalities, defense was arguing that a chart completed by using particular CPS-generated performance data was hearsay. Judge Lee finally allowed the document in question to “provisionally stand.” The lawyers were Robin Potter for the plaintiffs and Michael Warner for the defense. The ninth witness called by the plaintiffs was Sherise McDaniel, named in the lawsuit. She was questioned by plaintiff attorney Thomas Geoghegan. Her testimony is reported in detail below:

Ms. McDaniel has two children who attend George Manierre Elementary School. Her 8 year old son has [an IEP for] a speech impediment. Following defense objection on the grounds that Manierre School was not closing, she was allowed to continue. Manierre was one of the schools slated to be closed [on the list of 54], with Jenner identified as the receiving school. Ms. McDaniel attempted to save Manierre from closing by offering to cordon off and segregate an entire floor of their underutilized building for use by overcrowded Lincoln. (Note: CPS utilization calculations put Manierre at 37%; Lincoln 124%; and Jenner 46%.) Manierre was described as being surrounded by overcrowded white schools, with the Board of Education renting out space from DePaul University for Lincoln. Note: Lincoln is about 8 blocks north of Manierre. However, demographically, Manierre is 96.3% Black; 2.4% Hispanic; with 18.7% Special Education Students and .6% Limited English Learners. Demographically, Abraham Lincoln is 64.1% White; 11.8% Black; with 6.5 SES and 4.8% LEL. Demographically, Edward J. Jenner Academy of the Arts is 97.1% Black; 2.6% Hispanic; with 20.2 SES and .4% LEL. Lincoln is rated by CPS in the top Level 1, with Manierre and Jenner both at Level 3.

Regarding this plan for Manierre, Ms. McDaniel said that CPS Chief Administrative Officer Tim Cawley told them: “We could never do that.” Ms. McDaniel questioned that in closing Manierre and moving to Jenner, then what? CPS would leverage the school for white children? Judge Lee asked if she had personal knowledge of this. She came up with the plan with other parents. They offered this plan, and it was rejected. It was a white/black issue. Some discussion took place pertaining to Ms. McDaniel’s testimony among the judge, plaintiff attorney Geoghegan, and defense attorney Abizer Zanzi (Franczek and Radelet) regarding Ms. McDaniel’s testimony. (Note: James Franczek at one point stood up in front of the judge with the defense team, but he did not speak.) From the plaintiffs: Manierre was still underutilized and that decision was “race jammed.” Manierre shows the hypocrisy, that [CPS school utilization and closing] decisions are because of race. From the defense: Manierre is not closing. Her personal views might be valid, but they are not relevant. Judge Lee: She has personal knowledge to Manierre’s closing, as part of the original 54 schools. She has current standing as a witness to issues relevant to the case, the alleged disparate impact of African-Americans. However, Judge Lee warned the plaintiff’s attorney to take it one small step at a time due to (probable) objections to lots of areas. Mr. Geoghegan added that Manierre was taken off the list after this lawsuit was filed because of race. That was at the May 22, 2013 Chicago Board of Education meeting. Two days prior, with Manierre still on the list, there was an IEP meeting for her child in which there were not any plans for transition for her child. Her testimony will include this. (See previous reports that include testimony regarding IEPs without provisions for transition related to the CPS school closing actions.) Over objections by the defense, Judge Lee would allow conversations regarding the IEP Team while Manierre was still on the list. After first saying, “Welcome back,” Mr. Geoghegan resumed the questioning of Sherise McDaniel. For her son, she said that the staff worked hard regarding his speaking. How did she find out about the closing? She found letters in her children’s bookbags. Where would they be sent? Jenner. Were you satisfied with this? No, she was very upset. Why? It would lead to Jenner being overcrowded. Jenner was a Level 3 school, the same as Manierre, and the letter said that [practice] would not continue. And she especially had concerns due to danger: five lanes of traffic; rival gang wars over territory; shootings; bullying; the kids being chased home. When she heard, did she take any action? She began organizing with other parents. They went to community meetings. [In particular] there was a Fullerton Network meeting at a church and another meeting just for Manierre at Lincoln Park High School. She said that Lynda Williams, the AIO, was present. (Note: Ms. McDaniel used the older term of Area Instruction Officer for Ms. William’s job title. CPS’s most recent iteration of the title used for the heads of the Networks, formerly called Areas, is now Chief of Schools.) Did Ms. McDaniel herself speak at the meetings? Yes. She begged and pleaded not to close the school, to keep it open and use our solution for our underutilization problem. Let the children of Lincoln use the classrooms in our building. They could use one entrance; we would use the other. They could have their same teachers. They could use nine classrooms; even though some of the rooms were not empty [they were counted as being underutilized] because they were used for music, drama, and dance. She knew they were overcrowded from articles on the internet and from the CPS website.

At some point here in the testimony Judge Lee sustained an objection (initiated with a whisper from the bench behind the defense table and passed up to the front) from the defense regarding foundation for information related to Ms. McDaniel researching and finding out that Lincoln was leasing rooms from DePaul to deal with their overcrowding.

Did they propose to combine the schools? No. They would keep them separate and segregated. Why not ask to change attendance boundary lines? An objection on leading the witness was overruled, but an objection on hearsay was sustained. Judge Lee asking for foundation to her answer of: We knew that white children would not go to school with blacks. On what basis did she say this? We see it in the neighborhood. Other schools are all white, and our children are not allowed to attend. How many times did you propose to share space? Four times prior and one at the independent review board at the CPS hearing. Mr. Geoghegan presented a page from the independent hearing officer’s report from April 15, 2013, referring to the last three lines about a plan from a group of parents. What did this refer to? The defense objected, and the question had to be reworded. (Note: Defense objections flew throughout this point in the testimony.) Was she one of these parents? Yes. There were 9 rooms at DePaul? Yes. What was the response from the Board? The defense objected. Did you receive a response from the Board? No. What did she know of the racial demographics of Lincoln? Predominantly white. Objection, foundation, how would she know that? Ms. McDaniel said that she looked at the CPS website, school report cards. Over objections, Judge Lee allowed it as what she believed. And Manierre? Predominantly black. When the hearing officer recommended that Manierre remain open, what was the response of the Board? That the hearing officer did not know what he was talking about. The mayor was going to do what he wanted to do. Judge Lee asked how or who she heard this from? When she said it was in the newspaper, the objection was sustained. When was Manierre pulled off the list? On the day they were deciding, May 22. To the best of your knowledge, as we speak, did she know what the Board was planning to do with underutilization at Manierre? She was directed by the judge to answer yes or no. She said “No.” At this point Judge Lee noted that her use of a CPS website (from the above regarding the demographics) would be allowed. (Note: James Bebley and others, on the bench in the back behind the defense, appeared particularly and very upset over this and the rest of Ms. McDaniel’s testimony.)

Her son’s IEP was dated May 20, 2013. Did she attend the IEP Team meeting? Yes. Who else was there? The case manager and the speech therapist. And they made decisions as Manierre was still on the list? The defense objected as hearsay. Judge Lee said that the statements were made by employees of the Board of Education regarding her son. This was regarding what transition was supposed to be made [on the IEP]. Defense objected on the grounds that the employees were not representatives of the Board. Judge Lee allowed the testimony. Ms. McDaniel said that the speech therapist wanted to cut his minutes, but she (Ms. McDaniel) wanted to keep them. The speech therapist said that the school was going to close anyway, they would not keep pulling him out. When Ms. McDaniel asked then who would be his next speech therapist, she was told they did not know. As a mom, she was very upset.

After the courtroom took a short break, redirect was conducted by defense attorney Abizer Zanzi. You asked that Manierre not close? Yes. And you got that? Yes. As a result, your son was not personally harmed without a closing? Not at the moment, but that was hard to say. There was a chance that he would be hurt next year. You gave a deposition? Yes. And you swore an oath? Yes. To testify truthfully? Yes. Do you recall that you said if this would go forward it would lead to harm? No, but down the line. But nothing about harm next year or the next year? Do you know of any plans for Manierre in the future? No. Is your son making progress on his current IEP? Yes. And his speech therapy was not cut? No because I fought for it. That ended the testimony.

(Reporter’s note and notice: The CPS defense team and around them appeared to be sweatingly “in a huff” throughout Ms. Hainds’s presence in the witness chair. CPS General Counsel James Bebley, who sat on the bench just behind the defense table throughout the week’s hearing, looked so stern that his face might have snapped, particularly at one mention of the alleged unofficial 10 welcoming schools. Ms. Hainds did not return to the witness box.)

[Notes: Judge John Z. Lee, whose alma mater is Harvard University, was nominated by President Barack Obama in November of 2011 and commissioned in May of 2012.]



Comments:

July 23, 2013 at 6:10 PM

By: Rod Estvan

An amazing report

Susan's report on the first days of the hearing were really amazing and detailed. I have been involved in many legal proceedings in relation to CPS and my own notes are no where as detailed as Susan just provided.

I hope Susan has the energy to report on the CPS testimony. Much thanks to Substance for this report.

Rod Estvan

July 24, 2013 at 2:45 PM

By: Margaret Wilson

Spalding rerun? Special ed neglect happened before...

The above article reminds me of closing of Spalding School. In that case, too, students with IEPs went to many different schools that were not equipped to handle that many different types and severity of disabilities. The same situation appears to be the case here, too. You cannot close 50 elementary schools -- and lay off hundreds of teachers and others -- without impacting services to all students, but especially those with IEPs.

I hope that the lawsuit is successful and prevents the closings from going forward.

July 25, 2013 at 11:54 PM

By: Valerie F. Leonard

Thanks to Susan Zupan!

Thanks, Susan, for sharing such a detailed report!

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