Winston, Anderson and others... 'Defense' (Board of Education) Witnesses for Federal Injunction Hearing... Board special ed chief's testimony in federal court sounded evasive to most observers in the courtroom

Dr. Markay Winston was called as the first witness for the defense in the hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) held before U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Wednesday, July 17, 2013. Not completed on Wednesday, the witness’s testimony continued on Thursday, July 18, 2013 in Courtroom 1225 of the Dirksen Federal Building located in downtown Chicago. Markay Winston, who is currently the Officer of "Diverse Learners" at Chicago Public Schools, has been a member of the "cabinet" of Barbara Byrd Bennett since October 2012 when Byrd Bennett was formally hired as "Chief Executive Officer" of Chicago Public Schools. One year ago, Winston was working for the Cincinnati public schools. But the Chicago Board of Education hired her without public discussion or debate, either about qualifications or the need to change the name of the special education office, for $170,000 per year. Substance photo by George N. Schmidt.The following is a report of that testimony, subtitled in three parts: Questioning by the Defense and Plaintiffs’ Redirect – Parts One and Two (from the two days). Winston, who was hired just a year ago after a stint in the Cincinnati public schools, is currently the "Chief Officer" for Chicago's special education department, at an annual salary of $170,000 per year, according to the most recent Board Position File. But anyone trying to locate the department of special education will have a difficult time at the CPS website, because the most recent name the current administration has given the department is the "Office of Diverse Learners."

At the end of the plaintiffs’ redirect, there are a few, brief redirect lines of questioning from the defense. What follows is reported to the best of this reporter’s note-taking and recall capabilities.


Note: There was a question of time remaining. Judge Lee announced that the plaintiffs had three hours remaining; the defense had eight.

Dr. Markay Winston was called to the witness box, with Board attorney Sally Scott (Franczek and Radelet) the attorney for the defense (read: CPS) doing the questioning. Since September of 2012, Dr. Winston has been and is the current Chief Officer of the Chicago Public Schools (CPS) Office of Diverse Learner Supports and Services (ODLSS). She said that she is reporting to the CEO (Chief Executive Officer) of CPS, who has been Dr. Barbara Byrd Bennett since October 2012. (Note: The recent, previous title for this department within CPS was the Office of Specialized Services – OSS -- and has traditionally been known as "Special Education". The Board's lawyers didn't ask why the name of the department had been changed). According to Markay Winston, the purposes of the office [regarding special education] included: to ensure compliance; advocacy; coordination of funding; and staffing and student achievement. Her role in particular was: to “establish our strategic direction”; advocacy; and when systems change, to “make sure I am the voice of the district.”

At the time Markay Winston was hired from Cincinnati, by Jean-Claude Brizard two months before the Chicago Teachers Strike of 2012, she was hired as "Officer of Learning Supports, Special Education" to begin work in October 2012. Winston, who had never worked in Chicago, was paid a "signing bonus" of $10,000 by CPS (see above) and $13,500 for "relocation expenses," a policy that was begun by the Emanuel administration. Graphic from Board Report 07-0725-EX11, passed by the Board at the July 2012 meeting of the Chicago Board of Education.Dr. Winston’s educational background included: BA in psychology, Central University in Iowa; BA in counseling, University of Cincinnati; MA and PhD in school psychology and counseling, University of Cincinnati.

What was her position prior in Cincinnati? She was the Director of Student Support Services. What did she do in that role? Oversee supports and services for: ESL (English as a Second Language); homeless education; school health and wellness; special education related and other duties as assigned. Regarding further special education background, Dr. Winston was a school psychologist “for a number of years” in Cincinnati and Princeton (Ohio). She was an adjunct professor at the University of Cincinnati, teaching courses on school psychology and counseling. She also had experience working with interns, with mental health supports, and preparing students to become special education teachers. A listing of her committee memberships and involvements related to students with disabilities was recited, including a state advisory panel on exceptional children. Any publications? She has published “a number of articles,” the most recent being on multi-tiered supports, RtI [Response to Intervention], using a universal design framework model, a front-end design. Has she had experience with underutilized schools? In Cincinnati, they closed 24-25 schools over 8-9 years; as the Director of Student Support Services, she planned for transition. A plaintiffs’ objection for data regarding “underutilized” was overruled. In her Cincinnati experience, did she help students transition to new schools? Yes. Here [in Chicago] and in Cincinnati. As psychologists in schools, we help students or groups of students transition as they enter. A plaintiffs’ objection to the acceptance of Dr. Markay Winston as an expert witness, on the grounds that she had bias toward the Board and not enough foundation was given on closings for underutilization, was overruled. Judge Lee accepted her as an expert witness to impacts of closings on students with disabilities.

Of the four central office bureaucrats photographed above during the December 2012 meeting of the Chicago Board of Education, only one had any experience in the Chicago Public Schools. Above, Akeshia Craven began her career as an engineer and was imported to Chicago, immediately for an executive position. Markey Winston was brought to Chicago summer 2012 from Cincinnati to run the Chicago's public schools special education operations after the members of the Chicago Board of Education, including Board member Andrea Zopp (who promotes local MBE hiring except of CPS personnel), decided that no one in Chicago was qualified for the job. Annette Gurley (third from left) was hired from within the system. Tracy Martin Thompson (right) was sitting at her first meeting, having just arrived from Detroit to be part of Barbara Byrd Bennett's "cabinet." Substance photo by George N. Schmidt.Ms. Scott presented Dr. Winston with a CPS document entitled, “School Actions: Supporting Students with Disabilities.” Regarding the document, Dr. Winston said that she was a co-presenter of the Power Point. Dr. Winston said something about “successfully transition,” but when asked by Ms. Scott if this was the Board’s plan for transitioning, she replied that it was not a plan or policy. The slide from April of 2013 was a broad overview of the potential number of students impacted by school closings. 2,500 students were grouped by disability labels. The listings of disabilities included: LD [learning disabled]; autism; developmental disability; severe and profound; 504 [medical]; EBD (emotional and behavioral disorders); speech and language. From the document, was it possible to determine if students suffered from low self-esteem? A plaintiffs’ objection was overruled. No, it is solely a listing of disability categories. The document did include the 54 schools. From this document, could you determine how many students needed transition supports? No, you cannot generalize via labels. Do you agree with Ms. Witte that 63% of the students had low self-esteem and mental health issues? Dr. Winston said that she absolutely disagreed. (Note: Please refer to the report on the testimony of plaintiffs’ fourth witness, Lucy Witte, earlier at Throughout Dr. Winston’s testimony, she quite often repeated questions from the defense by completely incorporating them in her answers. So, for instance, she might have said, “I absolutely disagree with Ms. Witte that 63% of the students had low self-esteem and mental health issues.” Please note that this was a distinct pattern in her responses to questions by the defense, even though it is not written repeatedly in this report exactly as such every time.) A plaintiff's objection resulted in the question needing to be rephrased; a further objection was overruled due to plaintiffs being able to ask questions in cross examination. Dr. Winston responded again that the chart could not be used to determine 63% of the students had low self-esteem. That was “absolutely absurd” and “stereotypes individuals with disabilities.” The chart was numbers, nothing more, she said.

The questions went back to the document. How did p. 48 of the document entitled “Preparing for Day 1” assist school teams? This related to individual schools and minutes of instruction. For example, closing School A might have 300 minutes of instruction in reading compared to receiving School B having 350 minutes. This document would ensure equal instruction, an example to consider for necessary changes. Instead of Markay Winston at the July 24, 2013 meeting of the Chicago Board of Education meeting, the Board seated Dalia Flores (above, second from left, into the seat usually provided among the cabinet members to Winston. Above, left to right, Denise Little ("Chief of Chiefs"), Dalia Flores (unknown), Beth Mascatti Miller (Officer of Early Childhood), and Tracy Martin Thompason. Substance photo by George N. Schmidt.Can an administrator or teacher unilaterally change an IEP? No. What is the process? An IEP Team meeting can be called by anyone. It is only required one time per year, but it can be reconvened if needed. Is there another process to change IEPs? Yes, simple addendums. For example, if a student has 20 minutes of speech and language weekly, but someone thinks 30 [minutes would be better], instead of a team meeting being called, a recommendation can be made and the parent’s consent obtained. If a school closing is a concern, can a parent convene an IEP meeting? A plaintiffs’ objection was overruled. The answer given was: Yes.

The defense turned to p. 52 of “Preparing for Day 1.” Dr. Winston then testified on mandatory training given to welcoming schools, the intent being for every person, from security to lunchroom staff, to have common information, a common language. Did you review the IEPs of the plaintiffs? Yes. Dr. Winston confused the initials used for the child identified as IO, questioning if it was OI, she couldn’t recall.

Did she review IEPs for IO, VB, and CB? Yes. Did she see anything that indicated they were not successfully transitioning? An objection requested more detail. Judge Lee asked for more foundation on the review of the IEPs.

Did Dr. Winston see if the IEPs complied? Yes. Regarding transition needs? Following another objection from the plaintiffs, she was allowed to continue. She began by requesting for a repeat of the question. She then replied that transitional needs for “IO or OI” were specified for during the day; a couple of the others had paraprofessionals but no identified [transition needs]. This was the basis for her conclusion. She said that we transition all day, and from grade to grade and school to school. The IEP content did not require additional supports.

Did she know why CPS would close 49 schools? “Yes, I sit on the Cabinet.” She reports to the CEO. It was based on the number of available seats. Schools were being closed for efficiency; there were more seats than schools. There were limited and declining resources.

An objection to lack of foundation - was this a lack of resources or underutilization? - was overruled.

Would closing schools harm impacted students? “I do not agree that the closing of these schools will harm children,” she said.

On what basis? Doing what we’re doing will increase supports and services, students will be better off. Resources spread far are not in the best interests of the students.

Will special education students be harmed more? That is “a highly over-generalized statement” to say that they would be more adversely impacted, Winston stated. We are putting things in place for the needs of individual students. Staff at welcoming schools are trained; we have detailed data on needs. [Special education students] will not be harmed. We are focusing and reaching out to families and have heard from communities as well. Will having new teachers impair progress? “We successfully integrate educational professionals.” Dr. Winston said again: “I don’t think our children will be harmed.” Just like when students move from 6th grade to 7th grade; they do so all the time. Inclusive environments collaborate and communicate. Will students with disabilities struggle? There is not a simple yes or no answer. That is “an overgeneralization.” It is true that some students with autism require a lot of routine. They struggle more so. But we have planned, talked with teachers, staff, and parents. There have been “Meet and Greets,” tours in which families meet with staff members. We are using pictures taken of the classrooms students are leaving, so [the new classrooms] will look identical. The difficulties in transitioning are not more or less different for general education and special education.

What are best practices? 1) know our data – analyze and assess the numbers of students and their needs; 2) the urgency of funding/financial data; 3) engaged communities; and 4) “cross functional teams.” All of this will “lead to a successful transition.” What/how did you prepare? We have prepared students, staff, teachers, families. We provided an array of… numerous tele-townhall calls, calls to every household. And one of the most important things that had been lacking [in the past], we engaged “our community stakeholders,” who gave us more advice on best practices.

Do all students with disabilities need their own transition plan? All students with disabilities do not need a unique transition plan for school closings. It is not necessary. Students routinely transition, and we have proactive supports, efforts, and activities in place. Some might need, but all do not need unilaterally. Will insufficient time harm students with disabilities? After an objection was overruled that the witness was not qualified, Dr. Winston asked that the question be repeated. It was her opinion that it was not about time -- it was what is done with the time available. Whether it is done in six days, weeks, months, or years, with engaged communities, outreach to families, engaged teachers, and principals as leaders – there is not a concern for time. If you had more time would you do anything differently? No. Would the delay [of school closings] be harmful to students with disabilities? If there was delay or halt, that would have an adverse effect on students with disabilities. This would cause unrest and anxiety in staff members, who due to job security are looking in other locations. Schools would end up with subs, and IEPs would not be able to be implemented by qualified teachers.

PLAINTIFFS’ REDIRECT: PART ONE Attorney Thomas Geoghegan conducted the plaintiffs’ redirect. There was trouble with the publishing [on the screens] of the document. On p. 28 of the document entitled “Preparing for Day 1,” under “Considerations related to transitioning students with disabilities,” as a presenter on the team, did she agree with bullet #2: “Some students with disabilities struggle with transition”? that every need be addressed? And did she agree with bullet #3 referring to some students requiring placements outside their neighboring schools, especially with autism, implicitly? Dr. Winston asked that the document be put up so that she could see it. She said “one moment please” as she read it. What supports are required for autism - a variety of [transition] supports are listed, would this include field trips? Not unilaterally but that is a best practice. … individual counseling over the summer? Some teachers and staff are at the schools for parents. But in these cases, individual teachers are not identified, are they? This will be “finalized before the first day of school.” There was an objection. What was the question? Are the teachers identified? It is in process, some we do know. Are teachers of students with disabilities identified yet? We have identified… Of 2300 [students with disabilities], are most of the teachers not identified? “I cannot attest to that.” Half of our Talent Office is working on that right now. Did Dr. Winston agree that it was most important [for parents and students with disabilities] to know who their teacher is? In some instances there are opportunities to meet the teachers. Mr. Geoghegan said that that did not answer the question. Dr. Winston replied: Then I did not understand the question.

Mr. Goeghegan rephrased the question: For parents, is it most important to know their child’s teacher? For a sense of comfort, yes. And is that is a big problem? I do not know. You do not regard that as a big problem? I do not know that as a problem. Mr. Geoghegan commented/questioned that she was present as an expert on transition? There was an objection that was overruled. When Ms. Winston asked what the question was, Mr. Geoghegan asked the court reporter to please read back the question.

In her response Dr. Winston said something about teachers and parents getting to know each other.

He asked: In Cincinnati, those parents knew that their teachers would go with their children, follow them, correct? Dr. Winston said that the way he asked the question, she couldn’t answer. Could he repeat the question? Does it reassure parents that their teachers carry over to a new school, that it is very important to know the next year’s teacher for a parent, is that reassuring? It could be, yes.

Mr. Geoghegan refocused on the “Preparing for Day 1” document. He pointed out that on p. 28 it stated that each student has special needs. He asked: But you are testifying here that none are needed? Some, and that should be in the IEP, but there is no obligation or requirement. To suggest some, would that be you, not the IEP Team? It could be an individual parent. It could be about what are “little Johnny’s” needs. Informal conversations and determining what the child needs are two very different things. Conversations are not supports from School A to School B about what the child needs. Mr. Geoghegan said that he was lost. He asked: This does not need to be in an IEP? It is not necessary for it to be in an IEP. Mr. Geoghegan said: In your testimony you say that there are needs, and you mention field trips, conversations, getting to know teachers. These address those needs outside of the IEP, is that correct? Dr. Winston replied: What is your question? I cannot answer that. Mr. Geoghegan asked: Did she not know if people outside of the parent as a part of the IEP Team, happening outside of an IEP meeting, could determine the needs of a [disabled] child? Dr. Winston replied that this was about the disability not school closings, and continued giving information on what IEP goals were based, repeating at the end that school closings were not about disability. Mr. Geoghegan said, “Let’s go slow.” Your office, Central Office, cannot require supports, correct? She replied: We provide “proactive opportunities for supports.” Mr. Geoghegan asked: Yes or no – could you require individual supports? I could not and would not. He asked: That would need to be done by IEP Teams? She replied: That does not need to be made by IEP Teams.

Mr. Geoghegan asked if Dr. Winston was familiar with IDEA [Individuals with Disabilities Act]. Yes. 1414? By number, no. He said: “You know that you know…” to which she replied, “I don’t know.” He asked: Yet your job is IDEA compliance? Yes.

To make sure that the IEP process is carried out legally? Yes.

The IDEA section was placed before Dr. Winston. Have you seen this? Yes.

Do you agree that your office needs to ensure that IEP Teams revise the IEPs as appropriate to address the child’s anticipated needs? She asked: Where is that? He replied: in paragraph 4. Are you and CPS a local educational agency? Yes.

Is there an obligation to ensure [that IEP Teams revise the IEPs as appropriate to address the child’s anticipated needs], and the part that states “local shall ensure” is CPS? An objection was overruled with Judge Lee stating that he recognized that Dr. Winston was not a lawyer. Dr. Winston gave an answer of yes. Mr. Geoghegan proceeded in a more step-by-step manner. The obligation to ensure [revising the IEPs as appropriate to address the child’s anticipated needs] rested with the IEP Team, not the parents meeting with a principal? Yes.

You would agree that CPS needs to ensure that the IEP Teams can revise IEPs to address a child’s anticipated needs? Yes. That CPS should anticipate the needs of these students? I do not agree. Mr. Geoghegan asked and Dr. Winston answered: Did you present the power point presentation? Yes.

And it includes as best practices - storybooks, chapters, sent to parents? Yes. Field trips? Yes, there is a variety. And these are “anticipated needs”? They are “proactive supports.” They are “steps that anticipate children’s needs”? They are proactive supports, a plan in a building if a building is not ADA accessible yet. And that does not mean that where there is a concern, a child has a need? Dr. Winston asked if he could repeat the question, to which she replied: If the IEP Team identifies a need, there is an obligation.

Mr. Geoghegan commented/questioned that there was no opportunity to meet to do this. Dr. Winston said that at any point an IEP meeting can be convened… He asked: Was the decision [for the school closings] made on May 22? Yes. And the schools were out on June 19 and 24? Yes. So, with a window of one month IEP Teams were to meet to make determinations for students of closing schools? She asked for the question to be repeated, please. At this point Judge Lee brought up trying to break for the day.

Dr. Winston’s response to the question was that IEP Teams would have to meet if it was presumed an IEP meeting was required. She said that she was not testifying that an IEP team meeting was needed. She repeated something about “conversations” with parents compared to IEP Teams meeting to determine…

To which Mr. Geoghegan asked: Does the IEP Team make the determination or not? Dr. Winston replied: An IEP can be revised to put in place supports for students who struggle with disabilities.

Mr. Geoghegan then asked her to clarify if [what he said was] correct, yes or no? When Dr. Winston said that she was attempting to answer, Mr. Geoghegan asked Judge Lee to please tell the witness to answer with a yes or a no. Judge Lee directed the witness, Dr. Winston, to answer yes or no. She told him that she couldn’t, that she did not know this personally or not.

Mr. Geoghegan then asked: You do not know the individual needs of a child are not made by staff but it is an IEP Team that makes these decisions?

She said that her staff was not directed to. When asked who makes that decision [to revise an IEP for the anticipated needs of the child], she replied: Any IEP Team member can convene...

Mr. Geoghegan commented that she knew that these IEP Teams in a few weeks [will not exist]. They would not have parent contacts, the teachers would be looking for other jobs, etc. Wasn’t it impossible from May 22nd to June 24th for any kind of serious effort for all of them to determine if there was any need?

Dr. Winston replied something to the effect of: I am aware there is no obligation for an IEP Team to meet unless that is the determination of the IEP Team.

Mr. Geoghegan asked: Isn’t there an obligation on your part for them to see that they meet? Response: The obligation on my part is to have “conversations” on supports, and not all students have a need for those supports.

Mr. Geoghegan, clearly frustrated, said he did not want to mischaracterize but he had one last question [for today]. However, after the shortest pause, he said he had no further questions until tomorrow. The court adjourned for the day at almost 5:00PM.

[Reporter’s Note: It is not an exaggeration to remark that a lot of jaws of the observers in the courtroom, including of the press sitting in the jury box, were noted to have dropped from the beginning of Dr. Winston’s testimony to that at the end of this day. The respectful and incredible, almost pin-drop silence that otherwise permeated the proceedings had also gradually altered to a point in which an underlying low but audible murmuring and groaning increased in the courtroom as the redirect proceeded and people got to hear what she was saying about the transition.]


Court resumed at 10:00AM the morning of Thursday, July 18, 2013 with the routine lawyerly introduction of the who’s-for-whom procedure in front of the judge (consisting of one sentence from each side, something to the effect of: “Michael Warner on behalf of the defense, Your Honor”). The defense team standing in front of the judge this morning included James Franczek. The redirect questioning by plaintiffs’ attorney Thomas Geoghegan to Dr. Markay Winston resumed immediately.

Mr. Geoghegan referred to the School Actions document (Exhibit 52) “Preparing for Day 1.” (Note: Finding the exact page numbers sometimes took a little time, confusion in this case and others apparently due to a power point slide number being different that the page number of the exhibit.)

Mr. Geoghegan asked about “IEP revisions when necessary.”

Dr. Winston said that was about “advising IEP Teams to…” Mr. Geoghegan cut her off and asked if it was not about requiring changes in IEPs? Dr. Winston said that what it was saying was that determinations by administrators for reading and math minutes varied from one school to the next; the page in question referred to equaling the playing field.

Was there any instance in which IEPs could be changed not required by law? Yes.

Were IEPs minutes required to change to meet those of the welcoming school? Dr. Winston began to say: What determines…

but Mr. Geoghegan cut her off and turned to the judge: "Yes or no, Your Honor."

Judge Lee told her to do so.

She replied: “I’ll do my best.”

The question on changing the minutes of IEPs to correspond with the minutes of welcoming schools was asked again. Ms. Winston replied: If necessary, yes.

Whether the parents agree or not? Dr. Winston resumed answering as before, but Mr. Geoghegan again asked to judge to "please instruct for a yes or no answer." Once again, the judge did so.

She needed to have the question read back to her. Her answer to the question of IEPs changing from the closing school minutes to those of a welcoming school was: Yes.

Mr. Geoghegan questioned: It didn’t matter if the parent goes along or not?

She replied that parents can stop it from happening. They could agree or disagree. But at the end of the day, she would be surprised if any parent did not want equal time, equal access, to the same minutes as the non-disabled students.

Whose choice was it at the end of the day? Parents always had the right… To change, to stop? Parents could indicate if they agreed or disagreed. Did they have the right to stop the changes? Parents always had the right and authority to disagree. At this point the judge noted that [he understood how] she answered the question.

The next line of questioning led to Dr. Winston speaking about “conversations” that were begun and underway.

Mr. Geoghegan asked if in the summer IEP teams were meeting. There were meetings with parents…

Are IEP Teams meeting over the summer?

There are opportunities…

Were IEP Teams, meaning with parents, an assigned special education teacher, a general education teacher, etc. [meeting over the summer]?

Ms. Winston replied: I cannot say.

You have no idea if IEP Teams are meeting?

“Discussions” are occurring, but I cannot tell the exact number of IEP Teams.

Can you say that in all cases they will meet in the front of the school year? I can’t say; it will vary, and “I am not able to generalize.” We don’t need the entire team for a verbal consent to minor changes without IEP meetings.

Mr. Geoghegan asked: In the first weeks will there be IEP meetings? I anticipate that.

But not the annual IEP meetings? That will depend on if that is due [at that time]. An IEP Team could make assessments on Week 1? They could reconvene the team for that.

Were special education teachers [from the closing schools] going to follow their students? Dr. Winston began by saying: Typically… but she was cut off by a rephrased question.

In this case, weren’t old special education teachers fired or laid-off? Ms. Winston replied that that is a conversation with the Talent Office. (Note: Talent Office refers to the CPS Department of Human Resources, which is currently called the "Talent Office," and was two years ago called "The Human Capital Office..")

In the first week of school, will there be new special education teachers? Mr. Mr. Geoghegan asked.

That is quite feasible and possible, she answered.

But there will not be general meetings for IEPs? The team could make changes… Without prior knowledge of the parent…? There could be “conversations” with old teachers and other information in the existing IEP if it is descriptive enough.

Mr. Geoghegan asked: With the old school gone, how do you have conversations? There are opportunities to make contact with the teachers. But you can’t say if/that they were “fired or laid-off”? That is a conversation for the Talent Office… It’s not your responsibility to make contact between…? After the question was repeated at Dr. Winston’s request she replied: The directive of my office and Central Office is to reach out to staff, old and new. That is what we have [been doing], the expectation is that would occur.

Mr. Geoghegan said: “You set yourself up here.” He continued: You say you are an expert on the impact of school closings – let me read back (and he read back from her testimony): “I have participated in school closings and”… [refers to the needs of students with disabilities]

He asked: Are you an expert? Yes.

An objection was overruled.

What peer reviewed literature have you looked at? A variety.

Can you point to a single one? There aren’t very many. They are vague and there are no studies that exclusively…

Can you name one? Not at the moment.

Are you aware of the Rand Study? I am aware of it.

Have you read it? I’ve reviewed it.

Can you recall a particular section for us? No.

Have you read the Consortium study? I have not read it. You have not read any part? I’ve looked at sections.

What does it say about potential negative impacts on closings, does the Consortium study mention special education students? I don’t recall.

Are you familiar with Catalyst? I’ve heard of it, it’s online.

Of their study on impacts of school closings, you do not know of the data they reported, that the Board lost track of 11% of the students [in previous school closings]? I do not know that.

Do you know that CPS admitted it, the Board admitted it? There was an objection, but Dr. Winston said: I do not know that. Were the 11% special education students? I do not know that. Does your staff know? I do not know that. You haven’t spoken to your staff about these things? We have had conversations in general, but not to specifically ask about [these] impacts.

Has CPS ever studied such impacts? I assume they have, but I do not know.

But you are an expert? Yes.

But you are in the position, you are the person responsible for the transitions of the students in special education [relative to these school closings]? Yes.

For how many school closings do you have experience? 24-25. [Were you ever responsible or have experience] for 40 or more in one year? No. 20? No. 10? I don’t believe so.

How long were you in Cincinnati? 10 years.

Has the Chicago Board of Education in 10 years ever made a closing at the end of May? I can’t say the exact dates or different points of time.

You cannot recall [the amount of time of] previous transition periods? No, not exactly. But you expect there will be impacts on schools? True.

Are there any guides? Some in general. What? There are a number of reviews of... Can you name any? I can’t name any exactly, no.

Have you heard of the Broad Foundation? Yes. What is it?

A foundation to prepare those with administration backgrounds for [positions] in public education.

Does Broad have a guide on school closings? I have not read it and am not especially aware of it. (Note: Time was taken to search through the many ominously large, black spiral notebooks for an exhibit to be shown for questions at this time. When Dr. Winston, holding up one notebook, asked if it would be in the volume with numbers – she named them – Mr. Geoghegan paused to point out that the number given would not be in that volume’s number sequence.)

Referring to the Broad Foundation document on a timeline for school closings on p. 3, would Dr. Winston agree with that timeline of 12-18 months, as an expert? She replied: I think allotting 12-18 months seems reasonable. But do you agree to that timeline? It is hard to generalize, for some that seems reasonable. Mr. Geoghegan turned to a line on p. 8 that referred to closing schools on too rapid a timeline, and asked if she agreed with it, as an expert? Dr. Winston began: Again, having time is beneficial if by…

Mr. Geoghegan asked if she knew of self-contained classrooms in CPS. She asked him to please define that as to special education or general education.

He asked: Does state law limit class sizes for self-contained special education classrooms? Yes.

At 8 per class? Yes, but it can be from 8-13 students depending on the number of adults. He questioned/commented: But CPS used 30 students for utilization [purposes]? An objection to this being beyond the scope was overruled. Dr. Winston replied: I’m not an expert on that. Relative to special education students there could not be 30% in self-contained [general education] classrooms. Mr. Geoghegan asked if that was not taken into account in CPS’s utilization formulas. She began to reply that members of her staff… He cut her off and asked if she knew for a fact if the utilization formula CPS used counted special education numbers to 8? She started to answer that utilization numbers were examined by teams… Did she have any certain knowledge of this? She said that she was not sure of the question. She directed her staff to be part of the teams that examined utilization. Mr. Geoghegan showed her a letter written by Todd Babbitz to principals, dated May 22, 2013. (Note: Todd Babbitz is the CPS Chief Transformation Officer.) Did she know of it? Yes. He asked her to please read it to herself, the part about how they recommended utilization calculations of approximately 88%; and that “we do not adjust our utilization calculations based on student populations and programs…” He asked her: CPS did not take into account [adjustments for special education students or programs], correct? Dr. Winston replied: I am not an expert on the utilization formula or [how it related] to special education. But you are part of the leadership team? Yes. And the leadership team made recommendations? Yes. To exclude certain schools? I don’t understand the question. Did the leadership team decide to exclude Level 1 schools [from closing]? Yes. They excluded turnarounds? Yes. But there was no exclusion for cluster programs for special education? That was not an exclusionary criterion. Could there have been a recommendation, shouldn’t you have as an advocate made such a recommendation, students with disabilities did not suffer any differently [than general education students]? Some but not all students with disabilities struggle. In an autism cluster? Some. Disproportionately? No. Why were cluster programs not excluded? We did not want to exclude them, they were part of a school, we were sensitive and careful regarding that. You did not see there would be impact differences? I do not stereotype and generalize all students with disabilities. You are an expert on closing impacts on special education students? Yes. You are paid [by the Board]? Yes. Did the Board fund any independent experts? There was an objection, but Dr. Winston answered: I believe it did.

Mr. Geoghegan said he had no further questions.

From the defense table, Ms. Scott rose to ask further questions.

How long have you been employed by the Board? Since September 2012. Had [issues relating to] the school closings already begun? Yes, it was already underway. Do all transition supports need to be in an IEP? No, it is an individualized matter you hope and anticipate is documented. Are IEP meetings regularly required for transition? An objection was overruled. No.

Based on your understanding, were all IEPs reviewed? No. What steps were taken to address student transition needs? First, we looked for large impacts, data and numbers impacted and the numbers of special education students who might be impacted. We had understandings on levels and supports based on IEPs. For example, if there were 500 speech and language IEPs, we would need [that] equipment. We looked at data, students, engaged in conversations with families, we talked to principals, and trained staff members at welcoming schools on disability awareness so that everyone is well prepared to transition successfully. Has CPS staff reviewed IEPs? Yes. If the parent does not agree, is there recourse? The parent can speak directly with the school’s teachers, request an IEP meeting, state their complaint, and ask for remediation or a due process hearing.

And thus ended the testimony of Dr. Markey Winston.



Second Witness for the Defense (CPS) in Preliminary Hearing

On Thursday, July 18, 2013, the third day of the hearing, the defense called its second witness, Adam Lee Anderson, to the stand. Anderson took the stand in front of U.S. District Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois. The hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) took place in Courtroom #1225 of the Dirksen Federal Building in downtown Chicago.

What follows is a report on the testimony of Mr. Anderson. The attorney for the defense (read: CPS) was Michael Warner (Franczek and Radelet); the attorney for the plaintiffs was Robin Potter (Potter & Associates PC).

Two subtitles are provided below: “Defense” and “Plaintiffs’ Redirect.”

DEFENSE. Adam Lee Anderson testified that he was employed by the Board [Chicago Board of Education] in November of 2011 in the Office of Portfolio, Planning and Strategy. [Reporter’s Note: According to Chicago Public School (CPS) documents, Mr. Anderson had slightly different titles in February of 2013 at various community meetings sponsored by CPS regarding school closings: Fullerton – “Chief of the Portfolio Office”; Fuller Park – “Officer of Planning and Strategy”; Rock Island – “Chief Officer of Strategy”; and Lake Calumet – “Officer of Portfolio, Planning and Strategy” as well as being referred to as “the numbers guy.” CPS’s website lists Oliver Sicat as the Chief Portfolio Officer.]

His background: Anderson testified that he has a BS in Chemical Engineering; MA in Business Administration and Education from Stanford (2008). Prior to working with CPS, he worked as an engineer at Honeywell Airplane. He has done consulting work with BCG (Boston Consulting Group) on “education related matters.” In his present CPS position, he said that “me and my team” provide announcements to the Chief Executive Officer (CEO) on school closings, with the specific role of demographic analysis of the various neighborhoods, “to help inform her decisions.” Various teams gave input, including CPS’s Family and Community Engagement Office (FACE) as a partner.

Mr. Warner presented a document entitled “2012-2013 Guidelines for School Actions” produced by the CEO for [closing] criteria. What was Mr. Anderson’s role? His role was to hold “community engagement activities” to gather input for discussion opportunities with the CEO with input from the Law Department for the guidelines.

When did the process for the draft start internally? In September and October. From where did they get their input? LSCs (Local School Councils) surveys, elected officials, and other community stakeholders, including the Chicago Teachers Union (CTU). And they held tele-townhall meetings.

Did he participate in meetings with CTU? Yes, in October of 2012. Mr. Anderson recalled who was in attendance at that meeting; three individuals from CPS, including Joe Moriarty (CPS Chief Labor Relations Officer, since June 2012) and Denise Little (Chief of Networks), plus legal representatives. [Reporter’s Note: I have “Richie B-” also listed in my notes?]

CTU participants included Karen Lewis (President), Michael Brunsen (Recording Secretary), Jesse Sharkey (Vice President), and two other representatives. Did CTU give guideline criteria? Yes. An objection from Ms. Potter on hearsay and being vague was overruled. What advice did they give? They advised to focus on utilization for the guidelines, as a primary guideline.

Why did CPS end up looking at utilization? CEO Byrd-Bennett and others observed that it was objective, and they could reinvest in welcoming schools. Describe this year’s guideline criteria: The primary guideline was underutilization by the utilization standards. Then designate welcoming schools that were a higher-performing option that would not result in overcrowding. Were the guidelines publicly available? Yes, at The standards were adopted in December of 2011; Mr. Anderson finalized the draft and worked with senior leadership.

What formula was used to determine utilization? The number of classrooms was counted; they did not count lunchrooms, auditoriums, and gyms. For one measure to be applied, they took the number of classrooms and multiplied x76% for a ratio to homerooms of a 900 prototype of building a new school. What was the next step? Other rooms, such as for special education or labs, did not count in any way to ideal capacity. They took the 76%, ignored ancillary rooms, and multiplied x30 as an “ideal capacity,” with the schools’ 20th day enrollment as the denominator for utilization.

What terminology was used in CPS to designate utilization?

There were three categories:

-- underutilized (less than 80%),

-- efficient (80-120%)

-- overcrowded (over 120%).

Was the same standard used for all buildings, how did you take into account student bodies? An objection on being vague was overruled. Mr. Anderson testified that needs were taken into account in two ways. 1) Ancillary rooms did not count; they were used at the discretion of the school. 2) The range 80-100% was added for flexibility. How did the standards take into account the limits of special education? Ancillary rooms had no capacity assigned to them; plus the 80% [flexibility]. That would meet the needs.

Mr. Warner referred to Exhibit 5, a “CPS Performance Policy” document with performance metrics on closing and welcoming schools. Mr. Anderson provided a summary: It determined levels of 1, 2, or 3.

Did he rely on this document [to assign closing schools to welcoming schools]? Yes. Was this document publicly available? Yes. At Note: At this point in the proceedings, the plaintiffs objected on questions of the data as well as the timing of its not being produced for the hearing until Sunday afternoon. Judge Lee allowed it as what the witness relied on. However, there were questions concerning “discovery” about when it was produced that he said would be dealt with after the witness’s testimony; the document was allowed to stand provisionally. [Reporter’s Note: Plaintiffs later withdrew the objection when defense pointed out that it was included with a prehearing report on July 8 and provided as part of a web link on July 9.]

A CPS “Space Utilization Standards” document was presented. Did Mr. Anderson rely on this? Yes.

Mr. Warner then asked: “From an American perspective,” did the team study the extent of CPS schools’ underutilization – how extensive was it? Mr. Anderson responded: There were over 510,000 seats with 407,000 students. Were any parts of the city of more particular concern? Results were sprinkled, but the west and south sides had concentrations.

Did they analyze what that was? Yes, we looked at the neighborhoods. There were enrollment declines in CPS by roughly two-thirds or 65,000 students. Were there other options? The only viable alternative was the status quo. Could boundaries be redrawn? Anderson said, "that was not a viable strategy." Ms. Potter objected on foundation. Mr. Warner said they would lay more foundation.

In preparing guidelines and looking at utilization, did you analyze where [the school closings would occur]? Yes.

Did you make determinations on overcrowding? Yes.

Apply the same standards to all? Yes.

And did the results show that to redraw the boundaries was a viable strategy? There was an objection that Mr. Anderson did not consider alternatives, and he was not an expert. Judge Lee overruled as this being what Mr. Anderson did or thought, after asking Mr. Anderson if this was what he believed or recounted.

Mr. Warner continued: Did you consider redrawing boundaries? Yes, that was part of the process. We considered it, but found it was not reasonable. Why not? Demographic and enrollment patterns showed there were overcrowding clusters versus underutilization clusters that did not have adjacent boundaries to even out.

What was the date of the final guideline? The end of November. How many schools were determined to be underutilized? 330. When was that decided? December 2012.

Before moving forward, what efforts did the Board undertake? First, an independent commission was formed to hold meetings throughout the city. How were they selected? CEO Byrd-Bennett. What did they do? Held meetings and listened to feedback and testimonials. Exhibits 2 and 4 were presented: “Interim Report Commission on School Utilization” (Jan. 2013) and “Final Report” (March 2013). Did he write and rely on these reports? Yes.

Were any recommendations made in the interim [between the two reports]? Yes. CEO Byrd-Bennett responded, taking recommendations 1 and 2 and added criteria that CPS would not close high schools or Level 1 elementary schools. There would also be two more rounds of meetings hosted by CPS. Presented with another document, a power point presentation for the media, and further questioning, Mr. Anderson said that between the two rounds, the number of schools was dropped to 53. Ms. Potter questioned this number, but there was no objection.

And Mr. Anderson continued that the criteria were changed to 70% [from the 76%]. Why? This was recommended by the commission, for greater flexibility given [school] populations and programs. Also, schools isolated by more than one mile were removed from the list due to feedback from the community meetings and “the importance of a “neighborhood school” if no other school was around.

After the next round of meetings, they took all the information to inform the CEO. An announcement was made on March 21 regarding which schools would be closing and which would be welcoming from the recommended 129, using guiding principles. Describe the steps from February 13 through March 21. For “conversations “with the CEO, we took the information from the community meetings, information from other CPS teams, and demographic and performance analysis.

Which CPS teams? The Office of Diverse Learners; Safety and Security; the Office of Teaching and Learning; the Facilities team, to assess buildings; the Accountability team, for performance policy and other analyses; and the Network Chief (Denise Little) of 14 Networks. Did you compare and compile this information to create (Defendants’ Exhibit 11) the May 2013 “Working Draft SY13 School Action Overview”? Yes, for the CEO and to “guide the conversations.” Did CEO Byrd-Bennett make any proposal that was not reflected in it? No.

Give us a general description. The document is organized in “geographical planning zones.” Within each, there is an overview of the current state then the specific actions proposed. Describe pp. 237-238. This is the planning zone for Englewood, a map. Every school is represented by the number of students on the 20th day and ideal capacity. Shapes were used as symbols for utilization, with a triangle representing underutilized schools, a circle for efficient, and a square for overcrowded. Colors represented performance, indicated by red yellow, or green, with the data plotted for elementary schools. On the document, there were no overcrowded schools. They continued to show that there were such pages of information for every school proposal. In one Englewood example, Bontemps was a Level 3 school being closed, with the welcoming school of Nicholson at Level 1. Another page showed a number of demographic measures: projected population; the costs of updates and maintenance (for both closing and welcoming school); and distances and transportation needed. Distance was calculated by a walking distance of .8 mile; transportation would be provided over this until all graduated.

For reinvestment strategies the following was listed: STEM (Science, Technology, Engineering, and Mathematics), IB (International Baccalaureate), and performing arts. For the allocation of these reinvestments, they looked at “teaching and learning” teams, the options of choosing surrounding schools (based on feedback and concerns), stakeholders, and high school curriculum in the Network for preparing the elementary schools for the [particular] high schools.

Additional metrics were used to determine “a higher performing school” if the two schools were at the same CPS Level. On the power point, p. 247 in the exhibit, a map was displayed. There was a dot for the location of where every student lived in the particular school’s attendance boundary. Also illustrated were Safe Passage routes “at the time,” and transportation. The examples showed how Bontemps students would go to Nicholson; however, Woods (Level 3) students could go to Bass (L2) or Langford (L2). Presently, all students were entitled to go to Bass, but there was the option for Langford. In the future, all new students would be assigned to Bass, with Langford not a welcoming school for the next year.

What was the process to advise the Board? They held small meetings with the Board to review. This was shared with the Board at several meetings? Yes. Mr. Warner had Mr. Anderson repeat that there were 2 meetings held in areas and one public hearing downtown, as governed by SB630. Were any changes made? The CEO had the December 1 deadline extended to March 31 in order to gather input. Did his office write the reports? Yes. For an objection on foundation Judge Lee said to ask if he knows. Mr. Warner asked: Were you part of the process? Yes. Part of the team? Yes. The objection was overruled.

Of 52 schools, were all recommended to close? No. Through “ongoing conversations” and with community input, 4 schools were taken off the list: George Manierre, Marcus Garvey, Mahalia Jackson, and Leif Ericson. Were you involved with Manierre? Yes. Why was Manierre taken off the list? They were the recent recipients of five multi-million dollar initiatives; enrollment was projected to increase over time, due to the initiative for the Ferguson Child Parent Center. Did you review the hearing officer’s report? Yes. Was there a proposal from the parents of Manierre? Yes, they proposed to allow Lincoln Elementary School to use space [in Manierre]. Did the Board consider this? No. Why not? It was not viable. It constituted a co-location, and the timeline from SB630 had passed to announce this.

Mr. Warner asked Mr. Anderson if there were any further discussions or plans for Manierre. No.


Attorney Robin Potter said that she had a few short questions. It was pointed out on Plaintiffs’ Exhibit 10 on p. 473 and acknowledged that it said: 103rd and Halsted is an epicenter of violence. This was in the northern part of the Far South Zone.

She asked if Mr. Anderson was trained in special education. No.

And he had no training in the Civil Rights Act? That is correct.

He was trained as an engineer? Yes, that was one of his trades. Is it true regarding safety that he did not research on the demographics of gangs? He said he did not believe that was a fact; he worked closely with Jadine Chou to discuss that. [Reporter’s Note: Jadine Chou is the CPS head of Security; she would testify as the fifth witness for the defense.] In his deposition, did he participate in research demographics related to gangs? Mr. Anderson said: No. There was an objection on this line of questioning.

Ms. Potter asked about the decision-making process in the utilization guidelines; Mr. Anderson was not involved at all in discussions on the guidelines, was he? He was involved in the adaptation; he was not clear what she meant by utilization guidelines. She referred to p. 60 of his deposition. It was asked and he answered: “I wasn’t in on the final decisions.” And yet he was asked now, and he said that yes he was?

Is it true that he was not in any one-on-one [meetings] with Barbara Byrd-Bennett, that one-on-one meetings were not held? Yes, that is correct. On space utilization standards, did the Board do any adverse analysis on the effects to special education students? Mr. Anderson replied that he did not know what she meant by adverse analysis. She asked: Did the CEO do or ask for research on how special education students might be hurt? He was not asked for that.

Ms. Potter asked: And there was no directive for analysis on the adverse impacts on African American students? Mr. Anderson said that he did not know what she meant by adverse impacts. She continued: On the numbers, the proportions, there was no analysis on this, was there? He replied: In what way, could she define impacts?

There was a problem with a document being displayed, so she said they would move on to other matters. On p. 16 regarding utilization standards, could he clarify, as we sit here, were there any discussions with members of the Board of Education, on students being hurt? Mr. Anderson replied: We don’t believe this will hurt students. Ms. Potter asked: Was the Officer of Diverse Learners in the room with the Board of Education in any such discussions, was there any discussion on whether or not special education students would be hurt by these closings? Mr. Anderson replied: We had ensuing supports for transition.

But there were not any questions on social/emotional harm? Mr. Anderson said something about not believing any harm…// but Ms. Potter cut him off to say that did not answer the question. Then he said that they would provide supports [to the students] so they wouldn’t suffer harm.

Changing to space utilization, she asked about any discussions of discrimination. He said that he was not sure what she was referring to. She continued: In the guideline standards, let me restate, had he ever heard in any discussions with the Board or at Board meetings that the standards were discriminatory? There was an issue of Mr. Anderson giving a yes or no answer, which Judge Lee then asked him to try. He then said: No.

Regarding the school closings of 2013, do you have any knowledge of impacts on minority versus non-minority [students]? On your deposition on p. 69 line 18 it states: “We did not do that evaluation.” Does that refresh your memory? Yes. Was there any analysis done on the racial impacts of the school closings? No. Were there any internal discussions? No. And you have no knowledge of any discussions of this [nature]? I have no knowledge of that. There is no such analysis, no one said in your presence, Byrd-Bennett and the Board, that “this discriminated on race”? No. No one in attendance with [for meetings regarding] the standards discussed poverty in the Black community? No. Specific adjustments for special education? No.

Was Mr. Anderson familiar with a draft created by Jim Dispensa as a demographer in Mr. Anderson’s department that contained information that less than 600 square feet would count as half of a classroom, that special education would not count as a whole but as half? No, that was not how the standards were used in overall classroom counts. She asked: Was it taken into account that 8-13 students with assistants in general would have a smaller number of students than in general education in the same size [classroom]? Reply: I have no knowledge on that. Were the utilization standards promulgated by the Board required by law? Yes. The law states that the grades and ages of attending students need to be taken into account, but the Board did not do this in any of the 49 schools closed, did it? I disagree; with the added flexibility they did. Ms. Potter continued: In 45,000 pages (from the defense) can you show me a document that takes into account the grades and ages of the attending students? Reply: I do not believe I’ve seen a grade by grade breakdown.

At this point, Judge Lee hinted that it was about time for a lunch break. Ms. Potter said she needed five more minutes.

In the next line of questioning, Ms. Potter was speaking about in the summarization of the standards, 76% was used in general education homerooms and 24% used for “ancillary,” for rooms used at the principals’ discretion, such as for storing old furniture or books, and that special education classrooms were counted in this way. Mr. Anderson said that special education students were counted in the enrollment matrix but not in the master facilities matrix. Ms. Potter was questioning that underutilization was not counted correctly because the special education classrooms were counted as 24%. Mr. Anderson repeated that the special education students were counted in the enrollment numbers not in capacity.

Ms. Potter said that ancillary classrooms, counted at 24%, were listed: science rooms, labs, etc., and then special education classrooms. She asked: Was there any other category of a human listed in the “ancillary” category? He said that that depended on the principal discretion, not on what was in the rooms. Ms. Potter asked: Did anyone say not to put “rooms occupied by white students”? No.

Not to put “rich kids who did not suffer from poverty”? She asked: Why segregate these students [listed as part of ancillary rooms], no one said that was not appropriate? Reply: Again, Mr. Anderson said that they included special education students in the enrollment number. They did not know what was in the rooms listed as not considered utilized. Ms. Potter said she was on her final question: Was it a fact that the Board never discussed moving [attendance] boundaries? Reply: That was not a viable strategy based on a demographic analysis of clusters of overcrowding versus underutilized. She asked: But it was never discussed at the Board level? That is correct. It was not discussed that Manierre was surrounded by 4 or 5 higher performing white schools, but the only option was that they would cross Division to go to Jenner? Reply: Ogden, LaSalle, Lincoln… were more than a mile away.

Question: Was it ever considered? Judge Lee had to direct Mr. Anderson to answer. Mr. Anderson said: It was not considered because it would not fit. How about for Trumbull, Stewart…? Reply: The schools would become overcrowded as receiving schools; they did not have the space. Over one sustained objection, Ms. Potter got a few last comments in, something to the effect of: You never did any analysis with the 49 schools, for example, that yesterday’s test scores showed trending up for Trumbull? In 2011-2012 [CPS] used such levels and 60 higher performing white schools [with test scores trending up] were taken off the closing list. You do not know this, and you are the head of demographics?



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