Saturday, January 17, 2015

Chief Justice McKee offers dissenting opinion in decade old lawsuit


Chief Judge Theodore McKee
Plaintiffs in Blunt et al. vs. Lower Merion School District (LMSD), a civil rights class action lawsuit filed in 2007, recently received an opinion from the U. S. Court of Appeals for the Third Circuit.  Two of the three judges affirmed  U.S. District Court Judge Harve Bartle, III’s summary judgment in favor of LMSD—no trial before a jury—that is, unless the Supreme Court says otherwise. The Majority Opinion concluded that “there is no evidence showing that the District intended to discriminate against plaintiffs, nor that LMSD had knowledge of any intentional discrimination on the part of its employees, including deliberate indifference to discriminatory practices against African American Students as a form of intentional discrimination.” However, Chief Judge Theodore McKee vigorously disagreed with his colleagues in a dissenting opinion.
     Circuit Judges Thomas L. Ambro and Morton I. Greenburg, the “Majority” two of the three appellate judges in the case, argued that insufficient evidence exists indicating African American students were deprived of appropriate educational services due to racial discrimination and segregation in violation of federal law.
     Chief Judge Theodore A. McKee, an African American, disagreed with Ambro and Greenburg stating in court documents, “My colleagues reach this result even though the record contains numerous issues of disputed fact that would support plaintiffs’ claims if a jury resolved those disputes in the plaintiffs’ favor.”
     Judge McKee says, “The allegations here are not pretty. No one likes to think that a school district, especially one with an outstanding educational reputation, allows race to be a factor in assigning African-American students to special education classes. However, there is sufficient evidence on the record to establish that a trial is warranted to determine whether this school district did exactly that. I therefore write separately to express my strong disagreement with my colleagues’ conclusion
     District Court Harve Bartle dismissed Concerned Black Parents from the case “for lack of standing, he did so without any motion to dismiss or motion for summary judgment being filed against CBP,” stated McKee. Considering other factors too, McKee argued that Bartle’s 2009 order, “must be reversed as to CBP’s dismissal for lack of standing; a majority of this Court now holds that CBP does have standing.”
     Judge McKee argues that District Judge Bartle uses a test to determine intentional discrimination that is inconsistent with the Supreme Court, other Circuit Court of Appeals, and even the Third Circuits own precedential opinions. McKee further argues that the Bartle’s conclusion is inconsistent with “the vast majority of courts that have interpreted the meaning of “discrimination” under statutes that are inextricably linked to, derived from, and applicable to provisions of Title VI.” If the test is wrong, how can summary judgment be right.
     Judge McKee says that the Supreme Court recognized “that deliberate indifference is a form of intentional discrimination...it is clear that Plaintiffs do not have to prove discriminatory animus, as the District Court held and as my colleagues’ analysis implies.”
     At the start of this case, LMSD high school course levels fell along academic tracks noted by a hierarchy of rigor and expectations ranging from the low modified to higher standard, honors, Advanced Placement, and International Baccalaureate. Black students were less than 8% of the student population; yet, they were often in modified classes where more than 90% of the students were black. Upon graduation, Arguably, Blacks had about a 50% chance of graduating with proficient reading, math or science skills, or perhaps they were among the 37% of blacks identified as disabled and in need of special education. Maybe school discipline  segregated them into alternative schools or placed them  in the prison pipeline. These were not great odds for college or career readiness.
     Judge McKee addresses these disproportionate circumstances too. He says, “the Plaintiffs’ expert examined the extent to which African-American students are overrepresented in LMSD’s special education classes while being completely absent from any “high expectation” college prep or advanced placement classes, and concluded both as a matter of statistical science as well as common sense that those numbers indicate “there is something systematic about the LMSD practices related to Ethnicity.”
     Judge McKee’s rigorous argument says it best here, “I am thus at a complete loss to understand how the District Court (Bartle) could have looked at this record and concluded that Plaintiffs had “not put forth more than a scintilla of evidence that the LMSD had acted with a racially discriminatory purposes in identifying them as disabled and placing them in special education.”
     Before the case went to the Appellate Court, Judge Bartle ordered plaintiffs who had an Individualized Education Program (IEP) to exhaust relief outside of federal court and under special education law (IDEA).
     The outcome was that the Office of Dispute Resolution (ODR) was vastly more favorable to plaintiffs than Bartle’s court.  Black students won in case after case. Recognizing that plaintiffs did not receive a Free And Appropriate Education, ODR ordered LMSD to award plaintiffs compensatory education that amounted to about $700,000 and costing the District litigation fees certainly in the millions-including this case.
     In one plaintiff’s case, evaluations by a District school psychologist indicate that J. W. entered LMSD as a kindergartener with an average IQ, around 100. Years later as a Lower Merion High School student re-evaluated by Dr. Cosden, a school psychologist, J.W.’s IQ dropped to the 70s range. J.W.’s due process hearing revealed that he did not receive FAPE and LMSD was ordered to award J.W. about $90K.
     Aside from the drop in IQ, C.H. vs. LMSD and Q.G. vs. LMSD resulted in the same outcome.
     One student plaintiffs’ cries that she did not belong in special education started in elementary school. The school’s multidisciplinary team convinced Mom that there was no alternative but to place S. H. in special education—and so she signed the NOREP. .S.H.’s Mom joined the Concerned Black Parents team and started questioning the school’s advice; later on, she welcomed the Public Interest Law Center of Philadelphia’s (PILCOP) intervention. Sonja Kerr, an attorney with PILCOP, attended IEP meetings and advocated for S. H.  Shortly, S. H. was removed from special education as a high school student. Dr. Cosden, a LMSD school psychologist, admitted under oath that he lied to S.H. and her mom when he told them the testing protocols they asked to view were destroyed. Nevertheless, an Independent Education Evaluation revealed that , S.H. was mis-identified as disabled and erroneously placed in special education. S.H. was right all along—as were other students.

     District Judge Bartle was born and raised in Lower Merion. His roots are deeply entrenched in the community’s history, politics, organizations, and educational systems. His parents served as Main Line Health Hospital and Rosemont College top administrators, his brother is a retired township commissioner, and his children were educated in the district’s private schools.

     As Judge McKee considered whether Bartle abused his discretion to decide the case, he indicates that with all deference to the District Court it is not insurmountable and an objective analysis of whether the ruling was an abuse of discretion is in order. McKee highlights that there was substantial evidence that the District Court never even mentioned or considered.
     Plaintiffs hoped Judge Bartle would have considered bias—even his own—as he whittled the case to a mere shadow of existence when he dismissed defendants, plaintiffs, issues, documents, and even evidence.  McKee comments, “even though we should be mindful of the difficulties of proof in such cases and that bias is no longer “worn on sleeves” or “carried on signs,” evidence was dismissed (by Bartle).
     Further, McKee indicates that bias has been considered by the court, “defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it.” Judge McKee contends that his colleagues’ approach to claims of bias is both misguided and na├»ve. McKee adds, “it appears here that African-American students may well have been placed in special education classes based on evaluations that did not warrant such placement.”
     Although Bartle ordered plaintiffs to exhaust special education relief efforts and hearing officers determined that students did not receive FAPE, Judges Ambro, Greenberg, and McKee acknowledge that an expert, a psychologist, concluded that students in question incorrectly had been identified as learning disabled. McKee adds that even knowing students were mis-identified, the Court attached  “no evidentiary significance to the fact that nearly every individual African American student in this suit was improperly placed in special education classes.”
     Judge McKee acknowledges that blacks were wrongfully diagnosed as learning disabled, placed without warrant in special education, routinely placed in low expectation classes at a significantly disproportionate rate to Caucasian students, a school psychologists admitted under oath that he intentionally lied to a parent about destroying the test protocols she asked to view—the tests justified the disability, solid evidence was dismissed, LMSD created documents stereotyping blacks, LMSD could have provided evidence that Whites students were also mistakenly placed in special education classes and offered no such evidence, and there is more.
     Judge McKee concludes his dissenting opinion saying, in part, “This case is about whether courts will allow plaintiffs who have produced the kind of proof that I have discussed above to survive summary judgment and have their day in court to prove  something as subjective and evasive as the deliberate indifference that is tantamount to racial bias.
     When plaintiffs can produce the kind of evidence that has been produced here, the law requests that their ultimate claims of bias be determined by a fact finder, not by a court.
     I, therefore must respectfully disagree with my colleagues belief that the District Court did not err in concluding that no genuine dispute of material facts exists on this record.”