Berry et al v. Pastorek et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CASSANDRA BERRY, ET AL.
CIVIL ACTION
VERSUS NO. 10-4049
CADE BRUMLEY, ET AL. SECTION "A" (4)
ORDER AND REASONS
The following motion is before the Court: Joint Motion for Release of State
Defendants and Defendant-Intervenor From the Obligations of Consent Judgment
(Rec. Doc. 466) filed by the State Defendants (“State Superintendent, Louisiana
Department of Education and Louisiana Department of Education” or “LDOE”) and
Defendant-Intervenor (“Orleans Parish School Board” or “OPSB”) (collectively
“Defendants”).
I.
Defendants seek to be released from the obligations imposed by the Consent
Judgment entered on March 25, 2015, (Rec. Doc. 296), to amicably resolve a class action
lawsuit filed by the Southern Poverty Law Center (“SPLC”) on behalf of ten named
individuals who sought to represent a class of approximately 4500 New Orleans public
school children with disabilities.1 The plaintiff class had alleged that the post-Hurricane
1 The original defendants were the Louisiana Department of Education, through its
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Katrina structure of public education in New Orleans, a structure dependent almost
entirely on charter schools, was fraught with widespread systemic failures of IDEA2
compliance, which were causing class members to be denied a free appropriate public
education. As of this writing Defendants have been subject to the requirements of the
Consent Judgment for over eleven years, during which time they have funded the
expense of court-appointed Independent Monitors who were charged with evaluating
Defendants’ compliance with the terms of the Consent Judgment.3
The Consent Judgment was the product of many months of extensive
negotiations, which included the assistance of a court-appointed mediator. The
negotiated agreement was never intended to operate in perpetuity so the parties
negotiated express termination criteria to determine when and how Defendants would be
released from their Consent Judgment obligations. The Consent Judgment states:
The [Defendants] shall be released from the terms of this Agreement when
they have achieved Substantial Compliance with each provision of the
Agreement for which they are assigned responsibility; have maintained
Substantial Compliance for a period of two consecutive years; and subject
to Court approval.
(Rec. Doc. 285, Consent Judgment at 18, VIII (2) & (3)).
Defendants point out that they have satisfied the foregoing requirements of the
superintendent, and the Louisiana Board of Elementary and Secondary Education. OPSB
subsequently intervened in the action as a defendant.
2 Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.
3 The court-appointed Independent Monitors are Dr. Dale Bailey, co-founder of Fluency Plus,
LLC, Mr. Ken Swindol, and Mr. William Swindol. Dr. Bailey and his team have performed
exemplary work throughout their tenure of monitoring compliance with the Consent
Judgment, which as of this writing has been well over a decade.
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Consent Judgment for many years beyond the criterion of two years of substantial
compliance, specifically eight consecutive years of substantial compliance as of the date
that they filed their motion. Having met that threshold requirement for release, all that
remains is Court approval. Defendants therefore assure the Court that they have and
continue to implement robust approaches to monitoring, accountability, and support of
schools and their students, and that the time has come to end the Consent Judgment.
Between the fall of 2022 and early 2024, which was prior to Defendants filing the
instant motion to be released from the Consent Judgment, the Court attempted to
facilitate efforts by the parties to confect a joint motion to terminate the Consent Judgment
that would be presented on behalf of all parties. The parties’ efforts, while productive,
were not successful. On February 12, 2025, Defendants filed their motion.
Defendants’ motion was met with fierce opposition from the SPLC on behalf of the
plaintiff class, and quite candidly this surprised the Court given how close the parties had
come to agreeing on a joint motion to terminate. On June 23, 2025, the Court held a
status conference at the objected-to request of the defendants, (Rec. Doc. 471, SPLC’s
Letter to the Court), to discuss the logistics of acting on Defendants’ Joint Motion for
Release of State Defendants and Defendant-Intervenor From the Obligations of Consent
Judgment. (Rec. Doc. 476, Minute Entry 6/23/25). The Court informed counsel that it
anticipated granting the motion to terminate in short order, and with that understanding
the parties were able to agree to the steps necessary to sunset the tasks that the
Independent Monitors were performing pursuant to the Consent Judgment. The Court
explained that it required neither an evidentiary hearing nor oral argument to assist it in
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exercising its discretion to approve termination of the Consent Judgment. But given that
the Consent Judgment was entered in favor of a class of potentially vulnerable persons
the Court offered to hold an “informal hearing” so that any parents with children in the
Orleans Parish charter school system could voice their concerns directly to the Court,
whether those concerns relate to their child’s specific situation or to the Consent
Judgment or special education in the Orleans Parish charter schools generally. That
informal hearing was held over the course of three days from November 12, 2025,
through November 14, 2025. (Rec. Docs. 481, 482, & 483, Minute Entries). The LDOE
Ombudsman was present at the hearing and every class member who spoke was given
her contact information.4 Consistent with what had become their standard method of
operation, Defendants and their counsel were extraordinarily responsive when specific
problems being experienced by individual class members were brought to their attention.
In the aftermath of the informal hearing the SPLC continued to bring individual concerns
to the Court’s attention and Defendants’ promptly investigated those situations without
questioning why those concerns had not been raised via the formal complaint process.
And Defendants did this even though most if not all of the individual problems raised
could not plausibly be traced to a systemic failure, and some problems, while causing
palpable frustration to class members, did not necessarily constitute a violation of federal
4 Only nine parents of students with disabilities actually contacted the LDOE Ombudsman
following the informal hearing. In a letter to the Court dated January 23, 2026, the SPLC
explained that it was plaintiffs’ understanding that LDOE and OPSB would proactively reach
out to parents and not wait for them to independently contact the LDOE Ombudsman. The
Court specifically instructed each class member who spoke at the November 2025 informal
hearing to take a card with the Ombudsman’s contact information and to follow-up with the
Ombudsman, if they chose to do so.
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law. The Court requested that counsel for the parties meet to discuss any follow up to the
issues and concerns raised by class members at the November 2025 informal hearing. All
parties followed up with the Court in writing.
II.
A. Substantial Compliance
Defendants have met the threshold termination requirements of §§ VIII (2) & (3)) of
the Consent Judgment by being in Substantial Compliance with their Consent Judgment
obligations for a period of two consecutive years. The Independent Monitors have
reported on LDOE’s implementation of the Consent Judgment for nearly a decade. As of
the time that Defendants filed their motion, the Independent Monitors had found
Defendants to be in Substantial Compliance for all of the provisions of the Consent
Judgment for the last eight years.
The plaintiffs refuse to acknowledge that Substantial Compliance has been
attained for a period of two consecutive years because they no longer agree that the
Consent Judgment’s express definition of Substantial Compliance—a definition that they
negotiated and agreed to in 2015—should govern. For years, the plaintiffs have pushed
for a more onerous definition for Substantial Compliance, a definition more tethered to
compliance with the IDEA as opposed to compliance with the Consent Judgment itself.
The plaintiffs take this position because individual concerns continue to be raised, and
some schools continue to require CAPs/ ICAPs.5 Now the plaintiffs go so far as to argue
in their opposition that the Consent Judgment’s textual definition of Substantial
5 Corrective Action Plan/Intensive Correction Action Plan.
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Compliance is ambiguous so the Court should eschew it and interpret the Consent
Judgment under principles of state contract law to reflect what the parties really
intended.6
The Consent Judgment’s definition of Substantial Compliance is clear and
unambiguous. And the Court is persuaded that the Consent Judgment’s definition of
Substantial Compliance reflects exactly what the parties intended. The Consent
Judgment targets systemic changes, which the Court is persuaded have reduced both
individual or non-systemic problems. That individual problems may continue to occur at
times or that specific schools may require corrective action at times is neither indicative of
a failed Consent Judgment nor necessarily of an IDEA violation by Defendants. No
consent judgment can completely eliminate all individual or all local problems. But the
proper recourse for those problems lies in due process complaints and perhaps in other
formal remedies under the IDEA.7 Rewriting the Consent Judgment to maintain federal
judicial oversight is not a proper remedy.8
6 This is not the plaintiffs’ first attempt to revisit the Consent Judgment’s definition of
Substantial Compliance. In 2018 the Court was called upon to resolve objections that the
plaintiffs had made to the manner in which the Independent Monitors were interpreting
Substantial Compliance, which was strictly adhering to the Consent Judgment’s express
textual definition. The Court issued an Order explaining that the Consent Judgment’s terms
must govern, including its textual definition of Substantial Compliance. (Rec. Doc. 387,
Order).
7 Nothing in this opinion diminishes the right of any aggrieved class member to seek relief via
the formal complaint process or even in court if appropriate.
8 To be clear, the Consent Judgment’s definition for Substantial Compliance is not the result
of short-sightedness on behalf of the specific SPLC attorneys who represented the plaintiff
class at the time. The attorneys who negotiated the Consent Judgment on behalf of the
plaintiff class understood the precarious and tenuous legal footing that they were on by
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In sum, Defendants have met the threshold termination requirements of §§ VIII (2)
& (3)) of the Consent Judgment by being in Substantial Compliance with their Consent
Judgment obligations for a period of two consecutive years.
B. Subject to Court Approval
The Consent Judgment itself offers no parameters to guide the Court’s decision on
whether to approve Defendants’ request to be released from the Consent Judgment.
Defendants would have been able to move to have the Consent Judgment terminated
many years ago—as they point out they are now well past the threshold of two
consecutive years of substantial compliance. Defendants did not wait for six more years
simply because they enjoyed remaining subject to federal oversight. They waited
because through the years the Court was very clear about the assurances it would need
and the comfort level it would have to attain before terminating the Consent Judgment. It
is not by happenstance that the Court has held Defendants’ Motion for Release of State
Defendants and Defendant-Intervenor From the Obligations of Consent Judgment under
advisement for more than a year. The Court needed to know that the positive changes
that have occurred as a result of the Consent Judgment would not be eroded and the
system returned to its prior state once federal oversight was terminated.
pursuing class-based systemic relief against the State to remedy violations of the IDEA,
which contains a mandatory exhaustion requirement. The Court’s denial of LDOE’s motion to
dismiss was not subject to interlocutory appellate jurisdiction but had the plaintiffs been
forced to obtain class certification over LDOE’s objection then LDOE could have sought an
appeal under Federal Rule of Civil Procedure 23(f). And to be sure, LDOE had raised
potentially meritorious legal arguments as to why class treatment was not available for the
claims being asserted. Thus, the plaintiffs’ attorneys were willing to compromise and agreed
to terms such as the “Substantial Compliance” criteria because obtaining the Consent
Judgment, for all of its shortcomings, was better than risking a dismissal with prejudice by the
Fifth Circuit which would have meant no relief whatsoever.
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On November 10, 2025, Defendants assured the Court in writing that they were
committed to implementing the Independent Monitors’ recommendations from the final
reports filed in October 2025. Those specific commitments are:
• Defendants will continue to disseminate the model documents that were
required by the Consent Judgment. These documents are: Child Find
Written Guidance model template; Special Education Program Descriptions
model template; Procedural Safeguards Checklist—Disciplinary Removal
of Students with Disabilities template; model Discipline Policy for Students
and Disabilities; Undocumented Suspension Guidance model template;
Parent FAQs: Special Education in Charter Schools model template;
Enrollment Discrimination Policy Guidance model template; Disability
Discrimination Complaint Procedures model template.
• Annually, Defendants will continue to send and solicit school leaders and
principals to submit signed attestations for review of model documents,
annual updates to all sections of Special Education Program Descriptions
model template, website links to verify placement of required documents on
charter school websites, updates to model positive behavior support and
discipline policies, including Codes of Conduct and Student Handbooks.
• LDOE will continue to provide technical assistance and annual professional
development to each Type 2 charter school in New Orleans regarding
disciplinary procedures for students with disabilities and best practices to
reduce suspensions for students with disabilities.
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• LDOE will continue to follow up on complaints related to enrollment
practices of Type 2 charter schools. This follow-up will include providing the
complainant in writing the contact information for the Office of Civil Rights
and low-cost legal service providers, and where required under the IDEA,
initiate an investigation of the complaint.
• Defendants will continue to collaborate to provide training for staff in all
NOLA-PS charter schools regarding IDEA regulations.
(Defendants’ 11/10/2025 Letter to the Court, attached as Exhibit A).
Moreover, based on the issues and concerns raised by parents of students with
disabilities at the informal hearing in November 2025, LDOE and OPSB implemented the
following staff changes:
• LDOE has created the position of supervisory attorney for its SPED team
commitment and has filled that position effective January 5, 2026. As a
result of this new position, the LDOE will have three attorneys to investigate
special education complaints, handle other special education issues and
cases, and to assist with providing advice and support to the LDOE special
education staff.
• The OPSB has hired its own Student Support Ombudsman as a resource
for families with children in the Orleans Parish public schools.
In their attempt to persuade the Court that the Consent Judgment should remain in
place, the plaintiffs emphasize the findings of the Louisiana Legislative Auditor in his
report issued on May 15, 2024. (Rec. Doc. 467, Plaintiffs’ Opposition Exhibit 1). The
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Auditor evaluated LDOE’s oversight of students with disabilities who receive special
education services. The report was not specific to Orleans Parish but rather to LDOE’s
risk-based monitoring of special education services across the entire state. The Auditor
was critical of LDOE’s monitoring practices particularly LDOE’s use of risk-based
monitoring. But interestingly, the Auditor thought that the Consent Judgment might be
contributing to LDOE’s inability to conduct on-site and desk reviews in a timely manner
and to provide support to school systems in the rest of the state, which are staff-intensive
functions. The Auditor noted that from 2015 through 2022 (during the life of the Consent
Judgment), LDOE conducted a total of 262 desk or on-site reviews, with 166 of those
reviews (63.4%) being in Orleans Parish even though Orleans Parish had only 7.2 %
(6,427 of 89,681) of the students with disabilities in Louisiana. In other words, the
Consent Judgment could very well be taxing LDOE’s limited resources by forcing the
agency to focus on Orleans Parish to the detriment of the rest of the state. Whether that is
correct or not is beside the point. The point is that the Auditor’s report is not a persuasive
basis to keep the Consent Judgment in place.
At the November 2025 informal hearing numerous class members spoke about
their specific negative experiences in certain Orleans Parish charter schools. Some of
those negative experiences were disturbing and potentially unlawful. Many class
members who spoke urged the Court to keep the Consent Judgment in place given those
disturbing experiences. Class counsel likewise point to those experiences (which
continue to be received even now) as a reason that Orleans Parish schools must remain
subject to the Consent Judgment.
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Not surprisingly, the Court’s reluctance over the last few years to terminate the
Consent Judgment even though the threshold requirements for Substantial Compliance
had been satisfied has been in large part because individual families continue to report
negative experiences with certain charter schools in Orleans Parish. And if a school is
going to engage in disturbing and potentially unlawful conduct with the Consent
Judgment in place, naturally the Court has been concerned with what would happen at
the local level once federal judicial oversight is removed.
This Court is well aware of the challenges and frustrations of having a special
needs child in the public school system. But as the Court has previously pointed out, this
lawsuit and the Consent Judgment that grew out of it were directed at systemic
deficiencies at the state level, not with the individual issues that cannot be addressed on a
class-wide basis both practically and legally. (Rec. Doc. 480, Order and Reasons at 3
n.1). That individual problems at the local level may continue to arise in Orleans Parish
does not ipso facto imply that Defendants are not in compliance with their obligations
under federal law, which for LDOE includes far more than just Orleans Parish. The
individual problems that have been brought to the Court’s attention have arisen while the
Consent Judgment has been in place. It has not prevented them from occurring and the
fact that they do occur is not an indicator that the Consent Judgment has failed. But the
fact that individual or local problems do arise with the Consent Judgment in place, serves
to demonstrate the fallacy of the argument that the Consent Judgment should remain in
place as a means of preventing similar problems.
In sum, the Court concurs with Defendants that the time is now right to terminate
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the Consent Judgment. The Court is persuaded that Defendants’ Joint Motion for
Release of State Defendants and Defendant-Intervenor From the Obligations of Consent
Judgment should be granted.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Joint Motion for Release of State Defendants and
Defendant-Intervenor From the Obligations of Consent Judgment (Rec. Doc. 466)
filed by the State Defendants (“State Superintendent, Louisiana Department of Education
and Louisiana Department of Education”) and Defendant-Intervenor (“Orleans Parish
School Board”) should be and is hereby GRANTED. The Defendants’ obligations under
the Consent Judgment are deemed fulfilled and they are released from any further
obligations in conjunction with the Consent Judgment.
March 31, 2026
__________________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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