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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ADVOCATES FOR SPECIAL KIDS; EDITH WYRICK, by her guardian ad litem Catherine Wood Wyrick; AARON WEINGARTEN, by his guardian ad litem Darlene Weingarten; TARA PETERSON, by her guardian ad litem Mary Peterson; BRETT McNEIL, by his guardian ad litem Cathie McNeil; and SHEA KEITH IVEY, by his guardian ad litem Cynthia Kay Ivey.

PLAINTIFFS,

v.

OREGON STATE BOARD OF EDUCATION, an Oregon public entity; WAYNE FELLER, Chair of the Oregon State Board of Education; STAN BUNN, Oregon State Superintendent of Public Instruction; PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION, a public entity; RON SAXTON, Chair of the Portland Public Schools Board of Education; and BENJAMIN CANADA, Superintendent of Portland Public Schools.

DEFENDANTS. /

CASE NO. CV'99-263 KI

CLASS ACTION

COMPLAINT

DEMAND FOR JURY TRIAL

Jeffrey P. Foote (Oregon State Bar No. 74098)
Jeffrey Foote & Associates P.C.
Suite 950, 621 S.W. Morrison St.
Portland, OR 92705
Telephone: (503) 228-1133
Facsimile: (503) 228-1556

Sid Wolinsky (California State Bar No. 33716)
Josh Konecky (California State Bar No. 182897)
Alison Aubry (California State Bar No. 194107)
Disability Rights Advocates
449 15th Street, Suite 303
Oakland, CA 94612
Telephone: (510) 451-8644
Facsimile: (510) 451-8511

Adele P. Kimmel (Washington, D.C. Bar No. 412612)
Sarah Posner (Washington, D.C. Bar No. 428015)
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave. N.W., Ste 800
Washington, D.C. 20036
Telephone: (202) 797-8600
Facsimile: (202) 232-7203

Attorneys for Plaintiffs

INTRODUCTORY ALLEGATIONS

1. This action arises out of Defendant OREGON STATE BOARD OF EDUCATION's discrimination against tens of thousands of children with learning disabilities in the Oregon public school system. The Defendant school bureaucracies are, without adequate preparation or safeguards, hastily forcing a testing system upon these children which is destroying and ignoring their educational attainments and self esteem, flagrantly violating their Federal and State rights, and damaging their academic opportunities forever.

2. Learning disabilities describe a range of disabilities which primarily emanate from a neurological or similar defect in the processing of language. In the past, children with learning disabilities were often labeled as slow, not smart or lazy. They are none of these. People with learning disabilities span the intelligence spectrum and many children with learning disabilities are of very high intelligence. Prominent high achieving people with learning disabilities include Charles Schwab, Albert Einstein, Agatha Christie, William Butler Yeats, and John Irving. Many people with learning disabilities work far harder than others in order to compensate for their disabilities. Approximately one half of those with learning disabilities have some form of dyslexia. Dyslexia is a neurological defect in processing phonemes, the basic unit of language, and can be seen in brain scans as early as infancy. Among other things, children with dyslexia are unable to spell due to this neurological defect. See Sally E. Shaywitz, Dyslexia, Scientific American (Nov. 1996).

3. As part of a radical revision of Oregon's entire educational system, the OREGON STATE BOARD OF EDUCATION has devised and implemented for the first time during the 1998-1999 school year a series of discriminatory, high stakes screening tests that all tenth grade students in Oregon's public schools are required to pass in order to achieve a "Certificate of Initial Mastery" (hereafter the "CIM"). Tenth grade students must first receive the CIM before beginning work towards the Certificate of Advanced Mastery (hereafter the "CAM"), which they must obtain prior to – and in some instances as a condition of – graduation from high school.

4. In formulating and administering the CIM screening tests, the STATE BOARD OF EDUCATION has failed and refused to take account of the needs of children with learning disabilities. As a result, the new exams discriminate against children with learning disabilities in numerous ways. For example, one of the required screening tests, the "direct writing assessment," places twice as much weight (40%) on such factors as spelling and punctuation as on cognitive abilities, organizational skills, or any other element of writing. Children who do not get passing grades on spelling and punctuation will fail the test no matter how intelligent, knowledgeable, and academically gifted they are, or how high they score on other parts of the test.

5. The action of the STATE BOARD OF EDUCATION in making elements such as spelling and punctuation twice as important as ideas, content and organization was a political and arbitrary act without any sound basis in valid test construction procedures.

6. Children with dyslexia and other learning disabilities who are unable to spell due to neurological deficiencies will not pass the writing test (and therefore will not achieve a Certificate of Initial Mastery). In effect, Defendants have made the ability to spell well a prerequisite to academic advancement in the Oregon public education system, even though there is no major university in America that requires proficiency in spelling as an admission requirement.

7. Defendants are required under federal law to provide reasonable accommodations to children with disabilities on the screening tests. In flagrant violation of that requirement, the STATE BOARD OF EDUCATION has failed to articulate or implement any coherent policy regarding providing reasonable accommodations on the screening tests.

8. Through ad hoc decision making, Defendant bureaucracies have created chaos and confusion among parents, children and educators by providing ambiguous, conflicting and misleading information regarding the policies and procedures for obtaining accommodations on the statewide screening tests.

9. Up to the very day the writing exam was being given, high ranking bureaucrats in the Oregon Department of Education provided directly contradictory information to parents about how the high stakes tests were to be administered and graded for disabled children. See Exhibit A to Complaint. Some parents were told that their child could not use a reasonable accommodation such as a word processor with a spell-check program on the writing test, regardless of the child's individual disability and particular needs. Other parents were told that their child could use a word processor with a spell-check program, but that the use of a word processor was a "modification" that would invalidate the results of the test. Still other parents were told that their child could use a word processor, without any information whatsoever about the possible detrimental consequences of using such a "modification."

10. Not only do the Defendant bureaucracies not have a single, understandable policy regarding the provision of accommodations on these high stakes exams, but they have engaged in a semantic game in which they have re-labeled reasonable accommodations as "modifications" in an effort to avoid their legal obligations. As a result of the confusion created by the Defendant bureaucracies, parents have been unable to make informed choices regarding the accommodations that their children can use on the statewide screening tests.

11. During the administration of the CIM screening tests, Defendants refused to provide numerous children with learning disabilities reasonable accommodations such as word processors with spell-check programs, despite the fact that such spell-check programs are now universally used by college students, the business, professional and academic communities, and any place the English language is written. By prohibiting the use of word processors with spell-check programs, Defendants have violated their own mandate of treating the use of technology as an integral part of the educational process.

12. Defendants are fully aware that for many children with learning disabilities, the denial of a reasonable accommodation such as a word processor virtually guarantees that the child will fail the writing test. By testing the child's disability and requiring them to fail, Defendant STATE BOARD OF EDUCATION is effectively refusing to recognize all of the abilities and attainments of the disabled child, no matter how extensive those may be.

13. Some children with learning disabilities used word processors with spell-check programs during the CIM screening tests, mistakenly believing – due to Defendants' affirmative misrepresentations and misinformation – that these "modified" tests will count towards achieving the Certificate of Initial Mastery. Even if these children receive passing scores on the CIM tests, however, Defendants will not allow them to achieve a Certificate of Initial Mastery because they used a "modification" during the test.

14. The consequences to children of failing to receive a Certificate of Initial Mastery are profound. In addition to the damage to their self-esteem, these children may be required to repeat tenth grade, may be excluded from participating in their school's honors programs, may receive a lesser "modified" diploma, may not graduate from high school, may not be able to gain admission to Oregon's public universities and community colleges, and will be severely disadvantaged in applying for employment. In addition, parents are reasonably concerned that their children with learning disabilities will be frustrated, discouraged and drastically set back in their educational advancement.

15. By requiring children with learning disabilities to take discriminatory and unfair tests with high stakes consequences and no reasonable accommodations, the STATE BOARD OF EDUCATION has created a dual track system of public education in which children with learning disabilities will be relegated to the lower tier and prevented from pursuing academic opportunities simply because of their disabilities.

16. The high stakes screening tests further discriminate against children with learning disabilities because these children have not been prepared by their administrators or teachers to take the Certificate of Initial Mastery tests. Throughout their educations, these children have received as part of their legally mandated Individual Educational Programs (or "Section 504" education plans) accommodations such as word processors with automatic spell-checkers. Now, for the first time in tenth grade, children are tested on skills that they do not possess neurologically. Moreover, these children have never been provided with any instruction on how to compensate for these deficits in testing situations.

17. The high stakes screening tests, with their unvalidated over-emphasis on spelling and punctuation, will also damage the educational opportunities of minority children, children of immigrants, and children for whom English is not their primary language.

18. Past experience with tests like those required for the CIM and CAM, coupled with Defendants' incompetent administration of those tests, make it likely that a great majority of Oregon students with learning disabilities will not be able to ever obtain a CIM or CAM.

19. Without immediate relief from the Court, Plaintiff children will be irreparably harmed in that they will be denied numerous academic opportunities, may not graduate from high school, and will experience severe damage to their self-esteem and emotional well-being.

JURISDICTION

20. The Court has subject matter jurisdiction over the federal law claims under 28 U.S.C. §§ 1331 and 1343. The Court has jurisdiction over the Oregon law claims under the doctrine of supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

21. The Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.

22. Plaintiffs have no adequate remedy at law to compensate them for the deprivation of educational and professional opportunities they will suffer as a result of the OREGON STATE BOARD OF EDUCATION's discriminatory actions. Defendants have a clear and mandatory legal duty to administer its public school system in a manner consistent with all applicable laws. Plaintiffs will suffer irreparable harm without immediate injunctive relief.

23. Plaintiffs are not required to exhaust the administrative procedures set forth in IDEA because they are challenging policies and practices of general applicability that are contrary to numerous Federal and State laws (including IDEA) and because Plaintiffs cannot obtain adequate relief through administrative remedies.

VENUE

24. Venue is proper in this Court under 28 U.S.C. § 1391(b). All Defendants reside in the State of Oregon, Defendants PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION, RON SAXTON, and BENJAMIN CANADA reside in Portland, and a substantial part of the events giving rise to this action occurred in Portland.

THE PARTIES

25. Plaintiff ADVOCATES FOR SPECIAL KIDS ("ASK") is an organization comprised of parents of children with learning disabilities who attend Oregon public schools. The mission of ASK is to fight for the enforcement of educational rights of children with disabilities.

26. Plaintiff EDITH WYRICK, by her guardian ad litem CATHERINE WOOD WYRICK, is a citizen of the United States and resides in the City of Portland. Plaintiff is 15 years old and in ninth grade at Wilson High School in Portland. She has a learning disability, and is a qualified person with a disability within the meaning of applicable Federal and State law.

27. Plaintiff AARON WEINGARTEN, by his guardian ad litem DARLENE WEINGARTEN, is a citizen of the United States and resides in the City of Portland. Plaintiff is 15 years old and in tenth grade at Wilson High School in Portland. He has a learning disability, and is a qualified person with a disability within the meaning of applicable Federal and State law.

28. Plaintiff TARA PETERSON, by her guardian MARY PETERSON, is a United States citizen and a resident of the City of Portland. Plaintiff is 15 years old and in tenth grade at Wilson High School in Portland. She has a learning disability and is a qualified person with a disability within the meaning of applicable Federal and State law.

29. Plaintiff BRETT McNEIL, by his guardian ad litem CATHIE McNEIL is a citizen of the United States and resides in the City of Portland. Plaintiff is 16 years old and in the tenth grade at Wilson High School in Portland. He has a learning disability and is a qualified person with a disability within the meaning of applicable Federal and State law.

30. Plaintiff SHEA KEITH IVEY, by his guardian ad litem CYNTHIA KAY IVEY, is a citizen of the United States and resides in the City of Portland. Plaintiff is 13 years old and in eighth grade at West Sylvan Middle School in Portland. He has a learning disability, and is a qualified person with a disability within the meaning of applicable Federal and State law.

31. Defendant OREGON STATE BOARD OF EDUCATION ("STATE BOARD") is a public entity within the meaning of Title II of the Americans with Disabilities Act and other applicable laws. The STATE BOARD receives Federal financial assistance from the Department of Education and is therefore covered by the requirements of Section 504 of the Rehabilitation Act of 1973. The STATE BOARD is a state educational agency and is therefore covered by the requirements of the Individuals with Disabilities Education Act.

32. Defendant WAYNE FELLER is the Chair of the OREGON STATE BOARD OF EDUCATION. He is sued in his official capacity.

33. Defendant STAN BUNN is the Oregon State Superintendent of Public Instruction. He is sued in his official capacity.

34. Defendant PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION formulates policies for the Portland Public Schools. The PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION is a public entity within the meaning of Title II of the Americans with Disabilities Act, and receives Federal financial assistance from the Department of Education and is therefore covered by the requirements of Section 504 of the Rehabilitation Act of 1973. The PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION is a local educational agency and is therefore covered by the requirements of the Individuals with Disabilities Education Act.

35. Defendant RON SAXTON is the Chair of the PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION. He is sued in his official capacity.

36. Defendant BENJAMIN CANADA is the Superintendent of Portland Public Schools. He is sued in his official capacity.

FACTUAL ALLEGATIONS

37. Plaintiffs, who attend public schools throughout Oregon, are children with learning disabilities. Learning disabilities are the result of permanent neurological dysfunction or information processing disruptions that result in limited, unexpected, and usually intractable impediments in the ability to learn one or more basic skills taught through traditional formal education.

38. There are currently tens of thousands of children with identified learning disabilities who attend Oregon's public schools. There are also many children with learning disabilities who attend Oregon's public schools who have not yet been identified as learning disabled for a number of reasons. In many cases, the school and/or school district has not adequately assessed the child to determine if he or she has a learning disability. In other instances, children have not been identified as learning disabled because their particular learning disabilities have not affected their educational performance or attainments thus far.

39. People with learning disabilities span the intelligence spectrum and many children with learning disabilities are of very high intelligence. Many people with learning disabilities work far harder than others in order to compensate for their disabilities.

40. In 1991, the Oregon State Legislature passed the Oregon Educational Act for the 21st Century ("the Act"). O.R.S. § 329, et seq. The Act radically restructures public education in the State of Oregon. A central component of this restructuring is the establishment of, in addition to the standard diploma, the "Certificate of Initial Mastery" ("CIM") to be earned by all tenth grade students in the public schools, and the "Certificate of Advanced Mastery" ("CAM") to be earned by all twelfth grade students attending public schools.

41. The Act directs the OREGON STATE BOARD OF EDUCATION to prescribe the standards that a student must meet in order to obtain Certificates of Initial and Advanced Mastery. Pursuant to this authority, the STATE BOARD has created a series of high stakes screening tests that children must take and pass during their tenth grade year to achieve a CIM. The STATE BOARD is currently formulating the tests that twelfth grade students will need to take and pass to achieve a CAM.

42. In devising these tests and formulating the standards that students must meet in order to obtain a CIM, the STATE BOARD failed to consider and take account of the needs of children with learning disabilities (and children for whom English is not their primary language). As a result, the tests are discriminatory, arbitrary and unfair because the STATE BOARD OF EDUCATION failed to minimize the effects of a child's learning disability. Under federal law, when a test is administered to a child with a learning disability, the test results must accurately reflect the child's aptitude, achievement, or whatever factor the test purports to measure, rather than reflecting the child's learning disability. Contrary to this mandate, the STATE BOARD OF EDUCATION has constructed a screening test which maximizes the effects of children's learning disabilities.

43. None of the Defendants have conducted any study concerning whether or not the skills measured on the tests were in fact taught to the tens of thousands of students with learning disabilities in the Oregon school system.

44. The 1998-1999 school year is the first year that tenth grade students in Oregon's public schools are required to obtain the CIM. To achieve the CIM during the 1998-1999 school year, students must take a series of English and mathematics tests. The English tests include "reading/literature multiple choice" and "direct writing assessment." The math tests include "mathematics problem solving" (also referred to as "open-ended math") and "math multiple choice." To obtain a CIM, a student must receive passing scores on all of the English and math tests.

45. During the 1998-1999 school year, the CIM screening tests will also be administered to children in the eighth grade to assess these students' progress toward achieving a CIM. Children who do poorly on the CIM tests in eighth grade may be required to repeat eighth grade or attend summer school.

46. The CIM English and math tests discriminate against children with learning disabilities in numerous ways. For example, children are required to handwrite their answers to the writing assessment and the mathematics problem solving tests. The requirement that tests be handwritten unfairly discriminates against children who may excel in ideas, content, organization, fluency and intelligence, but whose learning disabilities impair their ability to express thoughts on paper or impair the act of writing itself.

47. The math problem solving test is also constructed and administered in such a way that it tests language elements such that children with learning disabilities are unfairly disadvantaged.

48. The reading/literature multiple choice test, as currently constructed and administered, unfairly disadvantages children with dyslexia and other reading disabilities.

49. The writing test, as currently formulated and administered, further discriminates against children with learning disabilities because it places an unreasonable, unjustified and unvalidated emphasis on "conventions" such as spelling and punctuation, which account for forty percent (40%) of a child's score on the writing test.

50. In order to pass the writing test, a child (in addition to achieving a high overall score on the writing test) must, as arbitrarily determined by the STATE BOARD, obtain high scores in spelling and punctuation. Because the exam directly test the impairments caused by dyslexia and other learning disorders, the direct writing assessment will be extraordinarily difficult, if not impossible, for people with dyslexia and other learning disabilities to pass, regardless of how intelligent, studied, creative or otherwise gifted they may be.

51. Plaintiff children require (and are guaranteed under federal law) reasonable accommodations on the CIM tests to minimize the effects of their learning disabilities, and without such accommodations, Plaintiff children are subjected to discrimination on the basis of their disabilities. Without reasonable accommodations on the CIM tests, Plaintiff children will be unable to pass the high stakes CIM tests and therefore will be unable to obtain a Certificate of Initial Mastery.

52. The consequences of failing to obtain a Certificate of Initial Mastery are so severe as to permanently alter the entire course of a child's education and future employment no matter how bright the child is or how hard the child has worked. According to the STATE BOARD, schools may consider the failure to achieve a CIM as a factor in deciding whether to require a child to repeat a year of school.

53. Children who do not do well on the CIM tests due to their learning disabilities will also be barred from pursuing academic opportunities. For example, students who attend Wilson High School in Portland are unable to enroll in accelerated English classes unless they have a high – not merely passing – score on the CIM writing test. See Exhibit B to Complaint. In order to graduate with honors from Wilson High School, a student must take accelerated English. In effect, children with learning disabilities who cannot pass the CIM writing test due to a lack of reasonable accommodation could be completely shut out of participating in the honors program at Wilson High School. Upon information and belief, other public high schools throughout Oregon are implementing similar requirements with regard to their honors programs. Defendant bureaucracies have undertaken no study justifying the use of spelling and punctuation as prerequisites to enrollment in academic courses.

54. There are numerous other negative and often devastating consequences to failing to achieve a CIM. A student must first achieve a Certificate of Initial Mastery before beginning work on obtaining the Certificate of Advanced Mastery during the twelfth grade. Some Oregon schools require successful achievement of the Certificate of Advanced Mastery in order to graduate from high school. Thus, children who are unable to obtain the CIM will not be able to achieve the CAM, and may not graduate from high school.

55. Children who attend high schools that do not require the CIM or CAM for graduation will be nevertheless severely disadvantaged because Oregon's public universities and community colleges are aligning admission requirements with the CIM and CAM. Accordingly, a child who has not passed the CIM may be barred from admission to public colleges and universities.

56. Many Oregon employers will ask whether job applicants have a CIM or CAM, and may require these certificates as a condition of employment.

57. Defendant bureaucracies have created chaos and confusion by failing to formulate clear policies and procedures regarding the provision of reasonable accommodations on the CIM screening tests. This failure has led to ad hoc policymaking by Defendants and Defendant bureaucracies, resulting in innumerable different "policies" and "procedures." Although the Oregon Department of Education has engaged in an extensive media campaign to promote the CIM and has disseminated numerous documents to parents, students and educators regarding the CIM, there is not a single official document that clearly states the policies and procedures for obtaining reasonable accommodations on the CIM tests. Instead, documents either make no reference whatsoever to the provision of reasonable accommodations for students with disabilities, or the documents contain ambiguous and general statements of policy that provide no meaningful details.

58. Defendants have caused further confusion among parents and educators by arbitrarily re-naming certain accommodations as "modifications" on the CIM screening tests. On numerous documents distributed to schools, educators, parents, and children, the Defendant bureaucracies have listed allowable "accommodations" and "modifications" that children with disabilities may use when taking the CIM screening tests. However, on none of these documents do the Defendant bureaucracies explain what the difference is between an "accommodation" and a "modification," nor do the documents state what the consequences are of taking the tests with an "accommodation" or a "modification."

59. For example, Defendant STATE BOARD OF EDUCATION has determined, without any lawful basis whatsoever, that a word processor with an automatic spell-check function is a "modification," while extended time on tests is an "accommodation." The distinction between a "modification" and an "accommodation," and the consequences that flow from taking a "modified" test, are incomprehensible to parents. These distinctions and consequences also vary depending on which Defendant bureaucracy or school official is dealing with the issue.

60. As a result of the conflicting, confusing and misleading information they have received about the policies and procedures, if any, for obtaining reasonable accommodations, parents of Plaintiff children (a) have been unable to make informed decisions about how the child should approach or take the tests, (b) have been misled about the procedures and consequences, (c) have made decisions which may be unnecessarily damaging to their children's future and (d) have been discouraged from requesting the reasonable accommodations to which they are entitled as a matter of law.

61. As another consequence of the lack of policies and procedures for providing reasonable accommodations on the CIM tests, Plaintiffs and their parents have been unable to participate meaningfully in designing Plaintiffs' Individual Educational Plans or Section 504 Education Plans. By virtue of their disabilities, all Plaintiffs have either a legally mandated Individual Education Plan ("IEP") pursuant to IDEA, or a Section 504 Education Plan ("504 Plan") pursuant to Section 504 of the Rehabilitation Act of 1973. These plans are required by law to be created through an interactive process between educators, parents and their children, and the plans are supposed to specify a child's individual needs.

62. Although Defendant bureaucracies have stated that children will be provided reasonable accommodations in accordance with their IEPs or 504 Plans, this simply has not occurred. In many instances, the issue of reasonable accommodations on the CIM screening tests was not even addressed at the child's IEP or Section 504 meeting.

63. In other instances, although the issue of reasonable accommodations on the CIM tests may have been discussed at a child's IEP or 504 Plan meeting, parents of Plaintiff children were nevertheless unable to make informed choices regarding their child's education because school officials did not know what the policies and procedures were regarding reasonable accommodations on the CIM screening tests, nor did school officials know what the consequences were of taking a "modified" test.

64. At various times, various school officials have made the following representations to parents of Plaintiff children:

(1) Plaintiff EDITH WYRICK's mother and guardian ad litemCATHERINE WOOD WYRICK was told by a representative of the State Department of Education in a public meeting that her daughter could take the CIM writing test with a word processor and an automatic spell-check program, and that such an accommodation was considered a "modification." When Plaintiff EDITH WYRICK's mother inquired as to the meaning of a "modification," she was told that "modifications" alter what the exam is testing and that she would not be able to receive a CIM as a result of having taken a "modified" exam. At that same meeting, Plaintiff EDITH WYRICK's mother was told by school officials that she "would have to litigate the issue." In the fall of 1998, CATHERINE WOOD WYRICK attended her daughter's IEP meeting. At that meeting, school officials told CATHERINE WOOD WYRICK that the use of a computer with a spell-check function on the CIM writing test was considered a "modification." When CATHERINE WOOD WYRICK asked about the consequence of taking the CIM tests with a "modification," the school officials stated that they did not know. In February 1999, after the CIM tests had been administered, CATHERINE WOOD WYRICK was informed by officials at the Department of Education that the use of an "automated correction" spell check feature is a "modification" that "may affect" her daughter's eligibility to receive a CIM. See Exhibit C to Complaint.

(2) Plaintiff AARON WEINGARTEN's mother and guardian ad litem DARLENE WEINGARTEN was initially told by the curriculum vice principal at Wilson High School that her son would be able to use a word processor on the CIM tests due to the documentation of Plaintiff WEINGARTEN's disability. DARLENE WEINGARTEN later learned that the special education instructor at Wilson High School told Plaintiff WEINGARTEN that he would not be allowed to use a word processor or spell-checker because he would receive a "modified" CIM. This conflicting information made Plaintiff WEINGARTEN quite anxious and confused. One day before the CIM tests were administered, DARLENE WEINGARTEN was advised by Wilson High School officials that the school officials had just learned that any and all "accommodations" would be considered "modifications" and that if Plaintiff WEINGARTEN used a computer on the tests he would receive a "modified" CIM, regardless of his level of performance on any of the CIM tests. Due to confusion regarding the administration and grading of the CIM tests as well as other health problems, Plaintiff WEINGARTEN did not take the CIM tests.

(3) Plaintiff TARA PETERSON's mother and guardian ad litem MARY PETERSON did not receive any information about policies and procedures for requesting reasonable accommodations on the CIM tests. At her daughter's Section 504 meeting during the fall of 1998, the issue of accommodations or "modifications" on the CIM tests was not discussed.

(4) Plaintiff BRETT McNEIL's mother and guardian ad litem CATHIE McNEIL was initially told that her son could use a computer with a spell-checker and grammar-checker on the CIM tests as an "accommodation." Two days later, school administrators told her that the school district considered the use of a computer a "modification" which would negate the results of the test. Most recently, CATHIE McNEIL was told that her son could use a computer on the CIM tests as an "accommodation" and that the tests would "count." Plaintiff McNEIL used a computer on the CIM writing test.

(5) Plaintiff SHEA KEITH IVEY's mother and guardian ad litem CYNTHIA KAY IVEY did not receive any information regarding the policies and procedures for providing reasonable accommodations on the CIM tests, and was unable to find any school official who could answer her questions regarding the difference between an "accommodation" and a "modification" on the CIM tests.

65. Defendants have failed to establish a procedure for challenging even the most arbitrary conduct with regard to the denial of reasonable accommodations.

66. Defendants have failed to provide mechanisms, procedures, policies or personnel to engage in the legally required interactive process with parents and children for the fashioning of reasonable accommodations.

67. Defendants have failed to deal with students on an individualized basis, instead devising and implementing discriminatory across-the-board policies which deny children their legally required reasonable accommodations. Defendants have instituted and are systemically carrying out a pattern and practice of refusing to honor the obligations to provide reasonable accommodations contained in the IEPs or Section 504 Plans of children with learning disabilities.

68. The CIM screening tests discriminate against children with learning disabilities because they test children on material they have never been taught. Upon information and belief, many, if not most, Oregon public schools have not taught students spelling, instead utilizing a "whole language" approach in which spelling is de-emphasized. Thus, Plaintiff children have never been taught spelling and many of the other skills tested on the CIM screening exams.

69. The CIM screening tests have been implemented prematurely. Students with learning disabilities have not been given adequate time and notice to prepare for these new testing requirements. Throughout their educations, Plaintiff children have been provided with reasonable accommodations such as word processors with spell-check programs in accordance with their IEPs or 504 Plans. Defendants have not created any materials or programs for teaching children with learning disabilities what they need to know to pass either the CIM or CAM screening tests without the reasonable accommodations that they have been allowed to utilize throughout the educations.

70. Without immediate relief from the Court, Plaintiff children will be irreparably harmed in that they will be denied numerous academic opportunities, may not graduate from high school, and will experience severe damage to their self-esteem and emotional well-being.

CLASS ALLEGATIONS

71. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly situated. The class which these Plaintiffs represent is composed of all children with diagnosed learning disabilities attending Oregon public schools who have been injured in their legal rights or are threatened with such injury because of Defendants' conduct in establishing and implementing a discriminatory policy against children with learning disabilities as alleged in this Complaint. The class is sometimes hereafter referred to as "Plaintiff children."

72. The persons in the class are so numerous that joinder of all such persons is impracticable and the disposition of their claims in a class action is a benefit to the parties and to the Court.

73. There is a well defined community of interest in the questions of law and fact affecting the class in that they were all discriminated against by the implementation of the new policies against children with learning disabilities. Defendants have acted on grounds applicable to the class as a whole.

74. Common questions of law and fact predominate.

75. The claims of the named Plaintiffs are typical of those of the class, and named Plaintiffs will fairly and adequately represent the interests of the class.

76. References to Plaintiffs shall be deemed to include the named plaintiffs and each member of the class.

FIRST CLAIM(Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.)

77. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 76 inclusive.

78. Defendants' acts and omissions alleged herein are in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., ("ADA") and the regulations promulgated thereunder, 28 C.F.R. Part 35, et seq.

79. Plaintiffs are qualified individuals with disabilities within the meaning of the ADA. 42 U.S.C. § 12131(2).

80. Defendants OREGON STATE BOARD OF EDUCATION and PORTLAND PUBLIC SCHOOLS BOARD OF EDUCATION are public entities within the meaning of Title II of the ADA and the regulations promulgated thereunder. 42 U.S.C. § 12131(1)(B).

81. In violation of the ADA, Defendant bureaucracies have failed to evaluate their policies and practices to ensure that these policies and procedures do not exclude or limit the participation of individuals with disabilities in their programs and activities, and Defendant bureaucracies have failed to seek public comment regarding the impact of the CIM screening tests and attendant policies and procedures on children with disabilities. 28 C.F.R. § 35.105.

82. By denying Plaintiff children the accommodations they are legally entitled to, Defendant bureaucracies have denied Plaintiffs a free and appropriate education in violation of the ADA. 28 C.F.R. § 35.130; 28 C.F.R. § 35.103(a).

83. In violation of the ADA, Defendant bureaucracies have excluded Plaintiff children from participation in and denied the benefits of the services, programs or activities of a public entity solely on the basis of disability. Defendants have further violated the ADA by otherwise subjecting Plaintiff children to discrimination based upon disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).

84. Defendant bureaucracies have violated the ADA by denying Plaintiff children the opportunity to participate in or benefit from aids, benefits and services provided by the public entities, and by providing Plaintiff children with the opportunity to participate in or benefit from aids, benefits or services that are not equal to those afforded non-disabled children who attend Oregon's public schools. 28 C.F.R. § 35.130(b)(1)(i)-(ii).

85. Defendant bureaucracies have violated the ADA by providing Plaintiff children with benefits that are different and/or not as effective in affording equal opportunity to obtain the same results, to gain the same benefits, or to reach the same levels of achievement as that provided to others. 28 C.F.R. § 35.130(b)(1)(iii)(iv).

86. Defendant bureaucracies have violated the ADA by utilizing criteria or methods of administration that have the effect of subjecting Plaintiff children to discrimination on the basis of disability or that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities. 28 C.F.R. § 35.130(b)(3).

87. Defendant bureaucracies have violated the ADA by administering a certification program in a manner that subjects Plaintiff children to discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(6).

88. Defendant bureaucracies have violated the ADA by failing to make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(7).

89. Defendant bureaucracies have violated the ADA by imposing eligibility requirements that screen out or tends to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity offered by Defendants. 28 C.F.R. § 130.(b)(8).
90. WHEREFORE, Plaintiffs request relief as set forth below.

SECOND CLAIM
(Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.)

91. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 90 inclusive.

92. Plaintiffs are qualified individuals with disabilities within the meaning the Rehabilitation Act of 1973.

93. Defendants are the recipients of federal funds sufficient to invoke the coverage of the Rehabilitation Act of 1973.

94. Solely by reason of their disabilities, Plaintiffs have been, and continue to be, excluded from participation in, denied the benefits of, and subjected to discrimination in their attempts to receive, full and equal access to the programs, services and activities offered by Defendants in violation of the Rehabilitation Act. 29 U.S.C. § 794; 34 C.F.R. § 104.4(a).

95. Defendant bureaucracies have violated the Rehabilitation Act by denying Plaintiff children the opportunity to participate in or benefit from aids, benefits and services provided by Defendants, and by providing Plaintiff children with the opportunity to participate in or benefit from aids, benefits or services that are not equal to those afforded non-disabled children who attend Oregon's public schools. 34 C.F.R. § 104.4(b)(1)(i)-(ii).

96. Defendant bureaucracies have violated the Rehabilitation Act by utilizing criteria or methods of administration that have the effect of subjecting Plaintiff children to discrimination on the basis of disability or that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of Defendants' programs with respect to individuals with disabilities. 34 C.F.R. § 104.4(b)(4).

97. Defendants have failed to provide Plaintiff children with a free and appropriate education in designed to meet their individual educational needs in violation of the Rehabilitation Act. 34 C.F.R. § 104.33(b).

98. The STATE BOARD's sweeping policy precluding the use of accommodations on the statewide exams is in violation of the obligations imposed by the Rehabilitation Act to provide special education and related services in conformity with a child's Section 504 Plan. By imposing a discriminatory, across the board policy to all children with learning disabilities, Defendant bureaucracies have eliminated the individual assessment of children required by the Rehabilitation Act. 34 C.F.R. § 104.33.

99. Defendants have failed to ensure that the statewide screening tests and other evaluation materials have been validated for the specific purpose for which they are used in violation of the Rehabilitation Act. 34 C.F.R. § 104.35(b)(1).

100. Defendants have failed to ensure that the statewide screening tests are administered such that the results will accurately reflect the child's aptitude or achievement level rather than the child's impaired sensory, manual or speaking skills. 34 C.F.R. § 104.35(b)(3).

101. WHEREFORE, Plaintiffs request relief as set forth below.

THIRD CLAIM
(Violation of 42 U.S.C. § 1983 Based Upon Deprivation of Rights Under IDEA)

102. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 101 inclusive.

103. Defendants' acts and omissions alleged herein are in violation of 42 U.S.C. § 1983 based upon Defendants' violation of the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA").

104. At all times mentioned herein, Defendants, and each of them, in administering and failing to lawfully administer the public school system, was acting under color of State law. Defendants have adopted a policy of discrimination based solely upon the disabilities of school children. This policy, conduct, and practice of Defendants has resulted in severe interference with and deprivation of Plaintiffs' fundamental right to a free and appropriate public education which is secured to them by the laws of the United States and specifically pursuant to IDEA. 20 U.S.C. § 1401(8).

105. The STATE BOARD's sweeping policy precluding the use of accommodations on the statewide exams is in violation of the obligations imposed by IDEA to provide special education and related services in conformity with a child's Individualized Education Program ("IEP"). 20 U.S.C. § 1401(8)(D). By imposing a discriminatory, across the board policy to all children with learning disabilities, Defendant bureaucracies have eliminated the individual assessment of children required by IDEA. 20 U.S.C. § 1414.

106. Defendant bureaucracies have violated IDEA by failing to provide appropriate accommodations to children with disabilities on the statewide screening tests. 20 U.S.C. § 1412(a)(17)(A).

107. Defendant bureaucracies have violated IDEA by failing to develop guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in statewide assessment programs. 20 U.S.C. § 1412(a)(17)(A)(I).

108. Defendant bureaucracies have violated IDEA by not ensuring that the statewide screening tests have been validated for the specific purpose for which they are used. 20 U.S.C. § 1414(b)(3)(B)(I).

109. No administrative remedy exists under IDEA to address the wholesale denial of fundamental and federally mandated accommodations by the STATE BOARD OF EDUCATION. Accordingly, Plaintiffs are not required to exhaust the administrative procedures set forth in IDEA.

110. WHEREFORE, Plaintiffs request relief as set forth below.

FOURTH CLAIM
(Violation of Due Process Clause of United States Constitution)

111. Plaintiffs incorporate by reference the allegations in paragraphs 1 through 110 inclusive.

112. The actions of Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution in that Defendants have failed to provide Plaintiff children and their parents with adequate notice of the testing requirements and of the severe consequences of failing to pass the tests and achieve a Certificate of Initial Mastery. Due to the lack of adequate notice, parents and educators have not had sufficient time to consider and determine whether and how the skills tested on the statewide tests should become part of a child's IEP or Section 504 Plan.

113. Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution by failing to create and implement clear, consistent and understandable policies and procedures regarding provision of reasonable accommodations on the statewide tests. As a result, parents have been unable to make informed choices regarding their child's education and have, in many cases, been misled to believe that their child will be allowed to take the statewide assessments with accommodations.

114. Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution by failing to establish a procedure for parents and children to challenge even the most arbitrary conduct with regard to the denials of reasonable accommodations on the CIM screening tests.

115. The actions of Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution because the statewide screening tests, as currently formulated and administered, lack both instructional and curricular validity. The Oregon schools have never taught or trained children with learning disabilities many of the skills currently being tested on the statewide screening tests. Instead, Defendants have embarked upon a test-first-provide-education-later procedure, which effectively makes it impossible for children with learning disabilities to pass the required exams.

116. The actions of Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution in that the statewide screening tests are fundamentally unfair because they test students on their disabilities.

117. WHEREFORE, Plaintiffs request relief as set forth below.

FIFTH CLAIM
(Violation of Oregon Constitution – Due Process)

118. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 117 inclusive.

119. Article I, Section 10 of the Oregon Constitution guarantees due process of law to all citizens of the State of Oregon.

120. Plaintiffs are citizens of the State of Oregon.

121. The actions of Defendants have violated and continue to violate the due process protections of the Oregon Constitution in that Defendants have failed to provide Plaintiff children and their parents with adequate notice of the testing requirements and of the severe consequences of failing to pass the tests and achieve a Certificate of Initial Mastery. Due to the lack of adequate notice, parents and educators have not had sufficient time to consider and determine whether and how the skills tested on the statewide tests should become part of a child's IEP or Section 504 Plan.

122. Defendants have violated and continue to violate the due process protections of the Oregon Constitution by failing to create and implement clear, consistent and understandable policies and procedures regarding provision of reasonable accommodations on the statewide tests. As a result, parents have been unable to make informed choices regarding their child's education and have, in many cases, been misled to believe that their child will be allowed to take the statewide assessments with accommodations.

123. The actions of Defendants have violated and continue to violate the due process protections of the Oregon Constitution because the statewide screening tests, as currently formulated and administered, lack curricular validity. The Oregon schools have never taught or trained children with learning disabilities many of the skills currently being tested on the statewide screening tests. Instead, Defendants have embarked upon a test-first-provide-education-later procedure, which effectively makes it impossible for children with learning disabilities to pass the required exams.

124. The actions of Defendants have violated and continue to violate the due process protections of the Oregon Constitution in that the statewide screening tests are fundamentally unfair because they test students on their disabilities.

125. WHEREFORE, Plaintiffs request relief as set forth below.

SIXTH CLAIM(Violation of O.R.S. § 343)

126. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 125 inclusive.

127. By implementing an across the board policy prohibiting the use of certain accommodations on the statewide screening tests, Defendants have violated Oregon law which requires that each school district shall make assistive technology devices or assistive technology services, or both, available to a child with a disability if required as part of a child's special education, related services or supplementary aids and services. O.R.S. § 343.223.

128. WHEREFORE, Plaintiffs request relief as set forth below.
SEVENTH CLAIM
(Violation of O.R.S. § 659)

129. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 128 inclusive.

130. By subjecting Plaintiff children to discrimination on the basis of disability, Defendants have violated O.R.S. § 659.150.

131. WHEREFORE, Plaintiffs request relief as set forth below.

EIGHTH CLAIM
(Declaratory Relief)

132. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 131 inclusive.

133. Plaintiffs contend, and are informed and believe that Defendants deny that the STATE BOARD has failed to comply with applicable law prohibiting discrimination against persons with disabilities and is in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.; the United States Constitution; the Oregon State Constitution; Oregon Laws; and 42 U.S.C. § 1983 based upon violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.

134. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know his or her respective rights and duties and act accordingly.

135. WHEREFORE, Plaintiffs request relief as set forth below.

RELIEF REQUESTED
WHEREFORE, Plaintiffs pray for relief as follows:
136. An order and judgment enjoining Defendants from violating 42 U.S.C. § 1983 based upon violations of the Individuals with Disabilities Education Act; the Americans with Disabilities Act; the Rehabilitation Act of 1973; the United States Constitution; the Oregon Constitution; Oregon Revised Statutes § 343; and Oregon Revised Statutes § 659.

137. A declaration that the Defendants have discriminated against Plaintiffs, who are children with disabilities in violation of the Individuals with Disabilities Education Act; the Americans with Disabilities Act; the Rehabilitation Act of 1973; the United States Constitution; the Oregon Constitution; Oregon Revised Statutes § 343; and Oregon Revised Statutes § 659.

138. General and special damages for the named Plaintiffs according to proof at trial;

139. Plaintiffs' reasonable attorney fees and costs; and

140. Such other and further relief as the Court deems just and proper.

DATE: February 24, 1999.
RESPECTFULLY SUBMITTED,

By: ___________________________
SID WOLINSKY
California State Bar No. 33716
Attorney for Plaintiffs

By: ___________________________
JEFFREY P. FOOTE
Oregon State Bar No. 74098
Attorney for Plaintiffs

JURY TRIAL DEMANDED

Plaintiffs hereby demand a trial by jury.

DATE: February 24, 1999.

By: ___________________________
SID WOLINSKY
California State Bar No. 33716

By: ___________________________
JEFFREY P. FOOTE
Oregon State Bar No. 74098