UNITED STATES DISTRICT
COURT
FOR
THE
EASTERN
DISTRICT
OF
VIRGINIA
Alexandria Division
Q.T., a minor, by and through next friend,
JENNIFER TIDD, et al.,
Plaintiffs,
V.
FAIRFAX COUNTY SCHOOL BOARD,
Defendant.
)
)
)
)
)
) Case No. I: I 9-cv-1285 (RDA/JF A)
)
)
)
)
)
CONSENT
ORDER
This Consent Order is entered into as
of
the Effective Date, as defined below, by and
between Plaintiffs Q.T., a minor, by and through next friend Jennifer Tidd; A.O., a minor, by and
through next friend Pamela Ononiwu; D.O., a minor, by and through next friend Pamela
Ononiwu; C.T., a minor, by and through next friend Ashley Thomas; J.M., a minor, by and
through next friend Amanda Mills; and J.R., a minor, by and through next friends Kristopher
Roby and Loraine Fearon Roby; Council
of
Parent Attorneys and Advocates; Autistic
Self
Advocacy Network; and Communication First (collectively "Plaintiffs"), Defendant Fairfax
County School Board ("Defendant"). Plaintiffs and Defendant are collectively referred to as the
"Parties" for the purposes and on the terms specified herein.
Recitals
1.
Plaintiffs filed this lawsuit in the United States District Court for the Eastern District
of
Virginia, alleging that Defendant's implementation
of
policies regarding restraint and seclusion
of
students with disabilities violated Title
II
of
the Americans with Disabilities Act ("ADA"), 42
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 1 of 9 PageID# 1393
U.S.C. ยงยง 12131, et seq., Section 504
of
the Rehabilitation Act
of
1973 ("RA"),
29
U.S.C. ยงยง
794, et seq., and 42 U.S.C.
ยง 1983 pursuant to the Fourth and Fourteenth Amendments to the
United States Constitution, and seeking damages and injunctive relief ("the Action").
2. Defendant expressly denies that it has violated any federal, state
or
local law, and any
other wrongdoing
or
liability whatsoever.
By
entry
of
this Consent Order, Defendant does not
admit any wrongdoing.
3. This Consent Order, along with the Parties' private settlement agreement that they have
separately executed, resolves, settles, and compromises all issues between the Parties in the
Action.
Jurisdiction
4. This Court has jurisdiction over this action under 28 U.S.C. ยงยง 1331 and 1343. The
Parties agree that for purposes
of
the Action and this Consent Order venue is appropriate.
Agreed Resolution
5. The Parties agree that it is in their best interest to resolve the Action on mutually
agreeable terms without further litigation. Accordingly, the Parties agree to the entry
of
this
Consent Order without trial
or
further adjudication
of
any issues
of
fact
or
law raised in
Plaintiffs' Complaint. In resolution
of
this Action, the Parties hereby AGREE to and the Court
expressly APPROVES, ENTERS,
AND
ORDERS the following:
Definitions
6. "Effective Date" means the date
on
which this Consent Order is entered on the
Court's
Docket via the CM/ECF system following approval by the Court.
7. "Seclusion" is defined in accordance with Virginia regulation 8VAC20-750-10, which,
for purposes
of
this Consent Order, is interpreted to be consistent with the definition used in the
2
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 2 of 9 PageID# 1394
U.S. Department
of
Education's Civil Rights Data Collection ("CRDC definition"), such that an
incident must be considered "seclusion"
if
it meets the CRDC definition
of
seclusion. Defendant
agrees that it
is
bound by the CRDC definition
of
seclusion and
is
required to report data for the
CRDC
in
accordance with that definition.
Term
8.
The term
of
this Consent Order shall commence as
of
the Effective Date and remain
in
effect for three (3) years from the Effective Date.
Requirements
9. As
of
January
1,
2021, seclusion shall be prohibited
in
all Fairfax County Public Schools
("FCPS") except Key Center, Kilmer Center, and Burke School, and shall remain prohibited
thereafter at all such schools.
l
0.
Seclusion shall be prohibited at Burke School by January
l,
2022, and shall remain
prohibited thereafter.
l l . Seclusion shall be prohibited at Key Center and Kilmer Center by the start
of
the 2022-
2023 school year and shall remain prohibited thereafter.
12.
By the start
of
the 2022-2023 school year, Defendant shall not enter into a contract for
the placement
of
a student at a private school ("Private Placement School") that permits the use
of
seclusion. Notwithstanding any other provision
of
this Consent Order, upon parent, guardian,
or student request, any student placed
in
a Private Placement School before the 2022-2023
school year may remain at that school, under contract from Defendant, even
if
the Private
Placement School permits seclusion after the start
of
the 2022-2023 school year.
l 3. By December 3
l,
202
l,
Defendant shall notify parents or guardians with students at Key
Center, Kilmer Center,
or
Burke School, in writing, that (i) seclusion shall be prohibited at Burke
3
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 3 of 9 PageID# 1395
School beginning January
1,
2022, and will be prohibited at Key Center and Kilmer Center by
the start
of
the 2022-2023 school year; (ii) that they may submit a note from a licensed
physician, psychologist,
or
other qualified health professional under the scope
of
the
professional's authority confirming that seclusion is medically or psychologically
contraindicated for their child(ren), which would opt their child(ren) out
of
seclusion; and (iii)
between January
1,
2022 and the start
of
the 2022-2023 school year, parents
or
guardians with
child(ren) at Key Center
or
Kilmer Center who do not want their child(ren) secluded may request
that an individual education program ("IEP") team convene to consider other placements.
14. In the period before seclusion
is
prohibited at Key Center, Kilmer Center and Burke
School, FCPS shall use best efforts to end the use
of
seclusion at these schools in advance
of
the
deadlines set forth herein by:
a.
Engaging Ukeru to provide training at Key Center, Kilmer Center, and Burke School
no later than in the first semester
of
the 2021-2022 school year;
b.
In consultation with a mutually-agreed-upon consultant C'Consultant"), developing
procedures, training, and milestones to end seclusion as soon as practicable and
potentially
in
advance
of
the deadlines set forth herein, with Defendant sharing such
procedures, training and milestones with Plaintiffs in writing; and
c. Providing quarterly reports to the School Board, Plaintiffs, and the public, until such
time as the use
of
seclusion
is
prohibited at Key Center, Kilmer Center, and Burke
School, on Defendant's implementation
of
Consultant's recommendations for
implementing procedures, training and milestones to end seclusion as soon as
practicable and potentially
in
advance
of
the deadlines set forth
in
this Agreement.
4
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 4 of 9 PageID# 1396
i.
If
Defendant rejects
or
modifies Consultant's recommendations referenced
above, Defendant shall provide the reason(s) for its rejection
or
modification
in
the quarterly reports referenced above.
ii. Defendant shall adopt Consultant's recommendations unless Defendant
establishes that (1) they would constitute undue burdens
or
fundamental
alterations, as those terms are defined under the ADA (which could include,
among other things, excessive expenditures
of
staff time, major disruptions to
the school day, or actions that would cause Defendant to violate other federal
laws, including the IDEA),
or
(2) they are contrary to a student's IEP and/or
Section 504 plan and the student's parent/guardian does not consent.
Dismissal
of
Case With Preiudice
15. Plaintiffs and Defendant have agreed that following the Court's entry
of
this Consent
Order, the case will be dismissed with prejudice, with the Court retaining continuing jurisdiction
to enforce this Consent Order through its term. Within ten ( 10) days
of
the Effective Date, the
Parties will separately file a stipulation
of
dismissal with prejudice.
Procedures in the Event
of
Disputes
16. The procedures set forth in Paragraphs 17-19 must be exhausted in the event that
Plaintiffs allege that Defendant has failed to meet its obligations pursuant to this Consent Order.
There will be no breach
of
this Consent Order by Defendant
in
connection with such allegations
until the following procedures have been exhausted.
17.
If
Plaintiffs believes that Defendant has not complied materially with any provision
of
this Consent Order, Plaintiffs shall provide notice
in
writing to Defendant as soon as practicable,
but no later than thirty (30) days after Plaintiffs become aware,
or
reasonably should have
become aware,
of
a potential violation. The notice shall contain: (i) the alleged act
of
non-
compliance,
(ii)
a reference to the specific provision(s)
of
the Consent Order that Plaintiffs allege
Defendant has not complied with;
(iii)
a statement
of
the remedial action sought by Plaintiffs;
(iv) a brief, but reasonably detailed, statement
of
the specific facts, circumstances, and legal
5
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 5 of 9 PageID# 1397
argument supporting Plaintiffs' position; and (v) any reasonably available, non-privileged
information that supports the alleged failure to comply.
18. Within 30 days
of
Defendant's receipt
of
a notice
of
non-compliance, Defendant shall
respond to Plaintiffs in writing, including by requesting any additional non-privileged
information
in
Plaintiffs' possession that Defendant believes may assist investigation
of
the
alleged failure to comply. Defendant's time to respond shall be tolled until such information is
provided
or
Plaintiffs respond that they cannot provide the requested additional information.
19. The parties shall negotiate in a good faith attempt to resolve any alleged instances
of
non-
compliance.
20.
If
the Parties are unable to reach a mutually acceptable resolution within thirty (30) days
of
Defendant's response
or
failure to respond to Plaintiffs' written notice
of
non-compliance,
Plaintiffs may seek enforcement
of
compliance with this Consent Decree from the Court.
21. Plaintiffs shall not seek enforcement
of
this Consent Order, and Defendant will not be
deemed to be in breach, and may not be held in contempt,
of
this Consent Order, in instances in
which Defendant establishes that an alleged breach is: (
l)
an isolated occurrence, and (2) is
addressed by Defendant with appropriate remedial action. Lack
of
training
or
oversight by
Defendant shall not be considered an isolated occurrence.
22. Any notice
or
communication required
or
permitted to be given to the Parties hereunder
shall be given in writing by e-mail and by overnight express mail or United States first class
mail, addressed as follows:
For Plaintiffs:
Jessica P. Weber
BROWN GOLDSTEIN & LEVY
120 E. Baltimore Street, Suite 2500
Baltimore, MD 21202
T 410.962. l 030 x9405
6
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 6 of 9 PageID# 1398
F 4 10.385.0869
E Jweber@browngold.com
For Defendant:
Maya
M.
Eckste
in
HUNTON ANDREWS KURTH LLP
95
1
E.
Byrd St.
Ric
hmond,
VA
23229
T 804-307-6291
F 804-343-4630
E meckstein@hunton.com
John
E.
Foster
Division Counsel
Office
of
Division Counsel
Fa
irfax County Pub
li
c Schools
8
11
5 Gatehouse Road, Suite 5600
Fa
ll
s Church, Virginia 22042
T 57
1-
423-1250
E [email protected]
Consent Ord
er
Has Been Read
23. This Consent Order has been carefu
ll
y read
by
each
of
t
he
Pa
rties, and its contents are
known and understood by each
of
the Parties. T
hi
s Consent Order
is
signed freely
by
each Party
executing i
t.
The Parties each had an opportunity to consult wi
th
their counsel before executing
the Consent Order. The signatories represent that they have the authority
to
bind the respective
Parties to this Consent Order.
By:
/s/
Kevin
E.
Byrnes, VSB No. 47623
Fluet Huber + Hoang, PLLC
1
751
Pinnacle Drive
I 0th Floor
Tysons, Virginia 22102
T: (703) 590-1234
F:
(703) 590-0366
kbyrnes@thhfirm.com
Eve
L.
H
ill
(pro h
ac
vice)
7
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 7 of 9 PageID# 1399
Sharon Krevor-Weisbaum (pro hac vice)
Jessica
P.
Weber (pro hac vice)
BROWN, GOLDSTEIN
& LEVY, LLP
120 East Baltimore Street, Suite 1700
Baltimore, Maryland 21202
T: (410) 962-1030
F:
(410) 385-0869
[email protected]
[email protected]
[email protected]
Counsel
for
Plaintiffs
By:
Isl
Maya Eckstein (VSB No. 41413)
HUNTON ANDREWS KURTH LLP
Riverfront Plaza, East Tower
951
East Byrd Street
Richmond, VA 23219
Telephone: (804)
788-8788
Facsimile: (804) 343-4630
[email protected]
Counsel
for
Defendant Fairfax County School Board
Court Approval, Adoption,
and
Entry
of
the Consent Order
THE COURT, HAVING CONSIDERED the pleadings, law, underlying facts and having
reviewed this proposed Consent Order,
FINDS AS FOLLOWS:
1.
This Court has jurisdiction over the Action under 28 U .S.C.
ยงยง
1331
and 1334;
2. The provisions
of
this Consent Order shall be binding upon the Parties;
3. This Consent Order is for settlement purposes only and does not constitute an admission by
Defendant
of
any
of
the allegations contained in the Complaint
or
any other pleading in this
Action, nor does it constitute any finding
of
liability against Defendant;
8
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 8 of 9 PageID# 1400
4. The Court's juri
sd
iction over t
hi
s matter shall continue for 36 mon
th
s from the Effective
Date; and
5.
This Consent Order sha
ll
be
deemed adjudicati
ng
, once and for
al
l, t
he
merits of each and
every claim, matter, and issue that was alleged, or could have been alleged,
by
Plaintiffs
in
the Action based on, or arising out
of
, or in connection with, the allegations
in
the Complaint.
NOW THEREFORE, the Court approves the Consent Order and
in
doing
so
specific
al
ly
adopts it and makes it
an
Order
of
the Court.
SO
ORDERED.
Date:
I
2,
- i -
'2,01..--
l
9
/s/
,AA,/
Rossie
D.
Alston, Jr.
United
States District
Judge
Case 1:19-cv-01285-RDA-JFA Document 89 Filed 12/02/21 Page 9 of 9 PageID# 1401