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Defense case: How the Board of Education explained itself in federal court -- or didn't

Susan Zupan - August 01, 2013

The case presented by the Chicago Board of Education in defense of its actions took nearly two days July 17 and July 18, 2013. Although as of early August Judge Lee had not yet rendered is decision, everyone who was in the courtroom to hear the actual testimony became increasingly aware that the people at CPS who made the decisions about the fate of more than 2,000 children with disabilities (and more than 10,000 other children) didn’t know much about Chicago or its schools. Two of the main CPS witnesses – Adam Anderson and Markay Winston – both came to Chicago’s public schools from outside the system (Winston from as far away as Cincinnati; Anderson from private consulting). During their testimony both demonstrated that their work on the closings was formulaic and without regard to the children — or in many cases without regard to the most obvious facts.

Markay Winston, who is currently the Officer of "Diverse Learners" (the current iteration of Special Education) at Chicago Public Schools, has been a member of the "cabinet" of Barbara Byrd Bennett since October 2012. That is when Byrd Bennett was formally hired as "Chief Executive Officer" of Chicago Public Schools after Mayor Rahm Emanuel dumped his first CEO, Jean Claude Brizard. A little more than one year ago, Winston was working for the Cincinnati public schools. But the Chicago Board of Education hired her -- without public discussion or debate either about qualifications or the need to change the name of the special education office -- for $170,000 per year. Then the Board voted to keep the minutes of the "Executive Session" at which she was hired secret. Above, Winston is shown presenting a Power Point to the Board at its April 2013 meeting. Substance photo by David Vance.This is the story the Board of Education presented to the court in defense of what it did to more than 2,000 students with disabilities. Dr. Markay Winston was called as the first witness for the defense in the hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) held before U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Wednesday, July 17, 2013. Not completed on Wednesday, the witness’s testimony continued on Thursday, July 18, 2013 in Courtroom 1225 of the Dirksen Federal Building located in downtown Chicago.

Synopsis Overview for Defendants’ Witnesses (by Susan Zupan)

The following outline and summary listing gives readers an overview of the defendants’ testimony in the preliminary hearing in its entirety. This will assist readers in their ability to scroll down to a particular section with greater ease. Witness #1: Markay Winston, with CPS since September 2012, Office of Diverse Learner Supports and Services (ODLSS) – transitions supports; students with disabilities not needing particular transition supports for school closings; IEP issues

Witness #2: Adam Anderson, with CPS for two years, Office of Portfolio, Planning and Strategy – school actions’ demographics Witness #3: Ginger Ostro, with CPS for two years, Budgets and Grants Office – information on CPS’s budget and including re: school closings

Witness #4: Annette Gurley, with CPS for 28 years, currently in newly-created position of “Chief of Teaching and Learning” — proposed program enhancements with school closings

Witness #5: Jadine Chou, with CPS since November 2011, currently Chief Safety and Security Officer — CPS safety planning for school closings

Witness #6: Thomas Tyrrell, with CPS since March 2012, Deputy Chief Administrative Officer — strategic planning for the school closing transition(s)

Witness #7: Rebecca Clark, currently Director of Student Supports in the Office of Diverse Learner Supports and Services — school closings re: students with disabilities

FIRST WITNESS FOR THE ‘DEFENSE’ (CPS)

The following is a report of that testimony, subtitled in three parts: Questioning by the Defense and Plaintiffs’ Redirect – Parts One and Two (from the two days). Winston, who was hired just a year ago after a stint in the Cincinnati public schools, is currently the "Chief Officer" for Chicago's special education department, at an annual salary of $170,000 per year, according to the most recent Board Position File. But anyone trying to locate the department of special education will have a difficult time at the CPS website, because the most recent name the current administration has given the department is the "Office of Diverse Learners."

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

QUESTIONING BY THE DEFENSE:

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

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

Dr. Winston’s educational background included: BA in psychology, Central University in Iowa; BA in counseling, University of Cincinnati; MA and PhD in school psychology and counseling, University of Cincinnati.

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

Ms. Scott presented Dr. Winston with a CPS document entitled, “School Actions: Supporting Students with Disabilities.” Regarding the document, Dr. Winston said that she was a co-presenter of the Power Point. Dr. Winston said something about “successfully transition,” but when asked by Ms. Scott if this was the Board’s plan for transitioning, she replied that it was not a plan or policy. The slide from April of 2013 was a broad overview of the potential number of students impacted by school closings. 2,500 students were grouped by disability labels. The listings of disabilities included: LD [learning disabled]; autism; developmental disability; severe and profound; 504 [medical]; EBD (emotional and behavioral disorders); speech and language. From the document, was it possible to determine if students suffered from low self-esteem? A plaintiffs’ objection was overruled. No, it is solely a listing of disability categories. The document did include the 54 schools. From this document, could you determine how many students needed transition supports? No, you cannot generalize via labels. Do you agree with Ms. Witte that 63% of the students had low self-esteem and mental health issues? Dr. Winston said that she absolutely disagreed. (Note: Please refer to the report on the testimony of plaintiffs’ fourth witness, Lucy Witte, earlier at substancenews.net. Throughout Dr. Winston’s testimony, she quite often repeated questions from the defense by completely incorporating them in her answers. So, for instance, she might have said, “I absolutely disagree with Ms. Witte that 63% of the students had low self-esteem and mental health issues.” Please note that this was a distinct pattern in her responses to questions by the defense, even though it is not written repeatedly in this report exactly as such every time.)

A plaintiff's objection resulted in the question needing to be rephrased; a further objection was overruled due to plaintiffs being able to ask questions in cross examination. Dr. Winston responded again that the chart could not be used to determine 63% of the students had low self-esteem. That was “absolutely absurd” and “stereotypes individuals with disabilities.” The chart was numbers, nothing more, she said.

The questions went back to the document. How did p. 48 of the document entitled “Preparing for Day 1” assist school teams? This related to individual schools and minutes of instruction. For example, closing School A might have 300 minutes of instruction in reading compared to receiving School B having 350 minutes. This document would ensure equal instruction, an example to consider for necessary changes. Can an administrator or teacher unilaterally change an IEP? No. What is the process? An IEP Team meeting can be called by anyone. It is only required one time per year, but it can be reconvened if needed. Is there another process to change IEPs? Yes, simple addendums. For example, if a student has 20 minutes of speech and language weekly, but someone thinks 30 [minutes would be better], instead of a team meeting being called, a recommendation can be made and the parent’s consent obtained. If a school closing is a concern, can a parent convene an IEP meeting? A plaintiffs’ objection was overruled. The answer given was: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PLAINTIFFS’ REDIRECT: PART TWO

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

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

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

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

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

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

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

Judge Lee told her to do so.

She replied: “I’ll do my best.”

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

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

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

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

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

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

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

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

Are IEP Teams meeting over the summer?

There are opportunities…

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

Ms. Winston replied: I cannot say.

You have no idea if IEP Teams are meeting?

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

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

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

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

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

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

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

That is quite feasible and possible, she answered.

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

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

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

He asked: Are you an expert? Yes.

An objection was overruled.

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

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

Can you name one? Not at the moment.

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

Have you read it? I’ve reviewed it.

Can you recall a particular section for us? No.

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

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

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

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

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

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

But you are an expert? Yes.

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

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

How long were you in Cincinnati? 10 years.

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

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

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

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

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

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

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

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

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

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

Mr. Geoghegan said he had no further questions.

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

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

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

And thus ended the testimony of Dr. Markey Winston.

TO BE CONTINUED WITH A REPORT ON THE OTHER BOARD OF EDUCATION WITNESSES

ANDERSON ADDED BELOW HERE:

Second Witness for the Defense (CPS) in Preliminary Hearing

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

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

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

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

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

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

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

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

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

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

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

What terminology was used in CPS to designate utilization?

There were three categories:

-- underutilized (less than 80%),

-- efficient (80-120%)

-- overcrowded (over 120%).

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

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

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

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

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

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

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

Did you make determinations on overcrowding? Yes.

Apply the same standards to all? Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PLAINTIFFS’ REDIRECT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THIRD WITNESS FOR THE DEFENSE, GINGER OSTRO, CPS BUDGET CHIEF

Third Defense Witness for Preliminary Hearing on July 17, 2013 (by Susan Zupan)

The preliminary hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) continued in the Dirksen Federal Building courtroom of U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Thursday, July 18, 2013. After a lunch break, defendants’ attorney Michael Warner (Franczek & Radelet) quickly took care of a “housekeeping” item: they withdrew their objection to an exhibit (#5), regarding identification of a web link, noting that it was in the pre-hearing report of July 8 and provided on July 9. The questioning of defendants’ (read: CPS’s) third witness, Ginger Ostro, followed. Below is a report of her testimony, subtitled in two main parts for Defendants and Plaintiffs, with a very brief Defense Redirect at the end:

DEFENDANTS Attorney Michael Warner asked about Ms. Ostro’s employment background in Chicago Public Schools (CPS). She has been with the Chicago Public Schools (CPS) Budget and Grants Office for two years. Education Background: MA in public policy from the Harvard University Kennedy School of Government; BA from the University of Chicago. Ms. Ostro said that she had been working in the public sector for 20 years. She had worked in the governor’s office with the state budget.

What were her current responsibilities? To develop and plan the annual [CPS] budget, and to oversee and monitor it. The goal? An analysis of costs and investments for compiled information.

She was asked to give an overview of the CPS budget. She said to break it into three parts was the “easiest”: 1) operating – day-to-day; salaries; utilities; 2) capital – investments versus repairs and maintenance; and 3) debt service – bond holders. Did she read Dr. Woods Bowman’s report? Yes. (Note: This is in reference to plaintiffs’ eighth witness. Please see the separate report.) As budget director, did she agree that there was not a fiscal deficit/crisis? No. There was an objection for foundation.

As budget director, what are your responsibilities? I review revenues, prioritize, and make recommendations for balance. And yours is the primary office for the budget? Yes, its development and management. As budget director, do you agree with the conclusion that there is not a current financial crisis [in CPS]? An objection was sustained that she could not testify as an expert witness.

Question: How would you describe the current financial situation? There is an estimated $1 billion deficit on a $5 [billion] operating budget. Is there a structural deficit? Yes, revenues are less than needed for the structural deficit. Only for the upcoming year? No, this is an ongoing challenge.

What are the causes? The largest is the pensions cost crisis. It will increase $400 million next year, with an increase of $200 million this year; that’s over 10% of the resources not available to us for other resources.

Information was given regarding CPS being the only district not in the state retirement fund; CPS had to face this alone, and it was a significant jump.

Were there any other factors? The structural deficit. There was a one-time $300 million in 2013 to close the gap, but that will not occur again regarding savings and reserves. The current situation is not addressed and adds to next year.

Are there other factors? Another is the collective bargaining agreement. There will be approximately an additional $93 million next year. It varies [but in summary, the factors are]: the pensions; the use of one-time [fixes]; and the collective bargaining agreement.

What are the revenue concerns? We have little control over the amount of money brought in: 1) local – property taxes are capped; 2) state, with formulas not in our control – three years in a row declined or flat, with this year below that of 2008; and 3) federal, with formulas not in our control – flat or declining. What steps have CPS/Chicago Board of Education (CBoE) taken? Reductions in administration of $600 million; reductions in operations. Property taxes are limited, but for two years they have been as maxed as they can. And with the pensions under state statute, are there [proposed changes] for the state legislature? We are working with the General Assembly and the Chicago Teachers Union (CTU) [on this]. Is there anything so far? No.

This year is the fiscal year for FY2014, from July 1 through June 30. For FY2014’s operating budget, what is the impact of school closings? We expect to save $40 million that we will reinvest in the welcoming schools for a total of $78 million over two years; part is in FY2013 but the majority is FY2014.

Did you and your staff do an analysis of the cost savings? Yes. When did you complete this? In March. So this was based on how many schools listed at that time? 53 schools at that time. Was there any analysis revised for [the change to] 49 schools? No. The analysis determined $40 million savings from what costs? Costs would not recur for engineers, “principals/counselors/clerks,” janitors, lunchroom staff, and a majority of the utilities but not all – for example, pipes still need to be maintained against freezing. (Reporter’s Note: Ms. Ostro spoke putting the three titles shown together in quotations above as if speaking of one item.)

Were there any savings in teachers’ salaries? No. We assumed that money for classrooms would follow the students. The cost savings were the building costs.

Did you include assumptions for special education, to support classrooms? No, not for savings; the costs would follow the students.

For safety and security? We would not see cost savings for FY 2014. Security officers from closing schools would follow the students to welcoming schools. What about security at the closing schools? Watchmen were included in the cost estimates.

Ms. Ostro was asked to describe Defendants’ Exhibit 32. We did a spreadsheet on the summarization of savings. This was prepared by your staff with you? Yes, for closing schools. The top row headings are categories of savings: engineers; utilities, and [other personnel referred to above]. This is listed for each school. And in the far right corner? That is the total estimated savings of $43 million.

The plaintiffs objected as to the truth of the document and foundation for what was relied upon. Judge Lee asked to see further foundation for the numbers.

What were the salaries of the positions, what methodology was used? These were the actual costs in the schools for day-to-day operations. The budget office had the details for this. For the average costs for “counselors/principals/clerks,” the methodology used was the average cost in the district. Judge Lee allowed the document to be admitted into evidence.

The defense continued: On the investment side, tell us about the $78 million in the welcoming schools, how did you get that number? It was based on estimates of the costs of transition based on experts in CPS. Financial? It was based on subject experts from each department. Did this include the Office of Diverse Learners with one of the experts? Yes.

Exhibit 88B was a spreadsheet for the $78 million in investments. Mr. Warner began but withdrew a question starting with “estimate.” Did the CBoE rely on this? Yes, it was the budgeted amount of the operational budget so far. Did school closings have an impact on capital? Yes. That this would avoid capital investments that were not made? Yes, maintenance in the buildings would not have the same conditions as with children in them.

What methodology was used? We relied on an assessment of each school for capital needs, the costs per school for windows, roofs, etc. Who did this? The facilities department. And you relied on and used this? Yes, in all capital planning. For each school there were costs for projects – for example, playgrounds. We checked ADA (American with Disabilities Act) compliance over a 10-year time horizon, on how likely this was to be done [over 10 years] and prioritized by severity of need. Ms. Ostro was asked to describe Defendants’ Exhibit 31. It was a spreadsheet on capital cost avoidance from the facilities team. And it was relied upon? Yes, for the capital budget and for prioritizing. There was an objection regarding the accuracy. Judge Lee accepted that CPS relied on it for budget purposes.

What were the headings and categories? Assessments and Cost Upgrades, by identification of school, with total capital investments avoided, for a subtotal of $417 million. For example, under “window AC” the estimate was of the money we would not have to spend for closing schools. Upon further questioning, Ms. Ostro said that the spreadsheet gave more information than used, particularly referring to one section on “update AC” that she then said was not factored into the $417 million. They updated assessed needs for examples such as modernizing playgrounds and ADA for the net.

She continued: The numbers were put in as plus [done] or minus [not completed]. Recent investments were already subtracted. The combination was the number for capital avoidance.

Would the capital costs increase from the closings? [Yes], in the new money used for the welcoming schools to a total of $155 million. How was this amount determined? We assessed the needs in the buildings, STEM (Science, Technology, Engineering, and Mathematics) enhancements, IB (International Baccalaureate), and iPads.

Regarding Exhibit 33 (April 2013), “FY2013 Supplemental Capital Budget Proposal,” a presentation for Board approval, this included the welcoming schools? Yes. And more? Yes. A portion? Yes.

On p. 4 under “Investments in 56 Welcoming Buildings ($155 million),” did you have a role in this? Yes. You approved the presentation? Yes. It was presented to the Board? Yes. Was this summary of investments in the 56 schools approved by the Board? Yes.

How would it be paid for? For the capital programs, borrowing, bonds. With cost of debt service? No, capital costs are separate than that of debt service.

Would there be any impact in FY2014? No, not until later in the fiscal year, and this would not be paid in FY2014; it would not be until FY2015.

Would CPS be harmed if school closings were delayed one year? They would not achieve the $40 million saved, and there are concerns for the investments in welcoming schools. Would there be any other financial harm if school closings were stopped? We have already started to have [the welcoming schools] open with capital construction underway. Would there be any costs with no benefit if the schools do not close? The savings we wouldn’t get. Any costs associated with reversal, costs spent to begin to transition back? Yes, there would be new costs. Do you have any numbers? No. Has there been any analysis? No.

PLAINTIFFS’

Attorney Sean Morales-Doyle (Depres, Schwartz, & Geogehgan, Ltd.) conducted the cross examination. You testified that you did not just use the total amount of the projects, who did the assessments of the closing schools’ projects? The facilities team. And did CPS do assessments on all expected projects? The focus was on basic building infrastructure. And over 10 years this was realistically expected to be done? Yes, and other categories. And you took the entire amount? Yes. You did not consider what would realistically be done in 10 years? It was calculated in priority rankings. And they had overall priority rankings across the district? Yes, this had already been done. Did they question and [list] only those that would realistically take place and not include the entire assessment for every school? That was prioritized [each year], all of it for all the schools, so we assumed [wouldn’t this have] already been done in 10 years? Mr. Morales-Doyle pointed out that she just answered a question with a question. He then commented/questioned: You assumed that every single project would be done, that is which ones would come up, but that included every single project? Ms. Ostro: Everything on the $417 million amount. Mr. Morales-Doyle: And that includes the total amount for every school? Yes.

Can you realistically assume that $417 million would have been invested in these 50 schools in the next 10 years? Yes, based on the analysis of capital over 5 years then extending that to 10 years. What was the capital for 5 years? $150 million. In each of the 5 years? Yes. So in 10 years it would be $450 million on just these schools? The projects based on priority order. Did you exclude any? It was what would come up. But [for the $417 million] that included every single project, not excluding any? Yes, based on the last 10 years. $75 million was spent on these 50 schools in the last10 years? An objection interrupted something said about never taking that into account. Judge Lee responded to the objection by questioning/stating that he assumed there was a basis; Mr. Morales-Doyle said he would lay foundation with a defense exhibit.

Mr. Morales-Doyle continued: Can you tell us about the documents? Not off the top of my head. [Was it included in your] deposition? Yes. Documents about what was spent on updated capital improvement projects from 2002-2006 and 2007-2013? Yes. But you’re not familiar? Of the capital improvement projects, it sorted only the decommissioned projects, the ones that would be left [out] by the schools being closed -- are you familiar with this? Some, yes. Ms. Ostro said that she needed to cross check. She was shown Plaintiffs’ Exhibit 57, and asked if she was familiar with it? She was not familiar with it. But she wouldn’t be surprised if when it was all added up, all the capital improvement projects equaled $75 million, but this was never [before] used for savings? No, that is correct. There was information given about $437 as the projection of what might have been spent, and every year a project on a budget was marked with a plus or a minus [sign]. There was a question about six of the priorities being [marked as] deficit predictions, but she had two. How many [were marked] as a deficit in several [instances], two? Yes. In 2012, was there an underestimate of a [budget] surplus by over a half a [billion] dollars? One-time resources in 2010-2011 and in 2011-2012 were not anticipated and helped, leading to a surplus. But you testified that there was a decline in state revenue in 2011-2012? There was a variance in projected state revenue versus what was received. The decline in state revenue was the reason for the predicted deficit in 2011-2012 compared to what ended up as the actual budget. Monies increased with federal resources from the stimulus, ARRA (American Recovery and Reinvestment Act) money for education jobs was also unanticipated. And the [current] $1 billion deficit, this is a projection with the budgetary basis on cash in and out? At this point the line of questioning/answering pertained to the $1 billion being based on pluses and minuses in the fiscal operating budget, with CPS determining it needs $1 billion to close the deficit? Ms. Ostro said it was not [about] a budget; it was to provide a better education and refocus resources. In the long run, it will save money.

In FY2014, it will not close the budget [gap]? It is about reinvestment; it is not about closing the budget gap.

He asked if she had seen Plaintiffs’ Exhibit 103-23. No. Had she seen any draft transition plans? She knew what they were, but no, she had not seen or reviewed any.

In paragraph 2, did she see where it stated that the $1billion deficit threatens everything regarding the supply of robust services, and in order to address this, CPS proposes a plan to address underutilization? Yes. This document was brought to parents with the closures, but you testify that [the school closings] is not about addressing a budget gap? It isn’t, primarily.

You said that CPS would suffer financial harm? I said CPS would not save money [until the] following year, but CPS would not save this year; savings would be delayed but lost this year. The chances would be greater if next year? They would not save $40 million. Are you saying the chances are greater for savings if they put it off for a year? Ms. Ostro said that she was not sure if she understood the question.

Did you give a deposition? Yes. Under oath? Yes. Do you recall the following question and answer? Question: So, hypothetically, what would you say to a delay of one year with the same process, would anything change in the next year? Answer: The costs were likely to go up in a year, and then adjustments [would have to be made].

Ms. Ostro said: CPS would not save $40 million; costs would go up – for examples, for salaries and utilities. Something was said about not taking inflation into account per year. And in capital? Projects included inflation factored in, with $438 million as the cost over 10 years.

DEFENSE REDIRECT:

Mr. Warner referred to Plaintiffs’ Exhibit 103-23 for a complete reading of the second sentence about the districts’ half-empty buildings to maintain and repair [meant for] 511,000 students but having some 300,000 students – is this consistent with why CPS was closing schools this year? Yes.

That ended the testimony.

DEFENDANTS’ NEXT WITNESS:

Fourth Witness for the Defendants in Preliminary Injunction Hearing (by Susan Zupan)

The preliminary injunction hearing continued in Courtroom 1225 of the Dirksen Federal Building, in front of U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois, on Thursday, July 18, 2013, the third day of the hearing. The defendants (read: CPS) called Annette Gurley to the stand. What follows is her testimony, subtitled into two sections, for questioning by the Defendants and redirect from the Plaintiffs. DEFENDANTS

Attorney Abizer Zanzi (Franczek & Radelet) began with Ms. Gurley’s employment. Since December of 2012 Ms. Gurley has reported as Chief Officer of Teaching and Learning to the Chicago Public Schools (CPS) Chief Executive Officer (CEO), Barbara Byrd-Bennett. Ms. Gurley has worked in CPS for 28 years sequentially as a: substitute teacher; classroom teacher; teacher facilitator; assistant principal; principal; AIO (Area Instruction Officer); CAO (Chief Area Officer); and Network Chief. She also worked for the Archdiocese prior to that, teaching in England for 6-7 years, for a total of approximately 35 years in education.

Ms. Gurley was a product of CPS, the West Side, attending three CPS schools, including Lindblom. She attended UIC (University of Illinois – Chicago), Chicago State University, and Concordia. What was the Office of Teaching and Learning? Ms. Gurley oversees the “academic side of CPS” which includes: setting the curriculum for the schools; professional development (PD) for administrators and teachers; and recommending instructional materials. She directly oversees five departments, managing the budgets for each as well as aligning curriculum and articulating best instruction.

She was the assistant principal then principal of Michele Clark Middle School from 1994-2007, having been there for 17 years. She informed that Michele Clark was located at 5101 W. Harrison, in the Austin neighborhood: 99% African-American; at least 95% low income. As principal she managed the budget and resources, with the budget allocated to meet the needs of the students. Question: As principal had she overseen significant changes? When she started, it was a middle school, grades 6-8. But they “grew the school,” adding grades until they serviced grades 6-12. The International Baccalaureate Program (IB) was approved for the middle school and the high school, the first all in one for IB. What is IB? It is very prestigious, with an international curriculum. It promotes rigorous thinking; more than one language. It prepares thinkers and innovators to compete globally. As AIO and Network Chief of Area 3 on the West Side, she oversaw 18-20 schools: racially and socially 90% African-American/9% Hispanic; economically 90-93% free/reduced lunch. Her responsibilities included: supervising principals; PD; advising; monitoring; evaluating. She regularly had PD with consultations; for example, if a school needed a program, she would supplement it or pay for it. She played a role in resource allocation? Yes, she reviewed school budgets. She looked at school data and aligned the data, checking the spending of the LSC (local school council) and the principal. For example, if 3rd grade scores were low, she would look at the school budget and perhaps fund after school [at that level]. As Chief of the Austin – North Lawndale Network (2011-2012), what were her responsibilities? The Network had a total of 28 schools when North Lawndale was annexed. She supported the schools’ successes, giving PD directly to administrators and teachers, building the capacity of the ILTs (Instructional Leadership Team) and the principals. She called this: “training the trainers.”

Does she have experience with underperforming schools? Yes, in both Austin and North Lawndale. Her goal was to guide the schools with: visits, PD, monitoring performance, and conduct walk-thrus (check and see) for the extent of certain practices called “non-negotiables.” This was to “provide support to effect that change.” Was it successful? Yes.

Several schools came off probation; several moved from Level 3 to Level 2; they went from 0 schools at Level 1 to 4 schools. These were under-resourced schools? Yes, and under-enrolled, with not enough students to fill seats. She provided guidance. She said the biggest challenge was split-level classrooms in which the teacher had to teach two curriculums with a wide range of ages and levels.

What is her experience with transitioning [students] to new schools? Michele Clark Middle School saw one-third of its students graduate every year, with one-third out then one-third in. How did she help the students? She held parent meetings, orientations. Was she successful? Yes, I think so; students chose over other options to stay with us until 8th grade. Why is CPS closing schools? The buildings are underutilized. Closing is an efficient use of funding. Closing will reallocate [funding] to enrich academic programs. What are her related responsibilities now? To make recommendations to the welcoming schools, of program enhancements with a proven record of success, for examples: IB and STEM (Science, Technology, Engineering, and Mathematics), which will lead to jobs that few minorities [presently] have the skill set for. These are tough decisions; for example, some principals do not have libraries. They need to compare and contrast the current schools.

(Note: At this point the judge called for a 10-minute break.)

Mr. Zanzi continued: As an expert witness, what resources should be used? If you have quality tools and resources you can have a positive impact on students. Inadequate resources leave areas unfulfilled; for one example among a variety, not having a librarian. How would this be harmful? Without equity of access, students cannot “compete and be prepared for the 21st Century.” Then she repeated what she said earlier about split level classrooms.

What was her opinion on the Board’s allocation of resources regarding closing schools? She thinks students will benefit from reallocation of resource: with PD to improve instruction; program enhancements; libraries and media centers. What about STEM and IB? From her experience at Michele Clark, after this was offered they had students on a waiting list. Teachers get “international training.” Their scores [at Michele Clark] increased in reading and writing. Students must innovate, and that was beneficial. They did not have STEM in Austin and North Lawndale; they missed an opportunity to compete with other students of the world. What if the plan to close schools was stopped or delayed? To stop or delay at this point would hinder students in moving to higher quality resources. And at this point, in the past few weeks, principals and teachers have been seeking other opportunities. From the end of June, it does not look like what it was. To put it back would split resources.

PLAINTIFFS

Attorney Matt Farmer (Robin Potter & Associates PC) began with introductions, since he had not formerly met her prior to this hearing. He then referred to Ms. Gurley’s statement that principals were pursuing other opportunities. Had she followed the recent CPS news about the principal of Chopin Elementary School, a welcoming school, leaving for Las Vegas last week from a Level 1 school? Mr. Farmer continued: Referring to the IB Program, regarding resources, [CPS’s version was to] “snap and call it IB.” Was the headquarters located in Switzerland or Bethesda, Maryland? Ms. Gurley said she was not sure where. He continued with a line of commenting/questioning about the application process. Speaking directly to Ms. Gurley he said: you, on the academic side of CPS, have a site link to the application, but there is no form [for schools]. For the [upcoming] 2013-2014 school year, schools had to apply by December of 2012. But you’re here telling Judge Lee as if these schools may have IB for next year. He continued: But what you did was authorize proposals on expansion at Board meetings, do you recall? She said that she recommended considerations and schools could sign up school by school. Mr. Farmer said: And Mr. Bebley, there in the back of the room, signed off, letting the Board of Education know that in July of 2013 they would start the candidacy? Yes. [Reporter’s Note: James Bebley was appointed CPS General Council in June of 2012; he sat throughout the preliminary hearing on the bench behind the defense table.]

And for the IB Program at the middle school and high school levels at Michele Clark, you had to apply two separate times, and certification takes several years? Ms. Gurley said that she did not understand the question. He rephrased: It was a multi-step process over years for [IB] certification or authorization? Yes, but not in her experience.

Mr. Farmer continued: You said that IB trained faculty. But the welcoming schools have not had this, so why was it being referred to as an “implementation year” at the May 22 [2013] Board of Education meeting? Why isn’t there a press release telling the public that IB will not be offered in the 2013-2014 school year? Ms. Gurley’s response: I do not handle that. You do not recall any such statement? I don’t recall any. You have stated that IB and STEM have “proven track records”? Yes. In her experience, IB does? Yes. When did STEM first start to be implemented in CPS? I’m not sure. [It was] 2011, but it’s proven to you, it has a proven track record? No, I’d say it was “a work in progress.”

He continued: You knew Barbara Eason-Watkins, the [CPS] Chief Education Officer for 9 years. In 2012 you became the Chief Officer of Teaching and Learning – is that a little different? Yes, a little different. The title is different, but the head academic job is the same? Essentially. Mr. Farmer went on to describe the turnover situation in CPS: Presently there is no Chief Education Officer, but CPS now has a CEO (Chief Executive Officer) with an education background. CEO Arne Duncan did not have an education background. (At this point while Mr. Farmer spoke, Ms. Gurley was mostly frozen in place, but replied with slight head-nodding and, if anything, soft-spoken “uh huhs.”) He asked and answered: And who succeeded in the position of Chief Education Officer? No one. [And now we have a position that] did not exist prior. And what was Dr. Byrd-Bennett’s position in the district prior? She was the acting Chief Education Officer, taking over from Noemi Donoso who was appointed by Rahm Emanuel but did not last a year. True? (uh huh) Mr. Farmer continued asking and answering: Do you know who preceded her? Dr. Charles Payne, as an interim under Mezany. That’s Terry Mezany with Jean Claude-Brizard who preceded Ron Huberman, who in July of 2008 preceded Arne Duncan. And now on July 18, 2013, we have CEO Barbara Byrd-Bennett. So, CPS has had 5 CEOs in 5 years, with all different titles under them? Ms. Gurley said that yes, what he said sounded to be true.

He continued: And these are the point people for the largest school closing in U.S. history? He continued: Adam Anderson, not even here for two years, do you have any idea who he is, did you hear his testimony? I sat here.

He continued: Mr. Tyrrell is from 2012, but she’s not working with him? She’s not sure. Mr. Farmer commented that “working with” was not the same as “conversations on dates.” He continued: Mr. Barker, December of 2012; Dr. Winston, December 2012; Dr. Barbara Byrd-Bennett, September 2012. [Reporter’s Note: John Barker became the CPS Chief Accountability Officer in the Office of Accountability in December of 2012; he came from Memphis.] Mr. Farmer shifted: Did Ms. Gurley think there was a need for welcoming schools to have libraries, did she remember in 2010 [-2011] how the Whittier [School] moms had a sit-in for 40 days for one? Yes. And CPS’s Monique Bond reported that 160 schools did not have libraries, did she recall that? No. Did she know that number today, could she tell Judge Lee how many [CPS schools did not have libraries]? No, I cannot.

Mr. Farmer closed with: An IB Program was proposed for Jenner School when it was [still] under proposal that Manierre be closed into [welcoming school] Jenner, but on May 22, the Board of Education did not sign for an IB Program at Jenner, is that correct? That is correct.

[Reporter’s Note: Please see plaintiffs’ witness testimony by parent Sherise McDaniel on how/why Manierre was taken off the school closing list.]

MORE TO COME

SZ, Defendants’ case

The case presented by the Chicago Board of Education in defense of its actions took nearly two days July 17 and July 18, 2013. Although as of early August Judge Lee had not yet rendered is decision, everyone who was in the courtroom to hear the actual testimony became increasingly aware that the people at CPS who made the decisions about the fate of more than 2,000 children with disabilities (and more than 10,000 other children) didn’t know much about Chicago or its schools. Two of the main CPS witnesses – Adam Anderson and Markay Winston – both came to Chicago’s public schools from outside the system (Winston from as far away as Cincinnati; Anderson from private consulting). During their testimony both demonstrated that their work on the closings was formulaic and without regard to the children — or in many cases without regard to the most obvious facts.

This is the story the Board of Education presented to the court in defense of what it did to more than 2,000 students with disabilities. Dr. Markay Winston was called as the first witness for the defense in the hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) held before U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Wednesday, July 17, 2013. Not completed on Wednesday, the witness’s testimony continued on Thursday, July 18, 2013 in Courtroom 1225 of the Dirksen Federal Building located in downtown Chicago.

Synopsis Overview for Defendants’ Witnesses (by Susan Zupan)

The following outline and summary listing gives readers an overview of the defendants’ testimony in the preliminary hearing in its entirety. This will assist readers in their ability to scroll down to a particular section with greater ease. Witness #1: Markay Winston, with CPS since September 2012, Office of Diverse Learner Supports and Services (ODLSS) – transitions supports; students with disabilities not needing particular transition supports for school closings; IEP issues

Witness #2: Adam Anderson, with CPS for two years, Office of Portfolio, Planning and Strategy – school actions’ demographics Witness #3: Ginger Ostro, with CPS for two years, Budgets and Grants Office – information on CPS’s budget and including re: school closings

Witness #4: Annette Gurley, with CPS for 28 years, currently in newly-created position of “Chief of Teaching and Learning” — proposed program enhancements with school closings

Witness #5: Jadine Chou, with CPS since November 2011, currently Chief Safety and Security Officer — CPS safety planning for school closings

Witness #6: Thomas Tyrrell, with CPS since March 2012, Deputy Chief Administrative Officer — strategic planning for the school closing transition(s)

Witness #7: Rebecca Clark, currently Director of Student Supports in the Office of Diverse Learner Supports and Services — school closings re: students with disabilities

FIRST WITNESS FOR THE ‘DEFENSE’ (CPS)

The following is a report of that testimony, subtitled in three parts: Questioning by the Defense and Plaintiffs’ Redirect – Parts One and Two (from the two days). Winston, who was hired just a year ago after a stint in the Cincinnati public schools, is currently the "Chief Officer" for Chicago's special education department, at an annual salary of $170,000 per year, according to the most recent Board Position File. But anyone trying to locate the department of special education will have a difficult time at the CPS website, because the most recent name the current administration has given the department is the "Office of Diverse Learners."

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

QUESTIONING BY THE DEFENSE:

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

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

Dr. Winston’s educational background included: BA in psychology, Central University in Iowa; BA in counseling, University of Cincinnati; MA and PhD in school psychology and counseling, University of Cincinnati.

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

Ms. Scott presented Dr. Winston with a CPS document entitled, “School Actions: Supporting Students with Disabilities.” Regarding the document, Dr. Winston said that she was a co-presenter of the Power Point. Dr. Winston said something about “successfully transition,” but when asked by Ms. Scott if this was the Board’s plan for transitioning, she replied that it was not a plan or policy. The slide from April of 2013 was a broad overview of the potential number of students impacted by school closings. 2,500 students were grouped by disability labels. The listings of disabilities included: LD [learning disabled]; autism; developmental disability; severe and profound; 504 [medical]; EBD (emotional and behavioral disorders); speech and language. From the document, was it possible to determine if students suffered from low self-esteem? A plaintiffs’ objection was overruled. No, it is solely a listing of disability categories. The document did include the 54 schools. From this document, could you determine how many students needed transition supports? No, you cannot generalize via labels. Do you agree with Ms. Witte that 63% of the students had low self-esteem and mental health issues? Dr. Winston said that she absolutely disagreed. (Note: Please refer to the report on the testimony of plaintiffs’ fourth witness, Lucy Witte, earlier at substancenews.net. Throughout Dr. Winston’s testimony, she quite often repeated questions from the defense by completely incorporating them in her answers. So, for instance, she might have said, “I absolutely disagree with Ms. Witte that 63% of the students had low self-esteem and mental health issues.” Please note that this was a distinct pattern in her responses to questions by the defense, even though it is not written repeatedly in this report exactly as such every time.)

A plaintiff's objection resulted in the question needing to be rephrased; a further objection was overruled due to plaintiffs being able to ask questions in cross examination. Dr. Winston responded again that the chart could not be used to determine 63% of the students had low self-esteem. That was “absolutely absurd” and “stereotypes individuals with disabilities.” The chart was numbers, nothing more, she said.

The questions went back to the document. How did p. 48 of the document entitled “Preparing for Day 1” assist school teams? This related to individual schools and minutes of instruction. For example, closing School A might have 300 minutes of instruction in reading compared to receiving School B having 350 minutes. This document would ensure equal instruction, an example to consider for necessary changes. Can an administrator or teacher unilaterally change an IEP? No. What is the process? An IEP Team meeting can be called by anyone. It is only required one time per year, but it can be reconvened if needed. Is there another process to change IEPs? Yes, simple addendums. For example, if a student has 20 minutes of speech and language weekly, but someone thinks 30 [minutes would be better], instead of a team meeting being called, a recommendation can be made and the parent’s consent obtained. If a school closing is a concern, can a parent convene an IEP meeting? A plaintiffs’ objection was overruled. The answer given was: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PLAINTIFFS’ REDIRECT: PART TWO

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

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

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

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

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

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

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

Judge Lee told her to do so.

She replied: “I’ll do my best.”

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

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

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

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

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

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

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

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

Are IEP Teams meeting over the summer?

There are opportunities…

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

Ms. Winston replied: I cannot say.

You have no idea if IEP Teams are meeting?

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

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

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

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

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

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

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

That is quite feasible and possible, she answered.

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

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

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

He asked: Are you an expert? Yes.

An objection was overruled.

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

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

Can you name one? Not at the moment.

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

Have you read it? I’ve reviewed it.

Can you recall a particular section for us? No.

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

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

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

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

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

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

But you are an expert? Yes.

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

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

How long were you in Cincinnati? 10 years.

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

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

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

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

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

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

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

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

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

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

Mr. Geoghegan said he had no further questions.

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

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

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

And thus ended the testimony of Dr. Markey Winston.

TO BE CONTINUED WITH A REPORT ON THE OTHER BOARD OF EDUCATION WITNESSES

ANDERSON ADDED BELOW HERE:

Second Witness for the Defense (CPS) in Preliminary Hearing

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

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

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

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

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

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

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

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

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

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

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

What terminology was used in CPS to designate utilization?

There were three categories:

-- underutilized (less than 80%),

-- efficient (80-120%)

-- overcrowded (over 120%).

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

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

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

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

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

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

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

Did you make determinations on overcrowding? Yes.

Apply the same standards to all? Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PLAINTIFFS’ REDIRECT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THIRD WITNESS FOR THE DEFENSE, GINGER OSTRO, CPS BUDGET CHIEF

Third Defense Witness for Preliminary Hearing on July 17, 2013 (by Susan Zupan)

The preliminary hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) continued in the Dirksen Federal Building courtroom of U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois on Thursday, July 18, 2013. After a lunch break, defendants’ attorney Michael Warner (Franczek & Radelet) quickly took care of a “housekeeping” item: they withdrew their objection to an exhibit (#5), regarding identification of a web link, noting that it was in the pre-hearing report of July 8 and provided on July 9. The questioning of defendants’ (read: CPS’s) third witness, Ginger Ostro, followed. Below is a report of her testimony, subtitled in two main parts for Defendants and Plaintiffs, with a very brief Defense Redirect at the end:

DEFENDANTS Attorney Michael Warner asked about Ms. Ostro’s employment background in Chicago Public Schools (CPS). She has been with the Chicago Public Schools (CPS) Budget and Grants Office for two years. Education Background: MA in public policy from the Harvard University Kennedy School of Government; BA from the University of Chicago. Ms. Ostro said that she had been working in the public sector for 20 years. She had worked in the governor’s office with the state budget.

What were her current responsibilities? To develop and plan the annual [CPS] budget, and to oversee and monitor it. The goal? An analysis of costs and investments for compiled information.

She was asked to give an overview of the CPS budget. She said to break it into three parts was the “easiest”: 1) operating – day-to-day; salaries; utilities; 2) capital – investments versus repairs and maintenance; and 3) debt service – bond holders. Did she read Dr. Woods Bowman’s report? Yes. (Note: This is in reference to plaintiffs’ eighth witness. Please see the separate report.) As budget director, did she agree that there was not a fiscal deficit/crisis? No. There was an objection for foundation.

As budget director, what are your responsibilities? I review revenues, prioritize, and make recommendations for balance. And yours is the primary office for the budget? Yes, its development and management. As budget director, do you agree with the conclusion that there is not a current financial crisis [in CPS]? An objection was sustained that she could not testify as an expert witness.

Question: How would you describe the current financial situation? There is an estimated $1 billion deficit on a $5 [billion] operating budget. Is there a structural deficit? Yes, revenues are less than needed for the structural deficit. Only for the upcoming year? No, this is an ongoing challenge.

What are the causes? The largest is the pensions cost crisis. It will increase $400 million next year, with an increase of $200 million this year; that’s over 10% of the resources not available to us for other resources.

Information was given regarding CPS being the only district not in the state retirement fund; CPS had to face this alone, and it was a significant jump.

Were there any other factors? The structural deficit. There was a one-time $300 million in 2013 to close the gap, but that will not occur again regarding savings and reserves. The current situation is not addressed and adds to next year.

Are there other factors? Another is the collective bargaining agreement. There will be approximately an additional $93 million next year. It varies [but in summary, the factors are]: the pensions; the use of one-time [fixes]; and the collective bargaining agreement.

What are the revenue concerns? We have little control over the amount of money brought in: 1) local – property taxes are capped; 2) state, with formulas not in our control – three years in a row declined or flat, with this year below that of 2008; and 3) federal, with formulas not in our control – flat or declining. What steps have CPS/Chicago Board of Education (CBoE) taken? Reductions in administration of $600 million; reductions in operations. Property taxes are limited, but for two years they have been as maxed as they can. And with the pensions under state statute, are there [proposed changes] for the state legislature? We are working with the General Assembly and the Chicago Teachers Union (CTU) [on this]. Is there anything so far? No.

This year is the fiscal year for FY2014, from July 1 through June 30. For FY2014’s operating budget, what is the impact of school closings? We expect to save $40 million that we will reinvest in the welcoming schools for a total of $78 million over two years; part is in FY2013 but the majority is FY2014.

Did you and your staff do an analysis of the cost savings? Yes. When did you complete this? In March. So this was based on how many schools listed at that time? 53 schools at that time. Was there any analysis revised for [the change to] 49 schools? No. The analysis determined $40 million savings from what costs? Costs would not recur for engineers, “principals/counselors/clerks,” janitors, lunchroom staff, and a majority of the utilities but not all – for example, pipes still need to be maintained against freezing. (Reporter’s Note: Ms. Ostro spoke putting the three titles shown together in quotations above as if speaking of one item.)

Were there any savings in teachers’ salaries? No. We assumed that money for classrooms would follow the students. The cost savings were the building costs.

Did you include assumptions for special education, to support classrooms? No, not for savings; the costs would follow the students.

For safety and security? We would not see cost savings for FY 2014. Security officers from closing schools would follow the students to welcoming schools. What about security at the closing schools? Watchmen were included in the cost estimates.

Ms. Ostro was asked to describe Defendants’ Exhibit 32. We did a spreadsheet on the summarization of savings. This was prepared by your staff with you? Yes, for closing schools. The top row headings are categories of savings: engineers; utilities, and [other personnel referred to above]. This is listed for each school. And in the far right corner? That is the total estimated savings of $43 million.

The plaintiffs objected as to the truth of the document and foundation for what was relied upon. Judge Lee asked to see further foundation for the numbers.

What were the salaries of the positions, what methodology was used? These were the actual costs in the schools for day-to-day operations. The budget office had the details for this. For the average costs for “counselors/principals/clerks,” the methodology used was the average cost in the district. Judge Lee allowed the document to be admitted into evidence.

The defense continued: On the investment side, tell us about the $78 million in the welcoming schools, how did you get that number? It was based on estimates of the costs of transition based on experts in CPS. Financial? It was based on subject experts from each department. Did this include the Office of Diverse Learners with one of the experts? Yes.

Exhibit 88B was a spreadsheet for the $78 million in investments. Mr. Warner began but withdrew a question starting with “estimate.” Did the CBoE rely on this? Yes, it was the budgeted amount of the operational budget so far. Did school closings have an impact on capital? Yes. That this would avoid capital investments that were not made? Yes, maintenance in the buildings would not have the same conditions as with children in them.

What methodology was used? We relied on an assessment of each school for capital needs, the costs per school for windows, roofs, etc. Who did this? The facilities department. And you relied on and used this? Yes, in all capital planning. For each school there were costs for projects – for example, playgrounds. We checked ADA (American with Disabilities Act) compliance over a 10-year time horizon, on how likely this was to be done [over 10 years] and prioritized by severity of need. Ms. Ostro was asked to describe Defendants’ Exhibit 31. It was a spreadsheet on capital cost avoidance from the facilities team. And it was relied upon? Yes, for the capital budget and for prioritizing. There was an objection regarding the accuracy. Judge Lee accepted that CPS relied on it for budget purposes.

What were the headings and categories? Assessments and Cost Upgrades, by identification of school, with total capital investments avoided, for a subtotal of $417 million. For example, under “window AC” the estimate was of the money we would not have to spend for closing schools. Upon further questioning, Ms. Ostro said that the spreadsheet gave more information than used, particularly referring to one section on “update AC” that she then said was not factored into the $417 million. They updated assessed needs for examples such as modernizing playgrounds and ADA for the net.

She continued: The numbers were put in as plus [done] or minus [not completed]. Recent investments were already subtracted. The combination was the number for capital avoidance.

Would the capital costs increase from the closings? [Yes], in the new money used for the welcoming schools to a total of $155 million. How was this amount determined? We assessed the needs in the buildings, STEM (Science, Technology, Engineering, and Mathematics) enhancements, IB (International Baccalaureate), and iPads.

Regarding Exhibit 33 (April 2013), “FY2013 Supplemental Capital Budget Proposal,” a presentation for Board approval, this included the welcoming schools? Yes. And more? Yes. A portion? Yes.

On p. 4 under “Investments in 56 Welcoming Buildings ($155 million),” did you have a role in this? Yes. You approved the presentation? Yes. It was presented to the Board? Yes. Was this summary of investments in the 56 schools approved by the Board? Yes.

How would it be paid for? For the capital programs, borrowing, bonds. With cost of debt service? No, capital costs are separate than that of debt service.

Would there be any impact in FY2014? No, not until later in the fiscal year, and this would not be paid in FY2014; it would not be until FY2015.

Would CPS be harmed if school closings were delayed one year? They would not achieve the $40 million saved, and there are concerns for the investments in welcoming schools. Would there be any other financial harm if school closings were stopped? We have already started to have [the welcoming schools] open with capital construction underway. Would there be any costs with no benefit if the schools do not close? The savings we wouldn’t get. Any costs associated with reversal, costs spent to begin to transition back? Yes, there would be new costs. Do you have any numbers? No. Has there been any analysis? No.

PLAINTIFFS’

Attorney Sean Morales-Doyle (Depres, Schwartz, & Geogehgan, Ltd.) conducted the cross examination. You testified that you did not just use the total amount of the projects, who did the assessments of the closing schools’ projects? The facilities team. And did CPS do assessments on all expected projects? The focus was on basic building infrastructure. And over 10 years this was realistically expected to be done? Yes, and other categories. And you took the entire amount? Yes. You did not consider what would realistically be done in 10 years? It was calculated in priority rankings. And they had overall priority rankings across the district? Yes, this had already been done. Did they question and [list] only those that would realistically take place and not include the entire assessment for every school? That was prioritized [each year], all of it for all the schools, so we assumed [wouldn’t this have] already been done in 10 years? Mr. Morales-Doyle pointed out that she just answered a question with a question. He then commented/questioned: You assumed that every single project would be done, that is which ones would come up, but that included every single project? Ms. Ostro: Everything on the $417 million amount. Mr. Morales-Doyle: And that includes the total amount for every school? Yes.

Can you realistically assume that $417 million would have been invested in these 50 schools in the next 10 years? Yes, based on the analysis of capital over 5 years then extending that to 10 years. What was the capital for 5 years? $150 million. In each of the 5 years? Yes. So in 10 years it would be $450 million on just these schools? The projects based on priority order. Did you exclude any? It was what would come up. But [for the $417 million] that included every single project, not excluding any? Yes, based on the last 10 years. $75 million was spent on these 50 schools in the last10 years? An objection interrupted something said about never taking that into account. Judge Lee responded to the objection by questioning/stating that he assumed there was a basis; Mr. Morales-Doyle said he would lay foundation with a defense exhibit.

Mr. Morales-Doyle continued: Can you tell us about the documents? Not off the top of my head. [Was it included in your] deposition? Yes. Documents about what was spent on updated capital improvement projects from 2002-2006 and 2007-2013? Yes. But you’re not familiar? Of the capital improvement projects, it sorted only the decommissioned projects, the ones that would be left [out] by the schools being closed -- are you familiar with this? Some, yes. Ms. Ostro said that she needed to cross check. She was shown Plaintiffs’ Exhibit 57, and asked if she was familiar with it? She was not familiar with it. But she wouldn’t be surprised if when it was all added up, all the capital improvement projects equaled $75 million, but this was never [before] used for savings? No, that is correct. There was information given about $437 as the projection of what might have been spent, and every year a project on a budget was marked with a plus or a minus [sign]. There was a question about six of the priorities being [marked as] deficit predictions, but she had two. How many [were marked] as a deficit in several [instances], two? Yes. In 2012, was there an underestimate of a [budget] surplus by over a half a [billion] dollars? One-time resources in 2010-2011 and in 2011-2012 were not anticipated and helped, leading to a surplus. But you testified that there was a decline in state revenue in 2011-2012? There was a variance in projected state revenue versus what was received. The decline in state revenue was the reason for the predicted deficit in 2011-2012 compared to what ended up as the actual budget. Monies increased with federal resources from the stimulus, ARRA (American Recovery and Reinvestment Act) money for education jobs was also unanticipated. And the [current] $1 billion deficit, this is a projection with the budgetary basis on cash in and out? At this point the line of questioning/answering pertained to the $1 billion being based on pluses and minuses in the fiscal operating budget, with CPS determining it needs $1 billion to close the deficit? Ms. Ostro said it was not [about] a budget; it was to provide a better education and refocus resources. In the long run, it will save money.

In FY2014, it will not close the budget [gap]? It is about reinvestment; it is not about closing the budget gap.

He asked if she had seen Plaintiffs’ Exhibit 103-23. No. Had she seen any draft transition plans? She knew what they were, but no, she had not seen or reviewed any.

In paragraph 2, did she see where it stated that the $1billion deficit threatens everything regarding the supply of robust services, and in order to address this, CPS proposes a plan to address underutilization? Yes. This document was brought to parents with the closures, but you testify that [the school closings] is not about addressing a budget gap? It isn’t, primarily.

You said that CPS would suffer financial harm? I said CPS would not save money [until the] following year, but CPS would not save this year; savings would be delayed but lost this year. The chances would be greater if next year? They would not save $40 million. Are you saying the chances are greater for savings if they put it off for a year? Ms. Ostro said that she was not sure if she understood the question.

Did you give a deposition? Yes. Under oath? Yes. Do you recall the following question and answer? Question: So, hypothetically, what would you say to a delay of one year with the same process, would anything change in the next year? Answer: The costs were likely to go up in a year, and then adjustments [would have to be made].

Ms. Ostro said: CPS would not save $40 million; costs would go up – for examples, for salaries and utilities. Something was said about not taking inflation into account per year. And in capital? Projects included inflation factored in, with $438 million as the cost over 10 years.

DEFENSE REDIRECT:

Mr. Warner referred to Plaintiffs’ Exhibit 103-23 for a complete reading of the second sentence about the districts’ half-empty buildings to maintain and repair [meant for] 511,000 students but having some 300,000 students – is this consistent with why CPS was closing schools this year? Yes.

That ended the testimony.

DEFENDANTS’ NEXT WITNESS:

Fourth Witness for the Defendants in Preliminary Injunction Hearing (by Susan Zupan)

The preliminary injunction hearing continued in Courtroom 1225 of the Dirksen Federal Building, in front of U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois, on Thursday, July 18, 2013, the third day of the hearing. The defendants (read: CPS) called Annette Gurley to the stand. What follows is her testimony, subtitled into two sections, for questioning by the Defendants and redirect from the Plaintiffs. DEFENDANTS

Attorney Abizer Zanzi (Franczek & Radelet) began with Ms. Gurley’s employment. Since December of 2012 Ms. Gurley has reported as Chief Officer of Teaching and Learning to the Chicago Public Schools (CPS) Chief Executive Officer (CEO), Barbara Byrd-Bennett. Ms. Gurley has worked in CPS for 28 years sequentially as a: substitute teacher; classroom teacher; teacher facilitator; assistant principal; principal; AIO (Area Instruction Officer); CAO (Chief Area Officer); and Network Chief. She also worked for the Archdiocese prior to that, teaching in England for 6-7 years, for a total of approximately 35 years in education.

Ms. Gurley was a product of CPS, the West Side, attending three CPS schools, including Lindblom. She attended UIC (University of Illinois – Chicago), Chicago State University, and Concordia. What was the Office of Teaching and Learning? Ms. Gurley oversees the “academic side of CPS” which includes: setting the curriculum for the schools; professional development (PD) for administrators and teachers; and recommending instructional materials. She directly oversees five departments, managing the budgets for each as well as aligning curriculum and articulating best instruction.

She was the assistant principal then principal of Michele Clark Middle School from 1994-2007, having been there for 17 years. She informed that Michele Clark was located at 5101 W. Harrison, in the Austin neighborhood: 99% African-American; at least 95% low income. As principal she managed the budget and resources, with the budget allocated to meet the needs of the students. Question: As principal had she overseen significant changes? When she started, it was a middle school, grades 6-8. But they “grew the school,” adding grades until they serviced grades 6-12. The International Baccalaureate Program (IB) was approved for the middle school and the high school, the first all in one for IB. What is IB? It is very prestigious, with an international curriculum. It promotes rigorous thinking; more than one language. It prepares thinkers and innovators to compete globally. As AIO and Network Chief of Area 3 on the West Side, she oversaw 18-20 schools: racially and socially 90% African-American/9% Hispanic; economically 90-93% free/reduced lunch. Her responsibilities included: supervising principals; PD; advising; monitoring; evaluating. She regularly had PD with consultations; for example, if a school needed a program, she would supplement it or pay for it. She played a role in resource allocation? Yes, she reviewed school budgets. She looked at school data and aligned the data, checking the spending of the LSC (local school council) and the principal. For example, if 3rd grade scores were low, she would look at the school budget and perhaps fund after school [at that level]. As Chief of the Austin – North Lawndale Network (2011-2012), what were her responsibilities? The Network had a total of 28 schools when North Lawndale was annexed. She supported the schools’ successes, giving PD directly to administrators and teachers, building the capacity of the ILTs (Instructional Leadership Team) and the principals. She called this: “training the trainers.”

Does she have experience with underperforming schools? Yes, in both Austin and North Lawndale. Her goal was to guide the schools with: visits, PD, monitoring performance, and conduct walk-thrus (check and see) for the extent of certain practices called “non-negotiables.” This was to “provide support to effect that change.” Was it successful? Yes.

Several schools came off probation; several moved from Level 3 to Level 2; they went from 0 schools at Level 1 to 4 schools. These were under-resourced schools? Yes, and under-enrolled, with not enough students to fill seats. She provided guidance. She said the biggest challenge was split-level classrooms in which the teacher had to teach two curriculums with a wide range of ages and levels.

What is her experience with transitioning [students] to new schools? Michele Clark Middle School saw one-third of its students graduate every year, with one-third out then one-third in. How did she help the students? She held parent meetings, orientations. Was she successful? Yes, I think so; students chose over other options to stay with us until 8th grade. Why is CPS closing schools? The buildings are underutilized. Closing is an efficient use of funding. Closing will reallocate [funding] to enrich academic programs. What are her related responsibilities now? To make recommendations to the welcoming schools, of program enhancements with a proven record of success, for examples: IB and STEM (Science, Technology, Engineering, and Mathematics), which will lead to jobs that few minorities [presently] have the skill set for. These are tough decisions; for example, some principals do not have libraries. They need to compare and contrast the current schools.

(Note: At this point the judge called for a 10-minute break.)

Mr. Zanzi continued: As an expert witness, what resources should be used? If you have quality tools and resources you can have a positive impact on students. Inadequate resources leave areas unfulfilled; for one example among a variety, not having a librarian. How would this be harmful? Without equity of access, students cannot “compete and be prepared for the 21st Century.” Then she repeated what she said earlier about split level classrooms.

What was her opinion on the Board’s allocation of resources regarding closing schools? She thinks students will benefit from reallocation of resource: with PD to improve instruction; program enhancements; libraries and media centers. What about STEM and IB? From her experience at Michele Clark, after this was offered they had students on a waiting list. Teachers get “international training.” Their scores [at Michele Clark] increased in reading and writing. Students must innovate, and that was beneficial. They did not have STEM in Austin and North Lawndale; they missed an opportunity to compete with other students of the world. What if the plan to close schools was stopped or delayed? To stop or delay at this point would hinder students in moving to higher quality resources. And at this point, in the past few weeks, principals and teachers have been seeking other opportunities. From the end of June, it does not look like what it was. To put it back would split resources.

PLAINTIFFS

Attorney Matt Farmer (Robin Potter & Associates PC) began with introductions, since he had not formerly met her prior to this hearing. He then referred to Ms. Gurley’s statement that principals were pursuing other opportunities. Had she followed the recent CPS news about the principal of Chopin Elementary School, a welcoming school, leaving for Las Vegas last week from a Level 1 school? Mr. Farmer continued: Referring to the IB Program, regarding resources, [CPS’s version was to] “snap and call it IB.” Was the headquarters located in Switzerland or Bethesda, Maryland? Ms. Gurley said she was not sure where. He continued with a line of commenting/questioning about the application process. Speaking directly to Ms. Gurley he said: you, on the academic side of CPS, have a site link to the application, but there is no form [for schools]. For the [upcoming] 2013-2014 school year, schools had to apply by December of 2012. But you’re here telling Judge Lee as if these schools may have IB for next year. He continued: But what you did was authorize proposals on expansion at Board meetings, do you recall? She said that she recommended considerations and schools could sign up school by school. Mr. Farmer said: And Mr. Bebley, there in the back of the room, signed off, letting the Board of Education know that in July of 2013 they would start the candidacy? Yes. [Reporter’s Note: James Bebley was appointed CPS General Council in June of 2012; he sat throughout the preliminary hearing on the bench behind the defense table.]

And for the IB Program at the middle school and high school levels at Michele Clark, you had to apply two separate times, and certification takes several years? Ms. Gurley said that she did not understand the question. He rephrased: It was a multi-step process over years for [IB] certification or authorization? Yes, but not in her experience.

Mr. Farmer continued: You said that IB trained faculty. But the welcoming schools have not had this, so why was it being referred to as an “implementation year” at the May 22 [2013] Board of Education meeting? Why isn’t there a press release telling the public that IB will not be offered in the 2013-2014 school year? Ms. Gurley’s response: I do not handle that. You do not recall any such statement? I don’t recall any. You have stated that IB and STEM have “proven track records”? Yes. In her experience, IB does? Yes. When did STEM first start to be implemented in CPS? I’m not sure. [It was] 2011, but it’s proven to you, it has a proven track record? No, I’d say it was “a work in progress.”

He continued: You knew Barbara Eason-Watkins, the [CPS] Chief Education Officer for 9 years. In 2012 you became the Chief Officer of Teaching and Learning – is that a little different? Yes, a little different. The title is different, but the head academic job is the same? Essentially. Mr. Farmer went on to describe the turnover situation in CPS: Presently there is no Chief Education Officer, but CPS now has a CEO (Chief Executive Officer) with an education background. CEO Arne Duncan did not have an education background. (At this point while Mr. Farmer spoke, Ms. Gurley was mostly frozen in place, but replied with slight head-nodding and, if anything, soft-spoken “uh huhs.”) He asked and answered: And who succeeded in the position of Chief Education Officer? No one. [And now we have a position that] did not exist prior. And what was Dr. Byrd-Bennett’s position in the district prior? She was the acting Chief Education Officer, taking over from Noemi Donoso who was appointed by Rahm Emanuel but did not last a year. True? (uh huh) Mr. Farmer continued asking and answering: Do you know who preceded her? Dr. Charles Payne, as an interim under Mezany. That’s Terry Mezany with Jean Claude-Brizard who preceded Ron Huberman, who in July of 2008 preceded Arne Duncan. And now on July 18, 2013, we have CEO Barbara Byrd-Bennett. So, CPS has had 5 CEOs in 5 years, with all different titles under them? Ms. Gurley said that yes, what he said sounded to be true.

He continued: And these are the point people for the largest school closing in U.S. history? He continued: Adam Anderson, not even here for two years, do you have any idea who he is, did you hear his testimony? I sat here.

He continued: Mr. Tyrrell is from 2012, but she’s not working with him? She’s not sure. Mr. Farmer commented that “working with” was not the same as “conversations on dates.” He continued: Mr. Barker, December of 2012; Dr. Winston, December 2012; Dr. Barbara Byrd-Bennett, September 2012. [Reporter’s Note: John Barker became the CPS Chief Accountability Officer in the Office of Accountability in December of 2012; he came from Memphis.] Mr. Farmer shifted: Did Ms. Gurley think there was a need for welcoming schools to have libraries, did she remember in 2010 [-2011] how the Whittier [School] moms had a sit-in for 40 days for one? Yes. And CPS’s Monique Bond reported that 160 schools did not have libraries, did she recall that? No. Did she know that number today, could she tell Judge Lee how many [CPS schools did not have libraries]? No, I cannot.

Mr. Farmer closed with: An IB Program was proposed for Jenner School when it was [still] under proposal that Manierre be closed into [welcoming school] Jenner, but on May 22, the Board of Education did not sign for an IB Program at Jenner, is that correct? That is correct.

[Reporter’s Note: Please see plaintiffs’ witness testimony by parent Sherise McDaniel on how/why Manierre was taken off the school closing list.]

Fifth Witness for the Defendants in the Preliminary Hearing of July 18, 2013. Jadine Chou (CPS Security Chief) by Susan Zupan

The preliminary hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) continued in the courtroom before U.S. Judge John Z. Lee of the U. S. District Court for the Northern District of Illinois in the Dirksen Federal Building located in downtown Chicago. The defendants (read: CPS) continued with their next witness, Jadine Chou. What follows is the testimony sectioned into the two main parts: Defendants and Plaintiffs.

DEFENDANTS

The defendants’ questioning was conducted by Sally Scott (Franczek & Radelet): What was Ms. Chou’s position in Chicago Public Schools (CPS)? She was the Chief Safety and Security Officer. [Reporter’s Note(s): The defense did not ask any further questions related to career and educational background. Jadine Chou began at CPS in November of 2011, after working with the Chicago Housing Authority (CHA) as a portfolio executive. She has a BS in chemical engineering from Northwestern; MA in business administration from the University of Chicago Booth School of Business.]

What were her duties? Her main responsibility was to ensure the safety of children and staff with regard to schools; CPS partnered with the Chicago Police Department (CPD) for going to and from as well as while in the schools. CPS and CPD communicated often multiple times on a daily basis.

Over what issues? It ranges. If planning, then strategy; for example, what happened yesterday or over the weekend might lead to special attention at dismissal. If there is a shooting or homicide, we are on the phone making determinations for associations and relatives at schools. You get the information when someone is shot? Yes, for intervention, to watch for retaliation, if the “child” is under the age of 20; if over 21 or an “inactive student,” to prevent further [escalation]. CPS is closing 49 elementary schools, sending students to designated welcoming schools — are there safety plans for each? Yes, “specific, custom-designed” plans. School transition plans? Yes, we have met with the parents and incorporate [from the feedback]. For example, individual parents have given us feedback on “specific hot spots.” For example, we have presented “Safe Passage maps,” and they have pointed out hot spots, such as a corner store or an abandoned building, and where crossing guards are needed. External supports are Safe Passage and the CPD. Ms. Chou continued: nternal supports refer to once students are inside. We have: 1) added “safety technology”: new high-definition cameras that principals and teachers use, that she can view 24/7 in her office as well as 911 being able to view them. They can pull up footage in real time. We also have: 2) screening equipment. Principals and parents want metal detectors; though in some cases parents have said “that is not our culture here,” so we will provide hand wands. They also have: 3) Human Resources adding more security staff. Security from the closing schools will be sent to the welcoming schools to keep/join; these are security staff who have already built in relationships and trust with the students [from the closing schools]. They will be there the “first school year.” She continued: The education side of the house is a partner to give skills for positive social/emotional learning, such as Restorative Justice (RJ). RJ is known nationally; it is instructive versus punitive. When students do not follow the rules, we found that when we just suspend and arrest, that only leads to further arrests. RJ is about reflective work — with peer juries and peace circles — to get at the root and learn from [mistakes] to be less likely to repeat behaviors. Ms. Chou continued: The main concern they hear from parents is the safety of traveling to and from school. CPS has had Safe Passage since 2009. Community-based organizations, “community watchers” stand on key safe routes that kids walk by every day. This is “positive loitering” to pre-empt issues. They are trained by her department and CPD. They do not wait for something to happen, they know the community so they detect the signs and report. Tips are acted on to prevent shootings and drug deals. Not to replace the police and not to interfere, they are a positive adult presence. Question: How are they spaced? That depends on the route — every block, every other block, within eyeshot of each other. How is this decided? We work closely with CPD and demographers in CPS. We draft routes, present them to parents as key stakeholders, get feedback, and incorporate new information. Have plans changed? Yes, due to feedback. [The students] will go on busier streets, on thoroughfares with businesses they can “duck into if they have to.” That is the “Safe Haven” component? Yes. Partners of the city of Chicago can have businesses be designated as “Safe Havens.” There will be placards in windows. Students can “run into that store” that has a trusted adult. Are all city departments involved? All. Buildings for abandoned buildings; Streets and Sanitation for lights and vacant lots; CTA (Chicago Transit Authority); Consumer Affairs for problem businesses; transportation; and CPD. The key routes have gone to all agencies. Rahm Emanuel has had a survey done for all problem buildings, high weeds, nuisance lists. From citizens calling 311, work orders have been prioritized. Questions then pertained to the involvement of city departments. Re buildings: Places are boarded up one day to the next; this is a mandate from City Hall, routine. But how Safe Passage works is with eyes as well; they go back to check. Re Streets and Sans: weeds in vacant lots are all trimmed down, [otherwise] someone could hide in there; and graffiti is addressed as a priority. Re CTA’s involvement: Many children take or use the CTA. We’ll see if we need more and work with their security. Re Department of Consumer Affairs: we have identified Safe Havens with outreach to businesses; on the enforcement end, we will work with problem businesses, such as liquor stores, and crack down. Re Department of Transportation: There have been traffic studies on busy intersection crossings; [the city has] added stop signs, lights, and speed bumps. What is CPD’s role in Safe Passage? CPD is the main partner. The department is her partner. Steve Georgas planned their NATO strategy. They ask/assess where are the risks, such as with arrivals and departures? There was an objection on hearsay that was overruled with Judge Lee saying this was her state of mind, and he would take it as such. Are hot spots monitored? We already do this every day in all the schools, but now it has been “amped up.” Will there be added CPD presence? For welcoming schools, CPD will have extra patrols.

How many schools had Safe Passage last year? 35 high schools and 4 elementary schools. Safe Passage at the elementary schools was due to the school actions a year ago. Ms. Scott asked something about the welcoming schools. Ms. Chou responded by going through the names of the closing and welcoming schools: Price to National Teachers Academy (NTA); Guggenheim to Bond; Lathrop to Johnson; and Reed to Nicholson. Question: Was it effective… did any elementary school students get shot going [to a welcoming school]? No. There were zero incidents [reports] to and from. Did CPS track Safe Passage in the 35 high schools? For 2 years. Student attendance increased 7%; crime decreased 20% around schools; incident reports went down 27%. From Pope to Johnson, with a straight line on the map, what is the Safe Passage route? There are two parallel arteries. Regarding if students cross gang lines? We are working with CPD and “gang school safety teams.” In this case, a majority of students will not cross [gang lines]//… This was cut off by an objection that was overruled. From Hughes to Henson? The Safe Passage route is for students to go east and take Karlov to 14th Street south of Henson. Will students have to cross gang lines? This will not have children cross gang lines. An objection to no foundation as to where the gang lines were was overruled. From Paderewski to Cardenas? With the circumstances and climate of both, concerning Hispanic [Paderewski] and African-American [Cardenas] students, we assessed the potential. Are there African-American students at Castellanos? Yes. Are there conflicts arising between Hispanics and African-Americans? That was one of the considerations. We believe there are not any existing conflicts. This will not cause any resulting conflicts. [Reporter’s Note: All of the routes in question in this portion of the defendants’ questioning were routes identified as dangerous in the testimony of the plaintiffs’ seventh witness, Professor Hagedorn, a Chicago gang expert. Please see that separate report.]

Do you have strategies to address gang conflicts? We are pro-active. We work with CPD to understand those boundaries, adding extra presence of CPD or Safe Passage. And we work inside with students proactively on interventions. We work with parents and principals as well, who ask for help from her office. For example, two individuals were [in conflict] over Facebook, and we caught wind of it. Someone from our team helped the principal gather information. We called in the bullied, the bully, and their associates where appropriate; diagnosed the he-said/she-said of the story; and came up with a restorative action plan. The plan, for example, might be about jobs, counseling; it varies case by case. Do you work with parents? Yes. They find her, worried about their child joining a gang. She gets information, pulls the child in, and if they have to, they go to the house. The ultimate outcome is that they all agree to a plan, including the student. Do you have experience with school closings? Here and with the four last year. Have school closings negatively impacted student safety? No. What about summer school? For summer school, students are likely to be assigned to a different school [from their regular school]. In the past few months, we have partnered with the education side [of CPS] for summer school. With150 sites and over 20,000 students, with 10 schools generally going to one site, this is the same kind of planning. What is the effectiveness this summer? In the few weeks [we’ve had so far], there was not one incident. PLAINTIFFS

Cross examination was conducted by Michael Persoon (Depres, Swartz & Geoghegan, Ltd.). He asked: Were any steps taken above and beyond the regular? Yes. Why? We know if a there is a change, a transition, support is needed.

There is an increased risk? No. Then why the added supports? Human beings do not like change; it is not necessarily dangerous. Steps were not taken due to increased risk, steps were to preempt. Students face a risk? Potential, yes. What? Two children who never met meet in transition or on the street; it is important to introduce them to each other when they don’t know where they’re coming from.

You went to business school? Yes. Did you meet new students there? Yes. In that situation, were the potential risks the same? Ms. Chou continued to speak about the steps they were taking. Mr. Persoon had to speak over her to rephrase his question. Did the University of Chicago consult CPD regarding interactions to preempt physical violence, was CPD involved? Ms. Chou replied: There was orientation with a security presence with fellow students or the community sitting in on it; but also to be aware of surroundings in general. Things did happen between students.

Question: Was it the same? Ms. Chou said something about that being worth looking into.

Question: At the four schools closed last year - Price, Reed, Lathrop, and Guggenheim - what were the gang boundaries? [The issue] was not about gang boundaries in the elementary schools; it was about communities. What conflicts were there? Ms. Chou said she would prefer a map, but she recalled a conflict with community areas regarding NTA and Reed. Was that the same for these closings? They were not the same communities. Are there the same risks in each community? No, they are unique; security works week to week and block to block, speaking to CPD and the children. We work closely... Mr. Persoon cut her off to ask: Are there plans to change Safe Passage? If we need to shift, we will do that. Regarding “hot spots”? The welcoming schools are not high schools. By this we are referring to a troubled business. But this year [CPS] is adding extra safety and security at the welcoming schools? That is due to there being more children. More numbers of children? From the sending schools. But the number of children in the geographic area is the same? Ms. Chou said that she was not following [this line of questioning].

How long do you expect it necessary to have added security? We will monitor for the first year, and review after the first year for the effects. How long do you expect? I don’t know. Do you have any projections? No. Have you looked backward for “forward monitoring”? Yes, we reinvested in Safe Passage from 2009. Have you heard of Derrion Albert? He was a student at Fenger. How did he die, from a fight at Fenger? No. It was beyond Fenger students? It was with Fenger students. It was two disputing groups at the same school? I was with CHA at the time. It was much more complex than that; it wasn’t just that conflict, it went much deeper. That was not the source? It was only part. Was it a dispute with historical differences between different schools? Ms. Chou repeated that it was much deeper than that. But that was part of what it was based on? Yes. Could that situation result again? No. Between groups that do not like each other? We do not believe that will be the case. Not with 49 school closings? We have plans in place to prevent that. That’s not what I asked, and he repeated the question referring to traditional disputes. Ms. Chou did not answer. At the same welcoming schools? She replied: It will not be the same level of the Derrion Albert dispute. Like at Fenger, with two groups? “It was much more complicated than that.” The two groups were divided by street? No, it is not straight cut; some schools’ boundaries are 50% city-wide. Safety and security is not considering this situation? [Yes.] So it is occurring? There is potential. It is not currently occurring? It is not currently occurring in any school “based on our assessments.” Ms. Chou continued talking about what they were doing, but the questioning had already ended.

THOMAS TYRELL TESTIMONY.

Sixth Witness for the Defendants in the Preliminary Hearing (by Susan Zupan). Thomas Tyrell, Deputy Chief Administrative Officer, Chicago Public Schools.

The testimony for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) was heard over a four day period from Tuesday, July 16 through Friday, July 20, 2013. It took place in Courtroom 1225 of the Dirksen Federal Building in front of U.S. Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois. The defendants’ sixth witness, Thomas Tyrrell, began his testimony on Thursday but completed it on Friday. Below is his testimony, separated into two sections - Defendants and Plaintiffs - with a brief Defendants’ Redirect at the end. DEFENDANTS

Mr. Tyrrell was questioned by Sally Scott (Franczek & Radelet) for the defendants (read: CPS). He was the Deputy Chief Administrative Officer, with Chicago Public Schools (CPS) since March 2012. He is managing the transition [for the school closings]. Educational Background: Business, Texas A & M University; National Defense University; Naval Postgraduate School. He is a retired U.S. marine coronel; he did strategic planning with the Marine Corps. His favorite definition of his job: “the art and science of getting an organization to get where you want it to go.” His background experience included: contingency operational plans in Japan; work at the Pentagon; Special Assistant to the Joint Chiefs of Staff. The latter for transformation in their effort against “asymmetric threat,” now called “terrorism,” responding to “threats on the horizon.”

He was the Director of Strategic Planning for the United Nations senior observer in Pristina, Kosovo; this experience included helping to rebuild infrastructure. He spoke of what he was “tasked with” in Asia. Privately, he works in strategic planning. He is the CEO and Executive Director of the Intrepid Sea, Air and Space Museum in Manhattan; the turnaround effort there lead to its [finally] breaking even financially through donations, with visitors up 50% and revenues up 80%. When did he start managing transition at CPS? In December of 2012. Had he planned before his involvement? Yes. What did he do to prepare? He talked to staff, researched on the web regarding what other districts had experienced in: D.C.; Philadelphia; Detroit, “made available through personal channels”; Kansas City. He referred to the Broad group. Did he talk to people? Yes, in Detroit and Kansas City. What lessons did he learn? There were three things for success: 1) significant community involvement; 2) lead from the top; and 3) adequate resources. Did he/CPS have these things? Yes. How many personnel were assigned to transition? Approximately 40. Ms. Scott showed him Exhibit 29: “Welcoming School Transition Team Program Managers and Workstream Leaders.” He explained that green boxes represented 100% of their time. Meetings were held with subject matter experts for best actions. Purple represented what he referred to as “first responders,” not necessarily 100% of their time. He pointed out the 8 green boxes with 30 purple underneath. At the building level was the school transition team, each including: a retired CPS principal reporting directly to Central Office, and ideally 3 volunteer parents, and others for a “cadre” of 15. And the logistics group, what were they responsible for? Allowing educators to do what they do best, the logistics group took inventory of the furniture, technology, and textbooks. “The material elements.” “When you close down a school, you also shut down a small business.” What do you know of the finances dedicated to capital improvements? Over $200 million will go for: AC (air-conditioning) in every classroom; clean, bright, and well lit buildings, what they called “POP” [note: this was not elaborated on]; repairing any “breaches,” such as water leaks; code requirements for ADA (American with Disabilities Act); and others. How are ADA requirements determined? By student needs, a review of IEPs. How do you plan for transition? We started well before the Board was going to act. The schools were in a determination phase. We started with parallel paths, disaggregating the requirements. From the entire list, we determined the most likely, now or later, trying to get as far ahead as we could. We lowered the number to the 80s. We developed prototypes for: 1) single [one closing school to one welcoming]; 2) consolidations, with one school reversing into the other that was closing; and 3) one closing school moving to more than one welcoming school. Did he get input? No. As it began, did [CPS] get input from the communities? A couple hundred; he attended as many [community meetings] as he could.

Ms. Scott showed him Exhibit 26: “School Closings – Protocol Manual” (Dec/Jan). He said that this was done by a principal lead coordinator; she updated all the lists into one at his direction. Who was the audience? All involved. Did he use this? Yes.

Ms. Scott showed one slide from a Power Point presentation in Exhibit 27: “Cabinet Update on Transition Planning” (Feb/Mar). Who created this? He wasn’t sure exactly, but he presented it so that senior leadership knew what [his team] was doing. She showed him: “Framed Against Last Year’s Process and Learned from Other Districts.” This was on other [closings] and in Chicago, with Barbara Byrd-Bennett having “significant experience in other cities.” On p. 3? “Our Vision” of the first day of SY13-14 — that “all students attending welcoming schools will experience a safe and seamless transition and have an opportunity at a fresh start.”

***At this point, approximately 4:30 PM, Judge Lee said the court would break for the day. He also asked and the attorneys from both sides agreed to begin at 9:00 instead of 10:00 the next day, with CPS saying that they only had one more witness. The time remaining for the two sides: Plaintiffs 1 hour and 10 minutes; Defendants 4 hours and 45 minutes.

Judge Lee then read off all the exhibits, asking the two sides to double check the list by tomorrow. ***

When court resumed the next day, defendants’ attorney Michael Warner (Franczek & Radelet) and plaintiffs’ attorney Michael Persoon (Depres, Swartz & Geoghegan, Ltd.) resumed a legalese debate on document stipulation. (Note: See plaintiffs’ testimony for the fifth and tenth witnesses.) Judge Lee said, “I understand where we are.” Then he added: For evidence presented during the trial, the court needs context, foundation unless stipulated to. For documents at the hearing, [the other side] needs a chance to cross examine. If it’s part of the preliminary injunction, it can only be admitted during the hearing. He did not require a detailed context; he wanted a brief and bland description. Judge Lee gave a recommendation for stipulation and an example of a description that the two attorneys said they understood. There were a few exhibits they agreed upon that were presented to the court. Judge Lee said that they would complete the rest at the end of the hearing.

Reminded by Judge Lee that he was still under oath, Thomas Tyrrell reentered the witness box. Attorney Sally Scott showed Mr. Tyrrell Exhibit 22: “Overview of Transition Supports.”

This was created by his directives. It was a combination narrative and checklist to communicate with teams in the field and Central Office. Who was the intended audience? The schools. It included general supports - academic supports and an “early days' timeline.” Regarding p. 3 on “topics,” he said that students, families, communities had many safety and security concerns. “

Support students with transportation needs” was on p. 5. Would some students receive this? Yes, if the distance was more than eight-tenths of a mile [from the closing to welcoming school].

Exhibit 61 was from a Power Point given at webinars in April, “School Action Transitions.” He presented this to: the Office of Teaching and Learning; Talent/HR; and to closing and welcoming principals at an orientation with Q & A. Slide 4 was entitled: “Outcomes of a Successful Transition.” This spoke to areas not natural to a school, such as capital and logistics services from the end through the summer to the new [school] year. Ms. Scott presented: p. 5 “Each Role is Critical to Success” on the duties of major managers. On p. 6 were protocols for the “Community Support Process.” “PTCs” (Principal Transition Coordinators) referred to the 100 retired CPS former principals. There were: weekly and online webinars; meetings with Network Chiefs and principals, with him attending some; checklists per week. There was an “Issue Tracker” for questions and concerns or to confirm answers (Google Docs); Mr. Tyrrell called this document “not there yet.” They identified persons to [deal with] the issues and track the closures, with a means of feedback — with department leaders managing or sitting with lead PTCs at the Networks. If things were not okay, what did they do? Mr. Tyrrell said that he was ultimately responsible for all of it. “If the process lets them down,” he would take it to the CEO or the Chiefs on the Cabinet.

Ms. Scott showed him Slide 7, “Resources Supporting Your Work,” which listed major documents and key resources, including: separate Two-Week Checklists for Closing and Welcoming School Principals; a Closing School Reference Manual; a Welcoming School Reference Manual; an online PTC checklist. They measured absenteeism, climate, how the school was doing culturally. There was an objection to the documents not being in evidence anywhere. Judge Lee accepted from Ms. Scott that this was just to show they existed. What were the components of the transition plans for each school? There were “a significant1600 pages or so” for all the schools. [CPS] needed to meet the statues of SB630 regarding categories of students and high levels for safety. The most critical was that they were created at the schools by the teachers, parents, and administrators. There were a few versions at that point, but they were pretty consistent regarding: cultural integrity, academics and social/emotional plans. Who created these? The PTCs, the principals, and 3 staff and 3 parent volunteers “hopefully.”

For the academic plans, they identified the requirements of “both sets” to “support one student body in one school.” This was not about: one culture plus one culture equals two. It was necessary to “create a new school culture” together, “non-differentiated.” Regarding the social and emotional plans? Mr. Tyrrell said this asked the question: “How do you manage change as a 7 year old?” These were the classroom opportunities to feel welcome that every school has. Regarding Exhibit 23 on the Transition Guidebook for principals, Mr. Tyrrell said it was the “bible in the field.” Judge Lee overruled an objection, saying he knew what he meant.

Ms. Scott led Mr. Tyrrell through further pages: p. 3 “creating a welcoming school environment”; p. 4 an early days' timeline; p. 5 “Cultural Integration Plan” on activities and intent. How did the teams use this [guidebook]? It was not prescriptive. They used it with their own judgment, customizing as in “how to create your own…”

Ms. Scott continued: p. 8 had a list of “known providers and possible community partners” that would support cultural and social/emotional plans. On p. 9, on cultural programs, regarding what to expect and suggestions: Item 1 had a requirement list of what all welcoming schools must complete by the fall. Page 10 had optional items; p. 12 baseline expectations for academic support plans; p. 14 had “Planning Templates”; p. 15 a sample chart; p. 17 had a format for “school vision.” There were mandatory components, but it was highly customized to create a welcoming environment that offers a high quality education; no one could better do this than the teachers, parents, and administrators who worked with the students every single day.

Page 60 was on safety, each school’s plan, reviewed by multiple people multiple times. There were “very long meetings” by all the Chiefs. Are they posted, updated? Yes, some at least on a weekly basis for “confirmation of cultural events,” less so for academic supports. A sample was shown for Drake/Williams (p. 1399), updated as of July 9, 2013. An objection on foundation that anything referred to was implemented was sustained. Mr. Tyrrell elaborated that the lists of activities planned were adjusted, and “if they said it occurred, it occurred.” An objection on foundation that Mr. Tyrrell did not have personal knowledge was overruled. The defendants continued. Sample activities included: “staff and parent book club,” “pen pal letters,” “parent workshops,” “transportation team meetings.” Some schools were creative, with “video introductions” and “ice cream socials.” Ms. Scott continued, skimming through pp. 1400-1425 regarding social and emotional learning support plans, academic support plans, and a safety and security overview. Was progress tracked? Yes. A checklist (Exhibit 13) was due every 2 weeks from the closing schools, with the example given for May 1 – May 15. Exhibit 14 included [checklist items]: “continue delivery of 8-week stress and coping curriculum” and teachers needing to return laptops (by May 15). The checklists were due to him every Tuesday afternoon by 12:00. Welcoming school checklists were shown, with one item, for example, being a required reading assignment on roles in transition. Exhibit 62 was a “school-by-school roll out for report cards.” On the top block heading under “construction,” ADA improvements were listed, color-coded green (on base), yellow (behind/not quite on track), and red (intervene/not on track). If something was “off track,” they needed to “move management” to “remove the obstacle.” An example was given of a “red” that had moved to a “yellow” from the last week’s developments. Mr. Tyrrell said he was either present or briefed on all of this.

Who filled this out? The “transition support team members responsible for the work stream” went up the chain to him every week. Examples: The Talent/HR component was for staff notices, hiring and [personnel] transitioning for the welcoming schools; Special Programs for STEM (Science, Technology, Engineering, and Mathematics), IB (International Baccalaureate), and Fine Arts. There was an objection on foundation for [verification on] the completion with some unknown person checking a box. Judge Lee sustained, asking for further foundation.

Ms. Scott’s question: Do you regularly rely on this? Answer: Yes. Judge Lee overruled the objection on the grounds that Mr. Tyrrell believes it, not ultimately on the truth of it.

The plaintiffs’ attorney, Michael Persoon, continued the objection: no one here knows the truth in these percentages for completion. This is someone else looking at someone else, not cross-examined on whether they were tired and just checked the box or not, whether or not it was actually reviewed. There is no foundation for the truth. Ms. Scott said that this was a business record that tracked what was being done. Mr. Persoon said that was more prejudicial, whether or not Mr. Tyrrell believed it. Judge Lee asked Mr. Tyrrell and accepted when he said he maintained it as a business record. Exhibit 68 was a “Summary View Transitions Master Plan.” There was an objection as to what it was, and Judge Lee said he was curious too. It showed a roll up of school-by-school summaries with the purpose of updating “the Cabinet.” On p. 1 of 5, there were only 2 reds, 3 yellows, and the rest was green for approximately 26 schools. Judge Lee asked that they scroll through it. [Reporter’s Note: It showed almost all green.] He admitted it for purposes of tracking only.

How often did Mr. Tyrrell meet with principals? He received daily emails with questions. What about class size? That was determined by principals, budget, and staffing plans. Would they increase? I don’t think that they would; it would “proceed as in every other year.” What is the number of teachers from closing schools following to welcoming schools? 70%. And what is the status of the number of students enrolled [in welcoming schools]? About 92%. Had you heard of the plaintiffs’ information about 11% of students [from last year’s closings] being unaccounted for? I heard of it, and investigated. He asked the Office of Accountability to explain — yes or no, why or how — so they might not repeat it. What did he learn? We couldn’t and still don’t understand this “lost” [number of students]. “We know where everyone went. There is no unknown category.”

When did CPS start planning for school closings? The summer of 2012. When will it be complete? At the close of the first academic year. Halloween will be a major milestone. On the first day of school, August 26, his staff will number 19.

Is there adequate time to be ready for the students? Yes. To be ready for the students with disabilities? Yes. On track? Yes. On track with student records? Today. Furniture? This is school-by-school based on limitations of access due to ongoing construction. Academic materials? Ongoing, in place for all but two schools from the last briefing. Question: What would happen if the schools were reopened? An objection was overruled. Answer: It would require a good deal of funding and time. Some schools require very significant maintenance, significant resources. He didn’t know if [in that case] construction could be done and still start school on the 26th of August. The defendants’ questioning ended with an overruled objection on foundation. There was a 10-minute recess.

PLAINTIFFS Attorney Michael Persoon continued his cross examination. He asked Mr. Tyrrell to tell what “planning horizon for transition” meant to him. Mr. Tyrrell said if what he meant was from start to finish, from December [2012] to the first third of the new school year. And after July then? On an annual basis. At this point there a question that the Portfolio Office, now called Incubation and Innovation, starts every summer in July on a footprint for the district.

Mr. Persoon asked if Mr. Tyrrell recalled his deposition transcript, sworn under oath, taken by him, Mr. Persoon. Yes. On p. 17, Mr. Persoon asked about something regarding time frame. Mr. Tyrrell said he did not understand the question. Mr. Persoon read a section regarding a school closing — “we started in September with a team” and “come up with a transition plan”? Yes.

Question: On the weekly updates, did the most recent include that the principal of Chopin left CPS? No. And that was a welcoming school? Yes. You held meetings to plan for transitions, did that include updates from the Talent Office on layoffs? Mr. Tyrrell said he did not understand the question. Overnight? He did not know. He knew the reporting process, but he did not know these numbers? Not exactly. Did he know the numbers of support staff [laid-off]? No. The [potential] impact on the welcoming schools? Answer: “There will be no impact on the welcoming schools.”

There won’t be any layoffs at the welcoming schools, they are insulated from layoffs? Yes, to my understanding. Who told you this? I don’t remember who. But you know this? Yes, I do. Who told you this? I don’t remember. Regarding the Drake/Williams’ ice cream social, do you know the number of students who attended? I don’t know. The plans for academic supports are for special education students? Yes. Do they call for changes to IEPs (Individualized Education Plans)? I don’t know. Mr. Persoon showed Defendants’ Exhibit 60, the academic support plan for Drake/Williams, dated 09-20-13, zooming through 7 or so pages to the goal. A bullet point on the first goal read: “Students enrolled in Autism cluster programs will receive more inclusion minutes with students in their grade level.” Question: How was that goal developed? From an analysis by the principals. Not by an IEP Team? I don’t know the answer to that question. There was a lot of planning? Yes. By teams, too? Yes. But someone else decided on which schools to close? Yes. Someone else set the timeline? Yes.

You attended the hearings? As many as I could. You heard parents and [know of] the hearing officer reports? Yes. A lot of parents did not want any schools to close? I know they didn’t want that. That was a “theme,” yes? Yes. And there were 13 independent hearing officers who were retired judges? I don’t know the exact number, but there were a number of retired judges. Were they ignored? I don’t know. [Were their recommendations] followed? The retired judges found discrepancies in the plans. The retired judges acted with no authority? I don’t know that. The process and logistics took “a whole lotta planning”? Yes. And there were other people for the special education students? That was “not me.” Do you know what will happen on Day 1? No one can predict the future. Question: With all the process and planning, outcomes cannot be guaranteed? You cannot say no guarantees; planning dramatically increases outcomes. But you can’t guarantee the success of any student? No, nor could anyone else.

There is a risk of harm? I don’t agree. But you planned for a reason? There were requirements. All these plans you reviewed [here] with Ms. Scott? Yes. They were all necessary for a reason, and isn’t that the risk of educational harm? I do not agree; this is about adjustments of opportunity for a better academic outcome. Mr. Tyrrell continued: All of us accommodate change in our lives; this was an institutional offer for a better opportunity in an enhanced academic climate. Question: You are here today saying there is not risk for educational harm in the abstract? I don’t [think there is risk for educational harm]. As we sit here, hypothetically, closing School A to welcoming School B will scale up, from the single school model? Yes. And there is no risk of educational harm to plan for? “I do not agree there is any risk of harm to the students.” Have you reviewed the literature? No. Have you read the Rand Report on school closings? No. The Chicago Consortium? No. Broad? Yes. Annenberg? Yes.

Question: The Broad report tells that school closings should take place in not less than 18 months? Answer: That’s 12-18 months, but that addresses budget issues more. Regarding these transitions for next year, after the schools are closed, what are the academic support plans — do you remember the date on the academic support plan shown here today (for Drake/Williams), the date was July 9, 2013? Yes. And what was the date, for all the schools, for the last day of school? June 24. So the academic, social/emotional plans were done after the deal was done? Yes, all the plans [were done on July 9, 2013.] Do you know that the school closings are nearly exclusively for African-American children? I do not know the answer to that question. You do not know the racial demographics of any school? Yes. Do you know that CPS was under a desegregation rule from 1980 – 2009? I did not know that. The Board of Education, under watchful eyes, no one ever mentioned this to you? No. Of this court order? No. They never mentioned to consider race? No. The implications? No. The considerations of particular races? No. You know that some schools were White? Yes. Some Latino? Yes.

You testified on class size, that at welcoming schools that would be what was determined as for every other school, not higher — last year, at closed schools, do you think the class sizes were higher at consolidations? Not necessarily.

Mr. Persoon showed Plaintiffs’ Exhibit 131, a spreadsheet from the Board of Education, closing to welcoming schools, with a title on “projected changes in homeroom size.” He said: Here’s a minus1.8, other than that, do you see any going up? If you mean positive numbers, yes. Mr. Persoon asked and answered: And at the bottom, the average is an increase of +3.9. There was an objection on foundation regarding authenticity. Mr. Persoon commented on CPS lawyers not knowing what it was, saying something about Chicago Board of Education 1228. Judge Lee accepted the document. Another objection for relevance was overruled.

This ended the plaintiffs’ questioning.

DEFENDANTS REDIRECT

Are there split-level classrooms in closing schools? There were. If there are 15 students in grade 2 and 15 students at the welcoming school, will both be larger? No. With 15 they would not find a teacher, so they would split the class. There was an objection on the question of funding; Judge Lee asked for foundation.

On the question and answer to budgeting: This year there was student-based budgeting. At that rate, they would not hire a teacher for 15 students, which would most likely result in split classrooms. There was much legalese at this point regarding: the same principles for all schools; hearing officers; and the status of transition plans when they were reviewed being initial drafts, and that the Exhibit for Drake/Williams was not competed at that time. It appeared that Judge Lee would need to take all this into consideration. The next and last witness was then called.

TESTIMONY OF REBECCA CLARK, OFFICE OF DIVERSE LEARNERS

Seventh (and Final) Witness for the Defendants and for the Preliminary Injunction Hearing: Rebecca Clark

by Susan Zupan

Witness testimony for the preliminary hearing for Swan v. Byrd-Bennett (13-cv-03623) and McDaniel v. Board of Education City of Chicago (13-cv-03624) was completed on Friday, July 20, 2013 in the Dirksen Federal Building in the downtown Chicago Courtroom 1225 of U.S. District Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois. The final witness called for the defendants was Rebecca Clark. The following report is divided into the two main sections: Defendants (read: CPS) and Plaintiffs. There is also a brief section at the very end regarding Post Witness courtroom procedurals.

DEFENDANTS

Attorney for the defendants was Sally Scott (Franczek & Radelet). Ms. Clark was asked about her current position with Chicago Public Schools (CPS). She was the current Director of Student Supports in the Office of Diverse Learner Supports and Services (ODLSS), the “point person” to support school action and transition. According to CPS records, Clark was being paid $113,000 per year during the 2012 – 2013 school year.

[Reporter’s Note: There were no further questions related to previous job experience or educational background on behalf of the defendants. Ms. Clark received an MS from the University of Chicago in Social Service Administration; she has a graduate degree in Education and Social Policy from Northwestern. She has worked in CPS as a Senior Manager in Citywide Special Education and Supports at least since 2009, remaining in such senior management positions until the present.]

Ms. Clark testified that her office was in the process of choosing possible scenarios, with the Portfolio Office. The input they utilized was data related to the schools, including: disability LRE information; proportionality to schools, referring to the 30% special education/70% general education regulation [for classrooms]; ADA (American with Disabilities Act] accessibility; curriculum; and equipment. Regarding the 30%, they could not over-impact a school.

Speaking excessively quickly, Ms. Clark was directed by Judge Lee to please slow down.

The answers to the questions continued: They were mindful of the influences of “Cluster Classrooms,” hosted by 201-202 schools, for students with more significant disabilities who had sensory needs and needed significantly modified curriculum. For neighborhood schools, this is sometimes too much to provide, so these students attend the closest school to their home with an “available seat.”

Did they have floor plan data? Yes, for the closing and “opening” schools. They were being sent to schools with appropriate space for separate classroom instruction.

Were the needs of students with disabilities considered in the school actions? As the Portfolio Team went through the lists [of schools], they checked data and were mindful of what they heard in meetings with parents; for example, a particular classroom was moved a couple of times in previous years to this year.

Did they review all of the IEPs? They reviewed all the IEPs pulled off the closing list. What was the number of students? Just over 2000, with 75% of the special education students in the general education classrooms 40% of the time. Ms. Clark said that there were 450 cluster program schools. [Note: A short time later she said she gave the wrong number; it was 207.] Did they do an analysis of the effect of students with disabilities? Yes, at each “leg”: 129 to 54 to 49, referring to the numbers of schools on the closing lists over time.

The questioning and answering continued: In the analyses of students with disabilities, all the data were consistent, comparing elementary and middle schools. They concluded/determined that overall in the [CPS] district 13% of the students were in special education, with 14% the percentage in the closing schools. Cluster Programs were in 15 of the 49 schools or 30%. They concluded there was no disproportionality.

Exhibit 24, “School Actions: Supporting Students with Disabilities,” was a Power Point from an April training with representatives from each of the 54 closing schools and welcoming schools. She and multiple people presented this. The purpose was to let schools know “we had a plan,” and particularly for students with disabilities.

Slide 22 displayed the LRE (Least Restrictive Environment) continuum, a provision of IDEA (Individuals with Disabilities Act), a guiding principle. LRE does not mean that separate is better; that flies in the face of LRE. She reviewed the amounts of time allocated for LRE [a designation, meaning time spent by a student in a special education classroom setting]: Level 1 at 0-20% ; Level 2 at 21-60%; Level 3 at 61-100%. Cluster Programs were for separate schools due to the needs being so significant.

[Reporter’s Note: Please see the reports on plaintiffs’ second, fourth, and sixth witnesses for further information on special education terminology and practice.]

In CPS the percentage of students in LRE 1 was 48.5% and LRE 2 was about 30%. Specifically to the closing schools, the percentage was 75%. LRE level is determined in IEP (Individualized Education Plan) meetings, but it was “fluid” for every child, meaning that tomorrow’s IEP meeting could include more minutes depending on how students moved through the continuum.

Slide 23 reiterated the Illinois State Board regulations for class sizes, there could be no more than 30% [special education students] in a general education classroom. Slide 24 was about “Student Demographics” as of December 2012. “504 Plans” did not require a special education teacher, but they were mindful of a life condition – for example, a nut allergy.

Slide 25 showed the students in the potential 54 schools by type, with letters representing disability labels such as LD (learning disabled) and DD (developmental delays). Of 2,459 students with disabilities, 864 were labeled LD. Slide 26 was a “Welcoming School Datasheet,” a “1 pager” for audiences of teachers and case managers. To the left was the school’s data in April; to the right was a projection in the event of two schools merging for grades, LRE, and plans for significant modifications. Ms. Clark mentioned the “Co-Teaching Model” in which a general education and special education teacher share responsibilities to teach a classroom.

Slide 29 was entitled “Goals for Student Transitions” by Day 1. They would be working toward all the bullets, including: every student knows and feels welcome in the welcoming school; staff members know the students’ needs; instruction and equipment supports; and transition activities. The latter included: “social stories,” “meet and greets” with teachers to review IEPs, and school tours. For IEPs they checked schedules, the need for PARAs (short for paraprofessionals), and transportation.

The last goal listed was “necessary IEP revisions are completed.” A variety of needs are determined at the IEP Team meeting, from bathroom to redirection support in classrooms, based on the specific needs of a child.

Slide 31 showed “Supporting Students,” “Things you can do to help students adjust” with examples for “Throughout the rest of the year,” such as, lessons in self advocacy; or “moving into next year,” such as sending welcome letters or creating a picture gallery of the school. There was an objection that Ms. Clark was testifying that this was occurring, and that was not known. Judge Lee overruled; that was not her testimony.

The question and answer continued: They funded “meet and greets” that started in April. Parents had the opportunity to come in and meet principals and case managers and talk of [their children’s] IEPs with staff. Parents know their children. An IEP is a good reflection, but they might say, for example: “When you see my son does X, you should…” That might not be in an IEP, and they can describe it. An objection on foundation was overruled.

Slide 32 was for the “I’m Determined” Project, for students with disabilities. For example, one template had four boxes for “My”: strengths, preferences, interests, and needs. These were activities in all the welcoming schools. It was tracked by a team of folks, SSAs (Specialized Service Administrators), point people assigned to welcoming schools who had “weekly conversations” to see that that was done. Slide 33 was a sample of said template filled in using pictures.

Slide 45 referred to the “high level work to prepare for the 1st day.” There was training in disability awareness, mandated in August (before the arrival of the students). There were two instructional support trainings on “best practices” across the country, with two days of follow-up observations in classrooms to make sure it was done. 2-day trainings were being offered, for example, for behavior management. There was training on individual supports: going over LRE; allergy awareness/504 plans. For example, one student had a metal allergy, so do not let the child “get a metal fork in the lunch line.” There was training for specific equipment use for assistive technology...

Scheduling was already done by administrators at the welcoming schools, a framework layout of best practices. They reviewed space and classroom location for equitable space to make sure the special education classrooms were not “down the hall.” Ms. Clark mentioned that CPS had been monitored by “Corey H,” [referring to a previous] class action against CPS.

The defendants continued: Ms. Clark told how all equipment was labeled and moved appropriately, complicated by use of the equipment in some cases for home and school and over the summer. Was this tracked? Yes. Cluster Classrooms were set up as similar as they could to their closing schools. They took pictures and created blueprints to “mimic.” They were taking it seriously, asking if chords were red or blue, if that was an issue.

Exhibit 9 was entitled “Brennemann is my new school,” a “social story” that two people in her team prepared, with a picture of the school on the cover. Sentences under illustrations on pages inside included: “In August I will be going to a new school,” and “I will learn math, science, reading and social studies.” This would familiarize students to their new schools.

Exhibit 10 was from the Office of Diverse Learners Supports and Services, a list of trainings. Who presented this? My colleagues at my direction. It was monitored for enrollment and attendance through CPS University; attendees received CPDUs. There were other trainings as principals asked. For example, at Lowell we provided and customized autism training in May [regarding the students who would be coming] from Lafayette.

What other supports were there for students with autism? Right now “Autism Speaks” is a nationally recognized support for families. We are working with the firm. We have student-based awareness training for presentations to welcoming school students. The curriculum is for younger students, but we are adjusting it for middle and upper grades.

Are there community partners? The Special Education Subcommittee for School Actions includes Access Living and the mayor’s office. We meet nearly monthly, though we missed June. We give updates on actions and get feedback, for example we “have a conversation” about ADA building accessibility.

Have you reached out to principals? In April we hosted meetings in the closing schools to focus on what was in place; some had low and some had high attendance. We met with some principals individually. Ms. Clark mentioned Lafayette and Trumbull. You attended? Some. There was a sustained objection to a specific time and place.

At Lafayette, when did you meet? Before the final announcement at the end of April or early May. The objection was then overruled. Did you speak? Yes, but mostly I listened. Who was there? The SSA, someone with expertise on autism, a Network representative, parents, and some students. What was the format? Concerns were expressed; Q & A; the target was a smooth transition. Was Ms. Swan there? Yes.

[Reporter’s Note: Please see separate report on parent Mandi Swan’s testimony for the plaintiffs as witness #3. Ms. Swan’s autistic son is being moved from Lafayette to Lowell.]

What did you say? That she could always review the IEP and think about if something was not in there, then come back and ask to hold a meeting; we talked through that.

What principles were used for transition? The number one principle was to keep the peer groups together. Ms. Swan’s [child’s class] was 8 students together. Did Ms. Swan make any statements? Yes, specifically about her son’s “girlfriend” and how they gave each other balance. CPS’s response in the school action was to use the guiding principle and move them together.

Did you attend welcoming school meetings? Yes. At Lowell? Yes. When? Shortly after the last week of May or first week of June. Is there a playground? Yes. Is that in the street? Yes, at times. Is this a common practice in CPS? Yes, to allow play space. Was there recourse? Yes, on the playground or indoor recess. Who was at Lowell? 2 SSAs, Rhonda Stone from Lafayette and [the SSA] from Lowell; Network staff; the principal; the case manager. Was Ms. Swan there? Yes, with 4 of her 5 kids.

What did you say? We revisited the point of IEPs, to be comfortable with the opportunity to revise to add concerns, hers or the principal’s…// Ms. Clark stopped and said she lost her train of thought. Question: Did Ms. Swan say anything about transition? That Lafayette did not have field trips like Lowell, it was good her son could go; before the tour she thought it was a nice school; and we had conversations about the need for other plans regarding recess.

Do you have any concerns regarding IEP meetings? No. At all schools, closing and welcoming? Yes, it is ongoing at the welcoming schools. Can there be smaller meetings? Yes, if the parents request.

Were there other efforts? We made the effort to call for every IEP or 504. We leveraged a lot of people to make phone calls, totally 2500. How did you list who? From information in the CPS system. If that phone number didn’t work, we tried another; with more updated numbers, some families had 4, 5, 6 numbers. The purpose was to touch base with as many as we could reach.

Questions were: 1) Did they know the welcoming school? 2) Did they have any concerns on IEP implementation? 3) Any transition concerns? 4) Anything else? Here, Ms. Clark stopped for a moment to get some water. [Reporter’s Note: She drank a lot of water during her testimony, often reaching up to pour from a carafe near the judge’s seat, after he had actually offered her water at one point.]

Was the feedback documented? Yes, on Google Docs, numbers and answers. I made 50-60 calls myself, once on a Saturday. They made as many calls as they could prior to the time of the [school closings] announcement in May. Highlights in red on a log were for follow-up and to review options with welcoming schools for a second round of checks. Based on the calls, what was the primary concern of the parents? Number one was IEP implementation, for example, for pull-out services.

What other efforts were made? Letters were sent early on; teletown hall conference with including Dr. Winston, with 172 families online with Q & A. We continued to call, especially where they hadn’t yet chosen a school. Mr. Tyrrell said 92% of all students were enrolled [in welcoming schools]; for students with disabilities it was 95%.

At the building level? Some principals wrote letters, it varied. Lowell gave tours. IEP reviews are happening, ongoing over the summer.

How are IEPs created? Data unique to the needs of the particular student are [input] by teachers, clinical staff where relevant, and parents to gap bridges with the general education curriculum. This does not include a parent? No. IEPs are updated annually, but for new data it can be reconvened. May CPS change an IEP without parental consent? No. Without a full meeting? Yes. For a revision process that is minor, not for LRE; that would take a full IEP meeting. The parent is contacted, notified, and can say “go ahead, send it and I’ll sign” or not. For example, if a particular accommodation is added that is seen to be effective, such as extended time on a test.

If the parent is notified and they do not agree, can it change? No. Is there recourse for opportunities for a new IEP? The principal and case manager can require an IEP meeting, file a complaint with CPS Central Office for an investigation for due process with an independent arbitrator. Does an IEP change if this is ongoing? No, we use the last IEP, “stay put.” Can CPS unilaterally change any IEPs without parental consent? No.

For transition, more or different than peers? There was an objection that Ms. Clark had no expertise and there was no attempt to qualify her as an expert witness. Judge Lee sustained, more foundation was needed.

Question: Where does your knowledge come from? My role in my office and with my team, on how to train to prepare a proper IEP. With support of her team, there are also case manager trainings. Was she familiar with IDEA? Yes. The regulations? Yes. The requirements? Yes. Do IEPs address transitions on the form? An objection was overruled. Section 7 on the subsections. What do you train? To “capture buildings,” LRE, anything for the IEP.

Do you have a belief if all the IEPs…// There was another objection. The defendants said that her understanding was not her opinion. The objection was sustained.

Re-asked question: Have you directed schools to revise all IEPs for the transition process? No, that was not a request. On IEPs specifically, they do not need to change because a student transfers when teachers change…// An objection was sustained.

Questioning/Answering continued: It was about what the student needs not what the teacher was teaching. If a parent requests an IEP meeting for school closure? We respond within 10 days; we mostly meet to err on the side of doing. Is there any provision to revise IEPs over the summer? Money for teams is available. Have there been IEPs reviewed versus for revisions? Yes, review is not to change; revision is to change. At the Central Office level, review is a part of the transition process by “a lot of people,” with me making parent phone calls about what supports are needed now. Teams of SSAs with case managers are all doing this.

What is the purpose at the building levels? To make sure [IEPs] are scheduled appropriately when school starts. As for the role in transition, do you believe if a student needs something you know? Yes, we review IEP documents and have conversations with schools and had conversations with families in April. What about the staffing in welcoming schools? On Monday, July 15 we will be taking a preliminary look at the teachers from the closing going to the welcoming schools, on seniority and credentials regarding the Contract [Agreement]. Teachers were notified today, both special and general education.

Do you have any indication of the number of students with disabilities who might have a new teacher? Numbers of students with disabilities have new teachers each year. 50% of LRE1 students will be with their same age peers and most LRE 2 as well. In LRE 3, they may or may not. In IO’s IEP, in 4 years he had 3 different teachers. [Reporter’s Note: IO refers to Ms. Swan’s son.] Was he assigned staff? Yes, clinical staff. How was that determined? Allocation is based on needs in the IEPs.

It was a little past 12:00; Judge Lee interjected about breaking for lunch. Defendants had one more question: Were there any clinician staff lay-offs? No. Would they be going to the welcoming schools? In some cases, to reflect the needs of the incoming students.

PLAINTIFFS

After the hour long lunch break, questioning resumed with attorney Thomas Goeghegan (Despres, Swartz & Geoghegan, Ltd.). Question: Do you track the number of IEPs reviewed? We are setting up a system. Do you currently have the number? I don’t.

Are students with disabilities provided with transportation? Yes, if needed. When? There are multiple reasons: mobility, physical disability, from home to school; and if a student does not know how to navigate safely in a neighborhood. These are outlined in the student’s IEP.

To transition students for closings, do you think there is time? Yes. Do they need additional time? No.

Are you a special education teacher? No. Do you have any special education degrees? No. You’ve never taught an LD child? Not entirely, I worked with a 7th-8th grade in Baltimore as a sub; [when the teacher was not there, I watched the class]. How long? 2 years. Do you present yourself as an expert in special education? No.

Only an IEP determines what a student needs in special education? Yes. Only anticipated needs can be determined in an IEP? Anticipated needs, from a variety, can come from people who may or may not [be on an IEP Team]; for example, from general education. Only IEP Teams can anticipate needs to be addressed in an IEP plan? …if the needs arise… I’m having trouble with “anticipated”…

Question: Only an IEP Team can make the determination that certain needs will be anticipated and need to be addressed in an IEP? An IEP Team makes the current [IEP], but when new needs arise… We do not ever assume a need, wouldn’t that be presumptuous on our part?

Mr. Geoghegan said: Please clarify, when you say IEP Team and “we,” does that mean “you”? Question: Only an IEP Team can anticipate needs to be addressed? Ms. Clark began to describe the IEP process again with: IEPs are developed by a team…// Mr. Geoghegan cut her off, asking: Yes or no? Ms. Clark asked for a repeat of the question. Judge Lee finally told her to answer yes or no as best as she could.

Ms. Clark’s answer: No, because that does not meet the needs of children if we know…// Mr. Geoghegan pointed out that she used “we” again. He repeated asking about IEP teams.

An uncomfortably large “dead air space and time” filled the courtroom. Judge Lee asked if Mr. Geoghegan could reformulate the question, that he wasn’t sure if he understood it [at this point]. There was light laughter in the courtroom.

Mr. Geoghegan asked: It’s not your function as an officer of CPS to determine the anticipated needs of a child in special education? Ms. Clark: No, it is not. Question: That is the function of an IEP Team, correct? Using data. Question: So if you provide “supports” or recommend “supports” isn’t that substituting your judgment for what an IEP Team decides? No.

Question: In April and May, you and Markay Winston did not require, instruct, encourage, or direct IEP Teams to meet to anticipate the needs of these students? Ms. Clark asked if he could restate the question. When he did, she replied: Correct.

Question: Instead, in April and May phone calls were made, you personally made them regarding the needs of special education children? It was more than that. Did you ask parents what they needed for transition? On the script was if there were any concerns of children transitioning to a welcoming school.

Mr. Geoghegan briefly reviewed the questions from the script: did they know the school? were there any concerns of implementing the IEP at the welcoming school? any concerns with transitioning? He asked: Did I miss any? Then added: Were there any other questions. Not only you asked these questions? Yes, it was everyone. Mr. Geoghegan added: And that includes Barbara Byrd-Bennett and her Chief of Staff. Ms. Clark confirmed that Tim Cawley did make calls as well. What was his exact title? Chief Administrative Officer for CPS.

Do these people have any background in special education? Not that I know of. You do not know if they have any background in special education? No. But they used the script? Yes. And some were under your supervision? Yes. Were there any special education teachers [making the calls]? Some do have… But some do not? Correct. These phone calls solicited information from parents? Yes, to follow-up. Did any IEP meetings convene as a result of these phone calls? Not that I am aware of.

You mentioned “best practices”? Yes. One was “meet and greets,” and another “Open Houses”? Yes. Who attends? These were opportunities for parents to come in and meet staff. Did you attend any? Ms. Clark’s answer was approximately: I was not able/couple at/uh/one at so far.

Did you encourage the “meet and greets? Yes. They were not required? It was an activity we were asking and tracking to do. Was it required? No.

Do you personally know the numbers for attendance? I don’t know the numbers, but we were tracking on a weekly basis. Question/Comment: You have an extensive tracking document with dates, times, who attended, but you do not know any numbers off the top of your head? Did special education teachers attend? Not that I know of personally.

Principals are not trained in special education? Principals are responsible for special education implementation in buildings. Principals are responsible for implementation but not changing? Only IEP Teams… Cut off and questioned: But the gist is that principals cannot make decisions regarding transitions in special education? Correct.

Question: You said that IEPs have provisions for transition? Yes, there is a section. And there are transition boxes for any information regarding supports? Unique to that student. And in that box is all the information needed on an IEP? We anticipate that yes it is on the IEP.

Mr. Goeghegan prepared Exhibit 92A commenting/apologizing that he was “technologically challenged.” Ms. Clark got some more water. The display showed a close-up of IO’s IEP, Section 7 Number 8: “Transition Service.” Question: Any support would be there? Answer: Any information… Mr. Geoghegan said: Point to me and show me where is this information for IO’s IEP. There was a bit of confusion with the exhibit.

Question: Where are the supports for transition discussed here? Ms. Clark’s answer: I don’t see, but there is language useful to a case manager that could be clearly generalized out on another section. She pointed out that another section described IO’s “deficits in adaptive abilities.” She read other such pieces from the IEP. Then Ms. Clark said that even though the previous case manager did not make [the IEP] robust, the new case manager [should] talk to the family. Mr. Geoghegan commented that reading this tells even you, who are not an expert, that this child needs supports.

The next line of questioning pertained to “conversations,” IEP Team determinations, and transition, with Mr. Geoghegan basically asking how this could occur with the movement to another school, in which IEP Teams would not follow the students. Ms. Clark said: “We want to have a conversation to see if an IEP meeting” [is needed.] Question/Comment: “We” cannot if we don’t know if the students have needs. Reply: We do not assume there are needs, we avoid assuming deficits. Question: So IEP Teams cannot meet as IEP Teams because they cannot assume deficits? Ms. Clark asked if he could repeat the question.

You said that you do not assume deficits, correct? An IEP outlines areas of need. There was a large pause here. Then she continued: We assume no deficits in areas [unless] identified. Question: You assume that the IEP is correct, if the IEP does not anticipate a need, you assume it’s correct? Answer: No, which is why we are laying supports. Question: This is why all the phone calls were made from Barbara Bryd-Bennett and Tim Cawley to check if all the needs were being met? Correct. But with phone calls without IEP Teams? Correct.

Question: You testified regarding proportionality being met? Answer: We reviewed to compare and contrast the rest of the district and welcoming schools. Can you assure you have not displaced students with special needs not any greater than in the United States, this district? Yes. Is this good in your view? It is not good or bad, it is proportional which is better than not. Would it be better if they were excluded from the district? I don’t think so. She continued: Students with disabilities should have equitable treatment to that of general education; gen ed and sped students should not be treated differently.

Question: So, if I understand, you are saying that a special education child should be displaced at the same level in order to be treated the same? I do not know if that’s what I said... At this point there was an extremely, excessive length of “dead air and space” in the courtroom. Ms. Clark finally said she was thinking, sorry… about how to respond to the question. Then she said: My role is to afford the same access as general education to everything as non-disabled peers. It was hard to say “intentionally exclude,” a majority were with their non-disabled peers. For example, 30 minutes for speech was not such exclusion; changing schools you do not do because you are excluding.

Mr. Geoghegan asked: Autism Cluster was in part of the schools? Not all, and they were integrated. In your opinion they do not all struggle with, what’s the breakdown? Ms. Clark said: I reviewed IEPs to see…// Mr. Geoghegan stopped to ask if she had expertise? To read and work with schools to implement IEPs.

Question: You signed off on these Autism Cluster students? I did not sign off on any. Question: You did not express any views as to which schools to close or not because of students with difficulties with learning? Answer: We gave information to the Portfolio Team.

Mr. Geoghegan asked that the question be reread to Ms. Clark for a yes or no answer. Ms. Clark replied: I did not express views; it was data. Did anyone express those views? Parents logged all concerns to her office, and they reported to the Portfolio Team. For the recommendations to Barbara Byrd-Bennett – who in CPS was looking out for [these students]? Her role was on data, not on recommendations; she was the sole demographer.

Question: In a single instant, did you ever say: “Don’t close that school”? No. Some children have been excluded? I’m not sure… As part of the process? She was not sure which part he was talking about – there were multiple parts of planning with information.

He rephrased: Level 1 schools were excluded? Yes. Charters were excluded? Yes. High schools were excluded? Yes. You excluded other student populations, but even severely disabled students were not excluded? Yes.

Judge Lee informed Mr. Geoghegan that the plaintiffs had 15 minutes remaining [on previously agreed upon time limits]. Mr. Geoghegan said: “It’s Friday, too.”

Did CPS work with other groups? Yes, on the subcommittee, Access Living, with Rod Estvan. Do you acknowledge that he has been openly critical of your work? I do not know that. On press statements and blogs? I know that he has been complimentary on comments, happy with transparency and dialogue. I don’t know or have evidence otherwise.

On July 15, you do not expect to know who special education teachers will be assigned to, but some preliminary information was given to principals? Yes, that was from the Talent Office to which she had limited knowledge. Did you read about the mass layoffs? I heard of it. Did that include special education? I’m not sure. Will that impact the excellence and supports at receiving schools? I don’t know.

Did your office meet with Mandi Swan? There were two trainings and an Open House at Lowell. Who was there? At Lafayette – Rhonda Stone, an SSA autism expert, someone from the Network, and Mandi Swan plus 10-15 parents, one the president of the LSC (local school council). Do you know the names of the parents? I do not have that information. And the other parents at the other meetings, can you tell me their names? No. Are you tracking Ms. Swan? No. Because she is a plaintiff? No, I only know her from the second meeting. How many other meetings were attended, you do not know how many? …Morgan, and Ryder…

You said there was funding for IEP Teams to meet and make changes? If the parents…// Are there IEP Teams standing ready? Yes. How do you know who to put in place? So when there is a request, we review and allocate support, for example, with Earle Elementary School, there was a precise analysis to pay… But you do not know who? The IEP Team looks at the old IEP…// Question/Comment: What about special education teachers, you need special education teachers.

Mr. Geoghegan showed Defendants’ Exhibit 24, p. 26: “School Actions Support for Students with Disabilities.” He said there was a page to make sure IEPs are fixed that need to be reviewed. Ms. Clark said: I believe – wait for the slide – (as the slide on the exhibit progressed). On p. 29 on the last bullet it said “necessary IEP provisions are completed.” Ms. Clark said that meant any requests by parents or where there was an adjustment of minutes to have the same curriculum opportunities as their peers.

Question: This was required? Answer: Not necessarily, all the elementary schools have the same minutes in the day, but principals make decisions. She continued: If an IEP had more minutes than the welcoming school, we work with the parent to see if they agree to the same minutes as the peers. If the parent does not agree, the child will miss out. We had “conversations.”

Question: Was there a requirement to make a change? It was not required. Did you tell the parents that? I haven’t. Your office did not give instructions or IEP Teams not to force this? Not that I know of.

Judge Lee said there were 5 minutes remaining.

Do students with disabilities receive busing? Yes, if required in the IEP. Are you aware this was being supervised by the Civil Rights Commission for CPS failing to do so? Yes, I am aware of that.

There were no further questions.

POST WITNESS

Judge Lee gave a point of information that both sides remained within the time limits. He moved on to post hearing issues, with seven lawyers for the plaintiffs up front, five for the defense. It would be very helpful to the court for a combined and consolidated version of all the documents in evidence – plaintiffs’ and defendants’ exhibits – his were all annotated; PDFs bookmarked on USB would be helpful.

The depositions from the pre-hearing submissions were not transcripts yet. Mr. Warner said that the defendants had one highlighted as a courtesy copy [for the court]. Judge Lee said that he would like one of each deposition, with excerpts only with highlighted designations. Michael Persoon said that some were large and could not be read in excel unless… Judge Lee said: only in PDF, with a one sheet placeholder.

Judge Lee said that he wanted post-hearing briefs to address the evidence, consolidated for both, not separate. He gave leave to file more than 15. He went through dates for one side’s then the other’s openings and replies from July 26 through August 7.

Judge Lee gave examples of citations; he did not need attached exhibits wholesale - a cover page, the relevant page, plus the pages before and after that. (Example: if submitting p. 31, he wanted pp. 30, 31, 32.) To a question by Ms. Scott on multiple times, he said to put them altogether – hard copies of the briefs and on USB on PDF.

As to rulings pending on motions to dismiss, he would issue motions by mail. Mr. Warner and Mr. Persoon had a back-and-forth exchange regarding one exhibit. Judge Lee said it was accepted provisionally; he would look over the transcripts. Another back-and-forth began, with Ms. Potter joining in… Judge Lee appeared to say that he would get his decision to them by Monday.

The preliminary hearing ended by 2:00PM.

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