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PUTNAM v. OAKLAND UNIFIED SCHOOL DIST.

November 25, 1997

COLLEEN PUTNAM, et al., Plaintiffs,
v.
OAKLAND UNIFIED SCHOOL DISTRICT, et al., Defendants.



The opinion of the court was delivered by: JAMES

 Before the Court is Plaintiffs' Motion to Compel Compliance with the Consent Decree. Having read and considered the parties' moving papers and exhibits, and Good Cause appearing, the Court ORDERS Defendants to comply with the terms of the Consent Decree in this case, as modified below.

 BACKGROUND

 On January 28, 1997, the parties in this case entered into a Consent Decree settling an action brought by Plaintiffs to enforce compliance with the Americans with Disabilities Act and the Rehabilitation Act by the Oakland Unified School District (hereafter "Defendants"). In October 1997, the parties consented to the jurisdiction of a Magistrate Judge for resolution of this dispute. On November 14, 1997, Defendants were ordered to designate a permanent Project Manager pursuant to Section XII of the Consent Decree no later than December 1, 1997. This order addresses the remaining issues raised by Plaintiffs' motion.

 DISCUSSION

 The Consent Decree sets forth a number of affirmative obligations agreed to by Defendants in order to make their facilities accessible to disabled students and others. These obligations appear for the most part to be self-executing; however, Section XVII provides for reimbursement of Plaintiffs' monitoring costs, up to $ 8,500 per year, to help assure that Defendants fulfill their obligations under the Consent Decree.

 The Court's review of the parties' papers indicates that Defendants have failed to comply in a timely fashion with virtually every provision of the Consent Decree. Defendants' seeming strategy of delay and obstruction has resulted in frustration for Plaintiffs and the Court, needless motions, and most importantly, continued lack of access to Oakland Unified School District facilities for disabled students. Accordingly, the Court reviews the obligations assumed by Defendants under the terms of the Consent Decree.

 1. Programmatic Self-Evaluation

 By no stretch of the imagination can this Court find that a survey completed in January 1995 satisfies the requirements of Section III.A of the Consent Decree. The language of the decree contemplates that Defendants will prepare a self-evaluation report after the date of settlement, not that Defendants will recycle an old report. Further, although the Consent Decree does not explicitly state that Defendants are to create a new report, it is not unreasonable for Plaintiffs to expect that Defendants would prepare a programmatic self-evaluation tailored to address the issues raised by Plaintiffs' suit and the Consent Decree. It is disingenuous for Defendants to suggest that the document submitted to Plaintiffs satisfies the requirements of Section III.A.

 The Court finds that Defendants have failed to comply with Section III.A of the Consent Decree. Defendants are ORDERED to prepare and submit to Plaintiffs' counsel a programmatic self-evaluation no later than January 30, 1998. This programmatic self-evaluation shall be filed with the Court and shall be clearly labeled as a "Programmatic Self-Evaluation." *fn2"

 2. Survey of Existing Facilities

 Section IV of the Consent Decree directs Defendants to complete and submit to Plaintiffs' counsel by March 1, 1997, a survey identifying architectural and physical barriers which may deny students with mobility impairments access to Defendants' facilities and programs. *fn3" It appears uncontested from the parties' papers that Defendants have failed to complete this survey within the time set by the Consent Decree. Furthermore, Defendants have not petitioned the Court for modification of the Consent Decree to extend the deadline for this requirement.

 Defendants submitted with their opposition brief a number of documents, including one document labeled "Draft Accessibility Survey Report, Claremont Middle School," dated April 28, 1997. Defendants indicate that a firm was hired to conduct the survey of their facilities, and that "given the scope of the survey, it is taking longer than expected to complete." The Court agrees that the scope of the survey appears quite broad; however, this does not excuse Defendants' failure to provide Plaintiffs with information as it became available as a show of good faith, or ...


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