UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, Plaintiff
v.
THE STATE OF NEW MEXICO; THE NEW MEXICO SCHOOL FOR THE VISUALLY HANDICAPPED; and THE BOARD OF REGENTS OF THE NEW MEXICO SCHOOL FOR THE VISUALLY HANDICAPPED, Defendants
STIPULATION
I. INTRODUCTION
Plaintiff, the United States, and defendants, the State of
New Mexico, et al., in order to ensure the protection of the
federal rights of students of the New Mexico School for the
Visually Handicapped ("NMSVH"), and to avoid protracted and
adversarial litigation, hereby stipulate and agree as follows:
1. The United States filed this action pursuant to the
Civil Rights of Institutionalized Persons Act ("CRIPA"), 42
U.S.C. § 1997 et seq.
2. This Court has jurisdiction over this action pursuant to
28 U.S.C. § 1345. Venue is proper pursuant to 28 U.S.C. § 1391(b).
3. The United States is authorized to initiate this action
pursuant to 42 U.S.C. § 1997a and has satisfied all statutory
prerequisites for filing this action.
4. This Stipulation does not constitute, nor shall it be
construed in any manner, as an admission by the signatory State
officials or entities of any violation of federal law. The
parties to this Stipulation intend that this Stipulation is not
evidence of liability, and is not to be used as evidence of
liability in any other proceeding.
5. The defendants in this action are the State of New
Mexico ("State"), the New Mexico School for the Visually
Handicapped, and the Board of Regents of NMSVH. The New Mexico
Department of Education is not named as a defendant, but as an
agent of the State is bound by the terms of this Stipulation.
6. The defendants are legally responsible, in whole or in
part, for the operation of and conditions at NMSVH, as well as
for the care and treatment of the students attending that
institution. Defendant State of New Mexico represents that it
has authority for issuing such constructions of State law as are
or may be required to ensure that State law comports with federal
law.
7. NMSVH, located in Alamogordo, New Mexico, is an
institution as that term is defined in 42 U.S.C. § 1997(1).
8. NMSVH students range in age from five to eighteen years
old. Approximately half of the students attending NMSVH have one
or more disabilities in addition to their visual impairment; some
of these children are nonverbal and some have significant medical
needs.
9. On February 26, 1997, the Attorney General of the United
States, by and through the Acting Assistant Attorney General,
Civil Rights Division, notified the Governor of New Mexico, the
Attorney General of New Mexico, and the Superintendent of NMSVH
of her intention to investigate, pursuant to CRIPA, allegations
of conditions depriving NMSVH students of federal constitutional
and statutory rights.
10. In a letter dated April 17, 1998, the Attorney General,
by and through the Acting Assistant Attorney General, Civil
Rights Division, informed the Governor of New Mexico, the
Attorney General of New Mexico, the Superintendent of the New
Mexico Department of Education, the President of the Board of
Regents of NMSVH, and the Superintendent of NMSVH of her
investigation findings and informed them that she believed
conditions at the School violate the federal constitutional and
statutory rights of its students.
11. For the purpose of avoiding protracted and adversarial
litigation, the parties agree to the provisions set forth in this
Stipulation.
12. The parties agree that the provisions of this
Stipulation are a reasonable, lawful and fair resolution of this
action.
13. This Stipulation shall be applicable to and legally
binding upon all of the parties, their officers, employees,
assigns, and successors.
II. DEFINITIONS
1. The term "individualized education plan" (IEP) has the
same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and
regulations promulgated thereunder.
2. The term "least restrictive environment" (LRE) has the
same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and
regulations promulgated thereunder.
3. The term "mental health professional" refers to a
licensed psychiatric social worker, a certified master's level
counselor with training and specialization in mental health, a
licensed psychologist, or a board-certified, licensed
psychiatrist.
4. The term "related services" has the same meaning as it
has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations
promulgated thereunder.
5. The term "special education" has the same meaning as it
has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations
promulgated thereunder.
6. The term "supplementary aids" has the same meaning as it
has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations
promulgated thereunder.
III. BRAILLE SKILLS INSTRUCTION
1. Defendants shall provide Braille instruction to all
students who need such instruction in order to benefit from their
educational program.
2. Within 60 days of the signing of this Stipulation,
defendants shall employ or retain the services of as many full-time Braille skills instructors as are required to meet the educational needs of NMSVH students.
3. Within 45 days of the signing of this Stipulation,
NMSVH, through its IEP team, shall assess each student at the
School to determine whether the student should receive Braille
instruction, and for each student identified as needing Braille
instruction, shall make a documented determination in the
student's IEP of the number of hours per week that the student
should receive Braille skills instruction, and shall provide such
instruction until the student is able to read in Braille at a
level commensurate with age and capability. Beginning with the
second semester of the 1998-1999 school year, defendants shall
ensure that each student or applicant for admission is assessed
before the date of matriculation to determine the student's
specific needs for Braille instruction, and the result of that
assessment shall be documented in the student's IEP.
4. Beginning with second semester of the 1998-1999 academic
year, the NMSVH IEP team shall assess periodically, and in no
event less often than yearly, the Braille proficiency of each
student identified as a reader of Braille, whether or not that
student is currently receiving continuing education in Braille
skills. NMSVH shall provide additional instruction as necessary
to remediate any deterioration in Braille skills identified by
such periodic assessment of students.
5. Beginning with the second semester of the 1998-1999
academic year, each student who matriculates at NMSVH and has
been identified by his or her local public school district as
being in need of Braille skills shall receive training in Braille
upon matriculation at NMSVH unless and until a substantiated
determination is made and documented in the student's IEP that
the student does not need instruction in Braille.
6. Within 60 days of the signing of this Stipulation,
defendants shall eliminate delays or waiting lists for Braille
instruction at NMSVH, and ensure that delays or waiting lists do
not develop.
7. Within 60 days of the signing of this Stipulation,
defendants shall ensure that whenever technically possible, texts
in all courses offered at the School are available in Braille for
the students who need them. If texts are not available in
Braille from the publisher, defendants shall have thirty (30)
days from the date the text is received from the publisher in an
electronic medium capable of conversion to Braille within which
to make the text available to students in Braille.
8. Immediately upon the signing of this Stipulation, the
School's Braille instructor(s) and other instructional staff
shall make reasonable efforts to ensure that students studying
and using Braille do so using their fingers, not their eyes.
9. NMSVH shall continue to offer courses in the reading and
writing of Braille to NMSVH staff. Defendants shall ensure that
all academic teachers at NMSVH become proficient in Braille no
later than September 1, 1999. The Braille proficiency of each
NMSVH teacher shall be assessed periodically, but in no event
less often than yearly, by a qualified professional. If in the
yearly assessment any teacher is determined not to be proficient
in Braille, that teacher shall be required to become proficient
within 180 days by means of a refresher course or tutorials
offered either on or off the School's campus at the expense of
the School. Other School staff, including education assistants
and dorm counselors, also will be required to meet Braille
proficiency requirements, though these requirements may not be at
the same level as those required of academic teachers. A
protocol designed to measure Braille reading and writing
proficiency will be developed by a qualified professional within
30 days of the signing of this Stipulation. The protocol will be
presented to the United States for review by such date and the
United States shall have an opportunity to object to the proposal
within 30 days. If the United States objects, a new protocol
shall be developed within 60 days with technical assistance
provided by the United States. Once an appropriate protocol has
been developed, it will be used to measure Braille reading and
writing proficiency of academic teachers and other staff required
to meet proficiency requirements. All staff subject to Braille
proficiency requirements shall be required to be proficient in
Braille by September 1, 1999.
IV. ORIENTATION/MOBILITY TRAINING
1. Beginning with the second semester of the 1998-1999
academic year, all students seeking admission or enrollment at
NMSVH shall receive an initial orientation and mobility (O&M)
assessment as part of the pre-admission process. At least
annually thereafter, as part of the IEP team's annual review and
in consultation with the School's O&M instructor, the IEP team
shall consider each student's need to use a cane or other
orientation and mobility assistive device, and shall document the
team's conclusions and the basis for those conclusions in the
student's IEP.
2. Any student identified by the IEP team as needing a cane
or other orientation and mobility assistance device shall be
encouraged to use the device and shall receive O&M instruction in
accordance with the student's IEP until he or she can demonstrate
proficiency. Students capable of deriving benefit from
developing O&M proficiency in a setting other than the School's
campus shall receive O&M instruction until they can demonstrate
proficiency in a setting, appropriate to the individualized needs
of the student, other than the School's campus. Students shall
be given O&M training sufficient to enable each to navigate as
independently as possible.
V. SUPPLEMENTAL VISION AND MOBILITY AIDS
Immediately upon the signing of this Stipulation, defendants
shall ensure that any student who misplaces, damages, or destroys
his or her eyeglasses or other supplemental vision or mobility
aids receives replacement eyeglasses or aids in a timely manner.
VI. MENTAL HEALTH, BEHAVIORAL, AND SUBSTANCE ABUSE SERVICES
1. Defendants shall provide care, treatment, and services
sufficient to meet the needs of each student who has mental
illness or who has substance abuse, behavioral, or emotional
problems, including emotional or behavioral needs related to his
or her vision impairment.
2. Within 30 days of the signing of this Stipulation,
defendants shall employ or retain the services of one full-time
and one half-time mental health professionals (as defined in
Section II, Paragraph 3 of this Stipulation) to provide
counseling and other mental health services, including emergency
mental health services, on campus to students. NMSVH may satisfy
the requirements of this paragraph by entering into a contract
with a private provider or public agency for the provision of
appropriate mental health counseling and other mental health
services for students. Each student receiving counseling shall
receive counseling on a basis consistent with the student's IEP,
for a period no shorter than the period established by the IEP
team, unless a shorter period of treatment is determined to be
clinically appropriate by the professional treating the student.
Defendants shall ensure that mental health services, as
distinguished from guidance counseling and other services, are
provided only by qualified persons as defined in Section II,
Paragraph 3 of this Stipulation. Defendants may provide students
with the services of school counselors or school social workers,
but such services shall not be considered appropriate to replace
or substitute for mental health services.
3. Within 30 days of the signing of this Stipulation,
defendants shall ensure that any student needing emergency mental
health care is examined and treated promptly by a psychiatrist or
other medical doctor (to determine whether psychotropic
medication is indicated) or if appropriate, by another mental
health professional as that term is defined in Section II,
Paragraph 3 of this Stipulation.
4. Within 60 days of the signing of this Stipulation,
defendants shall ensure that the School has implemented a program
sufficient to (a) train all educational, residential (dormitory)
and health care staff on how to recognize serious behavioral and
emotional problems of students, including substance abuse
problems, and (b) educate students about behavioral and emotional
problems, including substance abuse, and how to obtain
confidential help with these problems.
5. Upon the signing of this Stipulation, defendants shall
develop and implement appropriate, individualized therapeutic and
behavior modification interventions as necessary to address any
student's suicidal or self-injurious behavior.
6. Within 30 days of the signing of this Stipulation,
defendants shall ensure that each NMSVH student's behavioral and
mental health needs, if any, are identified and incorporated into
his or her IEP, along with any needed related services, and that
these elements of the IEP, like any other elements of the IEP,
are implemented.
7. Upon the signing of this Stipulation, defendants shall
ensure that nursing staff at the School have information
concerning students' mental health and substance abuse status
where this information is necessary for School nurses to
appropriately care for students, subject to the requirement that
the nursing staff shall maintain the confidentiality of such
information.
8. The mental health professionals employed or retained
pursuant to Section VI, Paragraph 2 of this Stipulation shall
assist the School in implementing the provisions of this Section
of the Stipulation, as well as any other policies developed by
the School relating to behavior, mental health and substance
abuse.
VII. RESPONSE TO INJURIES/PROTECTION FROM ABUSE AND NEGLECT
1. Defendants shall ensure that NMSVH students are
protected from harm.
2. Within 60 days of the signing of this Stipulation, in
order to ensure that NMSVH students are safe, defendants shall
review NMSVH's policies, procedures, and practices for reporting
and investigating allegations of abuse, neglect and injury and
taking action when abuse and/or neglect allegations are
substantiated, or when injuries are found to be preventable.
Within 60 days of the signing of this Stipulation, defendants shall:
(a) Ensure that all reports of abuse and neglect of
students made to NMSVH staff are reported on a single
standardized form, and that all reports of student
injuries are made on another standardized form. The
content of these forms shall be maintained in hard copy
as well as in the automated system described in Section
VII, Paragraph (2)(d).
(b) Review NMSVH's 7/26/96 policy (NMSVH Policy No. 517) on
reporting suspected abuse and neglect and assure that
mechanisms for students, relatives, parents, guardians,
and visitors to report allegations of abuse or neglect
to School and State officials are implemented. Notify
all staff at least twice yearly of their obligation to
report abuse and neglect to School and State officials,
and the mechanisms for doing so. Review all policies
on abuse and neglect and injuries at least annually.
Provide all new staff with information or instruction
on child abuse and neglect issues and reporting, and on
recognizing and reporting student injuries.
(c) Post notices in regular print and in Braille in
conspicuous locations throughout NMSVH concerning the
mechanisms referred to in Section VII, Paragraph (2)(b)
for reporting allegations of abuse or neglect of
students. Describe these mechanisms in the student and
parent handbooks to be distributed to students and
parents at least once yearly, and provide a separate
written notification of these mechanisms (in the form
of a letter) to parents and guardians at least once
yearly. Provide this individually distributed
information orally to students, parents and guardians
who are illiterate or have difficulties reading; and in
Braille to students, parents, guardians and staff upon
request.
(d) Develop and implement within 30 days of signing this
Stipulation an automated system that will be used to
maintain all reports of child abuse or neglect made to
NMSVH staff, serious incidents of student misbehavior
and student injuries, and, except where precluded by
State law, the results of the investigation of any such
allegations.
(e) Utilize the automated system described in Section VII,
Paragraph (2)(d) to track trends in allegations of
abuse and neglect reported to NMSVH (including NMSVH
staff), defined by (i) type of abuse or neglect alleged
(physical, sexual, emotional; staff on student; student
on student), (ii) student(s) involved, (iii) staff
involved, (iv) source of allegation, (v) date of incident, (vi) outcome of investigation, and (vii) any other necessary data.
(f) Ensure coordination as appropriate between NMSVH and
the New Mexico Department of Children, Youth and
Families so that every report of child abuse or neglect
is investigated by one or both entities, or where
appropriate by law enforcement. NMSVH shall report any
instances in which there is reason to suspect abuse or
neglect to the appropriate authorities, as required by
State law, NMSA 1978 § 32A-4-3, and shall cooperate in
any investigation conducted by any other State agency
or by law enforcement.
(g) Ensure that each time the NMSVH Board of Regents
convenes, the NMSVH Superintendent reports to the Board
in executive session any allegations or suspected
incidents of abuse or neglect at the School.
(h) Utilize the automated system described in Section VII,
Paragraph (2)(d) to track trends in student injuries,
defined by (i) type of injury, (ii) cause of injury,
(iii) student injured, (iv) date of injury, and (v) any
other necessary data.
(i) Establish a review committee composed of the NMSVH
Superintendent, Director of Student Services, Mental
Health Counselor(s) and Nurse(s), to review all
reported student injuries on an ongoing basis, and to
report to the Board of Regents on a quarterly basis.
Whenever a student is injured, the report of the
injury, together with any evidence such as photographs,
will be evaluated by the review committee to determine
any preventive steps that shall be taken on an
individual and systemic basis to prevent further
injuries.
(j) Ensure that whenever an NMSVH staff member has reason
to suspect abuse or neglect of a student, the staff
member complies with the reporting requirement of
Section VII, Paragraph 2(k) below, and then advises the
Superintendent of NMSVH. The Superintendent shall not
screen, prevent or place conditions on reports to the
Department of Children, Youth and Families or law
enforcement. In responding to an allegation of abuse
or neglect of a student, the Superintendent shall make
a determination of any immediate actions necessary to
protect the student or preserve evidence; shall
implement such actions immediately; and shall cooperate
with any agency investigating the alleged incident or
incidents.
(k) Ensure that reports of abuse and neglect are made to
law enforcement, the Department of Children, Youth and
Families, or other authorized agencies, immediately
where any defendant or staff member has reason to
suspect abuse and/or neglect, or has learned of an
allegation of abuse and/or neglect. The State shall
use reasonable efforts to assure that investigations by
authorized agencies are initiated immediately. Results
of the investigation will be requested by NMSVH and
will be documented and retained in the automated system
described in subparagraph VII(2)(d) above.
(l) Ensure that NMSVH or its Board of Regents takes
disciplinary action in cases of documented,
substantiated abuse or neglect of students by staff
members.
(m) Ensure that NMSVH investigates the criminal history and
other relevant background factors of every applicant
offered employment at the School, whether full-time or
part-time, temporary or permanent, in the manner
specified by NMSA § 22-10-3.3B (1998 Supp.). The
School shall require similar assurances as to the
background of personnel who have unsupervised access to
NMSVH students pursuant to contracts or other
arrangements made by the School or the defendants with
private entities.
3. Defendants shall ensure that within 30 days of the
signing of this Stipulation, NMSVH and the Department of
Children, Youth and Families enter into a protocol or cooperative
agreement to assure that NMSVH is notified of any allegation of
abuse or neglect of an NMSVH student by an NMSVH employee,
contractor or student, and permitting an NMSVH investigation for
purposes of protecting students and determining whether
disciplinary action against any staff member is appropriate,
provided such investigation would not impede an actual
investigation undertaken by the Department of Children, Youth and
Families, or law enforcement. This protocol or cooperative
agreement shall be incorporated into this Stipulation, by way of
an attachment, within 60 days of the signing of this Stipulation.
NMSVH and the Department of Children, Youth and Families shall
work collaboratively and cooperatively wherever possible to
investigate allegations of abuse and neglect of NMSVH students as
referred to above. NMSVH shall seek assistance from the
Department of Children, Youth and Families in implementing
Section VII of this Stipulation.
4. Nothing in this Stipulation otherwise releases NMSVH or its staff from their obligations to notify appropriate authorities, including those agencies specified in NMSA 1978 § 32A-4-3, when there is reason to suspect abuse and/or neglect involving an NMSVH student.
VIII. PLACEMENT IN THE LEAST RESTRICTIVE ENVIRONMENT AND
DOCUMENTATION THEREOF
1. Beginning with the second semester of the 1998-1999
academic year, defendants shall ensure that no student
matriculates at or attends NMSVH without an individualized,
documented determination that the School is the least restrictive
environment in which the student's needs can be met, i.e., a
determination that "the nature or severity of the disability of
[the] child is such that education in regular classes with the
use of supplementary aids and services cannot be achieved
satisfactorily." 20 U.S.C. § 1412(a)(5)(A).
2. Within 60 days of the signing of this Stipulation,
defendants shall revise the forms used for documentation of the
need for placement of students at NMSVH, to permit an
individualized and substantiated description of the reason(s) for
residential placement of each student at NMSVH. The reasons for
placement of each student at NMSVH shall be documented
immediately on the new forms.
3. As part of each student's annual IEP review, the IEP
team shall consider and document its analysis of whether
continued placement of the student at NMSVH is the least
restrictive environment appropriate to the student's needs under
the IDEA and regulations promulgated thereunder.
4. The State or the School shall, within 120 days of the
signing of this Stipulation, commission a study by a qualified
professional or agency to determine whether students at NMSVH, as
well as other blind and visually impaired students in the State,
might be appropriately educated in their local public school
districts through the use, among other things, of outreach
educators employed by NMSVH.
5. With the signing of this Stipulation, defendants
represent and affirm that they have adopted a construction of
NMSA 1978 §§ 21-5-5 and 21-5-8 that is consistent with the IDEA,
and that they do not construe, interpret or seek to enforce these
statutes in a manner which would require student attendance at
NMSVH for seven years or expose violators to criminal sanctions.
The NMSVH Board of Regents and the New Mexico Attorney General
further represent and affirm that they will seek the amendment or
repeal of these statutes during the 1999-2000 session(s) of the
New Mexico Legislature.
IX. GENERAL PROVISIONS
1. Defendants shall employ or reassign a sufficient number
of individuals to implement the provisions of this Stipulation.
2. Defendants shall develop and implement quality assurance
mechanisms that are sufficient to enable the defendants to
demonstrate that they are ensuring the full implementation of the
provisions of this Stipulation.
3. Within 90 days of the signing of this Stipulation, NMSVH
shall initiate the advisory council approved by the Board of
Regents at its September 26, 1997 meeting. The Board of Regents
shall invite interested members of the public, parents and
guardians of NMSVH students, and NMSVH students to nominate
persons to serve on the advisory board to be selected by the
Board of Regents. The council shall include three parents and/or
guardians of NMSVH students (one of whom shall be a parent of an
Outreach student), one NMSVH student and two NMSVH alumni. The
council will provide parent and consumer input to the Board of
Regents, including advice on the implementation of this
Stipulation.
4. Within ten days of the signing of this Stipulation, the
defendants shall provide a copy of this Stipulation and shall
explain the terms of this Stipulation to all employees of NMSVH,
and to all contractors in a position to have access to NMSVH
students without direct supervision, in order to ensure their
understanding of the requirements of this Stipulation and the
necessity for strict compliance with the Stipulation. Until such
time as the Stipulation is no longer in effect, NMSVH shall
ensure that all NMSVH staff members and other individuals
responsible for implementing this Stipulation sign a statement
indicating that they have read and understand this Stipulation.
Such statements shall be retained in the NMSVH personnel office.
The defendants shall require strict compliance with this
Stipulation by their respective employees, agents, assigns, or
successors.
5. Within ten days of the signing of this Stipulation, and
until termination of this Stipulation, the defendants shall
provide notice of this Stipulation to all NMSVH students and
their parents or guardians by informing them in writing, either
in a letter or as part of a handbook, that NMSVH is operating
under the terms and conditions of this Stipulation and that upon
request, any student and any parent or guardian shall be given a
copy of the complete Stipulation. The notification shall include
a summary of the substantive provisions of the Stipulation in
easily understood language. Defendants shall provide
notification of the Stipulation orally to students, parents and
guardians who are illiterate or have difficulties reading; and in
Braille to students, parents, guardians and staff upon request.
X. CONSTRUCTION, IMPLEMENTATION, TERMINATION
1. This Stipulation shall take effect on the date of its
signing by the parties. Except where otherwise specifically
indicated, the defendants shall fully implement all of the
provisions of this Stipulation within one hundred and eighty days
of the parties' signing of the Stipulation.
2. The defendants shall provide the Department of Justice,
and its consultative experts and agents, with access to all
buildings and facilities at NMSVH, faculty, staff, and students
attending NMSVH; records maintained by the defendants or any
State actor (including private contractors providing educational
or related services to NMSVH students) in any location concerning
students' education, placement, and medical (including mental
health) status; reports of abuse, neglect or other misconduct
involving any student; and all records maintained by the State,
the School or the Board of Regents concerning the School's
personnel, budget, operation and management.
3. The defendants shall maintain sufficient records to
document their compliance with all the terms of this Stipulation.
The defendants also shall maintain any and all records required
by or developed under this Stipulation.
4. Seventy-five days after the signing of this Stipulation
and quarterly thereafter, the defendants shall provide the United
States Department of Justice with a status report of their
compliance with each provision of this Stipulation. The status
report shall state the steps taken to achieve compliance with each provision of the Stipulation during the reporting period.
5. The defendants shall report immediately to the United
States Department of Justice any substantiated allegation of abuse or neglect and any serious student injury or death that occurs during the life of this Stipulation.
6. Within 30 days of receipt of written questions from the
United States concerning the defendants' compliance with the
Stipulation, the defendants shall provide the United States with
written answers and any requested documents regarding the
defendants' compliance with the requirements of this Stipulation.
7. To ensure that the provisions of this Stipulation are
properly and timely implemented, the Court shall retain
jurisdiction over this action for purposes of enforcement of the
Stipulation, until such time as the defendants have fully
implemented all requirements of the Stipulation and compliance
has been maintained for at least one year. When the defendants
have determined that they are in full compliance with the
Stipulation and that full compliance has been maintained for no
less than one year, the defendants shall so advise the United
States in writing. At that or any other time, the United States
may evaluate the status of compliance with this Stipulation,
including by means of a tour of the School and a review of
documents. If the parties agree that the defendants have
achieved full compliance with the Stipulation and that full compliance has been maintained for no less than one year, the parties shall request that the Court issue an order dismissing
the Stipulation and the Court's order retaining authority to enforce the Stipulation. In case of dispute concerning defendants' compliance with the Stipulation, the burden shall be on the United States to demonstrate to the Court that defendants have not met the criteria for full compliance with the
Stipulation and/or have not maintained full compliance with the Stipulation for a period of at least one year, and that the Stipulation and order through which the Court retains authority to enforce the Stipulation should not be dismissed.
8. The defendants may, during the pendency of this
Stipulation, modify policies and procedures referred to herein,
provided that such revision is consistent with the terms and
conditions of this Stipulation. The defendants shall provide the
United States with a copy of any such revisions on a quarterly
basis.
9. The United States shall not seek judicial enforcement of
this Stipulation during its initial 180 days term except in case
of conditions that pose a threat to the life, health or safety of
NMSVH students.
10. The United States shall notify the defendants of any
instance in which it maintains that the defendants have failed to
carry out the requirements of this Stipulation. With the
exception of conditions posing a threat to the life, health or
safety of NMSVH students, the defendants shall have thirty (30)
days from the date of a deficiency notice to respond to or cure
the claim of non-compliance before any judicial enforcement of
this Stipulation is sought by the United States.
11. All parties shall bear their own costs, including
attorneys' fees.
Dated: _______________, 1999
AGREED TO:
FOR DEFENDANTS
THE STATE OF NEW MEXICO, ET AL.
THE HONORABLE PATRICIA A. MADRID, Attorney General, State of New Mexico
FRANCIE CORDOVA, Assistant Attorney General, Office of the New Mexico Attorney General
6301 Indian School, N.E.
Albuquerque, NM 87110
(505) 841-8040
FOR PLAINTIFF
THE UNITED STATES OF AMERICA
BILL LANN LEE, Acting Assistant Attorney General, Civil Rights Division
STEVEN H. ROSENBAUM, Chief
ROBINSUE FROHBOESE, Deputy Chief
JUDITH C. PRESTON
Attorneys
U.S. Department of Justice
601 D. Street, N.W.
Washington, DC 20004
(202) 514-6255
By: ______________________ By: _______________________
JOHN J. KELLY, United States Attorney, District of New Mexico
JAMES SALAS, President, Board of Regents, New Mexico School for the Visually Handicapped
____________________________By: _________________________
ROBERT GORENCE, First Assistant U.S. Attorney
SIMONS CUDDY & FRIEDMAN, Counsel to New Mexico School for the Visually Handicapped
By: ________________________
JOHN F. KENNEDY
ORDER OF CONDITIONAL DISMISSAL
This Court having reviewed the foregoing Stipulation, the
United States' Complaint, and the Motion for Conditional
Dismissal of the Action under Rule 41(a)(2) of the Federal Rules
of Civil Procedure, the action is dismissed without prejudice,
subject to the parties' entry into the Stipulation set forth in
its entirety above, with which the parties are hereby directed to
comply. The Stipulation shall be merged into this Order of
conditional dismissal. The dismissal of this action is
specifically conditioned upon the parties' compliance with the
Stipulation, which is in the public interest, and a fair and
equitable resolution of this action. This Court retains
jurisdiction to enforce the Stipulation until such time as a
final order dismissing the Stipulation has been entered. The
Clerk is directed to place the case on the Court's inactive
docket.
IT IS SO ORDERED this ____ day of ___________, 1999, at
Albuquerque, New Mexico.
____________________________
UNITED STATES DISTRICT JUDGE
Updated July 25, 2008