On April 25, 1979, a class action lawsuit was filed in the U.S. District Court for the Northern District of Illinois, on behalf of a class of children in Cook County, Illinois, who were either wards of the juvenile court or had petitions for wardship pending, and had emotional, physical, or mental disabilities. The plaintiffs represented by the Cook County Public Guardian alleged that the Illinois Department of Children and Family Services (DCSF), the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), and the State Board of Education (SBE) refused to provide them with necessary services because of their disabilities, in violation of their equal protection rights under 29 U.S.C. § 794 (the Rehabilitation Act of 1973). In late 1981, the case was settled by consent decree. The three Illinois agencies promised to provide appropriate services to children 17 or under who were in need of special services. In 1995 the Illinois legislature enacted a law curtailing the DCSF's authority to provide services to children over 13 who had been adjudicated delinquent, but not abused or neglected and were not dependent on the state. The DCSF asked the court to modify the consent decree so that it would be relieved of any duty to care for delinquents over the age of 13. On September 27, 1996, the court (Chief Judge Marvin Aspen) denied DCSF's motion to vacate or modify, reasoning that DCSF had not demonstrated that that the plaintiff's claim--that they had been discriminated against because of the severity of their disabilities--falls outside the Rehabilitation Act. David B. v. Patla, 950 F.Supp. 841 (N.D. Ill. 1996). The District Court also found that state law did not prohibit the agency from providing services to delinquent minors, but only prohibited these minors from being taken into custody by DCSF or committed to DCSF by a Juvenile Court.The plaintiffs appealed and on June 16, 1997, the Seventh Circuit Court of Appeals (Judge Frank Easterbrook), vacated the judgment and remanded the case. David B. v. McDonald, 116 F.3d 1146 (7th Cir. 1997). The Court of Appeals instructed the District Court to determine whether a substantial federal claim supported the decree as a whole, and if not, to lift the decree.

On December 2, 1997, the District Court for the Northern District of Illinois vacated the consent decree. The plaintiffs appealed claiming that the consent decree was substantially based on federal law. On March 12, 1998, the court (Judge Aspen) in an unpublished opinion, found that the Rehabilitation Act did not support the plaintiff's claim, but that the substantive Due Process claim could support at least some of the plaintiffs' claims. David B. v. McDonald, No. 98-1796, 1998 WL 111705 (N.D. Ill. March 12, 1998). The court ordered that the decree be modified to permit Illinois to reallocate tasks among its agencies and to reduce the services to persons adjudicated delinquents, and that the decree only applied to minors who had been declared wards of the state, whose guardians are state agencies, or who are in the physical custody of the state.

On September 28, 1998, the Seventh Circuit Court of Appeals (Judge Easterbrook), found that the plaintiffs' new theory of the case under the 14th Amendment required that the defendants be the juveniles' custodians, because only custody created the corresponding duty to assume some responsibility for the ward's safety and well being. David B. v. McDonald, 156 F.3d 780 (7th Cir. 1998). The court also found that the real party in interest was the state itself, and therefore the 11th Amendment deprives the District Court of jurisdiction. The case was remanded with instructions to set aside the consent decree and dismiss the case for lack of subject matter jurisdiction. The Supreme Court denied certiorari on January 12, 1998. David B. v. McDonald, 522 U.S. 1048 (1998).