PJ Case Appeal

10-3586-cv
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT

P.J ., By & Through His Parents & Next Friends Mr. & Mrs. W.J ., L.G., By & Through Her Parents &
Next Friends Mr. & Mrs. L.G., M.L., By & Through Parents & Next Friends Mr. & Mrs. J .L.,

Plaintiffs-Appellants,

Ian Ian Katz, By and Through His Parents and Next Friends Mr. & Mrs. Mark Katz, Connecticut
Association for Retarded Citizens, Inc., Coalition for Inclusive Education, Connecticut Coalition of
Citizens with Disabilities, People First, Inc.,
Intervenors-Plaintiffs-Appellants,
v.

CT Board of Ed., Education, Dept of, Tirozzi, Gerald, Comm.,

Defendants-Appellees,

Regional School District 15, Board of Education, Regional School District No. 15, Board of
Education,

Consolidated-Defendant,

West Hartford Board of Education, Windham Board of Education, Stamford Board of Education,
Wethersfield Board of Education,
Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
_________________________________________________________________________________
BRIEF AND SPECIAL APPENDIX FOR PLAINTIFFS-APPELLANTS
________________________________________________________________________________

Attorney for Plaintiffs-Appellants,
Intervenors-Plaintiffs-Appellants
Of Counsel: David C. Shaw, Esq.
The Law Office of David C. Shaw, LLC
34 J erome Ave., Suite 210
Bloomfield, CT 06002
Tel.: (860) 242-1238
Case: 10-3586 Document: 111 Page: 1 04/02/2013 894586 200
PLAINTIFFS-APPELLANTS BRIEF
TABLE OF CONTENTS

Table of Authorities ..................................................................................................... i
I. J urisdictional Statement ...................................................................................... 1
II. Statement of Issues for Review ........................................................................... 2
III. Statement of Case ................................................................................................ 3
IV. Statement of Facts ............................................................................................... 4

V. Summary of the Argument ................................................................................. 18
VI. Argument ............................................................................................................. 21
A. The court erred in not formulating, using and adhering to a proper
legal standard for judging substantial noncompliance. ................................. 21
B. The court erred in its determination that substantial noncompliance was not
established with respect to Section II of the Settlement Agreement ............ 33
C. The court erred in excusing Defendants violation of Section I of the
Settlement Agreement with Defendants noncompliance resulted in
massive attrition of class members who were not monitored or
not accounted for during the life of the Settlement Agreement. ................... 50
D. The court erred in granting Defendants a good-faith exception to
compliance with Section IX of the Settlement Agreement allowing
them to avoid substantial noncompliance when they terminated the
Expert Advisory Panel in violation of the Settlement Agreement. .............. 54

E. The court erred in denying Plaintiffs the opportunity to conduct
discovery regarding serious violations of the Settlement Agreement
during the last three year of the Settlement Agreement. ............................... 57
VII. Conclusion ........................................................................................................ 63

Certificate of compliance with type-volume limitations, typeface
requirements and type style requirements ................................................................... 65

SPECIAL APPENDIX TO APPELLANTS BRIEF

Addendum to Appellants Brief, Table of Contents ......................................... 1

ECF No. 686 - U.S. District Court Order denying Plaintiffs Motion
for Orders to Remedy Substantial Noncompliance with the
Settlement Agreement .................................................................................... 2

ECF No. 707 - Memorandum dtd. 08/08/12,
U.S. District Court J udge Robert N. Chatigny ................................................. 3

ECF No. 581 - 03/26/09 Transcript of Ruling on Motion to Compel,
U.S. District Court Magistrate J udge Donna F. Martinez ................................ 65

ECF No. 593 - 07/07/09 Transcript of Ruling re Objection to
Ruling on Motion to Compel, J udge Robert N. Chatigny ................................ 79

ECF No. 729 - 06/24/01Transcript of Evidentiary Hearing,
pp. 1503, 1612-1632; Ruling re admission of Defendants Exhibit 2 . ............ 107

TABLE OF AUTHORITIES

Cases

Alvary v. United States,
302 F.2d 790 (2d Cir. 1962) ......................................................... 48
Acevedo v. Turner,
2010 WL 5817662 *5-*6 (S.D.N.Y. 2010) .................................. 23, 54

Barcia v. Sitkin,
367 F.3d 87 (2d Cir. 2004) ........................................................... 46, 47, 49, 59

Board of Educ. of Hendrick Hudson Central School Dist.,
Westchester County v. Rowley, 458 U.S. 176 (1982) ................... 23, 29

California Department of Social Services v. Leavitt,
523 F.3d 1025 (9
th
Cir. 2008) ....................................................... 60

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ............. 51

Daniel R.R. v. State Board of Education,
874 F.2d 1036 (5
th
Cir. 1989) ....................................................... 35

Equal Employment Opportunity Commission v. Local 580,
669 F.Supp. 606 (S.D.N.Y. 1987) ................................................ 59

Fortin v. Commissioner of Massachusetts Department of Public Welfare,
692 F.2d 790 (1
st
Cir. 1982) ......................................................... 23

Greer v. Rome City Sch. Dist.,
950 F.2d 688 (11
th
Cir. 1991)
withdrawn, 956 F.2d 1023, reinstated, 967 F.2d 470 (1992) ....... 35

Harris v. City of Philadelphia,
1995 WL 350296 (E.D.P.A. 1995) *12 n. 5 ................................. 60

Heisman Trophy Trust v. Smack Apparel Company,
379 Fed. Appx. 12 (2
nd
Cir. 2010) ................................................ 59

Hester Industries Inc. v. Tyson Foods, Inc.,
160 F.3d 911 (2
nd
Cir. 1998)........................................................51

In re Vitamin C Antitrust Litig.,
06-MD-1738 (BMC)(J O),
2012 WL 4511308 (E.D.N.Y. Oct. 1, 2012) ................................ 61

Joseph A. by Wolfe v. N.M. Dep't of Human Servs.,
69 F.3d 1081 (10th Cir. 1995) ...................................................... 23, 24, 26, 32

King v. Town of Wallkill,
302 F.Supp. 2d 279 (S.D.N.Y. 2004) ........................................... 61

Kozlowski v. Coughlin,
871 F.2d 241 (2d Cir. 1989) ......................................................... 59

Oberti by Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist.,
995 F.2d 1204 (3d Cir. 1993) ....................................................... 29, 34, 35, 36

Olson Rug Co. v. National Labor Relations Board,
291 F.2d 655 (7
th
Cir. 1961) ......................................................... 60

Omega Engg, Inc. v. Omega, S.A.,
432 F.3d 437 (2
nd
Cir. 2005) ......................................................... 22
Oral-B Lab, Inc. v. Mi-Lor Corp., 810 F.2d 20
(2d Cir. 1987)................................................................................ 33
P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed.,
546 F.3d 111 (2d Cir. 2008) ......................................................... 35

Pennsylvania Association for Retarded Citizens (PARC) v.
Commonwealth of Pennsylvania, 343 F.Supp. 279
(E.D. Pa. 1972) ............................................................................. 27

Perez v. Danbury Hosp., 347 F.3d 419 (2d Cir. 2003) ................ 47, 49

Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367 (1992) ..................................................................... 47

Sacramento City Unif. Sch. Dist. v. Holland,
14 F.3d 1398 (9
th
Cir. 1993) ......................................................... 29

Travelers Int'l, A.G. v. Trans World Airlines,
41 F.3d 1570 (2d Cir. 1994) ......................................................... 51, 58

United States v. ORourke, 943 F.2d 180 (2
nd
Cir. 1991) ............ 33
United States v. City of Northlake, Illinois,
942 F.2d 1164 (7
th
Cir. 1991) ....................................................... 60

United States v. Stone, 604 F.2d 922 (5th Cir.1979) .................... 61

20 U.S.C. 1400 (c)(5)(D)(2000) ................................................ 29
20 U.S.C. 1412(a)(5)(A) ............................................................ 3, 18, 25, 26, 30, 31, 34

20 U.S.C. 1412(5)(2000) ........................................................... 28

34 C.F.R. 300.347(a)(1), (a)(2)(i), (a)(3), (a)(4) and (a)(7) .... 30
34 C.F.R. 300.550 through 300.552 ........................................ 31

1

I. J URISDICTIONAL STATEMENT
A. This district court has jurisdiction over this dispute because it approved
the parties Settlement Agreement (Agreement) of a lawsuit brought pursuant to
20 U.S.C. 1400 and 29 U.S.C. 794 and retained jurisdiction over the
implementation of that Agreement. The court retained jurisdiction for enforcement
purposes for an eight year period beginning on August 13, 2002. The court retained
jurisdiction and entered a final order denying Plaintiffs Motion for Orders to
Remedy Substantial Noncompliance on August 12, 2010.
B. The Court of Appeals has jurisdiction to entertain this appeal pursuant to
28 U.S.C. 1291 in that the district court entered a final order denying the
Plaintiffs Motion for Orders to Remedy Substantial Noncompliance on August 12,
2010. Plaintiffs filed a timely appeal from that final order pursuant to Rules 3 and
4 of the Federal Rules of Appellate Procedure on September 3, 2010. This court
has jurisdiction over Plaintiffs appeal of the district courts denial of Plaintiffs
motions to conduct discovery and is reviewable now that a final order has entered.
U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953); 8 Fed. Prac. &
Proc. Civ. 2006 (3d Ed.).
C. This appeal is from a final order that disposes of all of Plaintiffs claims
in the district court.

2

II. STATEMENT OF ISSUES FOR REVIEW
1. Whether the court erred in using legal standard for judging substantial
noncompliance that did not identify the purpose of the Agreement and did not
address each of its essential requirements.
2. Whether the court erred in interpreting the language of the Agreement
stating Defendants standard of performance to be meaningful continuous
improvement for children to be educated in their home schools and regular
classrooms.
3. Whether the court erred in its assessment of continuous progress annually
for each of the goals in the agreement by making a single calculation for the entire
8-year period combining active ID students and reclassified ID students.
4. Whether the court erred in excusing noncompliance based on Plaintiffs
failure to prove that more progress would have been made but for Defendants
violations of Section I and Section IX.
5. Whether the court erred in excusing noncompliance for reasons of budget
constraints, good-faith efforts and other factors extrinsic to the terms of the
Agreement.
6. Whether court erred in excusing Defendants violation of Section I of the
Agreement when Defendants noncompliance resulted in massive attrition of class
3

members who were not monitored or accounted for during the life of the
Agreement.
7. Whether court erred in granting Defendants a good-faith exception to
compliance with Section IX of the Agreement when they terminated the expert
advisory panel in violation of the Agreement.
8. Whether the court erred in denying Plaintiffs the opportunity to conduct
discovery regarding serious violations of the Agreement during the last 3 years of
the Agreement.
III. STATEMENT OF CASE
This action was brought to enforce the rights of a class of school aged
special education students with intellectual disabilities to placement in regular
classes in the schools they would attend if they were not disabled pursuant to 20
U.S.C. 1412(a)(5)(A) and 29 U.S.C. 794. The parties reached an Agreement
that was approved by the district court on May 22, 2002. Under that Agreement,
the court retained jurisdiction to enforce the provisions of the Agreement for eight
years from the empanelling of an Expert Advisory Panel. The Plaintiffs filed a
Motion to Compel discovery and a Motion for Orders to Remedy Substantial
Noncompliance with Agreement in 2009. The court denied Plaintiffs discovery
motions and Plaintiffs Motion for Orders to Remedy Substantial Noncompliance
on August 12, 2010. The Plaintiffs appealed the denial of Plaintiffs discovery
4

motion and Motion for Orders to Remedy Substantial Noncompliance on
September 3, 2010.
IV. FACTS:
This lawsuit was certified as a class action on December 13, 1993. The class
includes [a]ll mentally retarded school-age children in Connecticut who have
been identified as needing special education and who, on or after February 20,
1991 are not educated in regular classrooms. J A-1.
1
Post trial the parties
negotiated a Settlement Agreement (Agreement) approved by the court on May
22, 2002. [ECF. No 462]
The Agreement provides that the Court has jurisdiction to enforce the
Agreement for five years, and can entertain Plaintiffs motions for substantial non-
compliance with the Agreement for a period of eight years after the Expert
Advisory Panel (EAP) was empanelled. The EAP was empanelled on August 13,
2002. J A-4, 5.
From August 13, 2002 through May 16, 2007 Defendants prepared and
submitted to the Court four annual reports. J A-22, J A-160, J A-280, J A-397.
Plaintiffs submitted comments on those reports and requested corrective action to
address non-compliance. J A-641, J A-656, J A-668, J A-728.

1
The Appendix is referenced to using the letters J A followed by a page reference.
5

In their comments in 2002, Plaintiffs objected to the Defendants failure to
provide the list of students required by 1 of the Agreement
2
and called on the
Defendants to explain why 421 ID students were removed from monitoring or
oversight under the Agreement. J A-642. Plaintiffs comments on the next three
annual reports raised the same objections. See, J A-675-676; J A-740-741. Plaintiffs
pointed out each year that the unexplained reduction in the number of ID students,
due to reclassifications of ID students by local school districts, rendered inaccurate
Defendants analysis of progress on the goals ##1, 3, 4 and 5 of Section II of the
Agreement. Id. Over the eight year life of the Agreement 2956 school age children
were reclassified from ID to other disability categories. J A-859. During the life of
the Agreement the number of active ID students that Defendants recognized and
monitored was reduced through reclassifications from 3537 in the 2002-2003 to
2545 in 2009-2010. J A-3244.
In its First Annual Report, the EAP indicated that little progress had been
achieved under the Agreement, insufficient State resources had been made
available to implement the Agreement and training and technical assistance
provided to local school districts were both inadequate. J A-555-568. In 2003, the
EAP established the following benchmarks to measure future progress:

2
Attachment G to Defendants four annual reports contained hundreds of pages listing thirty-two
character codes such as the number/letter code 2904D955-FA7B-4586-96F3-818618D47CD1.
J A-78-145.

6

1. That 90% of students with ID would be placed in their home
schools by 2005; 2) that 75% mean time would be spent by class
members with non-disabled students by 2005; 3) that 40% of class
members would be placed in regular classes by 2005, and 80% would
be placed in regular classes by 2007; and 4) that the percentage of
class members participating in extracurricular activities in each school
should be equal to or exceed the percentage of typical students
participation.

J A-561-562.
Defendants did not adopt these EAP benchmarks or use them for monitoring local
school districts. J A-1934-1939.
The EAP in its second report to the court in 2004, J A-555-568, again
concluded that little measurable progress had been made under the Agreement and
criticized Defendants failure in monitoring as well as their failure to provide
adequate training and technical assistance to school districts. The EAP
recommended that a COACHES Academy be established to partner school
teaching staff with universities across the State, J A-564-568, recommended that
Defendants establish a system to assist in developing appropriate curricular
modifications, adaptation and behavior intervention plans to maintain students in
their regular classrooms. J A-565, 567.
Based on the EAPs recommendations Defendants established the Student
Technical Assistance Response team (STAR) and the COACHES Academy in
2004 to provide technical assistance and training were needed to facilitate progress
under the Agreement. J A-999-1001, 1015; J A-1122-1124, 1139-1141. STAR was
7

established to help address barriers individual ID students were having accessing
the regular classes. J A-1007; J A-1140-1141. STAR teams evaluated a large
number of school systems, identified barriers to including ID children in regular
classes in those districts, and wrote reports recommending the supplementary aids
and services needed to allow children to be placed in regular classes. J A-1007.
Many of the recommendations of the STAR team were not implemented. J A-1011;
J A-1132-1134. As a result, in most cases, the ID students were never placed in
regular classes. Id. The STAR program was discontinued in 2007 by Defendants, at
about the same time as the EAP was discontinued by Defendants. J A-1012-1013;
J A-2039-2040.
The COACHES Academy was designed to take teachers who were trained in
placing ID students in regular classes and teach them how to mentor and train their
colleagues. J A-1015. COACHES Academy did not accomplish its intended
purpose because the teachers selected by local school districts to attend did not
have the skills necessary to place ID children in regular classes, let alone to train
others. J A-1019; J A-1150-1152. COACHES Academy continued for three years
and was discontinued by Defendants at about the same time as STAR and the EAP.
J A-1019; J A-2039-2040. Defendants did not make any assessment as to whether
there was a continuing need for the program before it was terminated. J A-1156.
8

During the period May 2002 through May 2010 the Defendants took the
position that reclassified ID students were not class members and that accounting
for those students was not required. J A-217. Plaintiffs and the EAP, however, took
the position that Defendants had an obligation to disclose all data necessary to for
Plaintiffs to monitor all students who carried the ID label on or after December 1,
1999. Defendants also took the position that providing information on reclassified
students was not feasible given the limitations of the Defendants database and the
federal requirements for confidentiality. J A-217; J A-2847. Plaintiffs responded
that Defendants could not use FERPA or the limitations of CSDE data system as
excuses for not complying with their obligations under the Agreement. J A-2853-
2854.
As a result of the position taken by Defendants, 2956 ID students were
reclassified and the number of ID students actually monitored under the Agreement
decreased from 3537 in 2002 to 2545 in 2009. J A-851; J A-3244. These actions
deprived the EAP and Plaintiffs of the opportunity to conduct a full and
appropriate evaluation of the Defendants progress under the Agreement. J A-609-
610; J A-816-817.
The EAP expressed alarm at the decline in the number of ID students and
size of the class, particularly after Defendants limited audit in the spring of 2003
showed a substantial error rate in the reclassifications by local school districts. J A-
9

609-610; J A-2055-2058. The EAP asked for an independent audit of the students
who had been reclassified and a system for the review of reclassifications. These
recommendations were rejected by Defendants. J A-2055-2058.
In late 2004 the Defendants agreed to send a notice to parents of ID students
regarding the release of information to Plaintiffs. J A-2846-2854; J A-2857-2860;
J A-2863-2864. Defendants did not release data authorized by parents of ID
students on the States PCI database to Plaintiffs until November 2005. J A-2864.
A subsequent review of the PCI database, however, determined that the PCI
database did not provide any of the sought-after information about reclassified
students. J A-814-817; J A-1992-1993.
On September 10, 2004, the Plaintiffs in their comments on the Third
Annual Report to the EAP, J A-668, expressed concern about the lack of progress,
that they still had not been provided a list of class members, that the class had been
reduced in size by 623 class members without explanation. J A-676-677. Plaintiffs
objected to the Defendants failure to follow the recommendations of the EAP,
their failure to verify the accuracy of the data on placement of class members, J A-
682-687, and the Defendants failure to establish a statewide system of technical
assistance. J A-687-690. The EAP expressed grave concern about the significant
decreases in the students in the ID class by 30.5% and recommended that
Defendants conduct a thorough analysis of the data. J A-576, 579-580.
10

In its third report to the district court on September 30, 2004, J A-569, the
EAP again concluded that the Defendants had not made reasonable progress
toward implementing the Agreement, and that the level of progress that was
acceptable for Defendants was far different than the EAPs opinion as to
appropriate progress. J A-573.
Plaintiffs J uly 26, 2005 comments on the Defendants Fourth Annual
Report criticized Defendants failure to provide a list of class members and
account provide an accurate accounting of all class members, failure to take action
related to the reduction of the class by 623 class members, failure to factor in class
attrition through reclassification when reporting on progress under the Agreement
goals, failure to take action with regard to approximately 124 class members
assigned to segregated schools operated by the Regional Educational Service
Centers (RESCS) and failure to implement a system of technical assistance. J A-
728-756.
The EAP filed its Fourth Report on September 30, 2005. J A-583-595. The
EAP reported inadequate progress toward meeting the goals of the Agreement,
continued reliance on segregated schools operated by RESCS, continued erosion of
the class due to reclassification, and the inadequate technical assistance provided
by local school districts. J A-583-595.
11

The Defendants conducted walk-through assessments during the period
J une 2006 J une 2007 to make qualitative assessments of the supplementary aids
and services available to ID students. The assessments were made in the students
classroom and consisted of an announced visit and observations by state employees
(most often Mr. Cunnane) on various aspects of student engagement and
participation in regular class. J A-3238-3240. Defendants never offered any report
of the 700 walk-through check lists. Plaintiffs expert, Dr. Whitbread, read the
walk-through checklists and testified as to her opinions about them. J A-1079-1082,
3237. The walk-throughs were discontinued shortly after the EAP was terminated
by Defendants. J A-2645.
The EAP filed its fifth and final report in February 2007. J A-596-618. The
EAP concluded that progress was unacceptably slow (J A-598, 602), that most
reported progress occurred in a few large districts rather than in all 169 school
districts, that reclassified class members still had not been identified. The EAP
reported that lack of progress under the Agreement resulted in part from outright
defiance of the P.J. Settlement Agreement. J A-598, 601. Finally, the EAP
recommended against removing all external oversight from the Agreement and
predicted the progress that had been achieved would not be sustained if external
oversight was removed. J A-602.
12

In August 2007 the Defendants discharged the EAP over objections of the
Plaintiffs and the EAP. J A-602; J A-2025-2027. Defendants then took the position
that the Agreement had ended and that its obligation to inform Plaintiffs about
class members had ended. J A-1740-1741; J A-1993-1994. Defendants considered
that the Court had jurisdiction for five years, which would have been August
2007 J A-1741.
During the summer of 2006, Plaintiffs retained Dr. Heather Hammer to
develop a longitudinal database to track the ID students from year to year. J A-817-
818. During this effort, Dr. Hammer found significant errors and inaccuracies in
the Defendants ID student database including 2727 instances where children were
moved in and out of the database from year to year. J A-811, 822-823. Plaintiffs
requested an explanation for the discrepancies and requested information about the
reclassified ID students. J A-820-822. When no explanation was provided,
Plaintiffs filed a Motion for Orders Relating to Discovery [ECF No. 519] seeking
access to all data relating to active ID and reclassified students and Defendants
cooperation in conducting an expert review of a sample of ID students. Id. A
stipulated discovery order was then obtained that permitted Plaintiffs to conduct an
expert review of a sample of ID students during the summer of 2007. [ECF No.
517]; J A-3041-3073; J A-3074-3107; J A-3108-3171; J A-3172-3236.
13

On August 27, 2007 the Plaintiffs filed a Motion to Compel to force the
Defendants to turn over data relating to the over 1000 ID children had been
reclassified to other disability groups. Motion to Compel. [ECF Nos. 532, 533.]
Defendants refused to turn over the data maintaining their position that the
reclassified students were not class members. Id. at 2. Plaintiffs argued that this
information was needed because their analysis of Defendants data showed that
over 600 students moved in and out of the State data set from year to year, some as
many as four or five times over the life of the Agreement. Id. Over 2727 incidents
of floating in and out of the data base were identified by Plaintiffs expert. J A-811.
Defendants indicated they could not turn over the requested data because it would
violate the privacy rights of the students who had been reclassified and were no
longer class members. Id. at 2-4. Defendants indicated that they intended to hire an
independent data expert to assist in developing a more accurate depiction of class
membership from 1998 to the present. Id at 4.
On J anuary 9, 2008 the Defendants filed a supplemental brief in opposition
to Plaintiffs Motion to Compel Defendants. Defendants Supplemental Responses
[ECF No. 545-2] confirming Plaintiffs findings that the Defendants data set was
inaccurate in that students were floating in and out of the data. At that time the
Defendants disclosed their newly created longitudinal data base that allowed the
tracking of students from year to year and included information about students who
14

had been reclassified. See, Defendants Supplemental Responses to Plaintiffs
Motion for Disclosure and Production dated J anuary 9, 2008. [ECF No. 545-3] On
February 12, 2008, the court noted that Defendants had provided Plaintiffs with its
newly created longitudinal data base several months after Plaintiffs Motion to
Compel was filed and denied the Plaintiffs Motion to Compel without prejudice to
renew after Plaintiffs had a chance to review Defendants newly created
longitudinal data base. [Order dated 02/12/08, ECF No. 547] However, the code
book Defendants provided with the data did not permit Plaintiffs to conduct an
adequate analysis of the data. See, J A-2468-2470, 2480-2517.
In letters dated November 5, 2007 and J une 18, 2008 the Plaintiffs requested
Defendants cooperation in conducting an analysis of class attrition and assessing
compliance with the Agreements monitoring requirements. Memorandum in
Support of Motion for Orders Compelling Compliance [ECF Nos. 566-8], Exhibits
C and D. In a letter dated December 7, 2007 the Defendants stated they would not
cooperate with Plaintiffs because the Plaintiffs right to discovery, and the Courts
power to entertain discovery motions, expired in May 2007. Id., Exhibit E.
The Plaintiffs, on April 16, 2008, filed a Motion for Orders to Remedy
Substantial Non-Compliance with Settlement Agreement. [ECF No. 549] In that
Motion the Plaintiffs insisted on the need to conduct formal discovery to present
their Substantial Non-Compliance Motion to the court. On J uly 15, 2008, at the
15

courts instruction, the Plaintiffs filed a Motion for Orders Compelling Compliance
with Discovery explaining the discovery Plaintiffs sought to properly litigate their
Substantial Non-Compliance Motion. [ECF Nos. 566-2, p. 5.] Defendants refused
to cooperate with Plaintiffs discovery requests. In a letter dated J uly 3, 2008, the
Defendants refused to make any of Defendants employees available for
deposition, refused to cooperate in Plaintiffs attempt to conduct an expert review
of class attrition, and refused to cooperate with Plaintiffs request for inspection on
the ground that Plaintiffs were not entitled to discovery under the Agreement after
May 2007. Id., Exhibit F. Plaintiffs requested court orders because they could not
assess compliance and litigate their Motion for Substantial Non-Compliance
without discovery. Id., pp. 11-16.
On March 6, 2009 the Magistrate J udge denied Plaintiffs Motion for
Substantial Non-Compliance without prejudice to renewal upon resolution of the
Plaintiffs motion to compel discovery. Order of March 6, 2009. [ECF No. 571.]
On March 30, 2009 the Magistrate J udge denied Plaintiffs Motion to Compel.
Order dated March 30, 2009. [ECF Nos. 577, 581.] Subsequently, the Court denied
the Plaintiffs objection to the recommended ruling denying Plaintiffs Motion to
Compel Discovery. [ECF No. 593.]
On April 15, 2009 the Plaintiffs refiled their Motion for Orders to Remedy
Substantial Non-Compliance. [ECF No. 580.]
16

Free of any ordered discovery, the Defendants permitted five voluntary
depositions beginning in J anuary 2009. The Defendants refused to produce any
of the documents requested in the notices of deposition, and refused to answer any
questions about the analyses Defendants had undertaken relating to the reclassified
ID students and the overall performance on the five goals of the Agreement. The
deposition of Anne Louise Thompson was taken on J anuary 12, 2010. J A-1916-
2126. Based on the instructions of counsel, Thompson refused to produce any
documents at the deposition. J A-2026-2036. During the deposition Thompson was
instructed by counsel on many occasions not to answer questions relating to
matters that went to the heart of Plaintiffs case, such as the States analysis of
progress achieved by reclassified ID students under the Agreement, and its analysis
as to (J A-1924-1924; J A-2133-2134, Response to 4), whether meaningful
continuous improvement was achieved under the Agreement for all active ID
students. J A-1968-1969.
Another of the Defendants employees, Michael Smith, refused to produce
any documents at his deposition based on the instructions of counsel. J A-2566-
2568. He failed to produce documents relating Defendants efforts to implement
the Agreement and analyses of the data secured from local school districts under
P.J.. He was instructed not to answer many questions. See, J A-2526 (instructed
not to bring charts and graphs he prepared relating to statewide progress on the
17

Agreement later presented at trial); J A-2526-2527 (instructed not to answer
questions about his analysis of reclassified ID students).
The deponents refusals to respond to questions were based on Defendants
counsels contention that Defendants written review and analyses were privileged
attorney-client communications prepared solely to defend this litigation. J A-1744-
1745; J A-1966-1969, J A-2478-2517, 2523-2527; J A-3288-3365; J A-1538-1542;
On April 22, 2010 the court entered an order granting Plaintiffs motion for
appointment of the members of the EAP as technical advisors to the court and
ordering the Defendants to provide updated information to the EAP. Order dated
April 23, 2010. [ECF No. 634.] Pursuant to that order, the Defendants, on May 5,
2010, provided their previously prepared report of implementation under P.J. to
the EAP after having withheld the same document from Plaintiffs. J A-1538-1542;
J A-1620-1621.
On May 12, 2010 the Plaintiffs filed a Motion in Limine to Preclude
Defendants from Offering Exhibits and Testimony Relating to Documents and
Data Analyses Withheld from Plaintiffs During Discovery. Motion in Limine.
[ECF No. 645.] The Plaintiffs objected to the fact that the Defendants sent the
EAP the same document that they had refused to disclose to Plaintiffs or discuss
during the five voluntary depositions invoking the attorney-client privilege. Id.
13. By withholding this document during discovery the Plaintiffs were precluded
18

from asking questions about the Defendants analyses presented at trial, and
deprived of the opportunity to fairly and fully cross examine the Defendants
witnesses relating to the report. J A-957-959.
On J une 24, 2010, the court effectively denied the Plaintiffs Motion in
Limine, accepted the Defendants trial report into evidence and relied heavily upon
that document in making the substantial noncompliance decision. See J A-1538-
1540; J A-7641.
V. SUMMARY OF THE ARGUMENT
This case was brought to enforce 20 U.S.C. 1412(a)(5)(A), on behalf of a
statewide class of school-aged children with intellectual disabilities (ID), to
secure their right to be educated in regular classes, with nondisabled students in the
schools they would attend if they were not disabled. Post-trial the parties entered
into a Agreement approved by the court in May 2002. Under the Agreement, the
State made an 8-year commitment to achieve meaningful continuous progress
annually to increase participation of class members in regular classes and home
schools with nondisabled students. The State also committed to make continuous
improvement to increase participation of ID students in integrated extracurricular
activities. To achieve the purposes and goals of the Agreement the Defendants
were also required to monitor participation and progress of class members in the
general curriculum and the provision of supplementary aids and services in regular
19

class and provide technical assistance to support the regular class placements. An
expert advisory panel (EAP) was established to advise the parties and assist the
court during the eight-year period of the court's jurisdiction.
During the first 5 years of implementation of the Agreement the EAP
received reports from Defendants, monitored Defendants progress, made
recommendations and resolved disputes without court intervention. In reports to
the court, the EAP repeatedly found Defendants progress on the settlement goals
to be inadequate and also cited Defendants failure to monitor significant numbers
of ID students who were reclassified to other disability groups. In May 2007
Defendants violated the terms of the Agreement by discharging the EAP,
discontinuing the monitoring and technical assistance initiatives recommended by
the EAP, and acting on their conviction that many of their obligations under the
Agreement expired as of August 2007.
In light of Defendants refusal to supply information about implementation,
Plaintiffs filed several discovery motions and motions for orders to remedy
substantial noncompliance. The action to find Defendants in substantial
noncompliance and enforce the Agreement was tried without formal discovery in
J une 2010. The court denied Plaintiffs motion deciding that substantial
noncompliance was not warranted.
20

The district court committed reversible error by formulating and using a
flawed legal standard to determine substantial noncompliance, and by failing to
identify the purposes and essential requirements of the Agreement. The court
misinterpreted the Agreement with regard to the plain language of Section II,
setting forth the desired educational outcomes and measurable goals of the
Agreement, and Sections V and VI specifying Defendants obligations to monitor
and provide technical assistance and Section I to provide and maintain an accurate
list of class members necessary for the parties and the court to implement, monitor
and enforce the Agreement.
The court also erred in assessing and calculating the year-to-year progress
for the integration goals in Section II of the Agreement.
The court ignored the Agreements standards of meaningful continuous
annual progress and instead used a calculation of general overall improvement
tainted by credit for extraneous national rankings for the goal of regular class
placement. In assessing progress the court ignored evidence of year-to-year
increases and declines on each of the goals and the lack of statistically significant
year-to-year improvement for both active ID students and those ID students who
were reclassified and not reported in the states data during the life of the
Agreement.
21

Where the court did find violations of terms of the Agreement (Section IX
for terminating the EAP and Section I as for the failure to provide an update the
least list of students and the failure to monitor the high rates of reclassification for
ID students the court erred in creating a good faith excuse for noncompliance and
treating the violations as harmless and non-consequential. The court also
committed reversible error by immunizing Defendants from a substantial
noncompliance determination unless Plaintiffs met a burden to prove that more
progress would have been made toward the goals of the Agreement if the
violations found had not occurred.
Finally, the court abused its discretion in denying the Plaintiffs formal
discovery needed to properly present their motion for orders to remedy substantial
noncompliance and subsequently abused its discretion allowing testimony and
evidence at trial previously withheld from Plaintiffs in violation of their rights
under the Agreement.
VI. ARGUMENT:
A. The court erred in not formulating, using and adhering to a proper legal
standard for judging substantial noncompliance.

1. The court failed to identify the purpose of the Agreement including
each and every one of its essential requirements.

22

The court reviews de novo a district courts legal analysis with respect to its
interpretation of the terms of the Agreement. Omega Engg, Inc. v. Omega, S.A.,
432 F.3d 437, 443 (2
nd
Cir. 2005).
The district court held that substantial non-compliance could be found when
any noncompliance frustrated the Agreements essential purposes. [ECF No. 707,
P.J. et al. v. State of Connecticut, et al., Memorandum and Order Decision, p. 4.]
The court then found that the essential purposes are contained in Section II. This
narrow focus led the court to treat the requirements of the Agreement for
monitoring, training, technical assistance, oversight by the EAP and class
membership as instrumental and non-essential. The Court should reverse the
district courts interpretation of the applicable legal standard.
Although the court starts its analysis with the commonly accepted statement
of the standard for substantial compliance or in this case the standard for
establishing substantial noncompliance, the court fails to describe the legal
standard at a level of specificity necessary to address circumstances of the case,
and to identify the interest of the parties in substantial compliance. Moreover the
courts formulation of the legal standard does not allow for a substantial non-
compliance determination to be made taking into account each essential provision
of the Agreement. Substantial compliance in the abstract or left undefined defined
at a high level of generality is not useful as a legal standard. Rather substantiality
23

must depend on the circumstances of each case, including the nature and
importance of the interest at stake, the degree to which noncompliance affects the
interest, and the extent to which the party in question has control over the level of
compliance. Acevedo v. Turner, 2010 WL 5817662 *5-*6 (S.D.N.Y. 2010), citing,
Fortin v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d
790, 795 (1
st
Cir. 1982). See also, Joseph A. by Wolfe v. N.M. Dep't of Human
Servs., 9 F.3d. 1081, 1083 (10
th
Cir. 1995).
Here, the nature of the interests at stake in the appropriate education for
children with disabilities is great, interference with the interest is quite serious, and
Defendants had complete control over the level of compliance.
Indeed, the interests of appellant children and the conditions of their public
school programs to be remedied in the Agreement have constitutional dimensions.
They are conditions offensive to federal legislation, IDEA, enacted pursuant to the
14th Amendment to enforce equal protection of the laws . See, Board of Educ. of
Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S.
176, 192 (1982).
3

The district court failed to identify or acknowledge the important public
interests as well as the educational interests of ID children excluded from home

3
Congressintended to take a more active role under its responsibility for equal protection of
the laws to guarantee that handicapped children are provided equal educational
opportunity)(citations omitted), J ustice Blackmun concurring 458, U.S. at 210.
24

schools and regular classes. Moreover, the court minimizes those interests as
evidenced by its focus on placement for the sake of placement.
Immediately upon its truncated statement of the legal standard whether any
noncompliance frustrated the Agreements essential purposes [Decision, p. 4]
4

the court jumps to conclude that those essential purposes are found only in Section
II Goals and Outcomes. Therefore, the courts substantial compliance inquiry is
in effect limited to a count of numbers of placements and percentages of time for
four of the five goals. Thus, the court finds impressive that Connecticut in 2008
was highly ranked among the 43 states that reported the percentage of students
with the ID label who were placed in regular class that year. [Decision p. 4.]
The proper legal standard requires more than the courts general overall
impression of the Defendants performance under Section II. The court must
examine each provision material to the satisfaction of the purposes of the
Agreement and find Defendants are in substantial noncompliance if any default or
shortfall in performance of their responsibilities under the any term of the
Agreement frustrates those purposes. Joseph A. at 1087.

4
The Court recites the standard without citation but seems to adopt the language of the 10
th

Circuit in Joseph A. by Wolfe v. N.M Dep't of Human Servs. 69 F.3d 1081, 1085 (10th Cir.1995)
the touchstone of the substantial compliance inquiry is whether Defendants frustrated the
purpose of the consent decree- i.e.. Its essential requirements.

25

As argued fully below, the purposes and meaning of the Agreement are
clearly set forth and are unambiguously informed by the incorporation of a specific
federal statutory mandate, 20 U.S.C. 1412(a)(5)(A).
After reciting the federal statutory obligation of Defendants, the Agreement
states that the terms that follow in parts I through XI are agreed to in order to
implement these rights and obligations J A-2.
A reading of the Introduction, and Part IV Responsibilities shows beyond
a doubt that the court fell short in articulating the proper legal standard for
substantial compliance and identifying the purposes of the Agreement that inform
the standard.
5

To accomplish the essential purpose of placing ID students in regular classes
and home schools with supplementary aids and services, the Agreement required
Defendants to establish a monitoring system to collect, analyze, and use
quantitative and qualitative information and data to identify problems and provide
consistent feedback to all LEAs on their performance in achieving the five stated
goals of the Agreement and to monitor the participation and progress of students
on their performance on achieving the five stated goals of the Agreement and to
monitor the participation and progress of students with mental retardation or

5
In addition to the recitation of the statutory and regulatory language from IDEA in the
introduction in Part IV, the policy letters and memorandum issued by Commissioner of
Education Sergi (a signatory to the Agreement) in fulfillment of Part IV of the Agreement reflect
Defendants contemporaneous understanding that the purposes of the Agreement were to
conform to the legal obligations under IDEA. J A-2839, 2841.
26

intellectual disability in the general curriculum, use of out-of-district placements,
and the availability of supplementary aids and services to support regular class
placements J A-8.
Thus, substantial compliance with the Agreement contemplated more than a
five year period of good faith efforts, substantial compliance also required
implementation of monitoring procedures to effect long-term reform with respect
to oversight and compliance with 20 U.S.C. 1412(a)(5)(A). See, Joseph A., 69
F.3d at 1085.
2. The court misconstrued the interest and intentions of the parties by
its flawed historical analysis of the ID education movement.

The courts substantial compliance analysis, interpretation of the Agreement
and conclusions about the intent of the parties are also infected by the courts
flawed chronology and inaccurate history of the legal and educational context
which inform the purposes and essential requirements of the Agreement. The court
invents a three-phase chronology to characterize the progression of the ID
education movement. The 1st phase the court places in the late 1980s to
sometime in the 1990s was simply about access, and challenged the belief that
students with ID were not entitled to any type of public education (emphasis
supplied). The 2nd phase, from the 1990s the early 2000s, the court says,
challenged the notion of education in segregated placements. The 3rd phase
beginning in the early 2000s to the present, in the courts view, introduces the
27

belief that students with intellectual disabilities can obtain meaningful educational
benefits in integrated regular class placements. [Decision, pp. 34-35.] The court
places the litigation and the settlement of this case within the timeframe of the 1st
and 2nd phases, laying the foundation for the pretense that the purpose of this
litigation and the intention of the parties in settling the case was limited to ending
segregation solely for the sake of desegregation -nothing more. [Decision, pp. 35-
36.]
The courts history is wrong. Until the late 1960s intellectually disabled
children could be lawfully excluded from public education and segregated in
facilities for the handicapped only. Beginning with Pennsylvania Association for
Retarded Citizens (PARC) v. Commonwealth of Pennsylvania, 343 F.Supp. 279,
294-297 (E.D. Pa. 1972) many courts found a constitutional right not to be
excluded from public education. The 1971 consent decree in the PARC case
specifically provided as a preferred placement a regular public school classroom
over a separate class for students with mental retardation. The requirements of the
PARC decree were adopted by the Congress in the Education for All Handicapped
Children Act of 1975. Board of Education of Hendrick Hudson Central School
Dist. v. Rowley, 458 U.S. 176, 193-195 (1982).
From the start, federal law was never solely about access. Congress required
appropriate educational programs and supplementary aids and services tailored to
28

meet the needs of the individual child with disabilities. It equally mandated
integrated education, in the form of its requirement that to the maximum extent
feasible handicapped children be educated "with children who are not
handicapped." 20 U.S.C. 1412(5)(2000).
The district court's proposition that the federal right to education originally
was exclusively focused on access evolved to embrace integration and just lately
came to address educational benefits in regular class cannot be squared with the
Supreme Court's interpretation of the Education of all Handicapped Children Act,
nearly a decade before this case was filed. In Board of Education of Hendrick
Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982), a case brought to
determine the level of supplementary aids and services needed to accommodate
Amy Rowley in her regular class placement, J ustice Rehnquist stated the Courts
holding as follows:
Insofar as a State is required to provide a handicapped child with a
"free appropriate public education," we hold that it satisfies this
requirement by providing personalized instruction with sufficient
support services to permit the child to benefit educationally from that
instruction. [T]he IEP, and therefore the personalized instruction
if the child is being educated in the regular classrooms of the public
education system, should be reasonably calculated to enable the child
to achieve passing marks and advance from grade to grade. Rowley
458 U.S. 176, 204, 205 (emphasis supplied).

A careful reading of Rowley, or any the cases following Rowley addressing
the legal obligation to accommodate children with disabilities in regular classes
29

with supplementary aids and services (P. v. Newington Board of Educ., 546 F.3d
111 (2
ND
Cir. 2008); Oberti v. Board of Educ. of the Borough of Clementon Sch.
Dist., 995 F.2d 1204 (3
rd
Cir. 1993); Sacramento City Unif. Sch. Dist. v. Holland,
14 F.3d 1398 (9
th
Cir. 1993) ) completely discredits the district courts sequential
desegregation, education benefits paradigm. It is implausible in 2002, twenty years
after Rowley, that competent state educational authorities, four savvy statewide
organizational Plaintiffs and class representatives would negotiate an agreement to
move children to regular class settings just for the sake of desegregation without
consideration of the necessary supports services and without any prospect of
educational benefit.
Furthermore to accept the district court's framework one must ignore the
1997 Amendments to IDEA, enacted by the Congress well before the trial and
settlement of this case. In its reauthorization of IDEA, Congress affirmed that
education of children with disabilities can be made more effective by providing
special education and related services and aids and supports in the regular
classroom to such children, whenever appropriate. See, 20 U.S.C. 1400 (c)(5)(D)
(2000). To fulfill its purposes, the law requires that individual education plans have
measurable goals for students with disabilities, students be involved in and
progress in the general curriculum, and also a statement of the supplementary aids
and services to be provided to the children in order be involved in and make
30

progress in the general education curriculum. 20 U.S.C. 1414 (d)(1)(A)(I), (II),
(IV) (2000); see also, 34 C.F.R. 300.347(a)(1), (a)(2)(i), (a)(3), (a)(4) and
(a)(7).
The historical lens used by the court to perceive the intent of the parties and
judge whether the state was in substantially noncompliance with the IDEA
obligations articulated under the Agreement was so dramatically distorted that it
led the court to deny Plaintiffs any benefit of the bargain made in 2002.
3. The court reduced the essential requirements of the Agreement to
numerical placement goals, ignoring educational outcomes and other
essential requirements of the Agreement.

The courts analysis is flawed for several reasons. First, as the plain
language of the Agreement makes clear, the purpose of the Agreement is to
implement the federal statutory rights to appropriate public education under the
IDEA, in particular, 20 U.S.C. 1412(a)(5)(A). The Agreement states clearly that
the statutes mandate is Defendants essential obligation. Defendants
acknowledge:
The Defendants share with the LEAs the obligation to ensure that to
the maximum extent appropriate children with disabilities are
educated with children who are not disabled, and special classes,
separate schooling, or other removal of children with disabilities from
the regular educational environment occurs only when the nature or
severity of the disability of a 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).

31

See also, C.F.R. 300.550 through 300.552 regarding least restrictive
environment.
6
J A-2.

Section II, contrary to the District Courts interpretation, cannot be
reasonably read to establish desired outcomes for educational programs cabined
by the term placed and accomplished simply by moving class members from one
school setting to another. Neither do the Section II desired outcomes stand-alone
as the sole measure of substantial compliance. Section II, read faithfully in concert
with the Agreements purpose and in the context of the States obligations under
federal law, was intended to provide measurable goals for educational programs
reasonably equipped to educate ID students in integrated settings whenever
possible. Nothing in the Agreement evidences an intention of the parties simply to
increase the number of ID children moved from one location to another whether or
not those children receive the supplementary aids and services necessary to allow
them to be educated in those settings.
Together with Section II, the parties agreed to Sections V and VI as integral
and necessary to ensure that the 20 U.S.C. 1412(a)(5)(A) is implemented so that

6
Defendants understood that their obligations under the Agreement were more ambitious than
simply moving students from one location to another. Ms. Thompson, Defendants designee
responsible for implementation testified: It was always my understanding from the Settlement
Agreement that it was reiterating those aspects of IDEA that were already in IDEA. It was just
specifically focused on students with intellectual disabilities and put intothe Settlement
Agreement,[W]ithin the IDEA, students with intellectual disabilities areto
receive...appropriate education in the least restrictive environment, which means that a child is to
be placed in a regular classroom with the appropriate supplementary aids and services to the
extent appropriate. (emphasis supplied). 6/22/10 Trial Testimony of Anne Louise Thompson,
Tr. p. 885 [ECF No. 727].
32

ID children are not excluded from participation in regular classes. Exclusion of
intellectually disabled children from regular classrooms and home schools because
teaching staff in regular class settings are unprepared and untrained because
supplementary aids and services necessary to enable participation in regular classes
available was the condition in the schools both Plaintiffs and Defendants sought to
remediate.
7
Therefore in concluding whether or not the Defendants were in
substantial non-compliance, the court was obligated to determine whether any
failure to implement any of the essential requirements of the Agreement had a
material adverse impact both upon the placement and the education of ID children
in regular classes with supplementary aids and services. To conclude that
substantial non-compliance was not warranted based on a calculation of an overall
increase in the number of ID students moved and placed in regular environments
without regard to whether adequate supplementary aids and services were available
to those children is error and cause for reversal. See, Joseph A. v. New Mexico
Dept of Human Services, 69 F.3d 1081 (10
th
Cir. 1995).

7
Defendants knew well the extent of exclusion of children from regular education and the
general curriculum. The Chief of Special Education for the State testified: I have to saywhen
we entered into the Settlement Agreement I was thrilled as a state department employee because
I absolutely felt that we needed to have a Settlement Agreement or lose the case . There were
certainly children who were being denied access to general education based on their disability
and that is absolutely wrong. 6/22/10 Trial Testimony of Anne Louise Thompson, Tr. p. 885
[ECF No. 727].
33

B. The court erred in its determination that substantial noncompliance was not
established with respect to Section II of the Agreement.

1. The Court misinterpreted the language of the Agreement setting
Defendants standard of performance to be meaningful continuous
improvement for children to be educated in their home schools and
regular classrooms.

Section II of the Agreement required the Defendants to achieve meaningful
continuous improvement annually with respect to goals #1 and #4 and
continuous improvement with respect to goals #2, #3, and #5. J A-3, 4. The
interpretation of the terms of the Agreement is subject to de novo review. United
States v. ORourke, 943 F.2d 180, 186 (2
nd
Cir. 1991). The determination as to
whether the steps taken to implement the Agreement constituted substantial
noncompliance is reviewed for abuse of discretion. Oral-B Lab, Inc. v. Mi-Lor
Corp., 810 F.2d 20, 23 (2d Cir. 1987). The district courts finding of fact is subject
to a clearly erroneous standard of review. EEOC v. Local 580, Intl Assn of Bridge
Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 594 (2d
Cir. 1991).
The district court erred in interpreting the level of improvement required by
goals ##1 and 4 as making good faith efforts to achieve an unspecified increase in
the numbers of children moved to regular classes and their home schools over the
life of the Agreement.
34

The parties deliberately use the word meaningful to signify a higher level
of performance or more stringent oversight with respect to goals ##1 and 4. J A-19,
20; 6/22/10 Trial Testimony of Anne Louise Thompson, p. 879 [ECF No. 727].
The distinction was intended to require a higher level of performance and a more
rapid implementation of goals ##1 and 4 - akin to implementation with due
deliberate speed. Id. The Defendants designee responsible for implementation of
the Agreement gave her understanding of meaningful improvement as more than
increasing the number of students spending more than 79% of their school day
with non-disabled children. J A-1962-1963. In her view, an assessment of student
achievement rates and other data must be made before an judgment about
meaningful progress can be rendered. Id.; J A-1784.
In order to ensure implementation of rights and obligations under 20 U.S.C.
1412(a)(5)(A), J A-2, Defendants agreed in V.2. and 3 to monitor the
participation and progress of students with mental retardation or intellectual
disability in the general curriculum, [and] the availability of supplementary aids
and services to support the regular class placements of such students to
facilitate continuous improvement under the Agreement. See, 6/22/10 Trial
Testimony of Anne Louise Thompson, pp. 884-885. The provision of
supplementary aids and services is the essential key to providing access to
meaningful access to regular classrooms for children with ID. Oberti by Oberti v.
35

Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1214 (3d Cir.
1993); see also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111,
120 (2d Cir. 2008)(explicitly endorsing that two-pronged test in Oberti.)
8

The district court found that Plaintiffs were interested in access to integrated
placements without regard to whether access to the general education curriculum was
provided. Decision, p. 36. What the court fails to acknowledge is that ID children
cannot be integrated with non-disabled children in any meaningful fashion if adequate
supplementary aids and services are not provided. As the Oberti court recognized,
children with intellectual disabilities are not able to participate in and will not likely
remain included in the regular classroom without supplementary aids and services. This
is why the parties created the linkage between the Section II goals and Section V of the
Agreement requiring the Defendants to facilitate continuous improvement that included
monitoring the participation and progress of ID students in the general curriculum and
the availability of supplementary aids and services.
The court states that the parties could not have intended for access to the
general curriculum to be a component in assessing the Defendants improvement

8
The courts recognized before the early 1990s that placement in regular classes cannot be
achieved satisfactorily unless the State ensures a broad range of supplementary aids and services
are provided, e.g., in 1989 the Fifth Circuit Court of Appeals declared, the Act does not permit
states to make mere token gestures to accommodate handicapped students: its requirements for
modifying and supplementing regular education is broad. Daniel R.R. v. State Board of
Education, 874 F.2d 1036 (5
th
Cir. 1989). See also, Greer v. Rome City Sch. Dist., 950 F.2d 688,
697 (11
th
Cir. 1991) withdrawn, 956 F.2d 1023, reinstated, 967 F.2d 470 (1992).

36

because some non-trivial integration benefits can be met through participation with
non-disabled students at lunch time, recess and non-academic school activities.
[Decision, p. 36.] The court is simply wrong in asserting that ID children benefit
merely by being in the same room or the same building as non-disabled children.
As the Oberti court recognized, the key to reducing the segregation of disabled
students lies in the proper use of supplementary aids and services. Oberti, 995 F.2d
at 1214. Congress recognized that supplementary aids and services may be
necessary to support ID children in academic, non-academic, and extracurricular
activities. See, 34 C.F.R. 320(a)(4). Moreover, it never would have occurred to
the parties that excluding ID children from academic instruction altogether would
be an acceptable outcome of the lawsuit. See, J A-1174-1175; J A- 1910-1912.
Given the plain language of Section V, the district court erred by
determining that meaningful progress could be assessed without regard to whether
supplementary aids and services necessary to access the general curriculum were
provided.
9

There is no evidence that parties believed such placements could be counted
as meaningful improvement under the Agreement. The parties meant the word
meaningful to mean more than moving children in regular classrooms to fulfill

9
The court fails to mention that in addition to Plaintiffs expert tours, Plaintiffs experts, with
considerable experience with ID students in more than one hundred public schools in
Connecticut, testified that many class members have been placed in classrooms without
necessary supplementary aids and services. J A-1050-1060.
37

numerical goals without regard to whether the children were benefitting. J A-1047-
1048; J A-1167- 1169; J A-1279-1280.
2. The Court erred in its assessment of continuous progress annually
for each of the goals in the Agreement by making a single calculation
for the entire 8-year period combining active ID students and
reclassified ID students.

The court determined that Defendants were not in substantial non-
compliance with goals ##1 and 4 by comparing the percentage of ID students plus
reclassified students that were placed in regular classes. [Decision, 16-18.] These
calculations were made by dividing the number of active ID students in regular
classes each year (J A-3250) plus the number of reclassified students in regular
classes (J A-3250) by the total number of ID students plus reclassified students
reported during that school year (J A-3244). From these calculations the court
concluded that Plaintiffs had not proven substantial non-compliance with the goals
of the Agreement because overall progress from the 2002-2003 school year
through the 2009-2010 school year was achieved. [Decision, pp. 56-58.] The
courts decision should be reversed.
First, the courts conclusion is based on an analysis of a combined group of
active ID and reclassified students. By combining the two groups in its analysis the
district court provides a misleading picture as to whether adequate progress was
achieved for the reclassified children. The Defendants ignored the reclassified
students throughout the life of the Agreement as well as requests by the EAP and
38

Plaintiffs for an investigation into the number of ID students reclassified after the
Agreement was signed. See, for example, J A-590-591, 595 (EAP requests an audit
of the alarming number of reclassifications.) J A-1717, J A-2055-2058. The courts
analysis masks the fact that the reclassified students were less likely to be placed in
regular classes in their home schools, or participate in school-sponsored
extracurricular activities with non-disabled students, or to make statistically
significant progress on these goals from year to year. J A-865-878, 901-906, 908-
914; J A-3249-3252, 3264-3267, 3268-3272.
10

Second, the court overlooks the fact that the number of active ID students
who were subject to monitoring and oversight under the Agreement decreased each
year from 3927 in 1999, then to 3537 during the 2002-2003 school year, and then
to 2545 in the 2009-2010 school year due to reclassifications by school districts.
J A-3244. The court abused its discretion in ignoring the reduction in the number of
ID students, amounting to a 28% reduction in active ID students during the period
2002-2003 through 2009-2010, in calculating whether the Defendants were in
substantial non-compliance.

10
Dr. Hammer testified that the active ID students comprise two-thirds of the group analyzed,
while the reclassified compromise only one-third of the total. As a result, most of the change
reflected in the analysis is attributable to the active ID students. J A-957-958. This results in an
inaccurate representation of the progress made by the reclassified students. Id. When analyzed
separately, the reclassified group is significantly worse off than the active ID students with
respect to progress on the goals of Section II. J A-876-878; J A-901-906.
39

If the reclassified students are considered when assessing improvement, it is
apparent that the reported annual improvements on goals ##1 and 4 did not
amount to meaningful continuous improvement annually. A review of the year-
to-year data presented at trial reviewed below demonstrates beyond a doubt that
the courts assessment of meaningful continuous improvement annually was in
error.
From the 2002-2003 school year to the 2003-2004 school year, the increase
in the percent of students with ID placed in regular classes statewide increased by
2 %.
11
J A-3250. There was an increase in placement of active ID into their home
schools
12
of 4.2% during this same time period. J A-3266. During that time, the
number of students reported as active ID decreased from 3537 to 3366, or a 4.8%
decrease. J A-3244.
From the 2003-2004 school year to the 2004-2005 school year, the increase
in percent of students with ID placed in regular classes statewide increased by 6%
from 13.5% to 19.5%. J A-3250. Placement of active ID students in their home
schools increased by 1.8% during this time period. J A-3266. During that same time

11
The only data array produced at trial was prepared by Plaintiffs statistical expert, Heather
Hammer, Ph.D.. J A-3241. Defendants did not contest her figures or analyses relating to the
reduction in class size due to reclassifications. J A-3244.
12
II.4. of the Agreement defines a childs home school as the school they would attend if
not disabled. J A-4.

40

period the number of students reported as active ID decreased by 5.7% from 3366
to 3172 students. J A-3244.
From the 2004-2005 to the 2005-2006 school year there was a 14.4%
increase in the percent of active ID students placed in regular classes (J A-3250), an
increase in home school placements of 5.8% (J A-3266), and a 6.2% decrease in the
number of ID students from 3172 to 2975. J A-3244.
There was an 8.8% increase in the active ID students placed in regular
classes from the 2005-2006 school year to the 2006-2007 school year (J A-3250), a
.7% increase in home school placements (J A-3266), and a 5.98% reduction in the
number of ID students from 2975 to 2797. J A-3244.
During the 2006-2007 school year to the 2007-2008 school year there was a
5.2% increase in the percent of student with ID placed in regular classes (J A-
3250), a 1.1% increase in placements in home schools (J A-3266), and a 4.3%
decrease in the number of students reported as ID. J A-3244.
From the 2007-2008 school year to the 2008-2009 school year there was a
2% increase in the number of students in regular classes (J A-3250), a .2% decrease
in the ID students placed in their home schools (J A-3266), and a 2.65% decrease in
the number of students reported as ID. J A-3244.
From the 2008-2009 school year to the 2009-2010 school year there was .9%
increase in the number of ID students placed in regular classes (from 49.8% to
41

50.7%) (J A-3250), a .7% decrease in the placement of ID students in their home
schools (J A-3266), and a 2.3% reduction in the number of students reported as ID
from 2605 to 2545. J A-3244.
Given the large number of reclassifications (i.e. 2956 students; J A-859) and
the fact that Defendants ignored their responsibilities under the Agreement to these
students, the court abused its discretion by ignoring these 2956 students in
assessing whether meaningful continuous improvement annually occurred under
goals ##1 and 4.
13

Third, the progress under goals ##1 and 4 was not meaningful continuous
improvement annually even if the reclassified students are ignored. The
percentage of active ID students in regular classes increased from 11.5% during the
2002-2003 school year to 42.6% during the 2006-2007 school year. J A-3250.
From 2006-2007 through 2009-2010, there was only an 8.1% increase and only a
.9% increase in the last year of the Agreement. Id. This annual improvement is not
meaningful, and certainly is not continuous annual improvement. For example,
the .9% increase during the last year of the Agreement means that only 11
additional students in the entire state were placed in regular classes during that

13
The court addressed the problem of reclassification by calculating progress based on all
students. This is a clearly erroneous assessment of the evidence. [Decision, pp. 55-56.] By
combining the small group of reclassified students with the much larger group of active ID
students, the court provides a misleading picture of the progress the reclassified group made on
goals ##1, 3, 4 and 5. The courts analysis includes only 400 of the 2956 students reclassified.
J A-859.
42

school year. J A-3250. 72 fewer students statewide were placed in their home
schools during that period. J A-3266. Similarly, during the previous year, 2008-
2009, only 35 additional active ID students were placed in regular classes in the
State of Connecticut. The level of annual improvement on regular class placements
was not statistically significant from the 2002-2003, 2007-2008, and 2008-2009
school years. J A-862-866; J A-3252. The progress during the period 2006-2007 to
2009-2010 in regular class placement and home school placement is clearly not
meaningful improvement annually. J A-873-874; J A-1060-1065; J A-1160-1162,
J A-3249-3252, 3266-3267.
Moreover, meaningful continuous improvement annually did not occur with
respect to regular class placements of the reclassified students. Statistically no
significant change occurred in six out of the eight years of the Agreement. J A-
3252; J A-873-874. Indeed, placement in regular classes actually dropped after the
2007-2008 school year. J A-869; J A-3249.
The court ignored the language in the Agreement that required improvement
to be continuous each year. Rather, the court looked to the overall progress over
the life of the Agreement and, based on what it considered to be adequate overall
progress and Connecticuts improved national ranking in regular class placement
of ID students over the years, concluded that a finding of substantial
43

noncompliance was not warranted. This analysis should be reversed on de novo
review.
The court rejected the consensus opinion of the EAP that benchmarks were
necessary to measure improvement because the experts deliberately set high
benchmarks to convey high expectations and do not take into account what the
court called fiscal and legal constraints [Decision, p. 60.] The court did not credit
expert testimony that the EAP benchmarks were achievable and did not reference
Defendants benchmarks called targets used to measure State performance under
IDEA. Id.. J A -2986. Both the EAP benchmarks and the State's own targets for
regular class placement reflect similar professional judgments about reasonable
progress (compare: EAP -80 % of class members in regular classes by 2007; State-
72.5% of all disabled children in regular classes by 2009). J A-2986. Using either
benchmark, the Defendants improvement under the Agreement was clearly
inadequate. Without a benchmark the court had no rule to measure improvement
for goal #1 and was left to its own subjective expectations of reasonableness.
With regard to home school placements between the 2002-2003 and 2009-
2010 school years, the number of active ID students placed in their home schools
actually decreased from 2523 students to 2139 students. J A-3266. The small
percentage annual increases from 4.2% in 2002 to 2003, 1.8% from 2003-2004,
4.8% from 2004 to 2005 are inflated as a result of class attrition and cannot be
44

considered meaningful annual improvements. Certainly the .7% added from 2005
to 2006 and the 1.1% increase from 2006 to 2007 cannot be considered meaningful
annual improvements given class attrition. Finally the decreases from 2007 to 2008
and 2008 to 2009 are no progress at all. Statistically significant change occurred in
only two of the time periods covered by the Agreement. J A-3267. Meaningful
continuous improvement was clearly not achieved.
The court did not discuss what level of improvement was necessary to avoid
a finding of substantial non-compliance with respect to home school placements.
The court considered any change to be sufficient progress to meet the meaningful
continuous improvement annually standard with respect to home school
placements. [Decision, p. 18.]
The court relied on its own subjective impression to determine whether
significant progress was made on the home school goal. The court rejected the
EAP benchmarks and failed to notice that the State set no benchmark for home
school placement. J A-2678. Moreover, there is no national data on home school
placement. J A-2022-23. Rather than hold Defendants to a reasonable professional
standard on goal #4 as referenced by the EAP, the court concluded that any
progress was sufficient.
The court justifies its conclusion that substantial non-compliance did not
occur by stating that Defendants monitoring focused on small districts where
45

home schools are less likely to be relied upon. [Decision, p. 50.] The courts
finding makes little sense as the Defendants have admitted abandoning formal
monitoring of home school placements and placement in extracurricular activities
after the EAP was discharged. J A-1947-1948; J A-2642-43, 2678-2679. Excusing
Defendants from making substantial progress on the home school goal because of
this shift in monitoring emphasis recommended by the EAP is arbitrary.
It also cannot be said that meaningful continuous improvement occurred
with respect to placement in home schools of the reclassified students. Statistically
significant change occurred in only one of the eight years of the Agreement. J A-
3267. By 2009-2010 the reclassified children are much worse off. J A-901-902; J A-
3266.
With regard to participation in school sponsored extracurricular activities,
active ID students made some gains until 2006-2007. However, the court found
that was no progress in 2006-2007, 2007-2008, and 2008-2009. [Decision, pp.18,
42] The fact that progress stopped after 2006 and participation declined belies the
courts conclusion that continuous improvement was made over the life of the
Agreement. J A-3272. With respect to reclassified students the same pattern holds
with, little or no progress occurring after 2006. J A-3269-3270.
The court could not conclude that that continuous improvement was
achieved when there was no improvement in the percent of students with ID
46

participating in school-sponsored extracurricular activities after 2006. J A-3269-
3270. The courts assertion that rates of extracurricular participation for all
students dropped across the state because of fiscal constraints is speculative and
unsupported by the record. The only testimony about fiscal impact on overall
extracurricular activities was based on hearsay references to undated and
unspecified press reports.
14
The drop in extracurricular participation is more likely
due to the fact that Defendants stopped monitoring local schools on this goal after
the EAP was dismissed. J A-2642-2643.
The court should not have required Plaintiffs to prove that fiscal constraints
did not prevent greater participation. The court may not excuse compliance for
reasons not contemplated by the Agreement. Barcia v. Sitkin, 367 F.3d 87, 106 (2
nd

Cir. 2004). Nothing in the Agreement excuses compliance based on fiscal
constraints. If the Defendants believed that compliance should have been excused
due to significant changes in circumstances, they were required to make a strong
showing that it was no longer equitable to impose the requirements of the

14
When asked for the reasons for the slump in participation in extracurricular activities Michael
Smith testified:
[O]ne of the things we speculated was because so many districts are suffering financial
situations now that they're actually taking back some of the opportunities for other students for
extra--school sponsored extracurricular activities So we asked our --gosh--whoever it is that
deals with the public. He deals with the press. And he just in a quick search within a day, he
produced 25 articles just from the last 4 months of districts cutting back on extracurricular
activities , instituting Pay for Play that sort of thing . So to me I mean that's not-it's not proof it's-
I think we have reason to believe.. J A-1660-1662.

47

Agreement on the State given those significant changes in circumstances. Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 384-385 (1992). Having failed to do
that, the court may not ignore the data showing no progress and may not excuse
non-compliance based on factors extraneous to the negotiated agreement. Barcia v.
Sitkin, 367 F.3d 87, 106 (2d Cir. 2004), citing, Perez v. Danbury Hosp., 347 F.3d
419, 424 (2d Cir. 2003).
The court offers several justifications for its conclusion that meaningful
continuous improvement annually was made on goals ##1 and 4, and continuous
improvement was made on goal #5, none of which are based on language of the
Agreement or evidence presented at trial. While the court acknowledges that
progress on all goals slowed beginning with the 2007-2008 school year, it rejects
Plaintiffs argument that the lack of meaningful progress after 2007-2008 was the
result of the Defendants belief that the Agreement expired in the summer of 2007.
Instead, the court excuses compliance based on its finding that all the easy progress
had been made by 2007, and progress slowed because the department was left with
the difficult task of building capacity. [Decision, pp. 42, 43.] This excuse is
impermissibly based on the courts unsubstantiated beliefs rather than evidence.
The courts rationale makes little sense given the fact that the leveling off of
progress on goal #1 and decline in placements in home schools under goal #4
followed a number of Defendants decisions that clearly would have a negative
48

impact on the capacity of school districts to place children in regular classes.
Foremost was Defendants decision to discharge the EAP. Next, Defendants
decision to stop monitoring relating to home school placements and extracurricular
participation (J A-1947-1948; J A-2642-2643). Then, Defendants decision to
terminate the only monitoring that was done on the quality of placements through
the walk-through assessments. Finally, Defendants decisions to cancel the STAR
program and COACHES Academy in 2007. J A-1076-1089; J A-1194-1198; J A-
2036-2037, 2040; J A-2645.
No evidence was offered during the trial to support the argument that
capacity building was necessary to keep pace with the integration goals of the
Agreement. The courts conclusion that the decline in the level of improvement
with respect to regular class placements and in home school placements has more
to do with the courts own unsubstantiated beliefs than evidence that improvement
became more challenging after the EAPs dismissal. Alvary v. United States, 302
F.2d 790, 794 (2d Cir. 1962).
Defendants good faith efforts and overall performance over the eight year
term of the Agreement are not sufficient to defeat a motion for substantial
noncompliance. See, [Decision, p. 43]. The parties negotiated an Agreement that
required certain progress on the goals, and the establishment of monitoring and
technical assistance initiatives and maintaining the EAP. Nothing in the Agreement
49

allows Defendants to avoid these obligations by making good faith efforts. Courts
must abide by the express terms of a settlement agreement and may not impose
supplementary obligations or excuses to performance. Barcia v. Sitkin, 367 F.3d
87, 106 (2d Cir. 2004), citing, Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d
Cir.2003) (internal citations and quotation marks omitted).
The court asserts that the lack of performance in certain poorly performing
districts is excused because local school districts are simply refusing to comply.
[Decision, p. 50.] However, in 2007 the EAP recommended that Defendants
develop effective interventions to deal with persistently resisting districts to
achieve the goals of the Agreement. J A-628, 616. It is inconsistent with the terms
of the Agreement to excuse Defendants from compliance without a showing that
enforcement of the terms of the Agreement are no longer equitable or
implementing the EAP recommendations.
Equally significant is that Section V of the Agreement was never fully
implemented. Section V of the Agreement required Defendants to establish a
targeted, database monitoring system to facilitate continuous
improvementwhich shall enable the defendants to identify problems and
provide consistent feedback to all LEAs on their performance on achieving the five
stated goals of this Agreement. Defendants were required by Section V, in
addition, to monitor the participation of students with ID in the general curriculum,
50

use of out-of-district placements and the availability of supplementary aids and
services to support regular class placements.
The evidence established that out-of-districts placements were not
monitored, especially the 124 ID students in Regional Education Service Centers
(RESCS)(J A-594; J A-2070-2073), and that Defendants failed to establish any
system for monitoring the quality of placements for ID students other than the
walk-through assessments which were terminated after the EAP was discontinued.
J A-1077-1089.
While the Agreement contemplates active monitoring of totally segregated
placements, the establishment of procedures to monitor the facility of class
member placements, whether supplementary aids and supports are provided, and
participation and progress in the general education curriculum, Defendants have
failed to establish any such system. Thus, substantial compliance has not been
achieved with respect to this important aspect of the Agreement. Id.
C. The court erred in excusing Defendants violation of Section I of the
Agreement when Defendants noncompliance resulted in massive attrition of
class members who were not monitored or accounted for during the life of the
Agreement.

The court found that the Defendants failed to provide and update a list of
students who, on or after December 1, 1999, carried the label of ID and who were
eligible for special education. [Decision, p. 55.] The court also appears to find that
the Defendants failed to address high rates of reclassification of ID students. Id.
51

The court treats these violations of the Agreement as harmless on the ground that
Plaintiffs failed to prove that more progress toward the goals of the Agreement
would have been achieved if Defendants had supplied Plaintiffs with information
about reclassified ID students during eight-year life of the Agreement. According
to the court, rates of reclassification do not provide a basis for a finding of
substantial noncompliance because overall progress was achieved. Id. at 55-56.
The court reviews de novo the district courts interpretation of the Agreement.
Mixed questions of law and fact are reviewed de novo. Travelers Int'l., A.G. v.
Trans World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994).
The Courts review of the district courts finding that violations of the
Agreement did not constitute substantial noncompliance is reviewed for abuse of
discretion. Hester Industries Inc. v. Tyson Foods, Inc., 160 F.3d 911, 915 (2
nd
Cir.
1998). A district court would necessarily abuse its discretion if it based its ruling
on an erroneous view of the law or on a clearly erroneous assessment of the
evidence id. quoting, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990).
The Agreement recognizes that Plaintiffs were entitled to access to data and
files relating to class members, to the extent allowed by state and federal statute,
for all purposes relating to the enforcement and implementation of the Agreement.
J A-3. Defendants were required to establish baseline data for the goals of the
52

Agreement and all baseline data and data relating to changes from baseline were to
be provided to Plaintiffs. J A-4.
Despite these commitments, Defendants failed to provide the Plaintiffs the
required list of students or updates to that list during the life of the Agreement.
Instead, the Defendants provided a meaningless list of identification numbers each
year and refused to provide information that Plaintiffs could use to track ID
students. J A-78-145; J A-411. Moreover, Defendants failed to undertake
systematic reviews of the reclassifications as requested by the EAP following
Defendants audits in 2004 that showed substantial errors in reclassifications by
local school districts. J A-642; J A-675-676; J A-740-744.
Since December 1, 1999, 2956 active ID students were reclassified and the
number of ID students monitored under the Agreement decreased from 3537 to
2545 students. J A-859; J A-3244. Defendants took the position in their report dated
J une 20, 2003 that creating a listing of reclassified students was not feasible, and
that Defendants would recognize as class members only those students whose
primary eligibility was reported as MR/ID. J A-217. Given the fact that Plaintiffs
expert was able to develop a longitudinal database in a short period of time, and
providing a list of class members has been standard practice in civil rights cases,
the Defendants arguments that disclosure of the list of ID students was
burdensome and not feasible were frivolous.
53

The reclassified students were not monitored or taken into account in
Defendants calculations of progress during the life of the Agreement, the progress
of the reclassified students on the goals of the Agreement turned out to be
significantly worse than the active ID students, and no monitoring, reporting or
oversight was conducted on reclassified students during the life of the Agreement,
Defendants failure to comply with 1 of the Agreement was a substantial violation
of the Agreement. J A-864-865, 889-898, 901-914; J A-1992-1993; J A-3249-3272.
Plaintiffs were unable to conduct an accurate evaluation of Defendants progress
under the Agreement and determine whether the reclassified students were
provided fewer opportunities to participate in regular classes and home schools
with supplementary aids and services than active ID students, and Plaintiffs
counsel were unable to identify class members and take action and properly
represent them. J A-596, 608-609; J A-816-817. Further, Plaintiffs were denied the
information needed to determine whether any of the reclassified students were
entitled to remedial services. J A-859. The courts assessment of the evidence on
this issue was clearly erroneous.
The court found that these consequences of the Defendants violations of
Section I do not amount to substantial noncompliance because Plaintiffs did not
prove more progress toward the goals of the Agreement would have been achieved
if Defendants had supplied Plaintiffs with information about reclassified ID
54

students during eight-year life of the Agreement. This Court should determine
based on a de novo review that the district courts interpretation of the Agreement
was incorrect.
Section I does not allow Defendants to avoid a finding of substantial
noncompliance because Plaintiffs did not prove that more progress would have
been achieved if the data relating to the students labeled ID on or after December
1, 1999 had been turned over to the Plaintiffs. Defendants effectively prevented
Plaintiffs from making such a showing by withholding all documents and data
related to the reclassified children throughout the life of the Agreement and
opposed and obstructed attempts to collect relevant data during years five through
eight of the Agreement. Defendants should not be permitted to benefit from their
own wrongdoing by withholding information Plaintiffs needed to identify
violations of class members rights and to fulfill their responsibility as class
representatives. See, Acevedo v. Turner, 2010 WL 5817662 *5.
D. The court erred in granting Defendants a good-faith exception to
compliance with Section IX of the Agreement allowing them to avoid
substantial noncompliance when they terminated the EAP in violation of the
Agreement.

The court found that the Defendants failed to comply with the Agreement by
terminating the EAP in 2007- three years before the expiration of the eight-year
term of the Agreement. [Decision, p. 54.] The Defendants action terminating the
EAP was taken deliberately, consistent with their position that their obligations
55

under the Agreement ended in August of 2007. Yet the court chose to excuse the
violations as an unintentional mistake reasonable in the circumstances.
[Decision, p. 54.]
The EAP was established under the Agreement to advise the parties and the
court regarding implementation of the Settlement Agreement J A-11. In addition
to its advisory function, the EAP had several other important independent duties
under the Agreement. J A-12.
The EAP's functions and duties were to be carried out without any limitation
on the EAPs ability to bring issues related to the implementation of this
Agreement to the attention of the Court. J A-13. Nothing in Section IX sets a five
year term limit for the EAP.
The Defendants dismissed the EAP in May 2007 because they no longer
wanted or needed the expert advice and they concluded that their obligations under
the Agreement had ended. J A-2026. It was the general consensus of Defendants to
terminate the EAP. J A-2026.
The discharge of the EAP had significant consequences for implementation
and continued improvement of state performance. Defendants themselves noted
discharge of the EAP encouraged resistance to continued compliance by local
school districts. J A-2728-2729.
At the same time the EAP was unilaterally dismissed, the Defendants closed
56

down the EAP recommended technical assistance supports, STAR and the
COACHES Academy. Monitoring for the home school goals and extracurricular
activities became virtually nonexistent and attrition of the ID students continued
without the audits recommended by the EAP. Moreover, the number of ID students
in regular classes actually decreased when the EAP was dismissed.
The court acknowledges this halt in progress and describes the declines and
losses [Decision, p. 42]but excuses the documented noncompliance for the three
years after the discharge of the EAP, in light of the States good faith efforts and
overall performance throughout the eight-year term of the agreement. [Decision,
p. 54.]
The Plaintiffs bargained for an eight-year period of implementation aided by
an independent expert panel not five. Mistaken or not, the decision to prematurely
discharge of the EAP eliminated the independent mediation, data gathering,
analysis and reporting functions performed by these education experts for the court
and the parties during the first five years of implementation. Defendants rendered
Section IX void during years five through eight.
The courts decision to excuse the violation of Section IX of the Agreement is
serious error and should be reversed.

57

E. The court erred in denying Plaintiffs the opportunity to conduct
discovery regarding serious violations of the Agreement during the last
three years of the Agreement.

Plaintiffs Motion for Substantial Non-Compliance raised significant and
complex questions about the adequacy of Defendants compliance with the
Agreement. In light of the Defendants discontinuation of the EAP in 2007 and
refusal to respond to Plaintiffs discovery the Plaintiffs filed a Motion for Orders
Compelling Compliance with Discovery and the Settlement Agreement. [ECF No.
566] The Plaintiffs alleged in the Motion for Orders that the Defendants were in
noncompliance with the Agreement in several areas, including: 1) the failure to
provide and update a list of class members; 2) the failure to determine why ID
students drifted in and out of the database, and why several hundred students were
reclassified and not accounted for; 3) the failure to accurately assess and report
progress under the Agreement; 4) the failure to develop an adequate system of
technical assistance; 5) the failure to adequately monitor local school districts; 6)
the failure to assess whether ID students were placed in regular classes with
supplementary aids and services; 7) the failure to take action with respect to
students placed in segregated facilities; 8) the failure to make adequate information
available to Plaintiffs so that they could assess compliance; and 9) premature
termination of the EAP. Plaintiffs requested that Defendants: 1) respond to
Plaintiffs Motion for Disclosure and Production; 2) make their employees and
58

contractors available for interviews and produce documents and data to Plaintiffs
experts; 3) produce their employees for depositions noticed by Plaintiffs; and 4)
cooperate with Plaintiffs expert review of reclassified students.
The Magistrate J udge denied the Plaintiffs motion. [ECF Nos. 577, 581]
Defendants discovery obligations were therefore limited to providing existing
data to Plaintiffs pursuant to Section III.1 of the Agreement. [ECF No. 581,
Transcript, p. 10.] The court indicated, however, that the court had the authority to
manage the litigation before it and encouraged the parties to participate in a few
very targeted depositions. Id. at 10. The district court denied the Plaintiffs
objection to the ruling of the Magistrate J udge and encouraged the parties to
cooperate in very limited discovery. [ECF No. 593, Transcript of 8/19/09, pp. 20-
23.] The court observed that under the Agreement the Plaintiffs were entitled to
discovery of existing data only rather than broad discovery. Id. at 18.
15

The courts interpretation of the Agreement is subject to de novo appellate
review. Travellers Int'l, A.G. v. Trans World Airlines, 41 F.3d at 1575. The denial
of the Plaintiffs discovery motion is reviewed on an abuse of discretion standard.

15
Defendants refuse to produce the data and analyses in Defendants proposed Trial Exhibit 2,
J A-3288, which was clearly inconsistent with the courts conclusion that Defendants had an
obligation to produce existing data. Clearly the substantial noncompliance should have been
found when the Defendants refused to produce such existing data accumulated and recorded in
Defendants Exhibit 2 on the ground it was privileged.

59

Heisman Trophy Trust v. Smack Apparel Company, 379 Fed. Appx. 12, 14 (2
nd
Cir.
2010).
The court erred in limiting Plaintiffs discovery to existing data. Section I
of the Agreement authorized Plaintiffs to collect data relating to the special
education students who were labeled ID on or after December 1, 1999. This would
include authorizing Plaintiffs expert discovery related to reclassified students,
whether Defendants conducted any monitoring, technical assistance or training and
on-site expert observations.
The court abused its discretion in denying Plaintiffs the discovery needed to
properly prepare this case for trial. The court in Heisman Trophy Trust v. Smack
Apparel Company, recognized that discovery related to matters relevant to
noncompliance with a court-approved settlement agreement is permissible.
Heisman Trophy Trust v. Smack Apparel Co., 379 Fed. Appx. 12, 14 (2
nd
Cir.
2010); see also, E.E.O.C. v. Local 580 et al., 669 F.Supp. 606 (S.D.N.Y.1987).
The recognition of these discovery rights is consistent with a long line of
cases treating settlement agreements as having a dual character, a hybrid nature
that reflects attributes of both a contract and a judicial decree. Barcia v. Sitkin,
1996 WL 251848 * 3 (S.D.N.Y. 1996), citing, Kozlowski v. Coughlin, 871 F.2d
241, 245 (2d Cir. 1989). Courts have recognized that the failure to allow adequate
and sufficient discovery in complex civil rights cases is reversible error as it
60

deprives the court of its ability to ensure that the terms of the Agreement are
carried out. California Department of Social Services v. Leavitt, 523 F.3d 1025,
1033-1034 (9
th
Cir. 2008); United States v. City of Northlake, Illinois, 942 F.2d
1164, 1168-1170 (7
th
Cir. 1991), see also, Olson Rug Co. v. National Labor
Relations Board, 291 F.2d 655, 659 (7
th
Cir. 1961); Harris v. City of Philadelphia,
1995 WL 350296 (E.D.P.A. 1995) *12 n. 5 (Plaintiffs allowed discovery under the
courts inherent power to enforce the consent decree). A court should always give
careful attention to a request for discovery to establish noncompliance with one of
its judgments. California Dept of Soc. Serv. v. Leavitt, 523 F.3d 1025, 1034.
Plaintiffs have shown that the Defendants prematurely discontinued the
EAP, leaving the Plaintiffs to monitor compliance with no formal discovery for the
final three years of the Agreement. Given the important interests of children at
stake, the significance of the alleged violations, and the fact that Defendants
deliberately withheld data and analyses over the eight year life of the Agreement,
discovery should have been granted.
Further, the Plaintiffs have shown that improvement under Section II of the
Agreement leveled off and, in the case of goals ##4 and 5, actually did not improve
or declined after the EAP was discharged. There was also evidence presented that
the Defendants, believing that the Agreement was no longer in effect after August
2007, discontinued the STAR, COACHES Academy and walk-through
61

assessments immediately after the EAP was discontinued and that the Defendants
did nothing to locate or assess the progress of the 2956 ID children who were
reclassified. Depriving Plaintiffs of expert discovery into Defendants conduct
beginning in August 2007 deprived Plaintiffs of the opportunity to show that the
stagnation on goals ##1 and 3, and the declines on goals ##4, and 5 was related to
the discharge of the EAP.
Finally, the courts ruling deprived Plaintiffs of the opportunity to conduct
discovery with respect to the Defendants report entitled Progress/Data Report to
the Expert Advisory Panel. J A-3288. The court admitted this document over the
Plaintiffs objection on the ground it resembled a public record, even if it was
prepared for litigation.
16
As a result, the Plaintiffs were denied the opportunity to
inquire into the sections of the report that were relied upon by the court and were

16
Defendants Exhibit 2 (J A-3288) is clearly not a public record and was inadmissible hearsay.
Exhibit 2 is an out-of-court statement ... offered to prove the truth of the matter asserted and
not subject to any of the exceptions set forth in the Federal Rules of Evidence. Even if
considered a public record the report was prepared in contemplation of the present litigation and
therefore remains inadmissible. See, e.g., United States v. Stone, 604 F.2d 922, 92526 (5th
Cir.1979) (stating [t]his exceptiondoes not apply to [treasury agent's] personal statements
prepared solely for purposes of this litigation because they are likely to reflect the same lack of
trustworthiness that prevents admission of litigation-oriented statements). Moreover, it is
inadmissible even under the residual exception of Fed. R. Civ. P. 807 because a statement may
not be admitted under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity
to prepare to meet it, the proponent's intention to offer the statement and the particulars of it,
including the name and address of the declarant. King v. Town of Wallkill, 302 F. Supp. 2d 279,
299-300 (S.D.N.Y. 2004); In re Vitamin C Antitrust Litig., 06-MD-1738 (BMC)(J O), 2012 WL
4511308 (E.D.N.Y. Oct. 1, 2012).
Here, the Defendants admit they created this report to defend this litigation and purposely
withheld it from the Plaintiffs under an alleged privilege for the purpose of preventing Plaintiffs
from conducting discovery relating to the report.

62

not supported by any other evidence. For example, Defendants disclosed data and
exhibits in that report to show that Connecticut improved its national ranking in
placing ID students in regular classes from 1998 through 2009. J A-3297-3300.
However, the charts and graphs presented were prepared well in advance of trial
but were never disclosed to Plaintiffs prior to trial so that Plaintiffs could conduct
discovery with respect to that information. Further, for example, on pages 40-45 of
the report, the Defendants argue that by conducting walk-through assessments and
paraprofessional training during 2006-2007 they monitored the participation and
progress of student with ID in the general curriculum, use of out-of district
placements, and the availability of supplementary aids and services as required by
Section V.2 of the Agreement. Plaintiffs presented substantial evidence, based on
information obtained through observations in over 100 school districts, that these
efforts did not come close to meeting the requirements of Sections V.2 and V.3 of
the Agreement. J A-1077-1089. The court ignored Plaintiffs expert testimony and,
instead, relied upon the information provided in Defendants exhibit 2. Plaintiffs
were deprived of the opportunity to conduct discovery into whether the use of the
walk-through assessments during J une 2006 through J une 2007 constituted a
professionally acceptable monitoring that facilitated continuous improvement in
the participation and progress of ID students in the general curriculum, use of out-
of-district placements or the use of supplementary aids and services as required by
63

V of the Agreement. It was an abuse of discretion to force the court to make a
decision in a case of this complexity without formal discovery. The court
conducted a clearly erroneous assessment of the evidence by concluding that
discovery authorized by the Agreement or a few targeted depositions would be
sufficient to develop an adequate trial record.
VII. CONCLUSION:
For the foregoing reasons the Court should reverse the decisions of the
district court, find that the Defendants are in substantial noncompliance with the
Agreement, remand the case to the district court with instructions to authorize
Plaintiffs discovery and hold a hearing and enter appropriate remedial orders.
APPELLANTS,

By /s/ David C. Shaw
David C. Shaw, Esq.
Fed. Bar No. ct05239
Frank J . Laski, Esq.
Fed.Bar No. ct16180
Law Office of David C. Shaw LLC
34 J erome Ave, Suite 210
Tel. (860) 242-1238
Fax. (860) 242-1507
Email: dshaw@dcshawatty.com


CERTIFICATION

I hereby certify that on April 2, 2013 the foregoing Appellants brief and Appendix
was corrected as instructed by the Notice of Defective Filing [ECF No. 107] and
filed electronically.

/s/ David C. Shaw
David C. Shaw

65

CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS

Case Name: P.J., et al. v. CT Board of Education, et al.

Docket No.: 10-3586-cv

1. This brief is 14,594 words and complies with the type-volume limitation
of Fed. R. App. P. 32(a)(7)(B), as amended by Order dated March 19, 2013 [ECF
No. 102] granting Appellants permission to file an oversized brief of 14,600 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and 32(a)(6) as Appellants brief has been prepared in a proportionally
spaced Times Roman, 14 point, using Microsoft Word 2010.

/s/ David C. Shaw
David C. Shaw, Esq.
Attorney for Plaintiffs-Appellants

March 22, 2013


i

SPECIAL APPENDIX TO BRIEF FOR PLAINTIFFS-APPELLANTS

TABLE OF CONTENTS

1. U.S. District Court Order denying Plaintiffs Motion for
Orders to Remedy Substantial Noncompliance with the
Settlement Agreement Denied. A memorandum opinion
to follow. [ECF No. 686] ................................................................................ 1

2. Memorandum dtd. 08/08/12, Judge Robert N. Chatigny [ECF. No. 707] .... 2

3. 03/26/09 Transcript of Ruling on Motion to Compel
Magistrate Judge Donna F. Martinez [ECF No. 581] ............................... 64

4. 08/19/09 Transcript of Ruling re Objection to Ruling on
Motion to Compel, Judge Robert N. Chatigny [ECF. No. 593] ................. 78

5. 06/24/01Transcript of Evidentiary Hearing [ECF No. 729]
pp. 1503, 1612-1632
Ruling re admission of Defendants Exhibit 2 . ....................................... 107

SA000001
Chery' Smith, Law Offices of David C. Shaw LLC
From:
To:
Sent:
Subject:
<CMECF@ctd.uscourts.gov>
<CMECF@ctd.uscourts.gov>
Friday, August 13, 201012:01 AM
Summary of ECF Activity
This is an automatic c-fmli] gcncrail,'d bv the \
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There is no charge for viewing opinions.
Activity has occnrred in the following cases:
Z:91-cy"00180-RNCP .. J.St.l!lv. Education, et al
Order on Motion for Order 686
Docket Text:
ORDER denying [580] Motion for Orders to Remedy Substantial Noncompliance with the Settlement
Agreement. Denied. A memorandum opinion containing findings and conclusions will follow. So ordered.
Signed by Judge Robert N. Chatignyon 08/1212010. (Swan, N.)
3:1 O-cvcoJo86c,I,BAE. v New Fljirtield Bd of Ed
Amended Complaint 16
Docket Text:
AMENDED COMPLAINT against New Fairfield Bd of Ed, filed by E .. (Shaw, David)
8113/2010
SA000002
Case 2:91-cv-00180-RNC Document 707 Filed 08/08/12 Page 1 of 62
Case 2:91-cv-001BO-RNC Document 706 Filed OBI06/12 Page 1 of 62
UNITED STATES :J.IS'I'RICT COURT
IJ':STRIC7 OF
P.J., et al.,
Plaintiffs,
v Case No. 2: 91-C\1-].80 (RKC)
STATE OF CONNECTICUT, ct al.,
Defendants.
In 1991, this litIgation, kIlown as !Ithe PJ case,!1 was
initiated under the Indivi,duals v}ith Disabilities A,-.t
("IDEA"), 20 U.S.C. 1400 et seq., or bRhalf of Connecticut
students with intellectual disabilities (lfIDlf) against
Connecti,cut. State Board of Educat.:on, the State Commissioner of
Education and a number of local school (iistricts. The plaintiffs
alleged that the State's "hands-off" po'iey with regard to
placement decisions made by local. school districts responsible
for educBLing children witt) intellectual disabiliti,es resulted ip
segregated placements of the in viQlation of the IDEA,
which states to that, "to the maximum extent
appropriate,U students with disabjJ_ities are educated with their
nondisablod peers. 20 U.S.C. H12(a) Co) (A). In Deoeffibe.!C 1993,
the case was certified as a class action. C.A.R.C. VW State of
Conr\(z',.:ticut Board of 2: 91-C:'1-180 (J'AC) f Ruling On
SA000003
to Reconsider Denial of Motion tc)r Class Certification,
slip op. at 6 (D. Conr\. Dec. 13, 1993).
trial was conducted. The focus of trial the plaintiffs'
claim that the State
Department" of "CSDE") was allowing local districts to illegally
segregate students with intellectual di,sabilities solely (In the
basis of their disability classificatic"! i.Dstead of ensu!:'ing that,
the districts' placement uncisions took ilccount of eae}) studentle
individual needs and abilities. the trial, the parties
entered into settlement:
mace as to liability_ As a result at negotiations, the
parties 2':'eached a SettJ.emen't AqreBmer:L Agreement" DY IISA/') ,
As Agr(2ernent it:scJ.f stat.es, defendanL'_->
deny the plaintiffs' ,3 and aciruittRd no liahility. See
SA at 2. However, both sides wanted a resolution of the case
that, was consistent with the requi of the IDEA and its
implementi.:r'tg regulations. To end, the uepil.r tmen t
agreed to pursue five gOi3..is to bcing abDl;t a more LncJ.usivE,
integrated systFm of Connecticui: for stildents
with intellectual disabilities (I!the PJ goals!'). l'he
also agreed to take a number of acti::'H1S in pursuit of the goals,
2
SA000004
Case 2:91-cv-001BO-RNC Document 707 Filed OBIOB/12 Page 3 of 62
Case 2:91-cv-001BO-RNC Document 706 Filed 08106112 Page 3 of 62
including monitoring and assisting local school districts, and
providing the pl_aintiffs and the Court wj_th necessary
In the Agreement provided
for the creation of an Expert Advisory ?anel ("EAP!!) to adVJ2e
the parties and the j,2BL0s to
nta'Liorl.
In entering into the Agr2ement., State to the
Court's jurisdiction fcr 3 of aPFroximately eight years.:
The parties agreed that the Court cau:d dct to enforce
any provision of ttle first five years. The
Agreement also providoc:./ ilfJltJeVer, tha:.:. the Cour";.. 'VJou.l.d be able 'cu
take enforoement action in the final three years only i,n the
event of a showing by the plaintiffs the defendants'
3UI)stant1al noncompliance.
enforcement'- Zluthcrit.y.z i)n 1(:, :;0,):3, approxi:nately one
year after the conclusion ot the five-year period, the
plaintiffs f5.1ed a motion alleging r.oncompl i,ance.
?tle motion was denied without prejudic0 on indicalions tllUL
The parties aqree that the
12, 201:).
t-year period ended on August
2 The plaintiffs brought a n:Jff:ber cf tnotiDLs alleging
interference with their ri
were resolved by agreement.
to obtain da:a hut those issues
SA000005
Case 2:91-cv-001BO-RNC Document 706 Filed 08/06/12 Page 4 of 62
the parties might be able to rSDolve differences, bt:t [:0
2Q09. !'\fte.r S! pcriod of dl.scovGL'Yr aL evidentiary IlEa!."ing was
held in June 2010. NU:Th"':'TOUS Cilld vol'.l.Cnino1.18
exhibj,ts were admjtted into the record. FoLovling Lhe
evidentiary hear f the nLltfs' mocian for substantial
nc)uc;QrnpliaLCC \..;as denied. 'This p:rov5"des a. sta'tc,ment
of reasons for
I. Summary
The parties agree that :he touchstc':c of the substarltial
Agreement::. I S eSEH'!nt.ial p'-1rposes, The rcement's esser:t:iaJ
purposes are round in :> II of the ","c.",,., entitled "Goals and
Outcomes. II Comparison c.f clat.d from th;:; school year
sign:'ficant p.roqress WdS made t':.ov,}ard eaC!l qoa . Indeed, as a
result of act ions taker: by the Departmcr"i'[ collow:'ng approval of
thE: Agreement, in 2008 Connectic'.lt ran},.;(;d second. in tli6. in
terms of the percentage ')f students wi Lh the ID label v!ho were
placed ill regular T!18
Forly-three states reported for 2IJGB. owa first
among the forty-three, just over percent of students
with 10 ar class placemenLs. Ccnneclicut was just
fty percent, a number that grew to SO> '/:t; the 2009""-2010
school year.
4
SA000006
Stale t S impressive rankir.g S;W-h'S that goals of the Agreemer:t
were met, 1..f not
The plainti!fs disagree. sulxni:: that a of
SUDstant,ia}, noncompliance is ;-;al:rantc:d 1Jc(;ause tLe Depa.r:tment
failed to make progt:ess the to
the plaint.iffs
1
positiof; is a c_ai]l that ::he Agreement X'i7:ql:lred
the State to take mea::n:r{-;s tQ pr()vj
r
5e C.;BSS members wttJ!
time in regular classes. The State failed to substantially
comply with this obligation, contend, because site
visits revealed that students with ir;telleccual disabilities in
integrated placements were excluded tile general curriculurn,
cut-off from the rest of the class, or educated exclusively by
required co do more to ensure students would have meaningful
access to ttle fer eXdlrple, by giving gelleral
education teaCfleI'S more job-embedded as,sistance.
TIle evidence presented by tl18 concerning the
resul.ts of their site visits, although troubling, is insufficierlt
to support a finding of ,sc.Dstar,tial The essential
purposes of the Agreement involved inLegrated
" The plaint.iffs collectea this 2vj,aerv:e by conducting eighty-
site visits in twenty-four had been targeted hy
the defendancs for focusc!d
SA000007
Case 2:91-cv-00180-RNC Document 706 Filed 08106/12 Page 6 of 62
placements for class members, rather :.h-Jn prc7iding
access tc the general cU.cr iculuIn. And iJ th01.:;gh more
goals in the Ag::-eelnent:
t
the cii_d no!: re the State
to provide such assistance.
The plaintiffs' a1 ions of noncompliance are
.r.ot: v"l.!.thou:., some support if'. the rl?c()rd. The pl<.lintiffs' have
y certain aspects of ttlC
Agreement. However. it is lJr.t:l.isputed that the Sr.,ate campI ted
with many of its obligations and the plaintiffs have not shown
that the Slate's noncompli.ance frustrated an esscntia p\lrpOS9 of
the Agreement. Moreover, It/hiJe the own dat_a that
progress toward the goal.s slowea after 2007, it is undisputed
tllat the State cort.Lnued to make good faith efforts to pursue the
goals in the face of recalcitrant districts and budget
constraints. Accordingly, a finding of noncomplj_ance
is unwarranted.
II. The IDEA
To und'2rstand the }.S3U8B prz-:sented ;:)y U-1B plain::iffs I mctiz,\!\
"'" '- is necessary at tI18 cutsct :0 l"(:::Vievi Lhi;;; IDEA in some de-tal
liCongress enacted the IDEA 'to ensure that all children with
dlsabiliT_ies have available to therr. a free 3ppropriate public
eclucati.on . . designed tJ> meet their' '-.1.rLique needs .
" and]
6
SA000008
Case 2:91-cv-001BO-RNC Document 706 Filed OB/06/12 Page 7 of 62
to ensure that the s of chi,]dren disabilitjes and
parents of such children are protected. I 20 J.S.C.
.L400td) (1) (l\}-(B) .1t M.H. v. New "lock Ci'l"\; DepC. Of Educ.,
F.3d , 2012 WI, 24776:1S, *1 (2d Cir. ,J<JDf': 29, 2012). tiThe I:JEA
offers funds to states thac develop to a3sure 'al:
chi wi th di:.Llblli Li '23' t res 1]1 the scats] a 'free
ctppr:op.riate publl.,: educati.(;n. I 20 U.S.C. 1412 (<3.) (1) {A)."
y. Rhinebeck Cent. Sch. Dis't., 34G 3T1, 379 (2d Cir. 2C03).
State education agencies ("SEA.s) f Jike the Depart,rnent, are
responsible for ca.rryicq OC: tt JDdndates of the IDEA .
. fTo meet IDEA's] a school
program must provLde 'special education aDd related services[,] j
(20 U.S.C. 1401(9)J, tailored to meet the unique needs of a
icular and be reasonably to enable
child to recej.ve Gagliardi v. Ar.l.inatoll
Cent. Sen. Dj,st., 489 F.3d 105, iJ7 (26 Ci.L. 2007)
quotation marks omitted). 'rhe 1";):-:1\ res states to provide
disa.bled studer:ts '<'lith <lapp cmnhte in "thB 1 .. eas:,
restrictive 20 D.S.C. l:J12 (il) (1), (5). IJ'b:'s
means that a child mcst not bc placed i:1 "special C1.2BSE"'S,
separate schooling," or otherwi.se removed from the regular
educatj.onal envi=onment ull1ess natuI'e or severity" of the
child's di.sabjlity "is suetl that educatiu:l in regular
SA000009
Case 2:91-cv-00180-RNC Document 706 Filed 08106112 Page 8 of62
with the use of aids FHF:1 services cannot be
dchi.eved 20 U.S.C. 1412 {a} (5) (7\).
State education aqenci.es have a responsibility to
the t of wjth disabilit3.es to
rece1.ve appropr,Late in the restrictive
environment as mandated by "thE: IDE}L h:)'i-feve:c f j t i not lJp to
the defendants to decide Hhore students 'tilth disdbill.LLes will be
served during the schoQ] day_ Under the IDEA, decisions
concerning the setting in which a ct:ild receive special
which school districts sre requi red t.o dev8.;.,Op and impl.ement
year for every student with a disability. 20 U.S.C. 1414(d))
'!The rEP is I [t1he cent of V"\.e ::::DEA' s educaticfL:ll
deLIvery sy.stcm. fit H.H., 201.2 WL 2(iT?6
f
l9, *2. (quolinq :::J,D. ex
F.::d S03, 50) (2d Cir.
2006) . It is a written that out tile cl'lild's
present educational performance, annuaJ and
len:n cbjec":ives i'o!: improvemen:..:.s in tfldL performance, and
describes the specially des and services that
':Jill enable the child ,Tleet those
V.D., 465 F.3d 503, 507-08 (20 :i_I'. 200 The IEP must- :be
written by a cea.m of peopJ.e fan:iliar witI:: 'the st-udent, .Known Itl
SA000010
Case 2:91-cv-00180-RNC Document 706 Filed 08/06/12 Page 9 of62
as the Flann Placement:. Team ("PPT"). who must
fOllow certain lhe IEP. .?PT:3 ::nUD t
j_nclude lhe StUdCl:t'S pJcents, a t education teacher, a
special ana a from the
Education Authority ("LEA") responsible for educating student
(usLa11y the local school 20 "J.S.C. S: 1414 (OJ (1) (B).
In craftirlq the rEP, the must: stT{Jngt11s of
the child, the concerns of the parents, lhe results of the most
recent evaluation af chj,ld'g sLatus, and the
academic, developrnenlaJ. and iUT1c't2.0Da1. r.E;eds of' the child. 20
u,s.c. 1414 (0) (3) (1'\). r,'he -IE? must protect the; substantive
guarantees of the IDF:A calculated to provide
meaninqful educational benefi ts to the student. i:1 a placerr,ent
extent appropriate. NevJinqtuJ1 Board 0: [rJucation, S46 F. 3d III f
119 (2d. Cir. 2008). have zed
some tension between the :OEA's of providing an education
suited to a student's paTticula..r Deeds and its goal of educating
that student with ncn-disabled pcer3 2S rnue]l as
If a student is not sati,gfie0 ;v:l.t:h or hel' lEP,
student has a right to to a off!cer.
officer decisions may be in c()Urt. Cou=ts reviewing
9
SA000011
hearing officer decisions must be careful not to
their own notions of edLlcational poli.cy for those of the school
3d at 118. HTo tIle cen cary, federal COLlrts
administ::-ative dec.l.sJot's :nust ''ll.;p r.! to Lhese
pJ:oceedings, mindful that, the judiciaL}' ger:er-ally f l:;lCks tilG
specia.lized nno. once necessary to resolve
persistent and quescioD8 of
j.ey. I If
Gaaliardo, 489 at 113 of Educ. of Hendrick
Hudson Central School v. 458 U.S. 176, 206 1982).s
The IDEA provides fo= slate lev0 a(:l:lvitics to help remove
impediment,:::; to req'-1L)r ts (or students wj.Lh
intellectual disabi.lities ing on the individualized
of the IEP protoco_. SEAs can provide technIcal
assistance that teaches LEAs how to better meet the educational
D0eds of studerlts witt] d,l:iablliti.0S in the regular
cLassroom. tl1ey must mOflJ.tor LEAs to ensure tilat lOLA
are appropriat.e used to ttle LLAs' capacity for
educating students with disabilities in the regular
} Although the Court is presently reviewing individual
decisions, deference may be avon more approp=late here
because the Court. is state-leva}. accivities without
rei'c:cence to their impact en rlaciIHJ the
issues farther afield from those ercountered in
cases arising under the IDSA.
:. C
SA000012
educate parents about reSC1JrCeS
available to i,mprove d!sabled students' access to the
clasroom and teach them haw to advocate for class
p_3cements in PPT neet Tn ad,jiticn, SEAb obli
"
provide a number of forties for
determinations, including a due process hearing before a neutral
cfflcer.
The U.S. of Educat,i,on m<JJ. stdte,s' compliance
;; U.S.C'. '} :.416(a) ('I.
The prlmary focus of the Secretary';3 ITlG;)J. tor:ng is on rcvln;
educational results and funct!onal ou:comes for aJ.l students with
(iisabili ties. 20 U.S.C. 1416(a)(2). SLates are Ieq'lired
collect information to report annua'ly to the SecreLary on
priority 20 [1.3.C. <;; 1416{b} ILl. are forbidden
from reporting any or performance that would result
in disclosure of: personaLLy ident Lriable info:cmatlon
individual childx'en. 10.
The Secretary i.s requ: red to ,reVi2
t
,J informat.ion prc,vided by
a tc determine whether the requirements, needs
needs intervention needs 3ubstantial iGterventian.
Each ,l,s liIlked to spe=il:.lc efl[orcement actions. If
the Secretary determines, for two conseculive years, that a state
needs assistance, the secretary take at least one of the
SA000013
following actions: advise the state cf available technica:
assistance; direct the State to use tunds to address certain
deflc;iencies; or c:ondit.i:::n's en St0tc';3 gra:i'c:, 20
more conSE'cut i ve years, chate a :>,-au, ne,'cis Interventio:l, the
Secretary Inay take action, wjich may irlclcde
withholding funds after. Pl'ov:>1i.ng L!'lf? ;:\t;2t,e W:l,tJl noLj,ce a:1d an
foy a or referring the matter to the
Department of Justice. 20
This section provides an overview Gi the provj.sions of the
Settlement Agreement and the defendants'
-Class Membership/Plaintiffs' Right to Information (Section I)
distribute to the parties the cour[ a of public scl1col
in Connecticut wtlO on or after December I, 1999, carry
the label of either menLal retardatioG Or disabilIty
ano who are eligible for special education: such list shall
updaled pcricdicaJly." SA cit 3 ('5 I.l) T:1e t gCiV8 tbe
plaintiffs "a right to collect relAting to [the students
thus identified] and to chal,lenqe the GV of J,ist."
1..9. It also obligated -::he rtwent :0 the
"access to data and files relat
SA000014
extent allowed by state and federaJ for all purposes
relating to the enforcement (;mer: La t:io:1 of th,i s
Ag . n Cd.
Pursuant to this ot toe Agreement, the
initially provided the plaintiffs with 2 paper list of
ccrnposite identifiers COt-rGspcnding :0 ;;t'Jdents labeled 1D at:, Lhe
lists were insufficient for purposes of enforcement and
of the the were
unable to moni:or the rtmer:t
responded that it could not beLter: information without
running afoul of FERPA. In due course, the plaintiffs filed a
motion for relief. In 2005, following a hearing before
Magistrate Judge Martinez, the defendd!:ts agreed to disclose
Ldentlfying infonnatjon in a car::l8r co:;s.i..sLent. with FERP}-\. hy
providi.ng student.s labeled "ID" VJit:J ar '"}?port,unity to out of
the disclosure. In January 2001, the State provided ttl9
plainti.ffs with a longitudinal database enabled the
plaintiffs to mOLe effectively (rld evaiuate the datil..
However, they did not provide a list ot all class members lead
to another hearing before st C'itc in Decerrber
2007. Following ttlat tea f tlH1 ceiE':ndarcts dis:::losed
i.dent i. fying information and data relating to all class members
SA000015
after proviciing an opportu8it:-i for the class members not
labeled ID to opt out.
-Expert Advisory Panel (Section IV)
The Agreement ttlC "jafcndanrs 811a11 establish
an Expert Advisory to advise Lhe and the CQI.:rt
regarding the implement3ti'on oi th.is '22:nont." T'r,e RAP was. to
c(>nsist of four membc.:rs, Vlj, Lh each party cominating tv;o ;nembE-:rs!
but wj.th both parties agree all fuur. The EAP waS directed
to "advise and serve as a to
respect to implementati.on of all of [the Agreement i
the and ot tcchrical
training and mOllitorjng of LEAs.'1 SA at 11. ?he Agreement
provided that f'All advice and of the [EAP] shall
be made by Consensus and represent the of the
Panel as a whole. TLe [ t vIi' i. ncl bc lJound by e':t:1er
the individtJal or collective advicp sf the EAP,lt at 12.
furtherance of this advisory the EA? was directed Lo
Identify difficulties if: cmnpliance, facilitate resolution of
court any issues that flot be
Panel also was directed to annually rake
recommendations l'eJating to progress tCvl21rds t't'H3 goalt'J stat:ed in
II, dcve::'oplLenL ot sta.;:;;:\-vide b::;chnicd.l
SA000016
targeted monitoring, compJaint resolution, parent training, and
next steps." Finally, the Pane} was "[c]ol.1ect and
analyze data it deems D2cessary nq to class mcmbf-;>rs aDd the
lementation of State was required to
conver.e the Panel \'Jith:':l einety days anci ti':e Panel was
to meet at least t.hree per Y0::a.r,
Agreement and the EAP car-ried its specified role until May
2007, when it was dischar by defendants. EAP
::;'8commend8tions as contef::':rlated Lhe
benchmarks regardin9 the goals in thr: reeme::1t.
Goals and Outcomes (Section II)
The AgreemEnt cbligatc:d the defcr:dar.ts to "commit to
progress towdrd >'five main ovpralJ goals
"
representing
a more of public education. SA at .3-4. The
five goals were to: 1) increase t1e percentage of students
spending 80% of the school day with non-disabled peers,( 2)
reduce rates at which discrete
were classified as disabled, 3}
intAllectual di,sab!lj.ty were spending with nondisabled peers, 4}
G A studOZlt is considered L,a be with nOfldisabled peers when 50%
or reare of the other students the are not disabled and
a=e of similar age.
SA000017
increase the of students witt inteJ.lectuaJ.
attending the school would attend if th2Y W8ye not disabled
"home school
H
)! and 5) i:lcrease tllS of students
partici.pating in willi nondisabled
peers, Id.
It is undisputed that the State neL goal
concerning classification ,i.ees havi:19 a i.mpact on
som2 groups:. h'ith rega:::d to t::.c otheJ' t..Le shews
t. h(?: :t ell ow i r.g: 7
Goal One: Increase; the percen-cage of students with
intellectual disabilities in
In 2002-2003, 13.6% of students ID were j.n regular
class placements. In 2009-2010, 48.2% W2re in regular class
placements. The of students J.n
placements increased every year dur
The ;.Dcrcase Wi):; t)etween the
school year and the 2005 )006 school yCdt, when the percentage
of students in classes 60.1% from La
33.1%. The smallest increase was between the 2008-2009 school
year and the 2009-2010 school year, when percentage of
7 The figures set forth in the text
were classifj.ed as ID pOint dur
inciuding students WllO wer2 reclassj,fieu
caLegories.
16
all students who
relevant period,
to otner disability
SA000018
in regular classes increased 1.7% from 47.4% to 48.2%.
were increases of than ter percent every year with
the following exceptior;s: bet;<!cen 2000-<2001 a!1d 200:-2002 (5-1;J,
2001-2002 and 2002-2003 ('"{. 9%) I 20:J'l-2CF)3 and 2008-2009 (2.61';)
ar,j 2008-2009 and 2009-20::) (1. J'n ,8
Goal Three: Increab'6 the mean ancy Fiedian peTcer; tag-e of the
schoo.l day students wi tn fnteLlectua.I \'Lf 3abil spend P-!.i th
nondisabled students;
In 2002-2003, the mean percent of the sel]ool day stLldents
with ID spent with Ilondisabled peers was 38.9%. In 2009-2010 it
was 67.9%. The mean t,"!.me increased every year except.
2008-2009 and 2009-2010, ;;hen it 0,1% [rom 68% to 67,9%,
The greatest was between the 2004-2005 scheel year and
the school year, when trle IHeaL io;:;reased 17.
from 51% to 60.1%.9
In 2002-2003
r
tile median the school day sludent5
with ID spent with nondisabled peers was 34.4%. In 2009-?OlCl, i.t
'.>las <77.6%.. '1':le mediar:: 'Lime increased CVf..:.ry' year. The greatest
i.nc=ease was betweerl the 2004-2005 school year arid the 2005-2006
8 The EAP x'cccffimended the followi::lg C1' benchmarks for
this goal: 40% placement by 2005 and by 2001,
9 The EAP benchmark for mean time wi t:J nC1ndisabled peers was
7 ',% ,
SA000019
65.8%.10
Goal Four: Increase lhe pOrCC!2Lage of students with
inteLlectual disabili ty it!ho attend l:hei hone schoo.I:
In 2002 -2003, 70.8% of stlldents with 10 were placed in their
nome school. In 2009-2J10, 80.9% of IV were placed in
their home schaol. PrC)gre!3S was mace eV0r'y year except
2002-2003, when it dropped 0.2% from 71% in 200:-2002, and
2009-2010, \.,hen it dropped 1. 9% from 82. 5%. The largest gain .ir:
home school placement was between 2C04-2C8S and 2005-2006, when
it rose '].9% from 75.1% to
Goal Five: Increase t.he percentage ,P students with mental
retardation or intellectual disability 1',';")0 pa1:ti in
school ",,sponsored extra cur ricl.llar ,;;:cti viti es vIi. tIl non-disahl ed
students!
In 2002-2003, of students participated ,in
school-sponsored with nondisabled
students. In 2009-2010, the partie ti.OD rate was 44.4%.
Progress was rnade ever.y YF;dr (2Xc.ep;: 200":-2008, when tbe rate
dropped 1. 9!t to 44.2% from /)5% in 2006-':::007 rand 2008-2009, when
it dropped another' 1% to ,;,"[3.7%. The ltiTgc:st was between
lC The EAP did not set a benchmar;{ for t..l me v.,l th
nondi.sabled peers.
18
SA000020
2003-2003 and 2003-2004, wten it rese 28.6% from 20.1% LO
-Annual Reports/Court Oversight (Section III)
to four annual reports
detailing the Department's "act!vitj.0S related to the five goals
anci imr>.':.ementation of t:"l.S agx:eeeen:. for the pI lor school. year f"
including "all stJLewidc and distrlc Lstrlct data related to
class menbers" and documer:t..lng "progress CJ:'. aacl'1 stated (I
The defer.dacts produced four annual re-perts and the pl(llnt l.ffs d0
not allege any deficier.cy in the comp1.iance t..;.i th thi.s
prov_:.sior. .
The also were' obliged to submit to the
jurisdiction of the court for a period of eight years. As
discussed above, the Agreement provided during the first
years Ctllrough August 15, 2007), ltl2 Court cou:d take
enforcement action on its hllt the last three years
(through August 15, 201D), the Cour!:' S Qcfo::.ceme;1L 3U::':lOLity VJdS
contingent on a showing the plslntlffs of
noncompliance. ;;.'he Court did no:. issue dIlj O.cdCLS to enfoL'Ce the
terms of the reement the !irst five years, al the
11 The EAP bencr.Jr,ark was 'that_ the percent2ige of participating ID
students should equal ar exceed the percentage of all
students. The record. daBs not. the leve1 of
participation of all students.
19
SA000021
Case 2:91-cv-001S0-RNC Document 706 Filed OS/06/12 Page 20 of 62
court did hear arguments on motions the s
right to receive informatj.oTI, which were ultimately resolved by
aqre(0menL.
-Policy Statements (Section IV)
Agreement tt18 to issue polj.cy
stat:ements to LEAs affirming: (1) the r t of each witt
disabilities to be CdUC0CCd with nondisabled children to t.te
maxi.mum extent approprJ,;JT:.e dnd (2) the rement. t.hat, FlPT:::
consicler the pla,cement ,jf chI,ldren wit-.h TD in t_he reguLar
classroom with supplementary aids and services. The
issued d number of poLicy sL.ite-:ne:nls the requirement
each student receive an individua:ized placement
determination and not rig districts that they v,lould be helci.
for progress tile of the Agreement.
There is no dispute that the Department satisfied its
obligations under this section of the .
-Program Compliance Review (Monitoring) (Section V)
The Agreement required tte to establish 'fa
data-based mcnitoring system to faci:itate continuous
iTIlprov"emerrt in each of Bl:aLed. goals.1! SA at 7 if;: V(l)). 7'he
Department was directed lIto c()llect
f
anG use
quantitative and qualitative 211d data to
problems and provi.de consi:;:.ent to aLl LEAs on t.beir
SA000022
Case 2:91-cv-001BO-RNC Document 707 Filed OBIOB/12 Page 21 of62
Case 2:91-cv-001BO-RNC Document 706 Filed 08/06112 Page 21 of 62
performance in achievin'=J :1:8 fiv"E staLed H lsh. The
Department was required to "monitor the and
progress of . in the general use of out-
j c).dgment, promisj. nq pra:;tices to the on of
class mewbers wit:1 non--di;3at;led (V{2)).
Agreement requlred the Department to focus on districts found
deficient and
make pTogre.'3s. V (3). ThB Department -:.1.1so \Va,s requJ red to tak.e
specific steps to closely monitor districts as
l'moat in need" of assistance, w,jth approximateiy ei,ght
1:0 twelve such districts. Id. V(4).
The defendants begdn Lheir efforts the 2002-
2003 school year. They est:a.bl three different levels Df
general monitor applicabJe to every LEA, focusc
monit.ori:rtg of Lhe LEAs in a qeograp'i-:.ic::,d region, and "TD focused
monitoring" of eight distrj.cts as bei!lg "most
necd."
The general monitoring program required each district to
submit data regarding progres3 toward 'the five 90a1s in tho
PrJ,o:" to the
for all students with disabilities. After the Agreement, LEAs
were also required to report y -:)!:" Bt:.udents v:ith
21
SA000023
intellectual disabiliti.83 and lheir tow0yd the five
goals in tile Agreement.
As a of 'the general thirty-four distric:s
WOlO that action was necessary to correct =vcr-
identification of studellts
eth::licity. Six of were required rc
invited to attend a. 3urm:d.t on dispropoctionate 2!1d
were provided with assistance to redtlce over-
identification. In addition, sixteen dis:ricts were
that their data fell below state averages relating to at
of the four remair:
plans for each elernerlt, rr8vidHd with
assistance regarding the development ot dction plans and were
prov.:i.ded w.i,th infor:matio;:) about.: grant: opportun:i.t:cB.
The Department also emented a review system-ID
specific." This systeol was designed to all the dislricts
I.n one af the State's six geographj.cai reqions every year so that
::.rlE' districts in each region "lould bE: S 2ctGd to focused
monitoring at least once every si.x years. 'l'he p.rogram review
system "las already in ace to regarding all
sLIJdents with but 10 fie componc:nt vIaS
SA000024
Case 2:91-cv-001BO-RNC Document 706 Filed 08/06/12 Page 23 of62
The \\.ACES" region, comprised ot t,'!f:!nty-six dj.st,rict.s, was
selected for monitoring during the 2002-2003 schOOl year.
Each district in the was to condllct h self-
of progress tow&rd five alld develop
dala lor of twenty--six distI'ic:s
were to a desk audi,t. l\s a ::-CS;J..:.t ot
iderltified in the audits, twelve districts were selected foy
vi,sits and three districts were selected at random for
site visits. The site inclcded reviews,
of students and staff, sctlOC_ tours and class observations.
The defendants worked on a protocol to use fer all site
visits. The protocol was designed to ccllect qualit:>ative data
relevant t.O che Agreement. In 2002-2C03
r
the protocol required
persons conducti,nq site visits rOC1JS on progress ano
participation of students with ID in the general curricUlum, use
of out-af-district placements, use of and
of supplementary aids and se=vices. The tools deve __ oped to
collect this infcrmatiarl were dissominaled to all districts for
self-assessment purposes and formed the hasis for a walkthrough
protocol subsequently used tc collect data fro:n all
districls.
The eight districts initially identified as be,l,ng most in
need of assistance were s ectad to "1D focused rnonitori,ng."
SA000025
focJaed monitoring was
group. ], t was the r";OF'pr0.hcnsi vC: medl] toring prog=dIn
administred by the de.fer,dants t.o SC:l00J districts'
treatment of student.s \t12.th inte.11ectual aisabili lies. in the
2002,-2003 school year, trp pr0gram 12,to'-.:;eeded in two phases. In
phase 0112, a consultant froal ttle visited each of the
eight districts to nformati.on frc)m int2rvieW8 w'\th
and staff and of the ei dIstricts was required to
submiL an action plan. In phase two, the Iil focused monitoring
verify the reported ir the districts' reports
then revised the districts' actlon 3 to address data accuracy
Issues. ThE: IT'; Focused. t-lonltoriLg Groc:.p 2.2..;30 ftJol'ked wit.h the
local distTicts to set reaSz)[LlbJe ta.rg0tn fcn: each of the five
goal s .j. n the Agreement.
During the 2003-2004 school defendants contiGued
wich each of the monitoring systems put j.n place the previous
year. The g(;neral manitz)!:
of an action
plan related to the goals. The program =eview prOCESS was
updated so all districts wou d be for focused
monitoring en an annual was notified cf
tile change and pz"ovided with a c:apy or review
24
SA000026
in lhe site visits. The sixteen prablenl identified
the pri,or year's annual were placed in the ID Focused
monitoring program originally des
most in need a total of heavily monitored
districts. These w0re to site visits and
required to develop ans and par'ticipate in mid-year
reviews on top of the
Twerlty-three of the twenty--four were for graEtS t.o
increase their regu.ar class placement itiss for students
ID.
During the school year, defendants
co review the annual reports on data rplating to the five goals
and !1otify district.s of arnas of concerrl. The program review
system was modified to focus pr marily the goa:s of incredsing
mean time wi,th peers and tilG disparate
bogan publish color-coded maps that assigned
each district a corr'23pOJ:.d=-ng to 'how much progress it was
making with respect to these two goals. In addition, all the
rural districts with fewer students with i_ntellectlla1
disabilities and seven other were added to tne grouf of
heavily jncluding tile most irl !leed.
These dis'tricts were required to develop acticn plans for
25
SA000027
progress toward the goals and were given grants to implement
these plans. Some of the heavjly mOYlltJred districts were
selected for site visits. The t, also ccnduc:tinq
audits of the annual reports.
During the 2005-2006 school year, the defendants COIltinued
with the moni of districtu' annual reports. They
also replaced the program review system with a new monitoring
protocol called the l'PJ Settlement Dete!nination syst,em.
'
! The
rlew system used on regu Br class acement and mean
with to all districts into one of six
categories: meets needs 1, needs
assistance 2, needs interventice 1, needs intervention 2, and
[leeds subsLantial intervelltion. :he criteria for each category
to a district's progress toward statewi.dc targets for
r2gular class plaCemeJ1t and time nondisabl,ed peers. A
that a district belonged in any of the categories
other than '\meets requireme:1ts
N
trigg-eLGel the applicability of
enforcem0nt procedures, rang :. rem a rernent t.hat
district submit an irnpr()Vem(0IlL plans 'fer progress on all fi.ve
goals to a L':at. a d.l3t:.:cict cu:n.i.'L to site visits and
x'aport triennially on progress toward the five goals.
During the 2006-200"; G8hool year, tile defendants continued
t'lith lhe general monitoring of dist:r-icts' ;;:uHlual reports.
26
SA000028
result of :.ho fJ' DeterIT"ination system, three \'JeTe
require.d to r':.:port t.riennially on t:1.cir progress tc,wi'1rd the
craft
report on their involve:--nen:: vrlth the -;:c;c;lnic:iJ 2ssist3flCC
programs by tIle Department
l
and submi:: t<) site visits.
Beyinrling in the 2JO'/-?G08 scheol year, defendants
SUbjected all 129 distr!cts wj.th fewer twen-::y WiLh
ID to targeted monitarinq. The cGmpl.etec the
undertook ta devise a proqranl to inadequacies in the use
of paraprofessionals. defendants also continued with the
general monitoring of reports and the PJ determi.nation
system the 2009-2010 year.
In a 2005 Report, the: EAP comrnend0d '.:11e deendan-:.:st
targeted noting that mary of the targeted
wc:re maki.nq progress. The EAt? reccmmendc:d institlJt.inq a triage,
whereby the fourteen worst di,stricts wOIJ:d be pressed hard, tIle
best districts would be al.one aside their
annual reporting reguircffi2Il:S, and the dislricts in the middle
would be encollraqed to The Ef'.;) recomMended focusing
primarily on the regular class placemellt and also 180kinq
for major ,to lhe ottley goalS. EAP
2 7
SA000029
2005 report at 9. The Gepaxtmen.t acted .in accordance with these
rGcommer.dations.
In a 2007 Report, SAP again co:;-,mended trie defendants I
monitoring efforts: l'The CSDE has and refined an an-
process related to ?J that has reinfoIced both
the goals of PJ and compliancE:' wit:l sLite and federa: Law. This
targeted monitoring has been a t,a1uab12 tool for leveragi,ng
cbange towards the EAP TarCJets of PJ." 200"7 Report at 8.
-Technical Assistance (Section VI)
"'I'o support ful2. implementation of [the] IDEA" and Uully
implement [the] Agreement," the Was required to
!'design and implement a system of assi_stance" to
"enable" districts to lT extend and education in
classes for studerlts wittl ... intellectual disability." SA at
9 ( VI. I .1). The Departc"ent was to provide !fa
sufficient number oJ qualified specialj,!;)";:'s t:c assist LEAs in
carrying out their supervision and support
responsibi,lities." ( Vl. T.2). In addit.ion, The S1:at,e
Commissioner of Education was required to des e a st.aff
person to "design, implement and a]l efforts
[the Agreement 1, includtng 't..echr.iccl aS3.:"sl6nce. If If!..:. The
Agreement provided that the desiqnated person would be
1'responsible for the good faith effortB f the [Department] in
28
SA000030
meeting the five stated set Section IIt' and would
also serve "as the liaison to the [EAP] II
--Technical Assistance Programs
districts with techclcal
the Depart.ment. used the st.-J'( p;':ograrn, the
Academy and the State Education Resource :entey (!'SERC"). The
St.ar program and 'the Coaches Academy administ'3red by t.he
Jiliversity af Cornectj,cL: ar:d f:J[!ded a grant: from the
technical assistance the education of all students with
disabilities.
The Star program operated from the? 2005-2006 schoo.:_ 'lear
until the 2007-2008 school year. The program ded technic31
assistance regarding the education of students ID
iG the regular classroom. 1t addressed the needs of
apPl:oximately 54 PI" yo.;-;:.!'. The S'L,\R prog:ran i.nc.1uded
the child I s schc>o.11 readi.ng h 1. ::; IEP, interviewing the
child, his family, and educators, bring,ing tha together,
identifying problems, and agreeing on a:1 action plan. Once the
action plan was delivered tc LEA, STAR1s invo.vement usually
ceased. lJ.'he EAP commendAd the ciefendar:'":,s on thE:! STAr<. progra:r.
The Coaches Academy' for the same time period as the
Star program. Its mission was to help transform
:;:9
SA000031
educators with mainstreaming skiLls into coaches to work with
genc.r:a: educators who lac:<ed skLl.15. Schools werE': no
required to send teachers to the hcadery, but t v-lr-e strong y
encouraged to do so. The p.!:'ogram \Vas attended by Dver 355
employees from school districts, sf
focused orl use of s aids 31ld services
and pn.:nnisjnq i:lcludi:",q cooperative 'earn"ill'-:J,
differential instruction and col aborative Many of the
Leachel"S ;.;ho at:tended :"acKi2d t:le fu:u:.daticno.l kr:owlodqo t:c .::::e
brought up to the level ot con::petC::H.CE.) r:e",-:::essac! to cQach other
ed0cators. But these teachers provided with valuab!e
skills. The EAP commended the on the Coact18s Academy.
SERe was the primary provider af ID--specific technical
assistance to local prior to Star program
Coaches Academy and it resumed Lne prirnary role of providing
::D-specific technical lt1h2f1 t!';ose programs were
discontinued. SERe made many advances ir Lhe provision of
ID-related tectloical assistance OVEr the course of the
It published new guidelines for (1) students Wilh
(2, conciucLir:g PPT meet_LegE> and (3) wox: with
paraprofessionals. SERe trained dlscrict staff in :tle use of the
Step-by-Step approach to inclusive which is highly-
3C
SA000032
regarded. SERe also devellJped matrials to assist dist.:ricts with
transition-aged
Many of the serv,lc0s provided by SERe W2ra subsidized by the
Department. but most districLs \'J(!::e reqL.Lred tJ) pay -:j PO:-tj,Oli of
the cost of :e8eivinq techr!ical SERe
worked with the ID Focused
districts needed fee waiver's or Otller incentives to access
technicaJ assisr..ance regarciing students Hith ID. Some poorly-
performing districts were provided 0ssistance at State
In accorda!1ce \Clith a recornme.:1aa-tior. sf the Ei\P, most of
SERe's TO-specific efforts durj.ng the last three years of the
Agreement were concertrated on the Statels smallest districts.
These districts do not have 3S mucl) experisnce serving studencs
wi tJ-: ID as ..Larger dlstLi..cts and t.h11D be more re.1 tant 0:-1
S2HC I S on
the small districts vIas ccrisistent r,.;ith U--.e overall goa.!...;;; of the
AgreHment.
During the last three years of thc ;.:'eernent, SERe p:-ovlded
a 3ubstantial amount of technical to
regarding the educat ior. ot a1.l students t<li disabilities. It
also began focusing on
students on standardized which inclllded providing
31
SA000033
Case 2:91-cv-00180-RNC Document 706 Filed 08/08/12 Page 32 of62
technical assistaJ1Ce with teaching stra ies for ID studerits.
SERe provj_ded assistance with co-teaching, differentiated
ir.struction, use of 311PP },errc:nt,ary !'lids iE)d serv:Lees and 'Jse of
professionals. The EAP consi.ste conmended SERe 0:1 t.ne
quality of !ts technical ,3ssistancB.
--Coordinator/Liaison
Pursuant to VI of the Aqreement, ':.he Department designated
l\r:.ne Louise Thomp;'30n t.o L)c- rCf3poY:sible for
under the Agreement and to dB the li2iscn to t}le EAP. Ms.
ThornpSQIl credibly testified that the Led .Lr: a
welcome shift in emphasis toward inclusive education, that
EAP's recomme!ldations conc0:::ning the goa13 of ttw Agn;ement: were
takell and that the .El\P becchmux.:.\:3 Idere used to set
targets for districts in a realistic pcsltion to try to achieve
ther.l.
During torm c: "[he Agreement, Vs. Thompson
adm:i,nistered a technical assistance of $1.8 mi,llion, of
which S50C,OOO went to the STAR the Coaches Academy.
1:1 additi,on, twenty-four districts were given $50,000 grants to
develop technical assistance plans, and fJ.ve districts were glven
$jO,OOO grants to set-up model classrooms.
The Court has no dnubt that Ms. and her co2 leagues
at the Depan:m0nt who testiiied evidentiary hearing
32
SA000034
embraced the goals of the eeme'1t, \\'ere (::ommi ::ted to achiev.i nq
the goals I and cons.i..stently mad.2 good fZl efforts to try :0
meet them.
-Parent Involvement (Section VII)
The Agreement requ tred th8 DEpartm2nt to "a lInear.\:") f,lnds for
training programs to enable of class members to
effectively advocate for the education of their children in :east
rest rict:i. ve envi ronments . 11 SA a :1 0 {VI -) . Funds i,-Jcre ::0 be
al.located to the Connecticut Parent p.dvocacy Cente!:" tJ"lro1Jgh
2005 to conduct training. The also was required to
.. {)rk closely with other pare:::lt-c'2ntc,red 9ro:JPS, such as the
Connecticut C(,"Ialition for Ir:clu.sivc Eddcatiofl, in the cicEn.yn, ana
conduct of this
In accordance Agreement" S2?C fundt;;;d trajning
progra,,'ns with outside organizari ons to teach parents to be more
effec'.:i ve advoca tes for :i..ntegrar.cd pla,:.:en-:-:nts for th(;.l.r. chi Id::.-en.
The training helped produce progress towdrd the qoals: with
parents able to advocate for placement,s land other FPT
members conside-ring regulax' class place:nc:lts as the first option}
many PPTs .... !ere able to t;:l.ke advan af existing capacity
districts and the percenlaqe of in regular class
placements increased significant:y.
33
SA000035
-Complaint Resolution Process (Section VIII)
The Agreement requL::ed the: Dc')parl:mt';nt -+::0 esta.blLsh ar:d
maintain a process to reso ve cODFlaints to 34 C.F.R.
300.660. SA at: 11. fully
performed its Ln :his regard.
IV. Discussion
TIle Agreement's standar'd dG
inqulry into whe'Lher the essential PGrposes of the Agr'eemerlt have
been It is that Agreement's overall
purpose was to Lti2 arlO enfcr'ce che obligations
established by 20 U.S.C. 1412 (d) (:;) (A). HCHvever, t,fte
defendants' obligations are nat always clear from the face of the
Agreement and the parties dlsag:ee about what the Agreement
required.. In parcicular, the plaintj,ffs contend that the
l\g::"cement required the
would have meani,ngful access to the curric1Jluffi. The
Court respectful"y disagrees for reasons set be_Dw.
A. The Agreement's Essential Purposes Are Concerned With
IncreaSing Integrated Placements
In const.ruing the ::'?r!ns of the it is important t.o
pJ,aCe the Agreement in ccmtext consi_d2ring where 10
education movemenL stood at the tirne 't!'16 Agreemen1: \-vas The
r0'c;ord shows that the ID edl:caticH'J mOVC8E::nt has progr-es.sed in
34
SA000036
Case 2:91-cv-001BO-RNC Document 707 Filed OB/OB/12 Page 35 of 62
three phases. first phase, whi,ch in the late 19805
ended sometime in the 19905, chal:enged beJ.ief that students
witil 1D were not entitled =c any FLhlic education. The
:lecond phase, beginning !.n the :.)gGs and ending .in trte
early 2000s, challenged the belief that students with 10, by
virtue of their diagnosis, belonged in placements.
The third phase, which in the early challenges the
Dellef students will: I) meanjngful Dcademic
benefits in integrated
Ihis case was filed toward the end or the first phase and
tried toward the end of the second e f \,:hen tbe focus of thE:
ID education movement qeneral was on desegregalion. At
the trial, the plaintiffs L;ndBrtook to prcve that the
was allowing districts to segregaU':: on the basi::1 of the
ID classification rather ttan on the basis of individualized
consideration of the students I abiliti,es arid needs. The
plaintiffs' focus on inc!'easing ted acemen"t.s was
COI)sistent with the interests of the CJass at the time. The
class is comprised of students with 1D are not educated in
regular classrooms, in other wores, who are segreg'a'ted
1 The shift to th-e third phase was FTompted by studies of
tntegr'ated programs in :taly and
larger percentage of TD obtain mere
educational benefits frcm regular class pj.acements th3TI had been
undC7;rstood.
SA000037
from their nondisabled peers. For students with 10, integrated
placements are mean.ing'Jl .in anci of as :)8Cessary
predicates to obtaining academic benefi,ts in integrated classes.
MOreover, there siqnificant non-acadomic benefits that can be
achieved with integration.
Against this backgI'o:.md
l
it j,s no:: su:cp:cisir:g that the
AgreernerlL states its essentlal terms focused on
increasing placements, rather than on the
quality of education in integrated through access to
the general curriculum. Goal one is increase in the percent
of studert.s with LID] Wi-iO aI'e placed ie L'egular classes. It SF. at
suggests that improved cducation-31 0UtCOD',85 axe Dot necessary for
progress toward ttle goal. As p:aintlffs have recognized,
moreover, thiB goal could be Itmet with
nondisabled. children in nc)tl-academic sub"ccts.
1J
Pl,'linLi:f'sJ
Rebuttal to Department ::.0 2:] C EAr Report, doc. 682
3 (observing thal the cl.as:s goal could be
tt!rough wi:h nondisabled in non-academic
subjects such as music, art, lunch, home economic, ctc.
I
!)
GoaJ., tv-lor dealing wit.h t.;';e dispara't.e ct ciassificatioll
practices on members of g:::OL:PS, _3 Jiot concerned with the
of in classes. Goal three refers to
36
SA000038
Case 2:91-cv-001BO-RNC Document 706 Filed OB/06112 Page 37 of 62
"an increase in 'L'he rr,Gdr. dl:d meaian percent of the school day
that students wi.th [ID] spend w.ith Don"'di;3abled
saying haw the time be SA at 4. Goal four refers
to !lan increase in the pel"Cent of StUd211tS (ID1 who attend
[:::.r,eir home schoell," dII out.co:r:c can be ;net even if the
students are not !n regl;lar classrooms in their home
Finally, goal five refers to !'un increase in percent of
students with lID] who participate s
extrac'Ur-ricc.lar activities witb non-disahled students," :i.d., a
goal tJ1at by it.s tcrnm is not ccncex;)ed v:i,,:.:h the general
Despite the emphasiD on integrated Dlacement':':'f t'he ce.ell'\eTl t
is not indifferent to the need to educational outcomes.
Section VI of the Agreement required tile Department to t'design
and implement a system of technics: . tc enable
classes .
"
SA at 9. Here, thougn, Ltere lS a distinction
dral,>lIl betltJeen extend,ing and improving in reg'.ll2tr
classes. This distinction also appears in V of the Agreement,
concerning the Department's dutj.es t';J r'lotLicor local disLr.i.cts.
\) (1) focuses c:n progress toward the five
goals, whereas V(2) f{)CU5CS on quality.
Section V(3} rnaintai,ns :his by describing two
37
SA000039
circumstances that require focused monitoring: when districts are
l\ot making progress toward lte goal,s or whet1
districts are "found de::"-.Lcient as iJ resG.l.t cf Hl( .. H:.itoring
established pllrsuant to [ V(2)]." SA at 8.
The plaintiffs urgs the Court fj'ld that the word
'!meaningful," as used II of demonstrates that
Lhe goals are cOllcerned with access general curriculum.
Section II requires the tmeI':t to !!:::::c:mrnit to achieving
rneaningtul continuous improveme:;t annu;:"3..l with respect. to goals
#1 and #4 and COlltinuous improvement respect to goals #2/
#3, and 15." SA at 4. the plaintiffs' position is inconsistent
with way ttmeaninqfu11l is used -<-Yl the Agreement. "Meaningful
H
is used only in connection with one, concerning regular
classroom placements, and goa 1 fout', ccnce,rnirJg home scr.ools.
Notably, a student can be counted a;:=.; bei'ng ..i..n his hr)ff,e sl.;flool for
purposes of goal four even if is in segregated To
be consistent with the plaintitf's positiort, the Agreement would
lJSe "meaningful" in with goa's one, three and five,
ana not In connecLion with goa: four.
The plaintiffs that meaningfu1 access to the general
curriculum is embedded in goal one, even if the term "meaniTlgfull1
as used in the Agreement does not itself signify access to the
gellcral curriculum. The does support a findirlg that
38
SA000040
this was the understanding of the parties at time the
because it offered a l'z8so1ulion that consistent the
requirements of the [IDEA] .. II SA 2. III ether words, it offered
a means of resolving :ho lit LiC!l accordance with the
SA at 2. In
ent,eri ng .into the Agree:ncnt 1 the St:.a-t(} c():lu:;i Ltcc. to achievi nc:;
irn1?X'OVemOh-C in (1) the per8entage of stu .. ci.ents wit.h ID in
i,ntegrated placemel1ts arld (2) the percentage of the school day
slud8nts with J,D spend in If the
plaintiffs' 0: is correct, tile State
committ.ed to 3C'biev.l.nq :neardnqful access to the
general curriculum for mos[ students wit!} ID within a span of
eight years and at the of corltinued litigation and Dversigtlt
by the plaintiffs, tile EAP arid t!:0 Court tleyond the eight year
period in the event this ambitious goal was not met. It: is
implausible that the State would knowing El.{jrOe to such a
resolution. The plaintlfls have Dol that at 'the time th!s
case was tried, the IDEA y red the defendants lo seCClrc
meaningful access to the curriculum for most members of
the class wit_hin the yaar per.1.od covered by the Agreement,
alld there is no evidence believed it did.
Indeed, dS discussed d.bovE'! LIl(:; does support 2.
39
SA000041
finding that meaningful access to tile cUl:'ri<:::ul.u.m was a
foy c.lass fnemn8L5 a.t t!'1e t.ime.
In 8Ul.,mary, at t.he the: t was and
S ,che main concern of the parties class
i.n:erests in obtaininij l::tegLat,cd F,iace-n'2nLs. Ccr:sL.JT,.:.ent wit:)
's goa:s rnilinJ.y concerned wi'ch
.i ncreas:i.ng integra.ted placements. 'I'hough 3;).me provisior.s of
Agreement address qual lhe are means fOI
increasing integrated Dot In ttlernseJ.ves La which
State agreed to be bound ect to :cisk of a finding of
I1iJncompliance.
B. The Department's Data Are Reliable
The plaintiffs contcfld that in judgillg State's
peT formance :Jnde.r the the shculd :lot
State's data. The plaintlft3 the reliability of :he data
on t\tlO they arque that .i.t n)L account fer ,\1tlJdents
v;rho no .J.onger carry the 1D label and. thilt ma:1Y districts cver-
repQ'['t the amount of time students with ID spend in integrated
settings. The Court has addressed concern by
cRlculating the percentages for with In
The figures presEnted in tILLs De:norand:..ull
r
includin9 those
addressing progress the goals, ref_leet the data for all
students with ID.
SA000042
Case 2:91-cv-001BO-RNC Document 7Q6 Filed OBI06/12 Page 41 of 62
'Lhe plainti fis have: not 81'101;1n that ing is so
commonplace as to unaermine r:he the data.
report data ta tfle C">JdLtment C:I t,rlo basis of what is
requJred by ttlE:; studEnts
f
:.81', not base;J en (ii.Y''2ct observations
of The plainLifts plarlned t() a statist,i.cally
significant study of the exLent to whi::t the numbers students'
:;:SPs over'-.r:epresent the am::;ur:t of t:Lme s7:.udents ap3 actual J y i:1
integrated as the plaintiffs'
they were to m2ke st3tislica11y s
They observed eighty-six students in the
State's least irltegrated districLs and Lock on the extent
to which those students! IEPs were inconsj.stent with their class
sohedules. cvaluat'::>l's ronnd a. number of discrepanc.les, most
of which were cases of over-reporting. Jut the reports fr'om the
site vj.sits make it cJ(lar that v:ere not appl_yinc;
the saIne crJteL'ia in the Sdme rna:UH::r, so t\'O evaluators could
come to opposite about #hether a stlldent was in an
integrated setti_nq. Given th':';se infi yrr::i; i es, the repo.r:ts 1: rom
the siee visits de not the reI_ability of the
C. The Department Did Not Frustrate Pro91ress Toward the Goals
The pla,int.::.ffs argue that tje State I s own data S:lOlrJ
substantial noncomplianc:o because the aaLa reflect a of
reduced progress and even losses ruther steady progress.
41
SA000043
ThE.: plainti. ffs I argument r:as sc:rle fOI'ce. From 2003-2004 thro'Jgh
2006-200", tne annual perce;,: for goals one, three and
five increased more ten every yc&r, but in 2007-2008
progress toward all s slowed: regular class carr,,:)!] t.
i nC.ceased mean Lime increased median time increa38C
and extracurricul.ar partie iO!i decreased Qore'CS
slowed further in the 2008-2009 school year': regular class
placement .increased 0.4%, meon time- 1.8%, meoj.an :.:.me
increased 0.4%, and part cipation decreased 1%.
1';'1.e slump continued in the 2009-2Ji.U f3cIl:Jo1 year: ar claSB
placement increased 1. 1":t8aD t.ime decreased 0.1%1 median time
increased OKS%, and extracurricular particjpation increased 1.5%.
The data on home school vlacement folloN d some1.;hat slmil.:J.,r
pattern. In the 2002-2003 8chcol year, ps:::ccntago
C.2%. It irlcreased 4.7% 2003-2004, ] .8% in 2004-2005, 1.9% in
2005-2006, 1 . .1.% in 20D6-2007, 0.1% or: ?C(1'i-20C8, and 0.2% in
2008-2009. :t then decreased lD 2009-2010.
The plaintiffs COIltelld tllat the declines
l
and ill some
instances actual were callsed by the Dspartment1s
nODcomplL:-1n(:e with thG ocmf':r,t. nOLe that the-?, Departrncr;t
mistakenly believed its urlder the Agreement expired
i.n the summer of 2087 ( about t.re same tine the rate of progr'ess
began to decline. The DluiGLiffs' concerns are ullderstandable.
42
SA000044
DepaI'tment employees cree testified, however, that progress
toward the goals slo\,vd becatu.3 all the:: easy proqre.ss had ,been
it-ade. Progress was easy W!iA!l districts the capacity LO
stLdents with ID in i ra:ed settings the capac vias no:.
being used because of placerent By
i mp,cov t.he placement
accountable for it, the Department was able to make
rapid progres3 by taking of existing capacity
left with the more Lask of capaci.ty, often in
small districts that do not serve many with ID.
Moreover! the evidence shows that the Department continued
to pursue the goals of the Ag::ee:nent continued to implemer;l
most of the Agreemerlt's prov sions despite the mistaken belief
r binding. Had it failed to do
8/:"';'1 & f:'ndir!g that. the State frust.rated. the Ag..reement
1
s essential
purposes might be based on t.he data. But that is not
tJ10 case. I nde.ed, it .i.s UIl.(1.l that the State COlltinued to
make good faith efforts. In view of the State's overall
throughout the e year :srr:, of the- Agreement! a
firding of substantial n .1.S
43
SA000045
The State's IEP Determinations Is Limited
3efore turning to r-<:::'Jiew Statt0! per:cirmance under
specific sections of
s::l1Cients \\1'1 th inteJ lec:t,ua::, d.t Li tie:': lD regular c1.aS3l'OOms.
These limits flow the each ac:::ment
decisj,on be based on individualized of the child's
abilities and needs. BecalJS0 of this re<ltliremenc, rtment
impose a categoI ca presumptiur stLcient.5 SIJoulci.
spend a certain amount ot time irl all irltegrated
Newinaton} 546 F.3d at 119. And 'rJhilt: t:he Department car: have an
indirect influence on IEP determinati.or.s thr01Jgh monitoring and
assistance,
In addition, the rOSA limj,rs the 2mOllnt of can be
wi by the Cepartmenl ::01.' st:.ace ac:,iv.i. ties. In 2009,
tor example
l
ConnecLicut 'VIas i.H.lthori 2ed to wi thtro2.d LW0
of its IDEA funds fer state level administration and nine percent
for other stats level vities. The remaining eighly-nir12
percent of its IDEA funds 11ad to be to eliglble LEAs.
Funds withheld for state ievel are to be used
::or: mcnitoring, enfcrcemer.t" and j,.n7estigation and the
esLablislHnent of a mediation process. ') 1411 (e) (2) (E). And ar;y
fends reserved tInder this Drov_siQn may be used on a
44
SA000046
discretionary basis fOI' a number of activities, including
building LEA capacity to results for childrcll
with disabilities. Even sc, the required allocatj.on
E:nco'Jrage and enable LEi\s to claus members with
placement
Similarly, the :LDEA llmits the dofc::'lC.:i2 .. nts' abLl to use
funds ways that WOGld "he purposes of the
Agreement. The cannot base !:-u on the
type of setting in which a child is served in a manner that
discourages LEJ1.s fro:11 cGl1sidering the "CD needs of each child
as described in the child's IEP. 2C U.S.C. 'i '412(a) (B) (I).
This proviso, contained in tho of Act affirming the
State's responsibility to ensure that each child is educated in
cl)e least restrictive 811vironment, agaJnst the
imposition of measuren that cou.i.d be rc::gdrded as p::ovid.i,ng a
financial incentive to to pmphasiz0: regular class pl(H:er:lerrt:s
at the expense of cans students'
E. The RecOl:cI Shows that th.e ,$tii'te Met Its COJWIitments
make commitmonts to cae;: Gf the 9Gais. Tr:ese COD
1
rnitments,
set: forth in II, desc_::ibe the Ur:ent! s ob1 and, in
the absence of benchmarks, they describe the desired outcomes as
SA000047
well. The desired are not al progress in the
direction goals but the progress that would result
.tram act:ng in ae:cordance ':..:Lth ::..he requt::.:ite corrmitment:::-:.
Therefore, the sIJbstantia: d0lcrmJnatic[l on
whether the plaintiffs show:, t\
an action required re2Tf'C,r t: 7" h,) t WOH 1 d have produced
more progress towa-d the goals. They tlavc not done so.
1. Uncontested Provj.1"ions ( IV,
The plaintiffs do allege with IV, VI=
and VIII of the P1..1LSUZi.!"'lt to IV I the Department
issued a number of pOlicy statements sett fortfl t.he
requirement t.hat each receive 2;\ individualized placement
detecffiination and notify they would be held
accountable for progress toward the The
requirelnel1t to fund tr3in to t0ach parents to
effectively advoca:.e fo:::' t:ie e3ch:catior, ,>f their cr::.ldren i:1 the
least restrictive envirODD8nt. Pursuant to VIII, tl:e
Department established and maintained a system to resolve
complaints regarding dislrict-lev8_ compliance with the IDEA.
The Department 1 s und:isDl:T.e with these provisioflS
supports a fj,nding that substantial" y complied with the
Agreement, dB do the data demonstrat ttlat progress was
46
SA000048
2. Monitoring (S Vl
The plaintiffs conteno that rtme:1L failed
adequately monit.cr the of e:.hca-jt:JJL a:l<:! also fa.i.Jed
maintain appropri,ate fC8US on goals four and five. In addition,
t contend that the rLlncnt! s leVt.;>l thrE.'1E' moni 'lIas
and that the overall system cOllfus.ing. These
contentions do not provide a basis for rGllEf.
(al Monitoring
Through the SellOO] year, Department monitored
education quality at the fi:st level conducting site visiLS of
randomly selected districts and
of hearing officers
i
decisions.
rev] 8'.-;ing the j.mplementatioD
thG 2005-2006 arid 2006-2007
schoo.!., years, the conducted '/39 H1:-:aikt.ll
!! wte
each district was v!sited least anc:e to qualitat.ive
data. The plaintiffs argue that the walkthrough data are not
reliable because were notified in advance of the site
vl:.:;:itS. The rtrr:ent the districts had to be
not __ i. fied in advarlce to cn,)c;r-C' stuclCn(s Vllould likely Jj()
available far observaticp and disr were rarely notified
of the exact day students would be observed. I credi:: the
Department's response and find that th2 no:ice given was
reasonable in the
SA000049
The plaint.iffs also arque thar. the .system was unreliable
plaj_ntiffsl firldings on sitp visits. Fo,r Lne
explained above the impact of tte plaintiffs' findings
Oil the reliability of qUdllLitative data, the findings a150 do
nat impugn the accuracy of the walkthrou
revealed that genera] education teachers weL9 improperly relying
on paraprofessionals to educate students ,;>!iLh IDr prompting
Department to address 1':he issue thcough its program of technical
assistance.
Although the walkth stopped in 2006-2C07, the
Departmerlt cor:tinued::o monitor educatloYI quality at: the secor:j
and third levels througt 2009-2010. 2006, and tor
tne of the f forL districts, serving
approximately f:wo-thirds (,.r Glass, were mOllitored at the
second or third levels. ";'::<2' more t:ro'J:bl-i, r,g districts received
tho closest scrutiny, with enlployees conducting site-visits
and classroom observations. The .least ';:: L':)ubling districts were
requ i red to <3Iddres.s and '''-t;po:-::-t OL qual
progress tOltiard the goals. In addition, beginning in the 2007-
2008 school year, all 129 districts with fewer twenty
8LDCients \4ith ID were targe:ed fo;:' :noni '::cring. The: Jepartmer.t! s
31lGcation of resources was consistent with a recommendation of
SA000050
the EAP to focus on the worst districts. see EAP 2005 Report at
Under the Departmentls system, thc districts that were
not monitored for during the fjnal three years were
large districts that mdking t;e progress toward the
goals. The l..'ccord does :;'10t supper:.:. a ,ti,f;d.:ng that dis:':::icts _il
this category would havp n1ade mare towhrd the goals if
tney had received fficnltor :::dlled for the
Agreement. AccordingJy, the Court CF11WC'... fi,nd tha.t the
Department's failure to these to qualitative
monitoring dllring the three years frustrated progress toward
the goals.
ll2l.. The Department Otherwise Complied With V
The plaintiffs contend that the x-tment1s monitoring
efforts did not appropriat01y focus en fouy'th and fifth
goals. The Department. 0ne and three more tllan
the other goals, but it progress on all five goals,
including goals four and five, every through Lhe arlDJa:
reporting requirement. Tile condilct r'eflects
reasonable policy. It v.;as not ir:consister;'t wit.h the terms of
V. And it vJas ccnsistenc with the SApls t'<scofrJnendation to focus
on the goal regarding regular class acexent and any major
c:Uscrepancics in the other See EI\P ?OO!:i Report at 9.
49
SA000051
Moreover, credi.ble evi.dence pres8!1tod the:, Department shows
rates of t Ofl for 31: Rtuden:s,
disabled or not,
.
toward goa.l f i would have bee;! made if it. had been empha,s i zed,
The Department empLasi zod the home ,'3-=hool goal by separate 1 y
districts are more to Gut of district placementE
than larger districts because serVi? f.ewer." students with 1D.
They also lack fundino, The were
sufficient to meet the obl ti0!13 V to focus on the
home school goal.
'l'he plaintiffs poin': to a number oJ: peo.;::'
distrj,cts as evidence that rtment faj,led Lo provide
adecpJate level-three mon] tor:i.nq requj,red by the Agreement.
However, the pla': .. ntiffs have not shown tlia:: the failed
to take any of the actiCtlS requi:ed by V(3) In its last
roport, ttlG EAP concluded that dJs_ricts appear to be
si.mply refusing La comp1y, te !Y12ssive a.nd very expesnivc
interventions provided by SERe, arid other initiatives like the
parent training component, :;TAR, and t};e coachlng acadefCly. It EA?
2010 Report at 22. In Ii t of the EAP'3 reasonable conclusion,
by the
50
SA000052
Department would have prOdk!Ced more progress in these districts,
the evidence relating t8 these districts does provide a basis
for a finding of
Finally, the aintiffs contend tt1dt the Departrlent's
mcnitoring systcln con the SLate started
rcon1tOr district::s on progress for all. disabled s::J":J'ients as
=equired by the IDEA. Under this syscem, a could
receive satisfdctory reviews rega its treatment of disabled
generally, but rega.Yd:Lng "i 1':.5 treat.mr:Dt of students
with 10. The Department argues with some force that its
was not unreasonable 1 t of the imposed on ti'lE' State
by the IDEA. In a.ny eVEnt, the plai:1Li ffs have not shown that
doing things dlftererltly would have Ir:Ore progress tot<lard
the goals.
3. Technical Vlt
The Department adequdteJ.y complied the p.tOV':.S.l0;1S of
Agreement. governing t.echnical 1\5
above, [he Department relied on SS:?C to prc:vide most of the
technical assistance. SERe published guidelines to ensure that
st'-ldents we::::-e not improperly c:Lasstfi.e(j, Lhat they received
individuaJized considerati.Qll, and t.hat r2gulBL education teachers
did not improperly rely or; paraprofess':.8Lals to t.each students
51
SA000053
Case 2:91-cv-001BO-RNC Document 706 Filed OBI06/12 Page 52 of 62
with ID in regular classes. SERe also TEgu]ar:y held statewide
training in Step-By-Step protocol.
SERe dod alL districts with 12dSt the fal.lowing
customized aSsIstance: TC'vc:.:ietv of data r'egarding tim.e with
nondisah12d peers, participdtion .Ln extrdcurricular activities,
and regular c!ass placement; review of rp;poJ1sible j.0clusive
practices and their witll the s of the Agreement;
and a self-assessment tool t.o betb idsntity 'LL'air:ing and
develop a plan to addr'ess Ihenl. Y[(lrming districts
received narrOi,vly tailored assistance, including assis::3:nce v/ith
differentiated instruction, work anHlysis,
positive behavior supporL, 2ssistiv2 tectno_ogy, and other tools
to improve edued.tioD rOl with ]']) .:.n
districts received assistance at no charge.
During the final three years, SERe addressed
VI in two ways.
on the State's smullesl districts. Twerlt.y-iive small districts
in need of 3ssistance were fee foy
statewide professional development ities and of
them received one day of free customized assi.stance.
See SAP 7.007 RepocL at 4.
As discussed above, SERe also f:Lcant amount
of statewide and d:i:strict-c'I',"C.JT1.C tech:1.:.cal assistance in the
SA000054
Case 2:91-cv-00180'RNC Document 706 Filed 08/06/12 Page 53 of 62
final three years. rhese were Dol exclusively directed
toward achi.eving the goals of the p.,gr'eeme:lt, but SERe was caretu.l
to draw links between ti!e training the five goals.
F.rom 2005-20J6 through 20C"'i-2008, t:1">:: Department also
provide assistance to '::iis::ricts. As
d,Lscussed above" the Slu_t Tirograrn addressee: th(; needs of
Coaches Academy was Dttended by over 355 employees from
di.stricts, two-thirds of them teachers.
The plaintiffs ask the Court to fina that the sysLem of
technical assistance was deficient. contend that a list of
private consultants the published did not satisfy its
obLi.gation to provide a sufficient r:umber' of qualified c;xperts to
assist districts. In addition, tlley fault the Department for
discolltinuing the Star program and Coactlcs Academy, and for
failing to provide more cechnical aSS1SLance. These
contentions are ilBavail tng.
The Departrr:ent net the obligation to pl"ovide qualifif;d
experts by providing dist!icts assistance of quail,fied
personnel at the DepartiT\Ent and SERe, i:l addition to publishing
the 1ist of private consultants. ?he rtment was not required
53
SA000055
to continue the program or Coaches or provide more
mad.e by SERe were desiqnsd to extc:nd d:l:.1 regular clasp
placements and the data demonstrate that efforts were
SERe continued to provide Lte Iraining that was
pruvided by Lhe Coaches The rec0rd not a
finding that: cO!1t_.inuing t.hc; StElr program \10nld have produced more
progress. Provision :::)f I:;crc embedded ass:star.ce might well havG
prodeced mors progress. llowever, SERC1s efforts to provide
statewide training and assisLance
were sufficJent to meet tLe
, d'"
::.:"npose oy 3-
s of the f\greement, fically the II ccmrnitments, did
not requl re :i..t to providE [Cote :rnbeddcd ';:':IPPOl't.
4. SAP (S IX)
The Department failed to y '\<I,iJ,h tJ1E Agreement by
fOl
terminating tLe EAP in 2087, before the 0xpiratL,)D of the eight
year term of the AgreemenL.
that it believed the Aqree:nenL permitted it to disband the EAP.
1:'::e CO'.Jrt: finds that the Departmer:t! s al
mis:aken, was reasonable in the arlj that the
Department dj.d not intend to tern'inate EAP in violation of
the Agreement.
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The plaintiffs} the between the
above, 'Jrge ::LaL telT-::'naLj on of Lh0: I<tJ? \1arrants a :".i.ndiLg
r:oncornpJ i.ar:c!?:. H<)\>Ji?;ver, thE: ?:Laintiffs have Z)ot
t2['mination of the SAP. rlment.
continued to pursue the C,J(,'als in the EAP 1 S absence and the EAr',
in reviewing the efcrts the final three
of Agreement, blamed ;ndividual districts for resisting the
Department1s efforts. EAP ?JiO al 22, 24,
5. Plaintiffs' Right to on Students 10 ( Il
The plaintiffs take issue the :)epartmont' s failul:e 'to
provide them with a of st\ldencs ID who were
reclassifIed to another di3dbility categor"y. Such a Ijst was
The plainti,ffs have
shown, however, that more progress WZ)ll],j have been made toward
the goals if the list had bueD provided earlier. The plaintiffs
hac to address
rates of reclassificatiarl tjat had effect of moving studsots
out of the IITDII category_ BGt the eVldence shows that
Department's efforts have extended and improved integrated
placcBenls for all with [D and plaintiffs have flOC
SA000057
shown that the reclassification rate provides a basis for a
fj cding of ncnc;ornp 1. i.is.nce.
6. The Department th .L+.1
The nature of t.he i:1 :1 may tave requi red the
Department to go beyond the Sf)8Cific set in
other sections of the The pld if fa suggost Lha::' the
Depilrtmenr ! S fa.ilurE: to adopt or meet benchmarks cstabJ. 'Lshed by
the EAP demonstrates that i faL;..ed to scbstantially comp.:.y "Ii Li
It.S obligations under II. They also aI'gus that Department
shou1.d have I)rovlded embeddRd tcChIlic61 assj,srance
f
wtlich
likely would have produced more progress toward somE of the
goals. Each of these issues is addressed separate belo\; after
a discussion of the II cOD@itments 311d a review of the evidence
bearing on the commitment to 2aCI: goal.
(al The Upheld the to
Under II of the Agreement, the had to !'comm.i"t
to achieving continuous progress annually" toward
goals one Btld four. The terms conLaj_ned !Il the quoted provision
are best construed as fallows. IlAnnual1yH means a commitment to
achiGve progress each year. lIContinous
H
means a commit.ment to
any losses. "Meaningful!! means significant progress,
in other words, more tj-:an nomina} prO::}LC;;:"; buL less -ChLHl all
possible progress.
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"corruni t to achievi.ng conti,l':.'U{)D.s p:tcglY;SSt1 tc)'.:ard the uther t,(j,n:o
goals. This provi,sion red [t,rrent, to com:n.it._ to
preventing any losses with to -::::03"-': goals. The': record,
viewed as a whole, supports a _ that the mst
The Department empf . .:.s:zec1 gea1 ODe in its moni:"cring syst.em
each year and it was the lccus at most 01 the technical
assistance provided by SEF<'C 2.uld the othe.r. programs. Althcuqh
more progress was made in ,",I!;a ear .in
the last three 1 reflec": (} co:rcr;itment tc meanlngfel
progress because the Sts.'t',e had rCi::\.cr:ed rJh? point where it was
necessary to build new ty in order to make more progress.
The overall progress toward tilis goal .
ThE: Departmen'L emphasized the need to increase meaD and
Inedian time w,ith nondis;::b1,ed pee!"s in the monitorlllg system every
were focused on increas acements, those
increases directly to progr'ess toward t:hjs goal as
well. Here again, cversll progress was significant.
The general system emphasized tt19 tlome school
goal during the first f1.ve years and the small district
i.nitiative addressed it during the last three years. These
districts were pl'ov ..ided ;,r,:,th customizeci t.echnical support to
SA000059
increase their capacity to regular classes,
di=ectly the apporttl!:ities for students those
districts to attend thei= school rather than a segregated
settinq in an:jrI18L locatic'll, Same progress w&s
evidsilce does flot SilOW trriH was tne result
Overall progress toward this was s ificant as well.
With regard goal five. the
specific reql.liremen:s 01 t:10 hgn:::emenr. :.HI:::.1 made annua.:.
gr'anLs of $10,000 to the Connect.icut ASS02iation or SChODls to
SUp?:)x:t dist.rict-s I ':lork toward t:).i.s goa. Although seme progress
it/as .lost., the ev.idenc(:: shows trlat this was the .resul c of budget
cuts affecting the participntior. rate of all student,s thall
issues specific to with 10.
(bl Job-Embedded Assistance
1.'[:e plaintif'fs t cxper!:s testi. f.i(?d t:::at the s system of
technical assistance could have
90a1-s of the Agref:::!:ment providing more tLaining.
The Court agrees. In this context, tt:ai is
pL"ovided by going into schools and ass:: s ,",:Lng general ed'J.cation
teacheY'S with the educa '. 1.0;-; of indivictual s:'udents. To be
that, the If'2ssons 2r8 applied. Although SE?:::
personnel \1ere to provi.de emoedded assist:a!lce, suet.
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SA000060
assistance usually was provided only on request and at district
expense.
Many districts were aLle to employees
accountable for applying
districts had difficLlty de so. 'fhe 0vidence indicates
the Depart:ment may have been able to this by placing
imp:ementation of the :r2smen::: .
As reviewed above
r
-:hs t
require tte Department to cake these steps and the Departmerltfs
good faith efforts to implement the Agreement support a finding
t:;at the commi:.mt'nts were inaintained. 1'::e Depart:nent's policy is
t() take YBsponsibi"l.i.t'l f:)r prcwl,J district. employees with the
skills necessary to te but eactl
di.strict is respOD8iblE:: fo,t er:snrirlg tb;3: .its employc0,s <Jpply
those skills to meet the af indivldual students. The
Department believes that this division of responsibility is
appropriately of district a
1
JLDDomy. The D(?partment t s
poI,icy seems reO.scnablc. l".t a rrd.n:.Inum, it is consistent:, with tr:8
mandated alJocatioIl af '[DKA fendR.
The EAP's last report confirms the Department provided
a substantial amount oi assistacce to districts and thereby
brirlg about sigrliticant The EAP
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SA000061
signifi.cant progress as a result of the rtment werking
and skillftllly LO its interventions
.:Jver time . The tailoring and
aevelopment by district and in cases by school is
and. t: ime corL';
"
The EAP
went on to say t!local districts have to take up the
re3ponsibility to that trai into daily practice.!'
at 24. This sl1pporls ;,1 finc) ng Lhat the Depc,u::tmnI1c
t
s
reasonable policy .
.ic) EAP
The Department ws not required to m(':'et. t.he BAP or
adopt them as Btatewide targets. The benchmarks would
support. a finding of rlonco;np' iance if t:h2Y
represented the amount of progress thH State wo-uld have made ::'n
etght years if the Department :lad maint.!)ir:eci the requi::Ll,Le
commitment.s. However, ',-he; EA? ....;rote that it "del:Lberately set
high benchmar:kg" to n expectat:ions*' and "stimulate
EAP 2004 Report at 7.
There is no indication tha= the EAP acccunted for fiscal, legal
or any other constraints on the ability bring
about st.atewide change in
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SA000062
have set benchmarks at the highest possible levels
in light 0 f data from OV:Cl :J utlsdictJons. Id.
were 3chievable, the Qvidence docs nOl 3UppOft a f tc.a:
t-he benchmarks c0uld ha'1(;') been achievecl eight years, let alone
ttll:it: would have been achtaved but ':0::-- ::.he Depar:tmer.t' s
noncompliance with the: l ...
The evidence does nol show progress WDtlld have
beer: made i.f the D:;:;pal:tmen:: Q,d<')p::ed th0: becchmarks as std.tewide
targets. The Department 1 ished the ber,c:hmarks j n
connection with its efforts to about progress tOHard the
goals. There is no indication that defIcient districts would
have done better if the benchmarks had. explicit adopted by
the Department as targets. In any event, the Agreement did
req1.:i re the Department t 2<1opt t.he Dencn;narKg, T!1e LIepa rtment
Inacie a reasonable pol decision t() t.ni ar targets La thG Ileeds
and potential of districts. Its reduced the risk thaL
districts \vou1.d place stuc:lents i.n intecrI'!1t.ed settings witllout
giving each student individualized consJderatiorl. In light of
this reasonab],e policy ilnd the lack of eVIdence
that using the benchmal"ks wou],d h3ve more progress, the
decision not to use the benchmarks did not conflict with the
II commitments.
SA000063
Case 2:91-cv-00180-RNC Document 706 Filed OB/06/12 Page 62 of 62
For the foregoing reaSOflS, the pJ.aintiffs have ne)l sustained
t,tJeir burden of subs':.3.nt,ial nonco:npliance. In
part.icular, they have not shown tl'.at cne Department tailed to
La.:<e an action reguired by the Agreement.. that would have produced
!n0x:e progress lowarJ the c23senLial purpose;.:.; of the 1\gresmer'lt.
Accordingly, thei.Y motion has beEn denied.
/J
United District Judge
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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
----------------------------x
P.J., ET AL
Plaintiff,
vs.
STATE OF CONNECTICUT, ET AL
Defendant
----------------------------x
2:91CV180 (RNC)
March 26, 2009
Federal Building
450 Main Street
Hartford, Connecticut
TELEPHONE CONFERENCE
Held Before:
The Honorable Donna F. Martinez
U.S.D.C. Magistrate Judge
FALZARANO COURT REPORTERS
117 North Saddle Ridge
West Simsbury, CT 06092
860.651.0258
Falzarano Court Reporters
/
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TELEPHONIC APPEARANCES:
For the Plaintiffs:
LAW OFFICES OF DAVID C. SHAW
34 Jerome Avenue
Suite 210
860.242.1238
By: DAVID C. SHAW, ESQ.
MENTAL HEALTH LEGAL ADVISORS COMMITTEE
294 Washington Street
Suite 320
Boston, MA 02108
617.338.2345
By: FRANK J. LASKI, ESQ.
For the Defendant:
OFFICE OF THE ATTORNEY GENERAL
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
By: DARREN CUNNINGHAM, ESQ.
Also Present:
Amy Constantine
Law Clerk
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(Commenced: 4:06 p.m.)
THE COURT: All right. This is
P.J. vs. The State of Connecticut,
Et AI, 2:91CVI80, assigned to Judge
Chatigny.
will you identify yourselves
for the record?
MR. SHAW: Attorney David Shaw
representing the plaintiffs.
MR. LASKI: Attorney Frank
Laski for the plaintiffs also.
MR. CUNNINGHAM: Darren
Cunningham from the Attorney
General's Office on behalf of the
State of Connecticut.
THE COURT: All right. Thank
you all for calling. I wanted to
get you on the phone and give you
my thoughts regarding the
plaintiffs' motion to compel that
was argued on Friday, March 13,
2009.
As a preliminary matter, I
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want to commend both sides and
thank you for the quality of your
briefs and your oral argument.
Each of you did an excellent job
helping the Court understand the
issues and in advocating for your
clients.
I1ve been giving careful
thought and consideration to your
arguments, as well as the various
cases you brought to my attention.
And I would like to share my
thoughts with you.
In the motion pending before
the Court, the plaintiffs seek an
order that the defendants make
their employees and contractors
available for interviews with the
plaintiffs' expert; that the
defendants comply with notices of
deposition and interviews; and that
the defendants comply with the
plaintiffs' request to conduct an
expert review of class attrition.
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On the one hand, the
plaintiffs argue that they are
entitled to the requested
discovery, pursuant to the text of
the settlement agreement and the
Court's inherent authority.
The plaintiff's argument,
however, glosses over some of the
settlement agreement's limitations,
and further does not seem to
contemplate any limit to the
plaintiff's discovery requests.
On the other hand, the
defendants contend that based on
the settlement agreement, the
plaintiffs are entitled only to
existing data and files, and that
the Court is without authority to
order the requested discovery.
However, the defendants
concede that they are required,
under the agreement, to, quote,
cooperate with the plaintiffs'
reasonable request to provide
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existing data, unquote, and that
the Court has authority to enforce
this obligation.
It's my view that the
settlement agreement is a contract;
that the Court has authority to
enforce the settlement agreement;
and that the Court and the parties
are bound by the terms of the
agreement.
Both sides agree that under
the agreement the defendants must
provide the plaintiffs with, quote,
existing data and files, unquote.
Existing data and files means
just that. No one needs to create
or prepare documents that are not
already in existence.
Although, as the defendants
recognize, the plaintiffs are
entitled to obtain information
under the agreement. 1
1
m not
persuaded that the depositions and
interviews sought by the plaintiffs
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can be construed a ~ existing data.
Even if they coUTd be ~ o
construed, it is not clear on the
record before me how the witnesses
that are subject to the plaintiffs'
June 12, 2008 notices for
deposition will give the plaintiffs
access to existing data.
The same is true of the
plaintiffs' request for an order
that the defendants comply with
their request to conduct an expert
review of class attrition,
including but not limited to a
sample of class members who have
been reclassified to other
disabilities groups, and not taken
into account in the CSDE's
assessment of progress under the
settlement agreement.
Accordingly, I'm going to deny
the plaintiffs' motion and will
enter an endorsement order to that
effect.
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All that having been said, the
motion gives me pause to consider
the next step in the litigation of
this case.
The plaintiffs have made clear
that they intend to file a motion
for substantial noncompliance.
The defendants acknowledge
that the Court has jurisdiction
over such a motion, but maintain
that it does have such jurisdiction
only if the motion is brought
within eight years from the
impaneling of the EAP. Both sides
have said that the motion will be
the subject of an evidentiary
hearing.
The question for everyone is
how to prepare for the hearing in
an efficient, focused, and
economical manner. No one wants a
situation where the plaintiffs
subpoena witnesses and conduct
their investigation on the stand
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during the hearing. We don't want
to have the parties and the Court
to be in a position of having
discovery unfold in a courtroom.
The Court has the authority
and the obligation to manage the
litigation and facilitate an
orderly and prompt disposition of
the motion. It is in everyonets
interest to have the hearing be
very focused and directed.
This prompts me to wonder
whether, as a practical matter, a
few limited, targeted depositions
and or interviews might not be the
most efficient manner in which to
proceed. I'm not suggesting that
the plaintiffs are entitled to or
should be given carte blanche
access to the defendant's
employees.
We are not writing on a clean
slate here. The EAP and the State
both have been compiling reports
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for years. There is, Itm sure,
significant information already
assembled and available.
In addition, the defendants
have provided and continue to
provide the plaintiffs with written
discovery. The plaintiffs
themselves indicate in their papers
that their experts visited a sample
of twenty school districts to
review the programs and services
that class members were receiving.
Now, what I am thinking of is
v e ~ : ; : y c ire u m s c rib ed, a ve r y tar get e d
approach, A few depositions of key
personnel who might possess
critical information.
So, I want you to reflect on
this. You're both experienced,
you're all experienced counsel.
think that you need to talk among
yourselves and consider, as a
practical matter, how you will
accomplish the next phase of the
I
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litigation.
I'm going to ask you to do
that. I'm going to give you some
time to consider what I've said,
and then I'm going to schedule a
conference with all of you in
April. My intent is to keep the
case on track.
So, that's all I have to say.
I propose to let you all go now.
Let you reflect on the things I've
said, and I'll talk to you after a
little bit of time passes.
All right?
MR. CUNNINGHAM, Thank you,
your Honor.
THE COURT,
MR. SHAW,
Thank you, counsel.
Your Honor, the
defendants have already told us,
point blank, that they're not going
to allow anymore discover. And
that was the reason for the motion
in the first place.
I understand your comments and
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I appreciate them, but it seems
like we've already written to the
defendants, exchanged letters with
them on several occasions I and
they've taken on a position that
they're not going to permit
discovery.
THE COURT: All right. Well,
I've already said I wanted to
reflect with you on the status of
the litigation. I want to talk
with you all about how to prepare
for the next phase, and I wanted
you to have the benefit of my
thinking before we get together.
So, all I'm going to suggest
is that you talk among yourselves
without me on the line, and then
I'll see you and talk to you.
So, with that, I'm going to
let you go.
MR. SHAW: All right. Thank
you, your Honor.
MR. CUNNINGHAM: Thank you,
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13
your Honor.
THE COURT, Thank you.
(Concluded, 4,17 p.m.)
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CERTIFICATE
I hereby certify that the
foregoing 13 pages are a complete and
accurate computer-aided transcription
of my original stenotype notes taken
of the proceedings, which were held in
re: P.J. VS. STATE OF CONNECTICUT, ET
AL, held before the Honorable Donna F.
Martinez, USDC Magistrate Judge, U.S.
District, 450 Main Street, Hartford,
Connecticut on March 26, 2009.
/s/ Irma I. Sanchez
IRMA I. SANCHEZ
Court Reporter
14
SA000078
C se 2:91-cv-00180-RNC Document 593 Filed 08119/09 Page 1 of 28
FOR THE DISTRICT OF CONNECTICUT
- - - - - - - - - - x
P . J., ET AL.,
Plaintiffs,
vs
EDUCATION, ET AL.,
Defendants.
- x
No. 2:91CV180(RNC)
HARTFORD, CONNECTICUT
JULY 7, 2009
TELEPHONE CONFERENCE
BEFORE:
HON. ROBERT N. CHATIGNY, CHIEF U.S.D.J.
APPEARANCES:
FOR THE PLAINTIFF:
34 Jerome Avenue
Suite 210
Bloomfield, Connecticut 06002
BY: DAVID C. SHAW, ESQ.
Suite 320
Boston, Massachusetts 02108
BY: FRANK J. LASKI, ESQ.
FOR THE DEFENDANT:
ATTORNEY GENERAL'S OFFICE
55 Elm Street
P.O. Box 120
BY: DARREN P. CUNNINGHAM, AAG
Darlene A. Warner, RDR-CRR
Official Court Reporter
SA000079
3:30 P.M.
THE COURT: Hello.
MR. SHAW: Judge Chatigny, this is David Shaw
for the plaintiff, and we have also Mr. Laski and Darren
Cunningham on the line.
THE COURT: Thank you.
This is a telephone conference to address the
plaintiffs' objection to the magistrate judge's ruling
denying the motion to compel.
I've read your papers. I'll give you an
opportunity to comment further if you'd like.
Mr. Shaw?
MR. SHAW: Yes, we would like to comment.
To some extent really the Court -- neither the
magistrate judge nor the Court has really had any
involvement during the implementation's phase. There have
been no real conferences -- there have been a few motions,
discovery motions, but basically the Court has not been
involved in it.
The expert advisory panel that was appointed
pursuant to the settlement, in their last report in I
think it was March of '07, said that the lack of
compliance was shocking and that the districts would
revert back to their previous position before the
SA000080
C se 2:91-cv-00180-RNC Document 593 Filed 08/19/09 Page 3 of 28
settlement agreement if there was not some ongoing
oversight provided. The State then summarily discharged
them, which we claim is a violation of the agreement on
May 17th, 2007.
We then -- the plaintiffs attempted to conduct
some discovery to assess the situation and we did go into
some districts. We had experts go into some of the local
districts, which are not defendants in this case, a sample
of 20 out of the 169 districts in the state. That was
done in the spring of '07. And when we finished that, we
wanted to assess what was done to bring the defendants
into compliance in terms of the technical assistance that
they had provided the districts, their analyses as to
compliance and that sort of thing. And we were given some
data which we analyzed. And our expert has indicated in
an affidavit which was in the file below that the data was
very misleading and it really reflects that she -- she did
not think that the State could properly allege compliance
or lack thereof based on the data because almost one-third
of the class disappeared, been reclassified. State hadn't
done anything about it. Several hundred purported class
members floated in and out of the data every year. And so
the assessments of compliance the State was making was
based on a data that indicated that hundreds, really
thousands, of class members had just disappeared or were
SA000081
floating in and out of the data.
So again, we were attempting to meet with the
State to assess compliance and we were stonewalled
basically in terms of getting any documents, any of the
information we needed from the central office. At that
point we were primarily looking to have two experts
interview some people in central offices to what they had
done in light of non-compliance and what they had done to
try to correct the gross deficiencies in the data and what
they had done in terms of the many districts that never
have even been -- dealt with the consent decree, they just
essentially ignored, according to the smaller districts
especially, just ignored the agreements essentially.
But as a result of getting stonewalled, the
discovery process was stalled without our ability to
assess what the defendant was doing and not doing. All we
had was data and information which, as best we could tell,
was very misleading. So we moved for substantial
non-compliance, which the settlement agreement says we can
do, and this was done April 15th, 2008, more than a year
ago. And one of the things we asked for in that motion
was sufficient discovery to allow us to fully assess
compliance and present to the Court a substantial case so
that the Court could decide on the full record whether
there had been compliance or whether there hadn't been and
SA000082
what orders, if any, should be entered as a result.
The magistrate judge called us together in June,
approximately two months later, and ordered the plaintiffs
to meet with the defendants and discuss what discovery we
needed and whether -- I tried to find out whether the
defendants would give us any discovery, and we were told
we weren't going to get any. And so we filed, as the
Judge ordered, magistrate judge ordered, a motion to
compel, July 15th, 2008. And then two or three months
after that, she denied our motion for substantial
non-compliance, March 16th, 2009.
So at that point we were left without a motion
for substantial non-compliance that was really the basis
for our discovery request in the first place. It was
denied without prejudice, but it was denied without
explanation. And the only motion we had left at that
point was a motion to compel discovery that she had
ordered us to file.
So in that motion, we'd asked for some
deposition discovery and we asked for an opportunity for
two of our experts to review the data and documents that
they had and review what the State had done to assess
compliance, as experts often do in these cases involving
systemic violations.
We had indicated in our motion to compel -- and
SA000083
I think this is important -- that:
Number one, there were very substantial
violations of the settlement agreement, as best we could
tell, admittedly based on data that was two or three years
old, because the EAP, as I said, had been dismissed and
the State's last report was filed in 2005. We also,
through affidavits, we submitted, documented, we thought
fairly clearly, the need for broad systemic discovery and
the fact that the data we'd been given was largely
misleading or inaccurate.
The Court, after holding a hearing denied the
motion to compel and she did not address really any of our
arguments. Well, two of our arguments she didn't address
at all, and that was that the Court, using its inherent
power which it had to manage the proceedings before it,
because the settlement agreement explicitly says that the
Court will have power and jurisdiction to entertain
motions for substantial non-compliance, that using the
inherent power, the Court should, as the Court did in the
California Department of Social Services v. Leavitt, using
that inherent power, should order fairly broad discovery.
I mean, there are -- should order fairly broad discovery
so that she had enough information to litigate the case.
And she did not indicate whether our -- did not address
that argument in ruling on that motion to compel should be
SA000084
denied.
Also we argued in our papers that the Court had
power under Rule 37 to order whatever discovery was
appropriate. That's because final judgment has not been
entered and the case has never been dismissed.
I mean, the Court approved the settlement
agreement and it remains on the docket, administratively
closed, but remained on the docket without final
disposition. And again she did not address that argument
either.
The only decision she made in denying our motion
to compel was that the statement in the settlement
agreement that the defendants will provide existing data
to enable us to assess compliance didn't require
depositions and didn't require the State employees to
answer questions from our experts. Didn't explain why it
was inconsistent with the intent of the parties, but just
denied without explanation.
We feel that:
Number one, the Court with an abuse of
discretion really as the California Department of Social
Services v. Leavitt said for the Court to deny sufficient
discovery in such a case of such sweeping systemic issues
where we have made a showing that some discovery might be
helpful, the Court said it was an abuse of discretion not
SA000085
to grant the discovery motion and order such appropriate
discovery in response to a motion filed with the Court.
And that's exactly what happened here.
And secondly, we think it's an error of law in
that the Court refused and did not address whether or not
the Court should have granted some or all of our discovery
requests, that is, the depositions and the interviews by
experts.
And we also wanted to do a small study to try to
find out what happened to all these, over a thousand class
members, that had been reclassified to other disability
groups by local school districts and have not been taken
into account by the State in their data analyses.
But again, she didn't say whether under the
Court's inherent power to manage the proceedings that
that whether or not the motion should be granted. And she
didn't say whether -- she didn't make any -- didn't say
anything with regard to whether Rule 37 authorized
discovery or whether it didn't.
So we're left right back where we started from.
We made substantial efforts to try to work this out with
the defendants. We have done everything the Court has
asked us to do for well over a year, really two years.
And a year ago before April 15th, 2008, we're in a place
where the State was stonewalling us and we could not, I
SA000086
think, fully assess compliance based on the information,
the misleading and really outdated information that we
had. And that's the reason we filed a motion for
substantial non-compliance in the first place. And here
we are a year later with the same defendants who have not
really provided us any information that would allow us to
assess compliance in all this time.
We at this point feel that the Court's ruling
has put us in a position of really not being able to
represent the class and not being able to get the
information we need to enforce the Court order.
The only other point I would make, Your Honor,
is that defendants have made the point and so did the
magistrate judge, that there have been sUbstantial amounts
of materials produced, documents produced, and data.
Number one, the magistrate judge refers to the
data that was produced in years one through five of the
agreement, which was several years ago.
Number two, the State made no showing whatsoever
in response to our arguments that the data and documents
presented a very misleading picture of what was going on
and filed nothing, no affidavits, no documents, no
anything, to indicate that our assertions weren't correct.
And under -- so the rationale for not giving us
any more information or not giving us the information we
SA000087
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requested was in part that we'd gotten a lot of
information. But the point we'd like to make is that we
told the magistrate judge and we submitted substantial
documentation indicating that what we had received was
inaccurate, we thought misleading, and gave a very
inaccurate picture of the level of compliance under the
So we're saying: First of all, we think this
ruling really deprives us of the opportunity to pursue our
motion for sUbstantial non-compliance and certainly de
novo review of the Court is appropriate. And even if the
clearly erroneous standard is followed by the Court, as we
indicated in our brief, I mean the case -- the Court in
California Association Department of Social Services v.
Leavitt indicates that it's an abuse of discretion in such
systemic cases to deny discovery reasonably necessary
to -- for plaintiffs to prove and present a reasonable
case and full case to the Court so it can make an
appropriate decision.
THE COURT: All right, thank you.
Let me hear from the other side.
MR. CUNNINGHAM: Your Honor, this is Darren
Cunningham. For the State Department of Education. It's
very difficult to know where to begin. I'll just start
with what Your Honor asked, if we had anything to add.
SA000088
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There are so many things that Attorney Shaw just
stated that I disagree with. I guess the starting
point -- and I'll try to work to every point is again
the settlement agreement which, as we argued at length in
front of magistrate judge after a full and thorough
hearing -- the settlement agreement which controls the
process and the jurisdiction of the Court in years six,
seven and eight clearly restricts what the Court should
deal with at this time.
Now, I understand Attorney Shaw -- I just want
to say, this term "stonewalling" is very pejorative and I
could not disagree with it more. We have provided
countless, countless explanations of why we have denied
most -- I repeat -- most conventional discovery at this
point. We have always explained that that belief came
from the settlement agreement, and I would hate there to
be an impression from the Court that we did it just to do
it or to stonewall, as was insinuated in that 20-minute
diatribe.
The State Department of Education continues to
provide Mr. Shaw with documents and has provided them at
no cost, as we could have charged him for materials
typically requested under freedom of information during
the course of his representation of the class.
Now, getting back to the settlement agreement,
SA000089
that is what the hearing was about. That's what the
discovery requests are controlled by. We have -- we've
always explained that we have not -- we have decided not
to give interviews, depositions and discovery at this time
because they're not permitted under the settlement
agreement, a settlement agreement that was negotiated by
the parties and sought to bring finality to these
proceedings. And I understand Mr. Shaw to be arguing that
he needs it now because we somehow stonewalled, to use his
term, and abused the process. But that is inaccurate.
And it's also inaccurate to say we've never
attempted to explain what has happened to the number of
students identified. We've provided countless
explanations, and I'm sure that at least in one affidavit
it was explained by the class and appeared the way it did
and the data looked like it did.
And I hope that the Court is not convinced to
order discovery in the face of this settlement agreement
because these representations about how the parties have
acted.
There's been voluminous amounts of information
and certainly within the first five years of the
settlement agreement and the expert advisory panel. And
as to their conclusions and as to their statements about
the future of special ed in the future, that frankly is
SA000090
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not relevant at this time. We're talking about the
plaintiffs' request for discovery at this time, which is
directly and completely covered by and foreclosed by the
settlement
Now, with respect to the request, Your Honor, to
set aside Judge Martinez's ruling, again we believe it's
an abuse of discretion standard. We believe she fully and
completely considered the arguments, she reviewed the
settlement agreement we provided at length -- I know
plaintiffs' provided their explanation for why the
settlement agreement should not either be read the way we
argued or controlled the way we argued, and she fully
heard us out on those arguments, and she concluded that
the settlement agreement in years six, seven and eight,
based on the language and the fact that a settlement
agreement should not be read to contain superfluous
language, she concluded that discovery in the manner that
the plaintiffs requested should not occur at this time.
And with respect to that, I should point out --
and Attorney Shaw may have mentioned this, I don't think
that he did -- we did provide some limited amount of
discovery. I believe it was either -- it was partial
responses to interrogatories. And we did so again
explaining that we felt we were not compelled to provide
any further discovery in the conventional sense at this
SA000091
time in the settlement agreement but that we would, as a
matter of policy, respond to some of his requests.
And to the extent that this term, again,
stonewalling is being used, I think the State Department
of Education, especially in the face of resource cutbacks
and everything else, has been more than fair in dealing
with the plaintiffs' counsel in trying to furnish them
with information, again at no cost, as could be done.
What we have objected to is interviews and
depositions. And as stated by plaintiffs' counsel, there
was an opportunity for site visits, which were conducted.
And again, Your Honor, you had asked if we had
anything new to add. And the only thing I'm really, I
guess, adding is responding to all the statements made by
plaintiffs' counsel. Because again I think that they
shouldn't go unanswered. But my understanding is that
Your Honor will be ruling upon the discovery motion, and
we feel that the magistrate judge's thorough and reasoned
response should stand.
MR. SHAW: Could we respond, Your Honor?
THE COURT: Briefly, please.
MR. SHAW: Okay, I'll try.
First with respect to the argument that the
settlement agreement governs discovery. The word
SA000092
"discovery" isn't even mentioned in the settlement
agreement. The question is whether they breached their
obligation to provide data to allow us to assess
compliance. If not, the Court should have entered
remedial orders, certainly has broad discretion to enter
remedial orders in light of that. That wasn't addressed
by the Judge.
Secondly, they argued that countless discovery
has been provided. Again, under the California Department
of Social Services v. Leavitt case, discovery should be
allowed according to the Court if the information would
have been useful to us. That's the legal standard, in
proving our case.
The magistrate judge made no analysis of what
discovery we needed, how broad it needed to be to fully
and fairly present the case.
We more than met the standard, far exceeded the
standard of the plaintiffs in the California Department of
Social Services case in showing that this was a broad
systemic case and we needed broad discovery with respect
to the EAP.
I mean, the countless explanations as to why
one-third of the class disappeared, that's just not true.
The EAP, again and again, asked the defendants why were
all these people being reclassified by New Haven in
SA000093
Bridgeport and Hartford. No explanation. Just every year
another 300 or 400 people, students reclassified. No
explanation, no followup by the State. These are class
members under the settlement agreement.
Four, the defendants argued they provided a
limited response to discovery. That response was they
gave the names of the people in the central office who
were able to respond to some of our questions. I don't
know how supplying the names of four or five employees of
central office helps us prove this case and present a full
record for the Court.
And finally, with respect to the site visits, we
did do the site visits to local school districts. Again
they're not defendants. And the issue here is whether the
State Department has done its job in overseeing and
monitoring to bring about compliance with the settlement
agreement, and we've been completely prohibited from
conducting any discovery in that area.
Thank you, Your Honor.
THE COURT: You're welcome.
MR. CUNNINGHAM: Your Honor, just again, I just
disagree with so much. The question is whether the State
Department of Education is in substantial non-compliance
with the settlement agreement, and I will just leave it at
that, otherwise we'll just continue to get into a back and
SA000094
forth.
THE COURT: Right. I appreciate your comments.
MR. CUNNINGHAM: I'm sorry, Your Honor.
THE COURT: I appreciate your comments and I'm
ready to rule.
I have considered the plaintiffs' objection, and
it seems to me that the magistrate tried to find a
reasonable solution to the problem that we now confront.
The problem is not easily solved. If you look at the
settlement agreement, you see support for the State's
position accepted by the magistrate judge. Stepping back
and looking at the settlement agreement in context, one
sees further support for the State's position.
The State reasonably contends that the agreement
contemplated a phasing out of the parties' relationship in
this case; that is, it contemplated that there would be
less of an opportunity for the class to call upon the
resources of the State, and indeed the State's role as a
litigant in this lawsuit in the final years of this
eight-year period following the impanelment of the EAP. I
think the magistrate judge was acting within her
discretion in accepting that premise and concluding that
on a motion to compel the class is not entitled to broad,
sweeping, full, unlimited discovery. I use those words
advisedly because it gets to the thrust of the plaintiffs'
SA000095
objection as I interpret it.
The plaintiffs' argument appears to be that the
magistrate judge was required to grant broad, sweeping
discovery notwithstanding the terms of the settlement
agreement which contemplate a phasing out of the
relationship, not withstanding the context in which the
settlement agreement is to be construed. Certainly it's a
far cry between providing existing data on the one hand
and on the other ordering broad, sweeping, systemic
discovery. The magistrate judge was therefore, I believe,
within her rights in declining to order such sweeping
discovery.
Again, the magistrate judge confronts in this
situation a difficult problem. We have allegations of
sUbstantial non-compliance. These allegations will
necessitate a hearing; and, as the magistrate judge
pointedly stated, nobody wants to conduct this litigation
in a way that is inefficient, that causes people to spin
their wheels. At the same time the magistrate judge
invited the parties to talk and prepare to sit down with
her to talk as a group about what discovery is reasonably
necessary in order to have an adequate hearing. Now I
point out that here again I'm using these words advisedly.
What discovery is necessary? That's a different
question from: What discovery would plaintiffs' counsel
SA000096
find useful in fully developing the record. I think at
this stage of this case, the better question is: What
discovery is truly necessary?
Similarly, I emphasize that the hearing on the
allegations must be adequate. That's a little different
from a full scale hearing of the sort that is suggested by
the plaintiffs' arguments.
You know, this is in the nature of an equitable
proceeding to vindicate not only the interests of the
plaintiff class but also the interests of the Court and
indeed the interests of the State in this important
matter. You will do what equity requires you to do in
order to conduct an adequate hearing, but you don't have,
in this setting, I submit, a wide open, unlimited
proceeding.
This case was filed in 1991, we had a trial, you
managed to settle the case, and here we are dealing with
allegations of substantial non-compliance. We're not
starting over. So I believe that the magistrate judge
acted reasonably and within the scope of her discretion in
denying the motion to compel but at the same time
recognizing that work needs to be done, that a hearing is
going to have to be held, and that it would be in the
interests of all concerned for some discovery to be
conducted in conjunction with that hearing. Certainly a
SA000097
reasonable rUling would permit necessary discovery to be
done in order for an adequate hearing to be held. I see
nothing in the magistrate judge's ruling that is
inconsistent with that. I think that's, in essence, what
she has in mind.
Going beyond that, I would point out that in the
plaintiffs' memorandum in support of their motion for
orders to remedy substantial non-compliance dated
April 15, the plaintiffs detail all of the reasons why
they believe the defendants are subject to a finding of
substantial non-compliance with the settlement agreement.
Then at page 34, the plaintiffs state that the
remedial orders necessary include the following:
A, an order requiring the defendants to allow
the plaintiffs' experts to interview employees and
contractors of the defendants';
B, an order requiring the defendants to make
employees and experts available for depositions.
I mean, these are remedial orders that are
requested by the plaintiffs based on their claims of
substantial non-compliance.
If we assume for the moment that the plaintiffs'
claims of substantial non-compliance are well founded,
then it may be that the requested remedial order, as I
just summarized, would be appropriate, the kind of broad
SA000098
discovery that the plaintiffs seek. In other words, might
be appropriately ordered as a remedial order rather than
pursuant to a motion to compel in advance of any finding
of substantial non-compliance.
To the extent the plaintiffs are looking for
that relief in advance of the hearing, I think that the
magistrate judge acted within her discretion in deferring
until some further hearing on the question whether such
broad discovery should be ordered as a matter of remedying
the State's failure to substantially comply with the
So if you're still listening, if you're
following this explanation of my views, I hope you can
understand that I am in sympathy with the magistrate judge
in her attempt to find a solution to this problem that
does not in any way prejudice the plaintiffs' ability to
adequately litigate their allegations of substantial
non-compliance while at the same time recognizing that the
settlement agreement contemplated that there would not be
in this stage of the case the kind of right to a broad
discovery that the plaintiffs requested in their motion to
compel.
I think, in conclusion, that the plaintiffs'
statement that the magistrate judge's ruling deprives the
plaintiffs of an opportunity to pursue their motion for
SA000099
substantial non-compliance is an overstatement. I don't
see it that way. I think that the plaintiffs' motion for
substantial non-compliance in itself shows that they have
much to say and they're not being precluded from pursuing
the motion or proving that their allegations are
well-founded.
So I'm not going to sustain the objection and
reverse the magistrate judge. Instead, I'm going to urge
you to work together and with the magistrate judge to
proceed to a hearing on the motion dated April 15 at the
earliest possible time. In connection with that, I would
echo the magistrate judge in urging you to determine what
discovery is truly necessary to enable you to have an
adequate hearing and to try to reach agreement on that
discovery if you can. If you can't, then I expect that
the magistrate judge will want to consider your views and
order that reasonably necessary discovery be done pursuant
to the undoubted authority of the Court to enter such an
order in conjunction with a hearing on the motion.
Should it turn out that the plaintiffs are able
to demonstrate substantial non-compliance, then it may be
that the magistrate judge will order, as a remedial
matter, broader discovery even though it was not deemed
necessary in advance of the hearing.
I think that covers the points that I wanted to
SA000100
consider. I should add one other.
The plaintiffs have objected that the magistrate
judge failed to rule on certain points, and I don't want
you to think that I myself have ignored that argument. It
seems to me that a fair reading of the magistrate judge's
decision shows that she recognized the need for some
discovery and implicitly asserted the inherent power of
the Court to order it if the parties could not agree.
That's how I read her ruling. I don't think that she
meant to suggest that the Court would not have the power
to order necessary discovery in conjunction with an
adequate hearing on the motion for substantial
non-compliance. Because I think that she implicitly
recognized the Court's authority in that regard, it wasn't
necessary for her to specifically address the
applicability of Rules 34 or 37 of the Federal Rules of
Civil Procedure.
At this point I hope that it will be possible
for a hearing to be held on the motion in the near future.
I recognize that time is of the essence given the
allegations of the plaintiffs with regard to substantial
non-compliance and the remedial orders that they would
have the Court enter as set out in pages 34 through 38 of
their memorandum.
Is there anything else that we need to do for
SA000101
now? Mr. Shaw?
MR. SHAW: I certainly understand your ruling,
Your Honor, and I guess the answer is no. I was just
interested in -- it wasn't clear to me whether or not your
comments have been recorded.
THE COURT: Yes. As I'm sure is obvious to
everybody, I've been speaking extemporaneously, if you
will. I'm not sure that the transcript would give you a
clear statement, but I hope it's reasonably clear. In any
case, it is what it is. The court reporter, Darlene
Warner, is here and she can provide you with a transcript.
MR. LASKI: All right. This is Mr. Laski. I
think it's helpful.
I think the major point for the discovery over
and above what is kind of minimally necessary is -- can be
treated as a remedial matter. And I think from our
perspective, our allegations of compliance are fairly
solid as of the time the expert advisory panel was
dismissed. And since that time we have not had what we
thought was sufficient data, but I think we can move
forward on what we have with some additional stuff.
THE COURT: I think that you've hopefully
identified an important point. You know, the magistrate
judge did refer to the amount of data that has been
provided to date, and as I interpret her statement, she
SA000102
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was referring to, among other things, the data that was
collected in connection with the work the EAP did through
those first years. Here again, I think that that was an
appropriate consideration for her to weigh but to the
extent that you haven't had data that is minimally
necessary to adequately prepare for this hearing with
regard to the last couple of years, then I would think
that is what the magistrate judge would want you to focus
on as you go forward.
MR. CUNNINGHAM: I just don't want you to take
my silence as acceptance of that statement, Your Honor.
THE COURT: Okay. I will say, Mr. Cunningham, I
have not had the opportunity to work with you before. Of
course I did have that opportunity in this case with
Mr. Shaw and Mr. Laski, but please understand that I
appreciate the remarks you have made today and the
comments you made in writing.
I know that you're not waiving any positions.
And part of the difficulty I have at this moment is not
knowing more about what you could say on behalf of the
defendants if you were before me for a hearing on the
motion for substantial non-compliance. So I have that in
mind. Please rest assured that I'm not taking anything
for granted, all right?
MR. CUNNINGHAM: Yes, Your Honor.
SA000103
THE COURT:
to talk about today?
Is there anything else that you want
MR. SHAW: No, Your Honor, not from the
plaintiffs.
MR. CUNNINGHAM: Thank you very much.
MR. LASKI: Thank you very much.
MR. SHAW: I appreciate you hearing it in
particular so quickly. We're very concerned about the
time.
THE COURT: I understand. I noted that among
the remedial orders you seek is an order requiring the
defendants to fully implement the five goals of the
settlement agreement with the oversight of the EAP acting
in the capacity of special masters by no later than
August 12, 2010.
I take it the date you present is tied to the
settlement agreement, and I understand that in any case
time really is of the essence.
MR. SHAW: Yes, Your Honor.
THE COURT: You know, I will ask you to bear
with me for just another couple of minutes.
I've relied on the magistrate judge to provide
substantial assistance to me in this case and I'm going to
continue to do so. Like you, the magistrate judge has a
substantial investment in this case, and we all know from
SA000104
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experience that if matters like this are ultimately
resolved to the satisfaction of both sides and the public,
it's because the parties and their counsel manage to work
together with the assistance of the Court to make it
happen. There may be exceptions to that. There may be
exceptions that you know of. I can't think of any offhand
myself. In my experience it either works out well because
the parties and their counsel are able to work together or
it doesn't work really at all. In an era where we face
budget constraints that are increasingly serious, it seems
all the more reason to believe that, that to the extent
you can find progress here, it's likely to be found
through that kind of joint effort. I think that's how we
managed to get the settlement agreement done in this case,
and we'll see how the case evolves from here. But I hope
that you're still able to work effectively together and
also with the magistrate judge.
MR. SHAW: Thank you, Your Honor.
THE COURT: All right, thank you very much.
MR. CUNNINGHAM: Thank you.
(Proceedings adjourned at 4:30 p.m.)
SA000105
C E R T I F I CAT E
In Re: P.J., ET AL vs. EDUCATION, ET AL
I, Darlene A. Warner, RDR-CRR, Official Court
Reporter for the United States District Court for the
District of Connecticut, do hereby certify that the
foregoing pages are a true and accurate transcription of
my shorthand notes taken in the aforementioned matter to
the best of my skill and ability.
/s/ ______________________ __
DARLENE A. WARNER, RDR-CRR
450 Main Street, Room #223
Hartford, Connecticut 06103
(860) 547-0580
SA000106
FOR THE DISTRICT OF CONNECTICUT
- - - - - - - - - - - - - - - - x
P . J., ET AL.,
Plaintiffs,
vs
EDUCATION, ET AL.,
Defendants.
- x
No. 2:91CVI80(RNC)
HARTFORD, CONNECTICUT
June 24, 2010
EVIDENTIARY HEARING - VOL. VIII
BEFORE:
HON. ROBERT N. CHATIGNY, U.S.D.J.
APPEARANCES:
FOR THE PLAINTIFF:
34 Jerome Avenue
Suite 210
Bloomfield, Connecticut 06002
BY: DAVID C. SHAW, ESQ.
Suite 320
Boston, Massachusetts 02108
BY: FRANK J. LASKI, ESQ.
FOR THE DEFENDANT:
ATTORNEY GENERAL'S OFFICE
55 Elm Street
P.O. Box 120
BY: DARREN P. CUNNINGHAM, AAG
Darlene A. Warner, RDR-CRR
SA000107
Vol. VIII, Page 1503
1 Q. What about in 2009, did anybody ask you to conduct an
2 analysis of the reclassified students and what had
3 happened to them?
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
A. Not that I recall.
Q. Were you asked to write any kind of a report during
2009 as to what had happened to the reclassified students?
A.
Q.
No.
Were you asked to write a report or -- let me take
that back.
Were you asked to conduct analysis of -- as to what
happened to the reclassified students in 2010?
A. No.
Q. Did you write any reports in 2010 about the number of
reclassified students and where they were placed?
A. No.
Q. Yesterday we admitted part of Defendants' Exhibit 2.
Did you write that portion of Defendants' Exhibit 2 that
was admitted into evidence?
19 A. I'm not sure what exhibit that is.
20 Q. Just referring you to Exhibit 2, beginning on page 3
21 to, looks like, 42.
22 THE COURT: To be clear, no part of that
23 document has been admitted as yet. We did review it
24 yesterday, we looked at the graphs, but no part of the
25 document is in evidence at the moment.
SA000108
1
2
3
4
Q. And in previous dealings with the Expert Advisory
Panel, was it Ms. Thompson who coordinated with the EAP?
A.
Q.
Yes.
I'd like to show you what's been marked for
5 identification as Defendants' Exhibit 2. Do you recognize
6 this document?
7
8
9
A.
Q.
A.
Yes, I do.
What is this?
This is the progress data report to the Expert
10 Advisory Panel. Again that had been requested by His
11 Honor to give to the Expert Advisory Panel.
12 It's sort of like a last progress report to the EAP
13 from the time they left in May of 2007 until the present.
14 Q. And when you say progress report, are you referring
15 to the reports that are specified in the Settlement
16 Agreement?
17
18
A. That -- yes. For the most part.
There was also other things. But I think -- probably
19 all -- they deal with directly the Settlement Agreement.
20 Maybe in a different order, but yes.
21 Q. And who submitted this report, if you know, to the
22 EAP?
23 A. I officially submitted it, sent it to the four
24 members of the EAP -- actually three members of the EAP,
25 because I was not given a mailing address for the fourth,
SA000109
1 but they took care of that. And to the plaintiffs'
2 attorney.
3
4
Q.
A.
Okay. And who coordinated that report?
Again, just around the time that Ms. Thompson went on
5 medical leave, we were probably given about two weeks to
6 pull it together. We were given a deadline date of
7 April 15th to get it to the Expert Advisory Panel.
8 So I remember holding a meeting with a number of
9 various people from the department and from SERe and
10 identifying the areas that we needed information in order
11 to share with the Expert Advisory Panel, and assign tasks
12 to each of those individuals, and gave them a deadline as
13 to when they could get the information to me.
14 It gave me about a week. I was in the process
15 probably I would -- you would call me a editor at that
16 point. I was taking in the information, editing it,
17 synthesizing it. So it make sense, getting rid of a lot
18 of the duplication and coming up with a document that was
19 both readable and informative to the EAP.
20 Q. Thank you.
21 And you had testified that you submitted this to the
22 EAP. Did you also share it with the plaintiffs' counsel?
23 A. Yes, I did. In fact, he ended up with two copies of
24 it.
25 Q. Okay, thank you.
SA000110
1
MR. CUNNINGHAM: Your Honor, at this time I'd
2 like to move for the admission of the exhibit.
3 MR. SHAW: I'd like to voir dire the witness,
4 Your Honor.
THE COURT: All right. 5
6 MR. CUNNINGHAM: You want to do it from there or
7 you want to come up there?
8 MR. SHAW: I would like to come up there, if
9 possible. If it's too inconvenient, I can do it from back
10 here.
11 (Pause)
12
13 VOIR DIRE EXAMINATION
14 BY MR. SHAW:
15 Q. Now, the first section of this document is entitled
16 Class Membership.
17
18
19
20
21
A.
Q.
A.
Q.
A.
Correct.
This is
Through
And who
I don't
on page 3 through -- looks like 3
9, I think, half way through 9.
drafted that?
have a list of who did the various
through
22 categories, unless it's obvious, such as the SERC area.
23 Some of that I think was probably taken out of the
24 Settlement Agreement. Others could be taken out of the
25 CSDE's reports to the courts. It would be some things
8.
SA000111
1 like that that were just taken from various places.
2
3
Q.
A.
So you don't know who wrote it?
No. I ended up synthesizing the entire thing. So I
4 may have four people writing that and I synthesized it
5 into a cohesive section.
6 Q. I know you said you synthesized, but the question is
7 who wrote this question on class membership?
8
9
A.
Q.
I do not know.
Who was responsible for assigning various people to
10 prepare various sections of this report?
11
12
A.
Q.
Basically I was.
Who did you assign to write the section on class
13 membership?
14
15
A. Again, I don't remember. I didn't make a note.
We were sitting around a table and, you know, people
16 were saying, well, I can write to that, and other people
17
18
19
20
21
22
23
were saying I can write to it also.
And that's why I said I had to synthesize it.
Various people were writing in.
Q. Did Attorney Cunningham write any of this on class
membership?
A.
Q.
No.
Was this section that we see here, was this part of
24 the report that was requested initially by Lynn Toper?
25 A. Part of it was, yes.
SA000112
1 Q.
Can you tell which part of it -- and when did
2 Ms. Toper request that this section on class membership be
3 prepared?
4 A. I was not part of any of that discussion with
5 Dr. Toper. I would assume it was probably 2007. I'm not
6 sure exactly when it was. Because I can't remember when
7
8
9
10
11
12
13
Dr. Toper left.
Q. Well, we heard this morning that there was a request.
I believe the testimony was as a result of -- in response
to the plaintiffs' initial motion for substantial
non-compliance.
A.
Q.
Correct.
And you're saying -- and did Ms. Toper -- was she
14 responsible -- again, I don't know how much information
15 you have on this -- do you know whether Ms. Toper assigned
16 individuals to prepare the various sections of this
17 report?
18
19
A.
Q.
It's Dr. Toper, and I don't know the answer to that.
Did a report -- would it be fair to say that these
20 this report is lengthy and it has -- had many, many
21 attachments?
22 A.
23 that.
24
25
Q.
A.
I never saw the report. And again, I was not part of
There was a report though, wasn't there?
There was a report. That I know of.
SA000113
1
2
Q.
And this was the privileged report?
MR. CUNNINGHAM: Your Honor, where are we going
3 with this? I just thought this was about the
4 admissibility of this exhibit, and I think I've laid the
5 foundation for it, and I don't know that any of these
6 questions are going for the foundation of the report being
7 admitted under the numerous exceptions that I've listed.
8 THE COURT: Mr. Shaw, you requested an
9 opportunity to voir dire the witness.
10
11
12
THE COURT: Where do we stand in that process?
MR. SHAW: I'm trying to find out the -- how
13 this document was prepared, who was responsible for
14 preparing the various sections, when the document was
15 prepared, when it was changed.
16 THE COURT: Unless I'm mistaken, the witness has
17 told us that he was responsible for gathering and editing
18 and synthesizing the contributions of others. Do you have
19 reason to doubt the witness's testimony in that regard?
20 MR. SHAW: Not in that regard with respect to
21 the class membership section.
22 THE COURT: Okay. Do you wish to have me
23 exclude this from evidence?
24
25
THE COURT: Based on what you know so far
SA000114
1 without having asked any more questions of the witness,
2 what would be the objection?
3 MR. SHAW: It's not a business record. It was a
4 document prepared for litigation initially at the request
5 of Attorney Cunningham. He refused to produce it at the
6 depositions many times and instructed witnesses not to
7 answer.
8 We've heard testimony already today that
9 sections of that document anyway were then revised, some
10 this morning, some small changes were made adding data for
11 2009 and 2010, and it was submitted to the EAP.
12 And our argument would be that's not a business
13 record.
14 It's also clear from some of the documentation
15 in here that I think from some of the text of it that it
16 was written by -- clearly wasn't written by clearly not
17 a business record. It refers to motions filed with the
18 court and legal arguments that are made and why the
19 plaintiffs' argument shouldn't be adopted.
20 So our argument is that this is not a
21 business -- a document created in the ordinary course of
22 business; that it was created for the sole purpose of
23 litigation and when Your Honor entered an order. I think
24 it's fairly clear already that's the case, but I haven't
25 explored it with this witness, that it was then edited and
SA000115
1 some small changes were made and it was submitted to the
2 EAP.
3 THE COURT: Okay. The objection is that it's
4 not a business record.
5 Mr. Cunningham?
6 MR. CUNNINGHAM: I think it's admissible as a
7 business record because it was prepared by the State
8 Department of Education for the EAP. It's a publicly
9 available document. Also I think it comes in under public
10 records exception, Your Honor.
11 THE COURT: What about that, Mr. Shaw? What
12 about the public record exception?
13 MR. SHAW: Well, whether it's a public record or
14 not, the question is whether there are sufficient indicia
15 of reliability for the Court to decide that this is a
16 document that it can read.
17 This is clearly a document that was prepared to
18 defend this lawsuit and it was prepared for the purpose --
19 for the purpose of bringing it into court, having people
20 out of court, especially SERC individuals, write lengthy,
21 lengthy dissertations on what they've done with, as I
22 said, a stack of attachments that's that high. And then
23 bring it into Court, provide it to the Court and say, now
24 decide the case based on this document we wrote out of
25 court.
SA000116
1
So again this is clearly, in our view, not a
2 business record, and clearly it became a public record
3 after defendants' counsel refused to allow any of his
4 witnesses, including Ms. Thompson, Mr. Cunnane, other
5 witnesses, everyone that was produced, to talk about it,
6 to say anything about it. They were instructed not to
7 answer.
8 THE COURT: What about that?
9 MR. CUNNINGHAM: It's a red herring. It's
10 completely illogical too. Because if it was prepared
11 originally to be a response -- even if it was prepared to
12 respond to a motion he filed, that would be protected.
13 But the minute it becomes public, it's no longer
14 protected.
15 I mean, I just don't understand what the point
16 of it is. It either is protected or it isn't. And we
17 know it's a public record now. So even if it was at one
18 point protected, it's no longer protected.
19 I don't understand how those -- I think he's
20 conflating two issues, which is his desire to relitigate,
21 rediscuss, reargue the depositions and this document here
22 today, which was considered by the EAP, was used in their
23 analysis in this case.
24 THE COURT: As a practical matter, I don't see
25 how I can exclude the document. If I'm to evaluate the
SA000117
1 report of the EAP, as I believe I should, am I not obliged
2 to look at what they received from the State?
3 MR. SHAW: I believe -- in the first place, as I
4 said, the first time we saw this document was when it was
5 submitted to the EAP.
6 But the question is -- one question is whether
7 defendants' counselor counsel in a case can decide -- can
8 use privilege as a way to prevent the other side from
9 inquiring and asking questions about and preparing for a
10 hearing or if we're here for a trial, based on asking the
11 people who prepared it about the many, many hundreds and
12 hundreds of opinions that are in it and then -- and that's
13 exactly what's happened here. And it's not -- the point
14 is -- I think we have a couple of points, Your Honor.
15 One is that this is clearly a litigation
16 document prepared by Mr. Cunningham and he's never denied
17 that that's the case.
18 MR. CUNNINGHAM: That's false. The testimony
19 was that I didn't have anything to do with it.
20
21
THE COURT: Let's proceed one at a time.
MR. CUNNINGHAM: It's false, what just occurred
22 in this courtroom.
23 THE COURT: I'll give you an opportunity to
24 comment.
25 MR. CUNNINGHAM: Thank you, Your Honor.
SA000118
1 MR. SHAW: The first argument is -- and I
2 apologize for being repetitive here -- the first argument
3 is this is a litigation document. I think the testimony
4 so far supports that. If I -- if we were to bring in
5 And secondly, the people who prepared these
6 various sections have not appeared in this courtroom.
7 Again, for example, the SERC section, which is a
8 large section of this, is marked "draft" on our version.
9 It was written clearly by somebody from SERC. When I
10 deposed Kim Mearman, I was allowed only five depositions.
11 And when I asked her about it, she had no hand in
12 preparing it.
13 So we have a report here about training and
14 technical assistance and volumes of attachments that we've
15 never had a chance to ask about.
16 So number one, it's clearly prepared for
17 purposes of litigation, which is, I've always believed and
18 I believe the law is, that the document gets its indicia
19 of reliability by the fact it's prepared in the ordinary
20 course of business, not because they're responding to a
21 lawsuit.
22 THE COURT: In the case of a public record,
23 isn't the premise a little different?
24 MR. SHAW: It is, Your Honor, but there's
25 also --
SA000119
1 THE COURT: In other words, we trust that the
2 individuals who were tasked to contribute to this
3 performed their duty properly.
4 MR. SHAW: Well, the duty here was to prepare a
5 response to a lawsuit. And the -- and again, to allow one
6 party in a case to essentially prepare their response to a
7 lawsuit behind closed doors, prevent any of those people
8 from being identified or deposed, up until the time of
9 trial, to bring that document and which is lengthy and
10 contains hundreds and hundreds of opinions, and to have
11 the Court read it and decide the case based on that we
12 think is fundamentally unfair.
13 THE COURT: It sounds like you have at least two
14 objections.
15 One, you claim that it's hearsay, not properly
16 deemed to be within any exception to the hearsay rule.
17 That's one.
18 And the other, as I hear you explain your
19 position, is that the invocation of the privilege at the
20 depositions prevented you from adequately preparing, and
21 therefore I should preclude the defense from relying on
22 this document.
23 In simple terms, as a matter of basic fairness,
24 you would have me preclude them from using it to their
25 advantage at this time.
SA000120
1 MR. SHAW: I would also argue -- I would also
2 argue, Your Honor, that what has occurred here is an abuse
3 of discovery. The difficulty with that argument is that
4 this was voluntary discovery, quote-unquote. So not
5 bringing in a response to a notice of deposition, we
6 really had, you know, we really had to do what we were
7 given at the depositions.
8
9
THE COURT: Right.
MR. SHAW: And we've done our best with that.
10 But again, we just think with this particular exhibit, it
11 just puts us in a -- it's unfair and puts us in a position
12 of having the case decided upon a document that was
13 written out of the hearing by people who have not been
14 identified. There's no attribution in here as to who did
15 what, what people from SERC wrote it, what people from
16 other parts of the department wrote it. Many people were
17 clearly involved in it.
18
19
THE COURT: Okay.
MR. SHAW: And saying that they can prepare this
20 document out of court, the case can be decided based on --
21 without any opportunity to know who wrote it and no
22 opportunity to inquire as to those opinions.
23 THE COURT: With regard to that concern,
24 Mr. Cunnane, can you provide us with the names of the
25 people who contributed to the document? Besides the ones
SA000121
1 you've already provided?
2 THE WITNESS: Trying to put a visual in my mind
3 who sat around the table.
4 From SERC it was Kim Mearman and Donna Merritt.
5 From Bureau of Special Education, it was Mike
6 Smith, Rhonda Kempton, Heather Doucette, Perry Murdica,
7 myself. I think that may be it.
8 If I think of anybody else, I'll inform the
9 Court.
10 MR. SHAW: The other relevant question, Your
11 Honor, is who was involved in preparing the original
12 document? Because the testimony so far is that this
13 document -- to the extent I've been able to inquire, this
14 document was prepared and then some revisions --
15 THE WITNESS: There were major revisions by
16 myself in the edits.
17 MR. SHAW: Did you rewrite this section that
18 SERC wrote on technical assistance?
19 THE WITNESS: That I didn't.
20 MR. SHAW: That was, again, we've not inquired
21 into that, but here we have this lengthy thing prepared
22 by -- and we don't know to what extent it was revised in
23 2010, Your Honor.
24 THE COURT: Do you have anymore questions on
25 voir dire?
SA000122
1
2
MR. SHAW: I do.
THE COURT: Okay.
3 I'll turn to you momentarily, Mr. Cunningham.
4 BY MR. SHAW:
5 Q. Now, you said with respect to the -- we've heard some
6 testimony today about the Section 2 on Goals and Outcomes.
7 You were in the courtroom when you heard that, correct?
8 A. Are you referring to this report we're currently
9 discussing?
10
11
12
13
14
15
16
Q.
A.
Yes.
Okay. Your question? I'm sorry.
Q. I said there was some testimony this morning from
Mike Smith on how Section 2 of the report was created on
Goals and Outcomes?
A.
Q.
Yes.
And do you have any disagreement with Mr. Smith's
17 testimony as to how Section 2 of the report on Goals and
18 Outcomes was created?
19
20
A.
Q.
No.
There is a section on Small District Initiative. Who
21 wrote that section?
22
23
A.
Q.
Can you -- which page is that on?
Page 36, according to the table of contents.
24 A. And that's a one-page, I think -- and, in fact, this
25 is probably one of the things that I probably was the
SA000123
1 primary writer on it, drawing from a lot of different
2 people. But that's, because I was so heavily involved
3
4
5
6
7
8
9
10
11
12
with the small districts, those are the seven districts
that I mentioned.
Q. And when did you first write the section on Small
District Initiative?
A.
Q.
That would have been in this April.
And you said you talked with a number of people about
that to help you put that together?
A. Probably not this section, because I have such
intimate knowledge of it.
Q. With respect to Section 4, Program Compliance Review,
13 who wrote that section?
14
15
16
17
18
19
20
21
A.
Q.
A.
What page is that on?
According to the table of contents, 37.
I'm sorry, there is a -- Deb Richards was another
person. And this is the section that she wrote.
Q. Is Ms. Richards going to testify in this trial, if
you know?
A. At this point I don't know.
MR. CUNNINGHAM: Most likely. More than likely.
22 Although at this rate, I don't know.
23 BY MR. SHAW:
24 Q. Paraprofessional Training and Guidelines on page 43,
25 who wrote that section?
SA000124
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
A.
Q.
Perry Murdica.
Is she going to testify, do you know?
MR. CUNNINGHAM: Same response, Your Honor.
BY MR. SHAW:
Q. Monitoring for Continuous Improvement, Section 6, who
wrote that section?
A. I think that a lot of it would have had to do with
Rhonda Kempton, but the information prior to 2008 would
probably have come from other people, because she joined
the department in 2008.
Q. Would this be a section that was written originally
in 2008 and then revised in 2010?
A. I don't know. Again, I was not part of that, so I
don't know.
Q.
A.
Q.
How about the SERC Technical Assistance, Section 7?
That was definitely written in April of 2010.
Who wrote that?
A. Kim Mearman and Donna Merritt, and I did some major
editing and condensing.
Q. And are those individuals going to testify?
MR. CUNNINGHAM: Your Honor, I just refer
23 Attorney Shaw to the witness list he's been provided.
24 Certainly indicates everyone we intend to call.
25 THE COURT: Okay.
SA000125
1
2
3
4
5
6
7
8
MR. CUNNINGHAM: Thank you, Your Honor.
BY MR. SHAW:
Q. Section 8, Complaint Resolution Process?
A. Gail Mangs, another person. She's in our due process
unit and she heads up the complaint system.
Q.
A.
Q.
And Parent Involvement, page 72?
That would be Deborah also.
And with respect to the Complaint Resolution Process,
9 do you know when that was first drafted?
10
11
12
13
A.
Q.
It would be April of 2010.
And the Parent Involvement section, when was that
first drafted?
A. I'm not sure. All I know is that I received it in
14 April of 2010.
15 MR. SHAW: I've completed -- my voir dire is
16 done, Your Honor. I appreciate the latitude.
17
18
19
20 Honor.
Any comments, Mr. Cunningham?
MR. CUNNINGHAM: I guess just briefly, Your
21 You know, just, I think there are just several
22 mischaracterizations on what -- you know, the discovery
23 issue was ruled upon, and again, my only general criticism
24 is that Attorney Shaw keeps bringing up issues that have
25 been litigated and decided and I just -- I don't feel I
SA000126
1 should have to reargue those points.
THE COURT: Okay. 2
3 MR. CUNNINGHAM: So I would just ask that this
4 be admitted.
5 Your Honor, certainly since this is a bench
6 trial, has the discretion to treat the piece of evidence
7 as it is.
8 THE COURT: All right. I'll give you the last
9 word, Mr. Shaw.
10 MR. SHAW: I believe we've -- we heard this
11 morning that the -- at least one of the witnesses prepared
12 this report in response to our motion and made very slight
13 revisions in 2010, and we now have a witness who is not
14 familiar with what the report was in 2010, but we know a
15 significant number of people from the department
16 contributed to this.
17 And again, I'm -- I'm not going to make the
18 arguments again, I'm just going to say that based on the
19 arguments I gave the Court before, I believe it's
20 especially given -- well, I would argue that it's unfair.
21 I believe they deprived us of a fair opportunity to
22 respond to this report.
23 Again, we really were not -- this was submitted
24 to the EAP without even asking whether or not this would
25 be appropriate to prepare a litigation document like this
SA000127
1 and send it to the EAP. But I'm not going to repeat my
2 arguments again, Your Honor.
3 THE COURT: Okay. I'm going to grant the
4 request that it be admitted as a full exhibit at this
5 time.
6 As I said before, I think I'm obliged to read
7 the document in connection with my review of the EAP
8 report. I think the document bears a close resemblance to
9 the document contemplated by the public records exception,
10 even if it was prepared for litigation, in that we had a
11 number of public employees who contributed to the
12 preparation of the document and we generally assume that
13 public employees can be relied upon to do an honest job of
14 it, and I haven't heard anything yet to suggest that any
15 of the work is not trustworthy for any particular reason.
16 With regard to the discovery related objection,
17 as I'm sure everybody appreciates, it's an unusual
18 situation. The parties were encouraged to engage in
19 limited discovery for the purpose of preparing for this
20 proceeding after the period for what might be thought of
21 as complete discovery had expired, and to the extent that
22 plaintiffs' counsel considers it unfair, I regret that,
23 but you now know the authors of these various sections.
24 It sounds like most, if not all, will be
25 witnesses available to you for cross-examination. At the
SA000128
1 end of the day, as Mr. Cunningham said, this is a bench
2 trial and I'll give it what weight it seems to deserve in
3 light of the entire record.
4 I'm not going to decide the case based on this
5 report, and you will have a chance to present argument to
6 me in detail as to what parts of it should be given
7 weight, which parts of it should be ignored, which parts
8 are reliable, which parts are untrustworthy, and in this
9 way I think I can come to a better reasoned decision.
10 In a sense, it's like a verbal act of the State.
11 It's something that the State has presented to the EAP in
12 the context of responding to your motion, and my job is to
13 assess whether the State has substantially complied with
14 the Agreement.
15 In assessing that, I think it's helpful to see
16 what the State said to the EAP, and so in this unusual
17 situation, I think the best thing to do is to proceed this
18 way.
19 We'll take our afternoon recess now, we'll be in
20 recess for 20 minutes. Thank you.
21
22
(Whereupon, a recess followed)
23 DIRECT EXAMINATION (Continued)
24 BY MR. CUNNINGHAM:
25 Q. Mr. Cunnane, could you turn at this point to the
SA000129

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