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10-3586-CV
IN THE

To Be Argued By: DARREN P. CUNNINGHAM Assistant Attorney General

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 FOR THE DISTRICT OF CONNECTICUT BRIEF OF DEFENDANTS-APPELLEES

GEORGE JEPSEN ATTORNEY GENERAL DARREN P. CUNNINGHAM Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel. (860) 808-5318

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TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................... iv JURISDICTIONAL STATEMENT ........................................................... 1 STATEMENT OF THE ISSUES ............................................................... 2 STATEMENT OF THE CASE .................................................................. 3 STATEMENT OF THE FACTS ................................................................ 6 I. ORIGINAL ACTION............................................................................ 6 II. The Settlement Agreement – Key Provisions ..................................... 7 A. Class Membership (Section I) ........................................................... 7 B. Goals and Outcomes (Section II) ....................................................... 8 C. Jurisdiction (Section III) ................................................................... 9 D. Monitoring (Section V) .................................................................... 10 E. CSDE Designee (Section VI(2)) ....................................................... 10 F. Expert Advisory Panel (Section IX) ................................................ 11 III. Post Settlement.................................................................................. 11 A. The First Five Years of the Settlement Agreement ....................... 11 1. The 2005 Dispute Over Class Member Information and Resolution..................................................................................... 12 2. 2007 Site Visits ............................................................................ 20 3. Further Attorneys’ Fees and Costs .............................................. 20 B. The Final Three Years of the Settlement Agreement .................... 21 (August 2007 – August 2010) .......................................................... 21 1. Final EAP Meeting ....................................................................... 21 2. Longitudinal Database................................................................. 21 3. Discovery Ruling .......................................................................... 27 4. Voluntary Discovery Provided ..................................................... 30

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a. Depositions.............................................................................. 30 b. Data......................................................................................... 32 c. Reconvening of the EAP ......................................................... 32 IV. Evidentiary Hearing .......................................................................... 34 V. District Court Ruling ......................................................................... 36 SUMMARY OF ARGUMENT ................................................................. 36 ARGUMENT ........................................................................................... 38 I. INTRODUCTION .............................................................................. 38 II. THE DISTRICT COURT PROPERLY FOUND THAT THE STATE WAS NOT IN “SUBSTANTIAL NON-COMPLIANCE” WITH THE SETTLEMENT AGREEMENT ......................................................... 41 A. Standard of Review ......................................................................... 41 B. The District Court Used the Correct Legal Standard .................... 43 C. The State Complied With Its Obligations Concerning the Five Goals and Outcomes ........................................................................ 58 1. The Goals Do Not Contain a Qualitative Component ................. 59 2. If Considered the Reclassified Students Should Not Be Analyzed Separately and the District Court Properly Considered the State’s Progress ............................................................................ 63 3. The Agreement Did Not Require the State Meet Benchmarks .. 70 D. The District Court Did Not Find That the State Violated Section I of the Agreement and the State Did Not Violate Section I ........... 73 E. The District Court Did Not Err in Concluding that the Class Was Not Permitted Conventional Discover in the Final Three Years of the Settlement Agreement .............................................................. 81 F. The State Did Not Improperly “Dismiss” the EAP and Under the Agreement the State’s Obligations Ran Only Five Years .............. 86 CONCLUSION ........................................................................................ 91

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS ................................................................................... 92 CERTIFICATION OF SERVICE ............................................................ 93

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TABLE OF AUTHORITIES Cases Accusoft Corp. v. Palo, 237 F.3d 31 (1st Cir. 2001) ................................ 48 AMF, Inc. v. Jewett, 711 F.2d 1096 (1st Cir. 1983) ................................ 48 California v. Block, 663 F.2d 855 (9th Cir. 1981) ................................. 49n Cody v. Hillard, 139 F.3d 1197 (8th Cir. 1998) ...................................... 53 Crumpton v. Bridgeport Educ. Ass'n, 993 F.2d 1023 (2d Cir. 1993) ...... 41 David C. v. Leavitt, 242 F.3d 1206 (10th Cir. 2001) .............................. 52 Fortin v. Comm’r of Mass. Dep’t of Pub. Welfare, 692 F.2d 790 (1st Cir. 1982).......................................................................................... 50, 54, 55 Gilday v. Dubois, 124 F.3d 277 (1st Cir. 1997) ....................................... 47 Homeward Bound, Inc. v. Okla. Health Care Auth., 196 Fed. Appx. 628 (10th Cir. 2006) ............................................................................... 56, 78 In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113 (2d Cir. 2011) ... 41 Joseph A. v. New Mexico Dep’t of Human Serv., 69 F.3d 1081 (10th Cir. 1005)................................................................................................ 45, 53 Labor/Community Strategy Ctr. v. L.A. County Metro. Transp. Auth., 564 F.3d 1115 (9th Cir. 2009)....................................................... passim Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997) ............. 47 Officers for Justice v. Civil Serv. Comm'n of City and Cnty. of S.F., 934 F.2d 1092 (9th Cir. 1991) ..................................................................... 41 P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111 (2d Cir. 2008)........................................................................................ 44n, 57, 68 Perez v. Danbury Hosp., 347 F.3d 419 (2d Cir. 2003) ...................... 42, 72 Perez v. Westchester County Dep’t of Corr., 587 F.3d 143 (2d Cir. 2009) ............................................................................................................. 41n R.C. Walley, 390 F. Supp. 2d 1030 (M.D. Ala. 2005) .............................. 56 Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481 (2d Cir. 1999)...................................................................................................... 41 Rolland v. Cellucci, 138 F. Supp. 2d 110 (D. Mass. 2001) ...................... 50 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ............... 52n

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Shelby Cnty., Ala. v. Holder, 12-96, 2013 WL 3184629 (U.S. June 25, 2013).................................................................................................... 40n State of New York v. Blank, 27 F.3d 783 (2d Cir. 1994) ........................ 47 Thompson v. United States HUD, 404 F.3d 821 (4th Cir. 2005) ........... 52 Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979) ............................................................................................................. 75n United States v. Armour & Co., 402 U.S. 673 (1971) ............................. 42 United States v. Dupree, 706 F.3d 131 (2d Cir. 2013) ........................... 84 United States v. Local 1804-1, Int'l Longshoremen’s Ass’n, 44 F.3d 1091 (2d Cir. 1995) ........................................................................................ 88 United States v. Sec’y of Hous. & Urban Dev., 239 F.3d 211 (2d Cir. 2001)...................................................................................................... 42 Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir. 1994).................................................................................................... 52n Statutes 7 U.S.C. § 2019(f), (g) (1976) ................................................................. 49n Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. § 1232g ...................................................................................... 13 Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq .......................................................................................... 1 20 U.S.C. § 1412(a)(5)(A) ....................................................................... 3, 6 28 U.S.C. § 1291 ........................................................................................ 2 Other Authorities 17A Am Jur 2d Contracts § 616 .............................................................. 55 American Heritage Dictionary ................................................................ 48 Rules Fed. R. App. P. 4(a)(1)(A) .......................................................................... 2 Fed. R. App. P. 28(b)................................................................................ 6n Fed. R. App. P. 30(b)(1) ........................................................................... 2n

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Treatises 11 Williston on Contracts, 4th Ed., § 32:5 .............................................. 48 Regulations 34 C.F.R. § 99.31(a)(9) ........................................................................... 13n 34 C.F.R. Part 99 ..................................................................................... 13

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JURISDICTIONAL STATEMENT District Court Jurisdiction: Plaintiffs-Appellants P.J. et al (hereafter “the Class”) brought suit in 1991 against, inter alia, Defendants-Appellants Connecticut Board of Education and the Commissioner of Education for the State of Connecticut (hereafter collectively referred to as “SDE” or “the State” or “the Department”) alleging violations of, inter alia, the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. In 2002 the parties entered into a court-approved settlement agreement (“Agreement”) providing for continuing jurisdiction of the district court for a period not to exceed eight years from the empanelling of an expert advisory panel (“EAP”), which the parties agree occurred no later than August 12, 2010. On April 15, 2009 the class filed a motion alleging the State was in “substantial noncompliance” with the Agreement. The district court (Chatigny, J.) held an evidentiary hearing on the Class’s motion in June 2010 and on August 12, 2010 denied the Class’s motion. Special Appendix (hereinafter “SA”) 2. On August 8, 2012 the district court issued a 62 page memorandum of decision. SA 6.

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Court of Appeals Jurisdiction: The Court of Appeals has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The appeal was taken from the district court’s denial of the Class’s motion, dated August 12, 2010. Timeliness of Appeal: The class timely filed their notice of appeal in the district court on September 3, 2010. See Joint Appendix1 (“JA”) at 3387-8; Fed. R. App. P. 4(a)(1)(A). Final Judgment: This appeal is from the district court’s denial of the Class’s motion for substantial non-compliance. Under the Agreement the jurisdiction of the court ended on August 12, 2010. STATEMENT OF THE ISSUES 1. Whether the Court erred in concluding based on the

evidence presented over more than eight years that the Class failed to prove that the State was in “substantial non-compliance” with the Agreement entered into by the parties where to succeed the district Although titled a “Joint Appendix,” the appendix filed by the Class with their brief is not “joint” as it did not contain the items designated by the State timely pursuant to Fed. R. App. P. 30(b)(1). Accordingly, the State filed with this court a motion requesting permission to file a Supplemental Appendix and to impose the costs of filing such an appendix on the Class. See Doc. #128. That motion has been referred to the merits panel of this court. See Doc. #135.
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court found that the Class was required to show that the State failed to take an action required by the Agreement that would have produced more progress toward the essential purposes of the agreement and that the Class failed to make such a showing. 2. Whether the district court erred in assessing the State’s

level of compliance with the Agreement for over eight years when the Agreement provided that the jurisdiction of the court “will end” with one exception five years after the empanelling of the EAP. 3. Whether the court erred in assessing the State’s compliance

with Section II of the Agreement by analyzing the data from students no longer classified as Intellectually Disabled (“ID”). 4. Whether the court erred in finding that the State was

required to maintain the EAP for the full eight years covered by the Agreement. STATEMENT OF THE CASE This appeal is rooted in a case filed in 1991 on behalf of five school-aged children in Connecticut with intellectual disabilities and their families against the State and certain local school districts alleging, inter alia, violation of the IDEA, 20 U.S.C. § 1412(a)(5)(A).

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The case was subsequently certified as a class action and later settled. On May 22, 2002, the district court (Chatigny, J.) determined that the Agreement entered into by the parties was fair and reasonable. The 14 page Agreement set forth, inter alia, five “goals and outcomes” involving students with intellectual disabilities. JA 1-14. The Agreement also called for the establishment of an EAP and provided that [t]he jurisdiction of the Court for enforcement of this Agreement will end five (5) years from the empanelling of the [EAP] … except that the Court, for a period of eight (8) years from empanelling of the EAP, shall have jurisdiction to entertain Plaintiffs' motions for substantial non-compliance with this Agreement. In no event shall the Court's jurisdiction over this Agreement exceed eight (8) years beyond the empanelling of the EAP. JA at 4-5. The parties agree that the EAP was convened for jurisdictional purposes no later than August 12, 2002. SA 5 n.1. The Agreement also provided that SDE “shall cooperate with the Plaintiffs’ reasonable requests to provide existing data to enable Plaintiffs to assess compliance during the five-to-eight year period.” JA 3. The Agreement also required that the State file four annual reports to be reviewed and commented upon by the EAP. JA 5, 12.

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On April 15, 2009, the Class filed a “Motion for Orders to Remedy Substantial Non-Compliance with Substantial Non-Compliance.” Supplemental Appendix (“Supp A”) 112-121. In their motion the Class alleged that SDE had “failed to comply with the Settlement Agreement in many respects” and requested some 20 orders from the court including an order to appoint the EAP as Special Masters, to award the Class attorneys’ fees and to extend the court’s jurisdiction until “May 22, 2012 or to such other date as the orders of this court can reasonably be implemented.” Supp A 116, 121. The district court held an evidentiary hearing on the Class’s motion from June 15-29, 2010 consisting of 15 witnesses and scores of exhibits. On August 12, 2010 the court denied the Class’s motion and on August 8, 2012 the court issued a 62 page memorandum outlining the reasons for denying that motion. JA 3470; SA 3-64. This appeal followed.

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STATEMENT OF THE FACTS2 I. ORIGINAL ACTION The action giving rise to this appeal was originally filed in 1991 in the United States District Court for the District of Connecticut on behalf of five school-aged children in Connecticut with intellectual disabilities and their families against the State and certain local school districts alleging, inter alia, violation of the IDEA, 20 U.S.C. § 1412(a)(5)(A). JA 3389; Supp A 1-48. The case was subsequently certified as a class action by then Chief District Judge Jose A. Cabranes as “[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.” JA 3416. The case was transferred to Judge Chatigny on November 4, 1994. JA 3417. In early 2000 the case was tried for several days. JA 34293434. Thereafter – and before the court issued any decision – the parties engaged in extensive settlement negotiations that concluded in Fed R. App. P. 28(b) provides that an appellee need not provide, inter alia, a statement of the facts “unless the appellee is dissatisfied with the appellant’s statement.” The Class’s statement of facts contains many omissions of material facts in the record that time and space do not permit refuting. More importantly, however, the Class fails to provide critical facts that concern matters raised in Class’s brief.
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the underlying Agreement. JA 3434-3438; 1-14. On May 22, 2002, the court determined that the Agreement entered into by the parties was fair and reasonable. JA 3438. II. The Settlement Agreement – Key Provisions A. Class Membership (Section I)

Section I(1) contained the definition of the class as it was certified by the district court. JA 3. In addition, the Agreement provided that “[n]o student will lose his status as a class member due to the re-naming or re-labeling of his/her disability category from mental retardation to intellectual disability.” JA 3. Pursuant to Section I(2), SDE was to “prepare and distribute to the parties and the court a list of public school students in Connecticut who on or after December 1, 1999 carry the label of either mental retardation or intellectual disability and who are eligible for special education; such list shall be updated periodically.” JA 3. The Class was permitted under Section I(3) to “gain access to data and files relating to class members, to the extent allowed by state and federal statute.” JA 3.

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B.

Goals and Outcomes (Section II)

Although the State continued to deny the Class’s allegations and admitted no liability, see JA 2, the State and all parties desired a resolution of the case that was consistent with the requirements of the IDEA and its implementing regulations. JA 2. To that end, in Section II of the Agreement the Department agreed to pursue five goals to bring about a more inclusive, integrated system of public education in Connecticut for students with intellectual disabilities (“the goals”). The five goals were articulated as follows: 1. An increase in the percent of students with mental retardation or intellectual disability who are placed in regular classes, as measured by the federal definition (eighty (80) percent or more of the school day with non-disabled students). 2. A reduction in the disparate identification of students with mental retardation or intellectual disability by LEA, by racial group, by ethnic group or by gender group. 3. An increase in the mean and median percent of the school day that students with mental retardation or intellectual disability spend with nondisabled students. 4. An increase in the percent of students with mental retardation or intellectual disability who attend the school they would attend if not disabled (home school). 5. An increase in the percent of students with mental retardation or intellectual disability who participate in school-sponsored extra curricular activities with nondisabled students.

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JA 3-4. The Agreement required the State make “meaningful continuous improvement” with respect to Goals #1 and #4 and “continuous improvement” with respect to Goals #2, #3 and #5. C. Jurisdiction (Section III)

Under the title “Continuing Jurisdiction” the Agreement provides: The jurisdiction of the court for enforcement of this Agreement will end five (5) years from the empanelling of the Expert Advisory Panel (EAP) called for in section IX, except that the Court, for a period of eight (8) years from empanelling of the EAP, shall have jurisdiction to entertain Plaintiffs’ motions for substantial non-compliance with this Agreement. In no event shall the Court’s jurisdiction over this Agreement exceed eight (8) years beyond the empanelling of the EAP. The Defendants shall cooperate with the Plaintiffs’ reasonable requests to provide existing data to enable Plaintiffs to assess compliance during the five-to-eight year period. JA 4-5 (emphasis added). The Agreement therefore establishes two consecutive periods with respect to the jurisdiction of the court: a first period lasting approximately five years (May 22, 2002-August 12, 2007) and a second consecutive and contingent period lasting three years (August 13, 2007August 12, 2010). Most importantly, the Agreement unequivocally states that the “jurisdiction” of the court “will end” five years from the

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empanelling of the EAP. JA 4-5. The only exception to the termination of the jurisdiction of the court is insofar as the Class files “motions for substantial non-compliance” within eight years of the empanelling of the EAP. JA 4-5. Additionally, the State had the right under the Agreement “at any time” to “petition the Court for an end to the Court’s jurisdiction and for dismissal of the matter based on the [State’s] substantial compliance with the terms of the Agreement.” JA 6. Under this section the Agreement also provided that the Department was to prepare and submit four annual reports to the Court, the EAP and the parties. JA 5. D. Monitoring (Section V)

The Department also agreed to take a number of actions in pursuit of the goals, including monitoring and assisting local school districts, and providing the Class and the Court with information necessary to enforce the Agreement. E. CSDE Designee (Section VI(2))

The Agreement also provided that the State Commissioner of Education designate a staff person to “design, implement and

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coordinate all efforts under this agreement” who “shall serve as the liaison to members of the” EAP. JA 10. Anne Louise Thompson served at all times as SDE’s designee under this provision. F. Expert Advisory Panel (Section IX)

In addition, the Agreement provided for the creation of a four member EAP chosen by the parties to advise the parties and the Court regarding issues relating to implementation. JA 11. The Agreement specifically provided that the Department “will not be bound by either the individual or collective advice of the EAP.” JA 12. Additionally, the EAP was to “receive the [4] annual reports prepared” by the Department and “provide annual written comment to the Court, plaintiffs and defendants.” JA 5; 12. The State was to pay for all costs associated with the EAP. JA 13. III. Post Settlement A. The First Five Years of the Settlement Agreement

The first five years passed without the Court exercising enforcement authority. 3 As required under the Agreement, the Department and the The Agreement was approved by the court May 22, 2002 and the State began its work prior to August 12, 2002 when the EAP was empanelled. As a result, the first phase of the Agreement exceeded five years.
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EAP filed their required annual reports with the court and the Class. See JA 22-640. Although not provided for in the Agreement, Class counsel also prepared formal responses to the State’s Annual Reports. The Class filed several motions during this time relating to, inter alia, their right to collect data under Section I of the Agreement. 1. The 2005 Dispute Over Class Member Information and Resolution

The first data dispute in court occurred in early 2005 and involved Class counsel’s dissatisfaction over not receiving the names of class members in order to conduct analyses regarding decrease in class membership, specifically reclassification and these students’ progress on the goals of the Agreement. Supp A 49-57. Class counsel asserted their right to such personally identifiable information under Section I of the Agreement and filed a motion seeking “a class list that includes at least the students names, addresses, birth dates, disabilities, schools they attend and responsible the school district as of 1999, with updates that indicate changes to the class list, including, but not limited to, any students who have been exited or removed from the class with the reasons given for exiting those students from the class.” Supp A 56-57; See JA 2-3. The State opposed the Class’s motion on February 16, 2005
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explaining that under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. § 1232g, 34 C.F.R. Part 99, and the Agreement, such personally identifiable information could not be shared.4 JA 3443. The State’s position was supported by a letter from the United States Department of Education (“USDOE”) written in 2002 to that effect.5 JA 702-705. In September 2002, the State provided Class counsel and the EAP

This would not be the last time, unfortunately, opposing counsel demonstrated a casual attitude with respect to the concerns addressed in FERPA. See,e.g., Supp A 281-283 (Class counsel disclosing during the evidentiary hearing personally identifiable information concerning the identities of minors and failing to move in the district court for redaction of the transcript)
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The USDOE’s FERPA Compliance Office instructed the State in writing that prior to making personally identifiable information from education records (in this instance the names) available to the plaintiffs under the Settlement Agreement, the State must comply with the notice requirements in 34 C.F.R. § 99.31 (a)(9). Having fulfilled its obligations under the Agreement and provided the Class with all the data, with unique student identifiers so that the Class could analyze the data any way they wished, the State did not undertake at that time the cumbersome and expensive task of seeking to contact every parent or guardian to inform them of the intended disclosure of personally identifiable information, in “sufficient time to permit the parent or eligible student to take appropriate action,” as required by USDOE’s letter. Supp A 234. The State believed that such a cumbersome task would be time consuming, and would take away from the substantive work those assigned to this matter were doing to try to further the goals of the Agreement.
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with a list of MR/ID students as required under Section I(2) of the Agreement. JA 78-145. The State provided an updated listing in each subsequent year as part of the State’s annual report to the court. JA 160, 280, 397. Each list provided a 32 character number unique for each student labeled as ID in the year identified and each subsequent year the student remained identified as ID. See JA 78-145. Thus, a listing of student carrying the label of ID was provided by the State. Under Section I(3) of the Agreement, the Class had the right to collect data relating to the students identified on the list provided by SDE. In addition to providing the Class with existing data beyond the required list of ID students, extensive data was provided annually to the Class in the four annual reports from 2002-2005, on the SDE website, and at each EAP meeting from August 2002-May 2007. In addition, at their request, Class counsel were given full access to all hard copy files generated and accumulated from 2002 to the date of the review of files and were provided copies of all material requested during the review of the files. Also, all e-mails generated by the State from 2002-2007 regarding the work of the State on the Agreement and the following student databases were provided electronically: class member

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mailing list (Sept. 2005); special education data (Nov. 2005 and Feb. 2006); student demographic data (Nov. 2005); dropout data (Jan. 2006); suspension/expulsion data (Jan. 2006); and student achievement (April and May 2006). JA 3295. The State was also responsive to specific requests for data from Class counsel on at least 55 separate occasions concerning multiple data requests from September 2002-August 2007. JA 3367-73. In direct response to the Class’s motion seeking personally identifiable information on the class the assigned magistrate judge held a status conference on March 11, 2005 at which time the parties resolved the issues relating to the Class’s motion. The State agreed to send opt out letters to parents of students identified by their LEA as ID, which would comply with the guidance given by the USDOE regarding FERPA. Supp A 203-204. Beginning in the spring of 2005 through the fall of 2005 the State sent to Class counsel all the information on students classified as ID for each year (as reported on December 1) from 1998 to 2005. Supp A 237-238. Thereafter the State sent to Class counsel annually all data on students (minus those whose parents’ had opted out) who were reported as having ID on December 1 of each

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academic year. See, e.g., Supp A 82-83. “The information to be shared … include[d], but was not limited to the student’s name, address, date of birth, race and ethnicity, grade, school, district and data collected by CSDE on extracurricular participation, time the student spends with nondisabled peers as well as information about the student's program.” JA 506-07. As a result of the Agreement reached by the parties, the district court denied the Class’s motion seeking the class list without prejudice. JA 3443. Separately, the State indicated to the Class on numerous occasions the limitations of the list/database, the efforts to address those limitations, and the anticipated dates for these changes to occur and to obtain the resulting data. JA 217 (“Due to the nature of collection and storage of PCI data, creating a listing of students that have been reclassified or that indicate to which school district the student has moved is not feasible.”); JA 322 (“the CSDE is in the process of initiating a system to retroactively track Class Members beginning December 1, 1998, the first year that individually identifiable student data were available.”); JA 457 (“The dual goals of this system were to: 1) ensure that the CSDE is accurately reporting the number of active

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students with ID/MR in any given year so that the outcome measures for the goals of the settlement agreement are representative of the population; and 2) document the transition of active students with ID/MR to inactive status, either due to exiting the system of special education altogether or by being reclassified into other special education categories.”) The database at the time of the Agreement was an annual collection and was never designed to track a student in order to make individual student comparisons from year to year. JA 3292. However, the lists provided annually to the Class, when compared from year to year afforded the Class the ability to determine which students had been reclassified from ID to another disability category (such as “Autism”) in any given year. The State advised Class counsel in May 2004 of the ability to examine the data using these lists. JA 700-01 (“with unique identifying numbers you can do all the statistical and other analyses you might need or want.”) The Class argued otherwise. JA 707-8. Notwithstanding the State’s views about its obligations under the Agreement, the State began to develop a system by which the data of

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class members could be tracked from year to year and thus make the monitoring of class members more efficient during the life of the Agreement. As noted in the June 2004 Third Annual Report (“AR3”) the State was beginning this arduous task (JA 322) that required the manual tracking of the original 4103 class members and had a 97% match (3960 students) of a student record in every year from 1998 through 2004 at the time of AR3. This laboriously crafted system as described in AR3, see JA 322-324, was, at the time of AR3, at a point needing to be repeated for 1999 and each subsequent year in order to examine an individual student’s data over time and thus be able to conduct an individual student level analysis. In June 2005, the State reported in the Fourth Annual Report (“AR4”) continued progress on this system, but the Class indicated that the data the State made available to them was not helpful. JA 457 (“it was discovered that the process was not yielding significantly useful information to meet the expressed needs of the [Class].”) Therefore, to address Class counsel’s concern of the decrease in membership of the class and wanting to analyze the issue of reclassification, the EAP and the State agreed in 2004 to stop this time consuming process and only

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address the 24 targeted school districts being focused on by the State at that time.6 JA 458. The State discontinued crafting the data system and proceeded to focus on the 24 districts, providing data to the EAP and the Class in January 2005 regarding class reduction, reclassification, exiting data and new class member identification of these 24 districts. JA 457. Additionally, the State had the 24 districts provide information regarding reclassification of students three times annually to assist the State with monitoring. JA 3292-93. The State also began examining “migration reports” to aid in the investigation of these students that were reclassified. JA 1444. Additionally, as discussed infra, in December 2007 the State provided Class counsel with the first of several annual longitudinal databases that provided all information to track class members whether ID or reclassified to another disability category from 1998 through the life of the Agreement. JA 003296.

The 24 districts were selected as follows. The Agreement required that the State provide focused monitoring on 8-12 “most in need” districts. JA 8. The State chose 8 districts. JA 60-62. In April 2003 SDE identified an additional 16 districts “identified as having data for students with [ID] that fell below the state average” in three of four areas. JA 223-24.
6

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2.

2007 Site Visits

Another dispute arose in early 2007. On January 17, 2007 the class filed a motion seeking an order permitting site visits for some 120 class members at their local schools. JA 3445. The court held a status conference on the Class’s motion and as a result of that conference the parties entered into a stipulated discovery order that permitted the class nearly unfettered access to a sample of school district personnel, parents, teachers and students. JA 3446; Supp A 60. The State never filed an objection and the class withdrew its motion on this point. JA 3446. 3. Further Attorneys’ Fees and Costs

Despite the fact that the Agreement addressed attorneys’ fees and costs, the Class also sought further attorneys’ fees and costs, which the State opposed. Following oral argument those motions were denied without prejudice on March 30, 2007. 7 JA 3446.

The Class refiled their requests for further attorneys’ fees and costs and the parties are still actively litigating that issue in the District Court.
7

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B.

The Final Three Years of the Settlement Agreement (August 2007 – August 2010)

Pursuant to the Agreement the court’s jurisdiction ended with one exception on the fifth anniversary of the empanelling of the EAP, August 12, 2007. SA 5 n.1. The one exception was for consideration of a “motion for substantial non-compliance” brought by the Class. JA 4-5. 1. Final EAP Meeting

In May 2007 the EAP filed its final report and the State thanked the EAP for its service and declined to schedule further meetings. JA 2025-26; Supp A 158. This was done based on, inter alia, the State’s belief that the EAP’s duties were complete under the Agreement. JA 2025-27. 2. Longitudinal Database

In 2007 the State complied with several requests for discovery from the Class. The Class was dissatisfied with the pace of compliance as well as the State’s concerns with respect to FERPA (once again) and in August filed a motion to compel. Supp A 62-66. The State opposed this motion on September 28, 2007 and indicated in its response that: (1) with respect to the FERPA concerns, the State was in the process of creating a longitudinal database that
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would provide the Class with the information they sought on the reclassified students without violating FERPA. Supp A 67-81. The State indicated that the database would be ready later that fall; and (2) the court lacked jurisdiction under the Settlement Agreement to order discovery because five years had passed since the empanelling of the EAP. Supp A 74-75. Finally, outside of the pleadings the State continued to explain to Class counsel that the Class was trying to utilize the SDE’s annual PCI data sets in a manner for which they were not intended: tracking over time (unless manually connecting the systems and laboriously scrutinizing each student record to assure an accurate match of a student record in one year to each subsequent year’s database). Supp A 244-245, 246-247. [(“I tried on various occasions to explain . . .that you really couldn’t connect the data over time.”) With respect to the tracking of reclassified students, in AR3 (dated June 30, 2004) the State indicated that it was aware of the Class’s desire to track the movement and progress of a single class member cohort. JA 322. As a result, the State initiated a system to retroactively track class members beginning December 1, 1998, the first

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year that individually identifiable student data were available. JA 32223. However, as noted supra, in the meantime the State indicated it had accounted for 3,960 of the 4,103 students (97%) ever identified as ID from 1998 – 2003. JA 323. And the State implemented a system to account for the remaining students. See JA 323-24. The crux of the disagreement between the parties was that the Class desired information on all class members including those students that were no longer labeled by their LEA as ID. Such reclassified students were part of the class as defined in Section I(1) of the Settlement Agreement. However, Section I(2) and (3) concerned only ID students. Likewise, the five goals in Section II of the Agreement concerned only the students labeled ID, not class members; reclassified students were not covered in those provisions. JA 3-4. The problem for the State was that until the creation of the longitudinal database the State did not have an efficient way of tracking a student labeled ID in one year, but reclassified by his LEA to another disability category in a following year. Supp A 279-280. And, consistent with the requirements for federal reporting, the State received information on all special education students as of December 1 for each year from the

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LEA’s, and reported such information the following Spring. Supp A 239-240, 241, 279-280. The following example explains the situation prior to the creation of the longitudinal database. A student reported as ID in 2003 would have his information shared with Class counsel pursuant to Section I and would be accounted for in Section II. 8 If that student continued to be classified as ID by his LEA in 2004 his information would continue to be shared with Class counsel and he would be reported on for the purposes of the goals and outcomes. But, if instead that same student was reclassified by his LEA in 2004 to Learning Disabled (“LD”), his annual reporting information to SDE would reflect that he was an LD student. As an LD student he would not be covered in Sections I(2) and (3) and his information would not have been reported on for purposes of the PJ goals in Section II of the Agreement. Accordingly, his information would not have been shared with Class counsel. Supp A 242-243. However, to be clear, the students who were reclassified by their LEA’s and remained in special education were reported on annually to

Again, in 2005 the parties worked out an agreement which resulted in Class counsel receiving personally identifiable information retroactive to 1998.
8

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SDE. Supp A 242-243. Thus, strictly speaking, the easiest way before the creation of the longitudinal database for the State to have shared information on the reclassified students would have been to share with Class counsel the annually reported information by the LEAs to SDE on all special education students in Connecticut, many (if not most) of whom would not have been members of the PJ Class. However, such a disclosure surely would have violated FERPA. Alternatively, the State could have examined the 32 digit character lists provided to the Class through the Annual Reports to identify numbers that exited the list each year. Such numbers could have been the reclassified students. The subsequent “missing” numbers could have been linked to the SDE’s data system and all information on this student could be identified. This was the process SDE began to undertake (as discussed in AR4, JA 457) but abandoned. In 2006 with the implementation of a new SDE data system for gathering data on students with disabilities that used the statewide unique identifier (“SASID”) that tracked all public students in Connecticut the State began to craft the longitudinal database. JA

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3291-92. And, it is worth mentioning, the State continued to believe the State was not obligated under the Agreement to create such a database. In late 2007 the State completed the aforementioned longitudinal database and disclosed it to the Class. Because the State had been creating a new data system as announced in AR3, JA 322, so that all students regardless of disability had a unique identifier by 2006-07, the ID students and those ID students reclassified to another disability category were able to be listed in the longitudinal database and thus, a student who was once labeled as ID but no longer carried the label ID could be shared with the Class. Thus the longitudinal database – which was retroactive – enabled the parties to compare ID and reclassified students over the length of the Agreement. Put simply: the longitudinal database contained the sought after information on the reclassified students. Supp A 249-250. And the database continued to be updated such that Class counsel has all information on the class for the life of the Agreement. Supp A 248. On February 12, 2008 the court denied the Class’s motion to compel without prejudice. The court instructed the Class to review the database and ordered that “if the [Class is] of the opinion that the

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database does not satisfy their discovery requests, the [Class] may refile their motion.” JA 3448. The motion was not refiled. 3. Discovery Ruling

In November 2007 the Class also requested via letter discovery from the State including interviews with SDE personnel. Supp A 93-96. The State’s counsel responded via letter and explained that at this period in the Agreement the State was required only to cooperate with respect to “data and files” and “to provide existing data” to the Class. Supp A 98. Accordingly, the State explained that it declined to “facilitate or require the interviews” requested. Supp A 98. On April 16, 2008 – at which time the court’s jurisdiction was circumscribed by the Agreement – the Class filed a motion alleging substantial noncompliance. JA 3449. In their motion the Class also requested the court order the State to comply with the Class’s discovery requests. Supp A at 88. Because the court’s jurisdiction was circumscribed under the Agreement, the State argued to the district court that the Class was not entitled to discovery beyond that contained in the Agreement. Supp A 101.

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Following a conference the court issued a written ruling and order requiring the parties “confer in good faith in an effort to resolve any discovery issues. After conferring in good faith, if outstanding discovery issues still exist, the plaintiffs shall file a motion in which they set forth with particularity each type of discovery sought and the authority for granting their discovery request.” Supp A 101. In June 2008 the Class served upon the State four notices of deposition, a set of sixteen interrogatories, a request for production/inspection, and a letter request for an expert review of class attrition. Supp A 110-111. Via letter of July 3, 2008 the State responded that – without waiving its position on discovery – it would provide sworn answers to the request for interrogatories. Supp A 110111. On the basis of the Agreement, the State declined all other requests. 9 Supp A 110-111. On July 15, 2008 the Class filed a motion seeking discovery and argued that the EAP had been improperly “discharged.” JA 3451; Supp

The State also continued to provide free of charge Class counsel with other materials above and beyond the requirements of the Agreement. See SA 74 (“the defendants have provided and continue to provide the plaintiffs with written discovery”), 89; Supp A 212-214 (listing items produced to Class counsel).
9

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A 104. The State opposed on the grounds that at this juncture in the Agreement the class was not permitted discovery other than “existing data.” JA 3451. On March 26, 2009 Magistrate Martinez issued an oral ruling denying the class’s motion for discovery. 10 SA 65-78; see also JA 3453 (Order dated March 30, 2009). In her ruling Magistrate Martinez found that the Agreement was a contract and that under the Agreement in the final three years the Class was permitted at that time only to “existing data” which did not include “depositions and interviews.” SA 70. On the basis of the Agreement, she denied the Class’s motion for discovery. SA 71. Notwithstanding that ruling, in order to ensure that “discovery [not] unfold in the courtroom” the court noted that “a few limited, targeted depositions and or interviews might … be the most efficient manner in which to proceed.” SA 72-73. Accordingly, the court requested the parties to confer on such an issue. SA 74-75. The Class filed an objection to Magistrate Martinez’s oral ruling which was overruled by Judge Chatigny. SA 100.

Earlier that month the court denied the Class’s motion for substantial non-compliance without prejudice. JA 3452.
10

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Meanwhile, on April 15, 2009 the Class filed another motion alleging substantial noncompliance. Supp A 112-121. 4. Voluntary Discovery Provided a. Depositions

Consistent with the court’s suggestion – but without a court order 11 – in 2009 and 2010 the parties conferred regarding discovery in preparation for an evidentiary hearing on the Class’s motion for substantial noncompliance. JA 3457. These discussions were difficult given the parties’ positions. However, the following relevant ground rules were clearly and explicitly established in advance of any depositions: (1) The Class was permitted to depose up to five SDE employees; (2) each such deposition would not

The Class took two depositions in January 2010. The parties were unable to agree on a scheduling order for the remaining voluntary discovery and both parties filed motions and proposed orders. JA 345859. Two more SDE employees were deposed in February 2010 while the matter was pending. JA 2456, 2611. On February 25, 2010 the court issued a scheduling order. JA 3460. The Class’s fifth and final deposition occurred on March 10, 2010.
11

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exceed one day; and (3) none of the SDE witnesses would produce at their deposition any materials previously produced.12 Supp A 186-191. The State agreed to what were supposed to be limited and focused trial preparation depositions. In that vein, and in good faith, prior to the taking of any depositions the State suggested employees that might better assist the Class; opposing counsel did not heed those suggestions. See Supp A 128-129. The Class deposed five SDE employees. See note 11, supra. Despite the ground rules, the class was dissatisfied in particular with the deposition of SDE employee Michael Smith taken on February 8, 2010. See JA 2569-77. At the close of that deposition counsel spoke with the court and discussed their disagreement. JA 3459. As a result of the call, and once again solely by agreement, the State agreed that Mr. Smith would respond to interrogatories prepared by the Class. The questions contained therein were prepared by the Class’s expert Dr. Heather Hammer. Supp A 217. The State provided a 23 page response on March 16, 2010. JA 2904-26.

The reason for this requirement was simple: over the years the State had been on the receiving end of numerous requests for materials from Class counsel that SDE had already produced. JA 1431.
12

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In May and June 2010 the State deposed three expected witnesses of the class. b. Data

During this time the State also continued to provide Class counsel with voluminous amounts of data on the class and the State’s progress on the five goals at no charge. Supp A 205-214. From September 2007 until January 2010 the Class made 21 separate requests for data. The State complied with all these requests. See JA 3373-3376. c. Reconvening of the EAP

On January 18, 2010 the Class filed a motion seeking to have members of the EAP appointed as the court’s expert witnesses. JA 3458. The State opposed this motion. JA 3459-60. Without ruling on the Class’s motion, the district court held a conference on March 19, 2010 and requested that the parties brief several legal issues in advance of the evidentiary hearing on the Class’s motion for substantial noncompliance, including the length of the State’s obligations under the Agreement. JA 3460. The State filed a brief arguing that the Agreement imposed a five year period of obligations on the State followed by a three year period in

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which the Class was provided additional time to evaluate the State’s performance under the Agreement and determine whether they would initiate a motion for substantial non-compliance based on the first five years. JA 3461. The Class argued otherwise in its brief. The court held a conference on April 1, 2010 and explained that the court agreed with the Class that the State’s obligations under the Agreement continued until August 12, 2010 and that the evidentiary hearing would include evidence up until that point. Supp A 137. During the conference Class counsel raised the issue of reconvening the EAP. Supp A 138-139. The State opposed reconvening the EAP for several reasons. Supp A 142. The court expressed interest in reconvening the EAP and asked the parties to determine the EAP members’ availability. The parties determined the EAP’s availability and spoke to Judge Chatigny again. JA 3462. The State maintained its view that the EAP was not improperly “dismissed” and should not be reconvened. The court indicated, notwithstanding this disagreement, that the EAP should be reconvened. See Supp A 154. Accordingly, on April 12, 2010 the class moved for appointment of the EAP as technical advisors. Supp

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A 154, 155-156. On April 14, 2010 the State filed its opposition. On April 23, 2010 the court granted the Class’s motion. In its ruling, the court stated for the first time that “the [State was] obliged to maintain the EAP for the full eight years covered by the settlement agreement.” Supp A 157-159. The court also instructed the State “to provide the

EAP with documents and data … of a similar nature” to those that had been provided in the past. Supp A 157-159. Accordingly, on April 14, 2010 the State provided the EAP with a “Progress/Data Report to the Expert Advisory Panel.” 13 See JA 3288-3386. The EAP prepared a final report on May 6, 2010 which was filed with the court the following day. JA 641-655; JA 3463. The Class filed a response on June 9, 2010. JA 3466-67. At the request of Judge Chatigny, the State filed its response on June 28, 2010. JA 3468. IV. Evidentiary Hearing Prior to the evidentiary hearing the Class filed at least two in limine motions. One of those motions sought to preclude the State from

The EAP reported to the parties that in order to prepare a report by May 7, 2010 the members would need to receive the relevant materials by April 14, 2010. Accordingly, and in the interest of good faith, the State prepared and sent such materials to the EAP notwithstanding their pending objection.
13

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offering testimony regarding certain data and analysis that the Class felt they were precluded from receiving during the voluntary discovery agreed to by the State. JA 3464. The State filed its own in limine motions and oppositions. JA 3464-67. The court expressly denied all the parties’ in limine motions on the first day of the evidentiary hearing. JA 763-64. The court held an evidentiary hearing on the Class’s motion for substantial noncompliance from June 15, 2010 until June 29, 2010. Seven witnesses testified for the Class and eight witnesses testified for the State. Each of the State’s witnesses testified about their direct involvement with the Agreement and the State’s compliance. Voluminous exhibits were admitted into the record. As noted previously, prior to the hearing the court directed the parties to brief various issues including the applicable legal standard for a finding of “substantial noncompliance.” Additionally, on June 11, 2010 the State filed an “Amended Local Rule 56(a)(1) Statement of Material Facts Not in Dispute” containing, inter alia, statistics concerning Section 2 of the Agreement. Supp A 192-202.

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At the close of the Class’s case and after Class counsel indicated that they had rested, the State moved for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 52(c). JA 3468; Supp A 222-223, 224, 225227. V. District Court Ruling On August 12, 2010 – the last day of the court’s jurisdiction – Judge Chatigny denied the Class’s motion for substantial noncompliance and explained that “[a] memorandum opinion containing findings and conclusions will follow.” JA 3470. On August 6, 2012 the district court issued a 62 page memorandum, which was amended non-substantively two days later. 14 JA 3474. The Class filed a Notice of Appeal on September 3, 2010. JA 3387. SUMMARY OF ARGUMENT The Class failed to demonstrate that the State was in “substantial non-compliance” with the Agreement entered into by the parties in 2002. Applying the correct legal standard, the district court evaluated the State’s entire performance over the life of the Agreement and On August 3, 2012 the Class filed a writ of mandamus compelling the district court to issue its ruling. Because the district court issued its decision the following business day a panel of this court denied the class’s petition for a writ of mandamus.
14

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properly concluded that the State was not in substantial noncompliance. That is, the Class failed to show, as it must, that any noncompliance of the State “frustrated an essential purpose of the Agreement.” SA 8. The Court also found that the State embraced the goals and pursued the Agreement in good faith. The State fully complied with its duty to provide Class counsel with a list of ID students each year. Moreover, even though not required by the Agreement, in December 2007 the State developed and created a longitudinal database that allowed the parties to track all class members, include those no longer labeled by their LEA as ID. The Court correctly found that the State met its obligations under the goals outlined in Section II of the Agreement. In fact, on the goal of regular class placement the State moved from 28th in the country in 1998 to 2nd in 2008. The Court did not err in finding that under the Agreement the Class was only entitled to “existing data” in the final three years of the Agreement. Notwithstanding this provision, the State continued to cooperate above and beyond this requirement.

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Section III of the Agreement circumscribed the court’s jurisdiction in the final three years of the Agreement. Accordingly, the State’s performance on the goals contained in Section II of the Agreement should have been limited to the first approximately five years of performance. Regardless, the State met the commitments outlined in the Agreement for the life of the Agreement. Similarly, it was not improper for the State to decline to call further meetings of the EAP after May 2007. Finally, Section II of the Agreement did not address students who were no longer labeled ID by their LEA. Accordingly, the district court erred in including the reclassified students in its assessment of the State’s performance under Section II. Despite this, from 2002-2009 the goals of the Agreement for combined ID and the reclassified students demonstrated very comparable improvement compared to just ID students. ARGUMENT I. INTRODUCTION It is important to begin by explaining what this appeal is not. This appeal is not rooted in a settlement involving a recalcitrant State

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that sought to shirk and avoid its duties concerning the education of intellectually disabled students. Rather, this appeal involves a State that, in the finding of the district court, “embraced the goals of the Agreement, were committed to achieving the goals, and consistently made good faith efforts to try to meet them.” SA 34-35. The Class spills much ink attacking in almost every detail the efforts undertaken by the State through its Department of Education during the tenure of the Agreement. The evidence demonstrates that the Class – through its counsel – exemplified a mistaken view throughout the Agreement that the State’s obligations far exceeded what was expressly provided in the Agreement. Class counsel fails to recognize both the significant gains made and the effect the IDEA – which requires an individualized determination for each Connecticut public school student with ID – had upon the “Goals and Outcomes” provided in the Agreement. See Supp A 256 (“under IDEA [the State] cannot dictate what a child’s placement should be”).

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Viewing the State’s responsibilities through this faulty prism 15 no doubt yielded the arguments made in the Class’s brief here. But, given the Agreement, those arguments do not hold water and do not change the fact that the State – in the eyes of the District Judge who oversaw the case for almost 20 years – was not in “substantial non-compliance” with the Agreement. In fact, as the district court found, the record shows that the State dutifully worked with the Court, the EAP and the Class – in many cases accommodating requests from the EAP and the Class that went beyond the Agreement – to forward the goals of the Agreement such that at the time of the evidentiary hearing Connecticut was second in the nation for percent of students with ID in regular class placement. JA 3300.

This case was filed in 1991 at which time, according to the Class in its complaint, Connecticut “separated children from regular classrooms at the eight highest rate in the nation.” Supp A 40. To the extent Class counsel has over the course of the Agreement not recognized a sea change since the case was filed such a static view is, as recently noted by the Supreme Court, inherently problematic. Cf. Shelby Cnty., Ala. v. Holder, 12-96, 2013 WL 3184629 (U.S. June 25, 2013) (“But history did not end in 1965.”)
15

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II.

THE DISTRICT COURT PROPERLY FOUND THAT THE STATE WAS NOT IN “SUBSTANTIAL NON-COMPLIANCE” WITH THE SETTLEMENT AGREEMENT A. Standard of Review

Since “settlement agreements are contracts [they] must therefore be construed according to general principles of contract law.” Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). In reviewing a district court’s interpretation of the terms of a settlement agreement, this court review conclusions of law de novo and findings of fact for clear error. In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 135 (2d Cir. 2011). While a consent decree 16 is a judicial pronouncement, it is principally an agreement between the parties and as such should be construed like a contract. Crumpton v. Bridgeport Educ. Ass’n, 993 F.2d 1023, 1028 (2d Cir. 1993). Federal courts of appeal should “give deference to the district court's interpretation based on the court's extensive oversight of the decree….” Officers for Justice v. Civil Serv. Although this case involves a document titled “Settlement Agreement” and not, technically, a consent decree there may be no distinction between the Agreement here and a consent decree. See Perez v. Westchester County Dep’t of Corr., 587 F.3d 143, 151-52 (2d Cir. 2009).
16

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Comm'n of City and Cnty. of S.F., 934 F.2d 1092, 1094 (9th Cir.1991); see also United States v. Sec’y of Hous. & Urban Dev., 239 F.3d 211, 221 (2d Cir. 2001) (“Judge Sand has presided over this difficult and exhausting case with estimable patience and skill, and we will not second-guess his informed balancing of incentives in an attempt to craft a remedial plan that will be effective in the face of opposition. In short, we do not wish to have what may or may not be the best become the enemy of what is clearly the good.”) “[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” United States v. Armour & Co., 402 U.S. 673, 682 (1971). “Consistent with this narrow construction, [the Second Circuit has] recognized that courts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively.” Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)(citations omitted). As the moving party here the Class had the burden of production and persuasion.

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B.

The District Court Used the Correct Legal Standard

As noted earlier, this appeal stems from the district court’s denial of the Class’s motion for substantial noncompliance. Specifically, the district court found that the Class failed to “sustain[] their burden of showing substantial noncompliance.” SA at 64. The Class claims that the district court used the incorrect legal standard, arguing that it failed both to “describe the legal standard at a level of specificity necessary to address circumstances of the case” and improperly used a “narrow focus” on Section II of the Agreement, which “led to the court treating the requirements of the Agreement for monitoring, training, technical assistance, oversight by the EAP and class membership as instrumental and non-essential.” Class Brief 22. The Class’s argument appears to be that the district court used the improper standard in denying their motion. Class Brief 21 (“The court erred in not formulating, using and adhering to a proper legal standard for judging substantial noncompliance.”) Specifically, they argue that in determining substantial non-compliance “[t]he court must examine each provision [of the Settlement Agreement] material to the satisfaction of the purposes of

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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 [sic] frustrates those purposes.” Class Brief 24. The Class also argues that the district court improperly failed to recognize “the nature and importance of the interest at stake,” here “the interest of appellant children and the conditions of their public school programs.” 17 Class Brief 23. First, it should be noted that the Class actually argues several times that the question here is whether the State was in “substantial compliance.” 18 See Class Brief at 22, 24, 25, 26. But, that is not the

The Class asserts that “Defendants had complete control over the level of compliance,” Class Brief 23, a charge that is nearly impossible to harmonize with the individualized requirements of the IDEA and the IEP process as noted by this court. P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 119 (2d Cir. 2008) (“Understandably, courts have recognized some tension between the IDEA’s goal of providing an education suited to a student’s particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow.”)
17

Plaintiffs motion was filed in the final three year phase of the Agreement. At that time, the only matter on which the court had jurisdiction was consideration of motions for substantial noncompliance. JA at 4-5.
18

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correct standard. 19 The Agreement provides that the question is whether the State was in “substantial non-compliance.” 20 JA at 4-5 (emphasis added). Regardless, the district court properly determined “that the touchstone of the substantial noncompliance inquiry is whether any noncompliance frustrated the Agreement’s essential purposes.” SA 6. This standard comes from a Tenth Circuit case, Joseph A. v. New Mexico Dep’t of Human Serv., 69 F.3d 1081 (10th Cir. 1005). This was not error. With respect to the Agreement’s “essential purposes” the court did not, as argued by the Class, take a narrow view of the essential purpose The court itself referred to “[t]he Agreement’s substantial compliance standard.” SA at 36.
19

The State did have the right under the Agreement “at any time” to “petition the Court for an end to the Court’s jurisdiction and for dismissal of the matter based on the [State’s] substantial compliance with the terms of the Agreement.” JA 6. Had the State chosen to make such a petition, the State would have had the burden to demonstrate “substantial compliance.” But, the State did not so choose. Rather, the State chose to fulfill its obligations under the Agreement and to allow the Agreement to sunset, a situation logically flowing from the Agreement negotiated by the parties. The Class wishes here to extend and expand the Agreement beyond the negotiated length and, as such, bears the burden of demonstrating that the State was in “substantial non-compliance.”
20

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of the Agreement and assess compliance based solely on Section II of the Agreement. To be sure, the court found the Agreement’s “essential purposes are found in § II of the Agreement.” SA at 6. But, that statement occurred in the portion of the court’s opinion titled “Summary.” The court also found that “[t]he essential purposes of the Agreement involved increasing integrated placements for class members, rather than providing meaningful access to the general curriculum.” SA at 7-8 Most importantly, the court proceeded to assess in over 58 pages the actions taken by SDE with respect to all the provisions of the Agreement in making its ultimate conclusion. Specifically, section three of the court’s opinion is entitled “The Settlement Agreement and the Defendants’ Performance” and in the pages that follow the court explains in detail the evidence concerning SDE’s performance under all parts of the Agreement. See SA at 14-36. And the court rendered its findings on compliance with respect to all portions of the Agreement. See SA at 47-64. The district court titled this chapter in its decision “The Record Shows that the State Met Its Commitments.” That chapter contained six sub headings: “1. Uncontested Provisions (§§ IV, VII, VIII)”; “2. Monitoring (§ V)”; “3.

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Technical Assistance (§ VI)”; “4. EAP (§ IX)”; “5. Plaintiffs’ Right to Data on Students with ID (§ I)”; “6. The Department Complied with § II.” JA 47-63. It simply cannot be said that the district court took a narrow view of the essential purposes of the Agreement. The term “substantial non-compliance” is not defined in the Agreement. However, in interpreting a contract, “unambiguous terms are to be given their ‘plain and ordinary’ meaning.” State of New York v. Blank, 27 F.3d 783, 792 (2d Cir. 1994). An ambiguity exists where the terms of a contract could suggest “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir. 1997) (citation and internal quotation marks omitted). “[C]ourts are to construe ambiguities and omissions in consent decrees as rebounding to the benefit of the person charged with contempt” here the State. Gilday v. Dubois, 124 F.3d 277, 282 (1st Cir. 1997)(citations and internal quotation marks omitted). “[T]o the extent

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that the questions presented turn on the language of the settlement agreement or other contracts, [the court] has considerable freedom to draw [its] own conclusions, guided by the language of the agreement, the circumstances of its formulation and its purposes – ‘in brief, by the usual considerations of contract interpretation.’ ” Accusoft Corp. v. Palo, 237 F.3d 31, 39-40 (1st Cir. 2001) (quoting AMF, Inc. v. Jewett, 711 F.2d 1096, 1102 (1st Cir. 1983)). The use of the modifier “substantial” makes it clear that the Agreement contemplates – and the parties bargained for – a standard more stringent than that of simply non-compliance. If mere noncompliance were the standard, use of the word “substantial” would be superfluous. And contracts should not be interpreted to eviscerate words. See 11 Williston on Contracts, 4th Ed., § 32:5 (noting that contracts should not be interpreted to render a portion of the writing “superfluous[] . . . or inexplicable”) The American Heritage Dictionary defines substantial as, inter alia, “[c]onsiderable in importance, value, degree, amount or extent: won by a substantial margin.” Thus, in order to succeed the Class was required to demonstrate by a preponderance of the evidence: (1) that

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the State was in non-compliance with the Agreement, and (2) that such non-compliance was “substantial,” i.e. “considerable in importance, value, degree, amount or extent.” That is to say, the Class was required to prove that the State failed to comply with the Agreement and that failure was very significant. The district court properly applied this standard and determined that the Class had failed to meet its burden. SA 8. (“[I]t is undisputed that the State complied with many of its obligations and the [Class has] not shown that the State’s noncompliance frustrated an essential purpose of the Agreement.”) Accordingly, this Court should affirm the district court’s judgment. This reading of the Agreement’s “substantial non-compliance” language – and the district court’s application of it – is consistent with courts’ application of the terms “substantial noncompliance” or substantial compliance” in civil rights cases.21 Civil rights cases

Although counsel could locate no cases involving the IDEA, outside of the civil rights context the term “substantial noncompliance” has been addressed in the context of food stamps. See California v. Block, 663 F.2d 855, 860-61 (9th Cir. 1981) (“Substantial noncompliance may be gross negligence or evidence of gross negligence, but the required showing of serious fault must be made before the state is subjected to liability. Substantial noncompliance is not automatically gross negligence. Congress placed ‘substantial noncompliance’ and ‘gross negligence’ in separate statutory categories, with separate sanctions, 7
21

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implementing the “substantial non-compliance” standard fall within two general classifications. One line of decisions discusses whether defendants are in “substantial compliance” or “substantial noncompliance” with consent decrees in the context of addressing motions for contempt brought by plaintiffs. In those cases, the district court properly places the heavy burden on the plaintiffs to show that the defendants significantly departed from the agreement’s goals as to require intervention. See, e.g., Fortin v. Comm’r of Mass. Dep’t of Pub. Welfare, 692 F.2d 790, 795 (1st Cir. 1982))(“‘substantiality’ must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.”); see also Rolland v. Cellucci, 138 F. Supp. 2d 110, 112 (D. Mass. 2001)(placing the burden on plaintiffs where the motion was filed pursuant to relief provided in the settlement agreement). For example, Labor/Cmty Strategy Ctr. v. L.A. County Metro. Transp. Auth., 564 F.3d 1115 (9th Cir. 2009) involved a civil rights lawsuit regarding public transportation. The parties settled the case and just before the tenth anniversary of the settlement – at which time U.S.C. § 2019(f), (g) (1976), and the Secretary acted improperly in mingling them.”)
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court jurisdiction would expire – the plaintiffs “moved to extend the duration of the decree on the grounds that [Defendant] MTA had allegedly failed to comply with the decree's overcrowding provisions.” Id. at 1116-1117. The district court denied the motion and plaintiffs appealed. The Labor/Cmty majority noted that “[t]he failure of substantial compliance with the terms of a consent decree can qualify as a significant change in circumstances that would justify the decree's temporal extension.” Id. at 1120-21.22 And, the majority held that the burden on proving substantial noncompliance lay with the plaintiffs and involved an overall assessment of defendants’ progress. Id. at 1121. The majority explicitly rejected the plaintiffs suggested “full compliance” approach, explaining: The question is whether there was substantial compliance, a less precise standard that cannot be satisfied by reference to one particular figure, while ignoring alternative information. Our analysis requires we do more than simply count the number of technical deviations from the decree. Instead, we must determine, using a holistic view of all the available information, whether MTA's compliance with the Decree overall was substantial, notwithstanding some minimal level of noncompliance.

The consent decree permitted the defendants to file a motion in the last three years to dissolve the consent decree if defendants had, inter alia, “substantially complied” with the consent decree.
22

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Id. at 1122. The majority went on to detail the aspects of the consent decree that the defendants had met or exceeded and described the level of noncompliance – although real – as “de minimis.” Id. The majority also explained that its holding was consistent with two other federal cases in which the courts reached the opposite conclusion: Thompson v. United States HUD, 404 F.3d 821, 834 (4th Cir. 2005) (a “near total failure” of some defendants to comply with their obligations) and David C. v. Leavitt, 242 F.3d 1206, 1212-13 (10th Cir. 2001)(noting that defendant was “20 percent in compliance and 80 percent in noncompliance”).23 Perhaps most importantly as it relates to this case, the Labor/Cmty majority explained that its holding was “consistent with the principle that federal court intervention in state institutions is a temporary measure and may extend no longer than necessary to cure constitutional violations.” 564 F.3d at 1123. The majority made clear that it was not enough that “every last wish and hope of the decree was not achieved.” Id. Rather, the majority explained, it was declining to See also Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1019 (6th Cir. 1994) (holding that noncompliance rates of between 25% and 40% were substantial enough to warrant modification under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 (1992)).
23

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find the defendants in substantial noncompliance because “the decree accomplished its essential purposes and the situation improved greatly.” Id. The Class relies on cases such as Joseph A., 69 F.3d 1081 (10th Cir. 1005), in which defendants have filed motions to dissolve consent orders, either on the basis of language contained in the settlement agreement itself or merely pursuant to the federal rules. See, e.g. Cody v. Hillard, 139 F.3d 1197 (8th Cir. 1998)(pursuant to Federal Rule of Civil Procedure 60(b)). In these cases – unlike here – defendants initiated the proceedings and therefore assumed the burdens of production and persuasion to terminate the jurisdiction of the court. Joseph A. involved the dissolution of a consent decree governing the New Mexico foster care system. The decree required the State of New Mexico’s Department of Human Services and its top officials (collectively “Defendants”) fulfill certain goals and specific requirements. The decree provided that it could be terminated when Defendants maintained “substantial and continuous compliance” for twelve consecutive months. The district court dissolved the decree

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based on a Special Master’s report that the state had met this requirement and the plaintiffs appealed. On appeal the Tenth Circuit noted that its job was to “(1) define the ‘substantial compliance’ standard and (2) then consider whether the Special Master (and district court) correctly applied that standard to the facts of the instant case.” 69 F.3d at 1085. The Court noted that the term was to be construed utilizing contract principles, but that the phrase “substantial compliance" is “not susceptible of a mathematically precise definition.” Id. The Court went on to quote favorably the First Circuit’s opinion in Fortin explaining that a case-by-case analysis is necessary: no particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like “reasonableness,” “substantiality” must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest. Id. Additionally, the Court explained the contract law doctrine of substantial compliance as follows: simply a doctrine to assist the court in determining whether conduct should, in reality, be considered the equivalent of compliance under the contract. See John D. Calamari & Joseph M. Perillo, The Law of Contracts 11-15, at 454 (3d ed.

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1987) (“If a party has substantially performed, it follows that any breach he may have committed is immaterial.”). Id. at 1085-86 (citations omitted). The Court noted that “the touchstone of the substantial compliance inquiry is whether Defendants frustrated the purpose of the consent decree – i.e. its essential requirements” and proceeded to evaluate the purpose of the consent decree before the court. Id. at 1086; see also 17A Am Jur 2d Contracts § 616 (noting that “substantial compliance with the requirements of a contract is the legal equivalent of full compliance”). Finding that the proceedings below before the district court did not sufficiently address this issue, the Court remanded the case with the following instructions/critera: On remand, the court should begin with the essential purposes of the consent decree which we have quoted from the Decree’s preamble, and it should then consider the specific steps set forth in the consent decree by which those purposes may be satisfied. To the extent that any stipulated criteria has not been met, the court must determine whether that failure is immaterial to the overall objectives or, on the other hand, whether it had a material adverse impact upon the overall processing and placement of children into permanent homes. Because the consent decree sets forth specific criteria to be met, those criteria must be respected unless a deviation can be shown not to have a material effect upon the overall performance of the Department in processing and placing children into permanent homes.

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Id. (emphasis added) 24 These cases make clear that the key question is whether the moving party has demonstrated that defendants have failed to meet certain obligations and that failure to meet those obligations “frustrated an essential purpose” of the settlement agreement. SA 8; see also R.C. Walley, 390 F. Supp. 2d 1030, 1043-1045 (M.D. Ala. 2005)(“’Substantial Compliance’ is oft defined by what it is not. ‘Substantial Compliance’ is not subject to rigid application, nor ‘susceptible of a mathematically precise definition.’ Substantial compliance is not ‘exact compliance’ or perfection.”); Homeward Bound, Inc. v. Okla. Health Care Auth., 196 Fed. Appx. 628, 635 (10th Cir. 2006)(defendants are in compliance with a “systemic” consent decree in a class action settlement so long as defendants “maintain a system that assesses and provides services in conformance with class members’ individual needs.”) In the case before this Court, the Class brought the motion at issue, and therefore the district court properly placed the burden of proof on the Class. But regardless of who bore the burden, the district

24

The case was ultimately settled.

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court went on to measure the State’s compliance properly in light of the Agreement’s language, the case law and the evidence. Here, the Agreement itself coupled with the IDEA require a systemic or “overall” analysis when determining whether State Defendants are in “substantial non-compliance” with the Agreement. The four corners of the Agreement speak in systemic terms. There are no numerical benchmarks on the five “goals and outcomes.” Tellingly, no class member is guaranteed a certain placement. Indeed, as noted by the district court such a “blanket and blind” guarantee itself would run afoul of the individualized nature of the IDEA and established law of this Circuit. SA 46; P. v. Newington Bd of Ed, 546 F.3d 111, 122 (2d Cir. 2008) (discussing the PJ Agreement and holding that based on the individualized requirement of the IDEA the State of Connecticut could not mandate a categorical percentage of time that an ID student would spend in regular classes). The court found that “the State failed to comply with certain aspects of the Agreement. However, it is undisputed that the State complied with many of its obligations and the plaintiffs have not shown that the State’s noncompliance frustrated an essential purpose of the

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Agreement.” SA at 8 (emphasis added). The district court’s conclusion was not erroneous. C. The State Complied With Its Obligations Concerning the Five Goals and Outcomes

The Class argues that the court erred “in its determination that substantial noncompliance was not established with respect to Section II of the Agreement.” Plaintiffs at 33. The class argues that this Court should reverse the district court and “find that the [State is] in substantial non-compliance with the Agreement.” Class Brief 62. As mentioned above, the Agreement required the State make “meaningful continuous improvement” with respect to goals #1 and #4 and “continuous improvement” with respect to goals #2, #3, and #5. JA 4. It should first be noted that the Class did not challenge the State’s performance under Goal #2. SA 18. With respect to the remaining four goals, the Class argues that the district court: (1) improperly declined to breathe a qualitative component into the goals (Class Brief 33-36), (2) erred in both (a) “making a single calculation for the entire 8-year period” and (b) not separating out the reclassified students in its determination that the State had made continuous progress annually

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on goals ##1 and 4 (Class Brief 37-43), and (3) erred in failing to assess the State’s progress using benchmarks (Class Brief 43-46). 1. The Goals Do Not Contain a Qualitative Component

The Class argues that “[n]othing 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.” Class Brief 31. But, as noted by the district court, the Agreement does not have goals about educational outcomes for students and the language in the Agreement is about placement. SA 40-41. Goal #1 requires an increase in the percent of students with ID “placed in regular classes.” JA 3 (emphasis added). Goal #3 requires an increase in the mean and median percent of the school day that students with ID “spend with nondisabled students.” JA 3 (emphasis added). Goal #4 concerns ID students attending their home school. JA 3. Finally, Goal #5 concerns participation in schoolsponsored extra-curricular activities with non-disabled students. The Class is also incorrect when it similarly argues that, “[t]he district court erred in interpreting the level of improvement required by
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goals #1 and 4…” Class Brief 34. The language in the Agreement that references “meaningful continuous improvement” is situated in Section II of the Agreement on the goals with all other information in this section being quantitative in nature. JA 3-4. Section II contains the wording of the goals, definitions of terms within the goals: “the school they would attend if otherwise disabled (home school)”; “regular classes, as measured by the federal definition (eighty (80) percent or more of the school day with non-disabled students”, and conditions for reporting on the goals (“Reporting will begin on September 30, 2002…”; “The baseline data… will be established as a result of the December 2001 data collection.”). JA 3-4. Nowhere in Section II are there any references to outcomes of student performance such as educational benefit or student achievement, nor of a determination of appropriate use of supplementary aids and services that may otherwise assist in understanding the goals in Section II. Additionally, it should be noted that the Class did not make this argument until recently. Throughout the Agreement the Class chose to respond to the SDE’s Annual Reports. In those responses – which were submitted to the EAP – when discussing whether the State had made

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“continuous improvement” or “meaningful continuous improvement” the Class spoke only in terms of the State not actualizing adequate quantitative changes associated with the goals. See JA 648-650; JA 668-69; JA 728-40. The Class never argued that the State needed to create a link between “meaningful continuous improvement” of the goals and those items specified in Section V of the Agreement related to supplementary aids and services. 25 Additionally, the Class’s view of what was meant by “meaningful” was elaborated by Class counsel to the court at the Fairness Hearing in May 2002. Judge Chatigny inquired as to what the parties intended and Class counsel responded that the standard was “a higher level or more stringent oversight”, “holding the state to a higher standard”, “more in the area of like due deliberate speed would be.” JA 18-19. Class counsel’s explanations do not mention educational benefit nor appropriate use of supplementary aids and services, as the Class now argues to this Court. The Agreement language is more quantitative in nature, associated with greater numeric level or a larger change in the Additionally, it should be noted that the district court found the State met its obligations under Section V. SA 49-53. Thus, even if Section II includes the qualitative aspects of Section V as argued on appeal by the Class, it is unclear how that requires reversal here.
25

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progress of the goal (“higher standard”); or the speed/rate of attaining the goal in relation to the other goals (“due deliberate speed”); or the amount of attention paid to improving a goal as compared to the other goals (“more stringent oversight”). This differentiated understanding of the goals, quantitative in nature, was the standard that the State and court understood at the Fair Hearing for the Agreement. Shortly thereafter, in October 2002 – after the Agreement was approved – the Class further identified a quantitative explanation only for what would be an appropriate benchmark for the regular class placement goal intended for the State to demonstrate “meaningful continuous improvement.” The Class argued: Plaintiffs submit that a reasonable statewide goal should provide for an increase in the placement of students with mental retardation over the first four years of the Settlement Agreement to 40% of the students with this classification. This would require an increase by roughly 30% of the 3600 class members not already in regular classes over the next four years – roughly the placement of 6 additional students with mental retardation in regular classes per school district over a four year period. JA 649. (And, for good measure, it is worth noting here that the State exceeded this number.)

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In their Brief, the Class cites their 2010 expert witness’ testimony as to what “meaningful” means. Class Brief 36. These explanations are, of course, not relevant to the understanding between the parties at the time of the Agreement which was set forth in the plain language of the Agreement, described by the Class at the Fair Hearing in May 2002, and written into the Class’s first response to the State’s September 2002 annual report as a benchmark of 40% regular class placement. The court did not err in finding that “‘meaningful’ means significant progress, in other words, more than nominal progress but less than all possible progress.” SA 58. 2. If Considered the Reclassified Students Should Not Be Analyzed Separately and the District Court Properly Considered the State’s Progress

The Class argues that the district court erred in not separately analyzing the reclassified students. Class Brief at 37. In analyzing the State’s performance of the goals the district court considered “all students who were classified as ID at any point during the relevant period, including students who were reclassified to other disability categories.” SA 18 n.7. The State’s performance using this metric was generally lower than if just the ID students’ performance was used. On

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the basis of the Agreement language contained in Section II – which spoke only of “students with intellectual disabilities” which reclassified students were not – the State argued the reclassified students should not be utilized. The plain language of Section II concerns only the “active” ID students and the State’s performance under Section II of the Agreement should be measured using only the active ID students. That said, even including the reclassified students, the district court did not err by finding for the State. Thus, the district court utilized a metric that was more beneficial to the Class’s argument that the state made insufficient progress. Yet, on appeal the Class takes this issue in an incoherent direction. The Class argues on the one hand that the reclassified students are covered under Section II. Yet, on the other hand, the Class argues that it was improper for the district court not to separate out the reclassified students for separate analysis and, on the basis of that analysis, find that the State was in substantial noncompliance with the Agreement. But, the Class can’t have it both ways. If the reclassified students are properly considered in assessing the State’s performance then those

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students should not be separately analyzed. The Agreement speaks in global terms and does not provide for such parsing. The Class effectively argues that this Court should ignore the significant progress made by the State throughout the life of the Agreement on all Five Goals because of the number of students reclassified by their local districts. Class Brief 38-41. The Class attempts to support its argument by placing the annual percentage increases of active ID students under the Agreement goals next to the annual percentage change in “the number of students reported as active ID.” See, e.g., Class Brief 39. On this issue it should first be noted that – contrary to the Class’s claim, see Class Brief 39 n. 11 – the State presented evidence at trial calling into question both the percentage of students reclassified and the legal significance of that number. SDE employee Mike Smith testified that Dr. Hammer’s reclassification percentage was higher than the reclassification percentage he found. Supp A 266-271. Mr. Smith

also testified that Dr. Hammer’s reclassification number included students that had returned to the label of ID, in which case their information would have been fully tracked under Section II of the

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Agreement. Supp A 271-274. Mr. Smith testified that Dr. Hammer’s own calculations established “of the students that had ever been reclassified that were still in public school in Connecticut in 2009 so that we had a record for them, 14.3 percent of those reclassified students were back into the ID category.” Supp A 274. Thus, the Class’s representations on appeal about the number of students reclassified is misleading. And, in fact, Mr. Smith testified that in the first “two or three years” after the Agreement the reclassified students “were in better placements, were more likely to be in a regular classroom placement than the kids that weren’t reclassified” from ID. Supp A 274-275. Furthermore, with respect to the number of ID students in Connecticut declining, Mr. Smith testified that there was a “similar decline in the number of students with ID nationally.” Supp A 264-265, 277-278 . And Mr. Smith also testified at the evidentiary hearing about a publicly available study that demonstrated a reclassification rate of 29% for a group of ID students over a three year span. Supp A 257-261. Thus, again, the mere rate of reclassification of 28% put forth by the Class, Class Brief 38, is far from dispositive. Under Goal #2 of the

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Agreement, the State specifically and rigorously engaged in extensive technical assistance, monitoring and enforcement actions of districts, to reduce the number of ID students inappropriately identified due to race/ethnicity and gender. JA 218-219, JA 222, JA 316-321, JA 445455. The success of addressing Goal #2 had significant impact on the reclassification of students with ID due to disparate identification as a result of race, ethnicity and gender. Two districts were under the Office of Civil Rights corrective action plans that addressed the disproportionate identification of students with ID by race/ethnicity preceding and during years of the Agreement. Therefore, reclassifications in New Haven and Bridgeport would specifically be expected to be high. Additionally, the State initiated monitoring, technical assistance and enforcement actions in April 2000 regarding disparate identification throughout the state, so such reductions in the ID population by virtue of reclassification is not surprising. JA 36-37. The Class did not argue the State made sufficient progress on

Goal #2 and the EAP commended the State for its work on this goal. JA 599 (“…the fact that just one LEA evidences significant

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disproportionality signals that considerable progress has been achieved on Goal 2”). Undisputed achievement of one goal of the Agreement cannot now be utilized by the Class as a cause for alarm.
And, of course, Mr. Smith testified about his findings with respect to the progress made by both the reclassified and “active” ID students under the life of the Agreement, and the court received all such information. See JA 3299-3322. On this point, the district court correctly found “the evidence shows that the Department's efforts have extended and improved integrated placements for all students with ID and the [the Class has] not shown that the reclassification rate provides a basis for a finding of substantial noncompliance.” SA 57-58. Finally, the Class’s argument that failure to make annual progress – despite what the district court called “[o]verall progress” – on goals elevates form over substance and should be rejected. SA 57-58. The State met its commitment to improvement of integrated placements statewide. Given that each special education student has a right to an individualized determination the State’s performance simply could not continue upward indefinitely. See P., 546 F.3d at 122 (discussing the PJ Agreement and holding that based on the

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individualized requirement of the IDEA the State could not mandate a categorical percentage of time that an ID student would spend in regular classes.) Moreover, the Class’s argument would allow the court to find the State in substantial non-compliance if it made enormous gains in year one only to suffer slight setbacks in later years. Labor/Cmty, 564 F.3d at 1123 (“the de minimis level of noncompliance here is nowhere close to the near total noncompliance in cases in which courts concluded that extensions of the consent decrees were warranted.”). This would be an illogical interpretation of the Agreement. Accordingly, the district court did not err in looking at the State’s performance over time. The State’s progress on the goals of the Agreement for regular class placement, including reclassified students, was 13.6% in 2002 to 48.2% in 2009. For students identified as ID, the State ranked 28th in the country in 1998 and 2nd in 2008. In 2008 across the country, the average percent of ID students in regular class placement was 17.3%. Comparatively, one year later in 2009, the State was at 50.7%. JA 3291. The State’s progress for home school placement of class members

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was 71.6% in 2002, increasing to 81.5% in 2009. Accordingly, “the decree accomplished its essential purposes and the situation improved greatly.” Labor/Cmty, 564 F.3d at 1123. 3. The Agreement Did Not Require the State Meet Benchmarks

On appeal the Class continues to argue that the State was required to meet benchmarks, either the EAP’s or “the State’s own targets.” Class Brief 43. More specifically, that “[w]ithout a benchmark the court had no rule to measure improvement for goal #1 and was left to its own subjective expectations of reasonableness.” Class Brief at 43. The district court concluded that there was a “lack of evidence that using the benchmarks [of the EAP] would have produced more progress” and that “the decision not to use the benchmarks did not conflict with the § II commitments.” SA 63. Furthermore, and most importantly, the court held: “the Agreement did not require the Department to adopt the benchmarks.” SA 63. The district court also credited the testimony of SDE employees who explained that “progress toward the goals slowed because all the easy progress had been made.” SA 43. This finding was not an abuse of discretion.

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During the evidentiary hearing, Judge Chatigny asked Anne Louise Thompson to comment on “increases toward achieving the goals with what has been referred to as a flatlining or even a drop-off in the most recent years.” Supp A 253. Ms. Thompson testified that leveling off may occur because the data may be reflecting “more of an appropriate or realistic implementation because we’re dealing with human beings and… groups of people making decisions that you’re not going to always have a hundred percent, necessarily, particularly in those areas that are — can be individualized to students, as are these goals in the Settlement Agreement. Because there are some students for whom a regular class placement is not appropriate.” Supp A 254255. The activities of the Agreement helped to prepare districts, their staff and parents to be better informed and skilled in how to make decisions about and how to appropriately educate a student with ID in a regular classroom and in their home school. However, as noted by the district court, the resulting decision about what school the child will attend and how much time will be in a regular classroom with nondisabled peers remains with the child’s educational team, not with the

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State. SA 46. Thus changes to the numeric outcomes measured by the goals of the Agreement are determined at the individual student team level that the State aggregates for measuring the goals of the Agreement. The Class’s argument is a thinly veiled attempt to alter the Agreement signed by the parties. The parties did not sign an agreement requiring specific numeric levels of improvement. In fact, the State explicitly declined to do so. Even during the Fair Hearing, when questioned by the court on the language of the measurement of the goals, the Class agreed to the resulting language. JA 18-19. Thus, the Class cannot use its experts’ testimony years later to alter what the parties agreed to be bound by. “[C]ourts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively.” Perez, 347 F.3d at 424 (citations omitted). And, as detailed above, the district court carefully explained the improvements made by the State with respect to the four contested goals. It is also worth noting on this point that although on appeal the Class feels “national rankings for the goal of regular class placement”

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are “extraneous” such was not always the case. Class Brief 20. First, the Class stated over ten years ago in its response to SDE’s First Annual Report that the regular class placement goal was “the most important outcome.” JA 648. Second, in its Amended Complaint dated October 4, 1991 the Class specifically pleaded “that Connecticut separated children from regular classrooms at the eighth highest rate in the nation.” Supp A 40. It is uncontested that in 2008 CT was ranked 2nd in the nation on regular class placement of ID students. JA 3291. Finally, of course, the State exceeded the 40% regular class placement figure the Class desired in 2002. JA 649. In 2009, Connecticut’s figure on this metric was 50.7%. JA 3291. D. The District Court Did Not Find That the State Violated Section I of the Agreement and the State Did Not Violate Section I

The Class misrepresents the court’s findings on the State’s performance under Section I of the Agreement. The Class claims that the court “found that the Defendants failed to provide and update a list of students … who carried the label of ID and who were eligible for special education… [SA 57.] The court also appears to find that the

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Defandants’ [sic] failed to address high rates of reclassification of ID students.” Class Brief at 50. The court did not so find. The court addressed on page 55 of its decision only the issue of “a list of students with ID who were reclassified to another disability category” and mentioned that the “list was finally provided in December 2007.” SA at 57 (emphasis added). Such students were not students who “carr[ied] the label [ID] and who were eligible for special education.” JA 3. Thus the court merely noted that the State did not provide the Class with a list of reclassified students until 2007. Contrary to the Class’s representation, the Court did not find that failure to provide a list of reclassified students itself violated Section I(2) of the Agreement. In fact, the court’s entire

discussion of the State’s performance on Section I is included as a subpart of a heading in its decision titled “The Record Shows that the State Met Its Commitments.” SA 45, 57-58. As detailed above, the State did provide the required lists. The Class also badly misconstrues – if not misleads – what occurred on this point over the life of the Agreement. The class claims the State “failed to provide the [Class] the required list of students or

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updates to that list during the life of the Agreement.

Instead, the

[State] provided a meaningless list of identification numbers each year and refused to provide information that [the Class] could use to track ID students.” Class Brief 52. As explained above, the lists containing identification numbers were sufficient. More importantly, as explained above, the parties agreed upon a process in 2005 consistent with FERPA26 such that Class counsel was provided with all information (including names) on ID students. That information was retroactive to 1998 and was updated annually. JA

3291. The Class omits this fact and leaves this Court with the impression that the State never provided names (and other information) to Class counsel. Additionally, the Class also fails to mention that they reached an agreement with the State on this issue. The district court made clear in its decision that he did not rule on such issues. See SA 22. And such an agreement arguably waives the Class’s ability to raise it at this time.

Even assuming the Agreement could be read to require the State to violate FERPA, such a provision would be void. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979)
26

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With respect to the reclassified students, in December 2007 (with almost three years remaining on the Agreement) the State shared all information on the reclassified students with Class counsel via the longitudinal database discussed above. And, of course, with respect to the reclassified students the court found on the basis of the evidence presented – contrary to the Class’s assertions – “that the Department’s efforts have extended and improved integrated placements for all students with ID and the plaintiffs have not shown that the reclassification rate provides a basis for a finding of substantial noncompliance.” 27 SA at 57-58. Ms. Thompson’s testimony alone that SDE continued to monitor and report on all special education students supports this finding. Supp A 231-233, 252. And, once again, in

rendering its decision the district court considered the reclassified students in its analysis of the State’s performance under the goals. See SA at 18 n.7. Similarly, the Class’s assertion that the State’s “noncompliance [with Section I] resulted in massive attrition of class members who were

It bears noting that this entire discussion by the district court occurred under the sub-heading entitled “The Record Shows that the State Met Its Commitments.” SA at 47.
27

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not monitored or accounted for during the life of the Agreement” is completely unsupported in the record. The record reflects the State conducted audits and monitoring of students that were being reclassified as districts were responding to the pressures from the State with regard to Goal #2 of the Agreement-disparate identification of ID students by race, ethnicity and gender. JA 218-219, JA 222, JA 316-321, JA 445-455A, JA 477-479. The Class provided no evidence

demonstrating such a sweeping statement of causation. The Class’s statement that the State “effectively prevented [the class] 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” has been oft repeated by class counsel and disputed by the State throughout the litigation. Class Brief at 54. It simply cannot stand given the

testimony at the evidentiary hearing that from at least December 2007 forward Class counsel “had all the information on class members that the State department had that you would need to look at the five goals of the Settlement Agreement and all the information that you would

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need to have a picture of what we now term reclassification over time of class members.” Supp A 250. Also, between September 30, 2002 and January 29, 2010 there are at least 76 instances of the State providing data to class counsel. Supp A at 205-214. The Class also argues that the State engaged in “wrongdoing by withholding information the Class needed to identify violations of class members’ rights and to fulfill their responsibility as class representatives.” Class Brief at 54. Perhaps what is at the root of this argument is the parties’ dispute over what the Agreement required. The Class believed that tracking was, apparently, required under the Agreement. Furthermore, that failure of the State to provide Class counsel with all information on all class members renders the state in substantial noncompliance. The State disagrees. The Agreement speaks to ID students systemically and does not account for Class counsels’ individualized desires. See Homeward Bound, 196 Fed. Appx. at 635 (defendants are in compliance with a “systemic” consent decree in a class action settlement so long as defendants “maintain a system that assesses and provides services in conformance with class members’ individual needs.”)

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Similarly, the Class refuses to acknowledge that under the Settlement Agreement in years five through eight the State was merely required to “cooperate with the [class’s] reasonable requests to provide existing data to enable [the class] to assess compliance.” JA at 5. And, again, during this time the State went above and beyond its duties under the Agreement and continued to provide Class counsel with data at no charge. Supp A at 205-214. From August 2007 through January 2010 data was provided to the class on over 22 separate occasions. JA 3373-3376. Such cooperation by the State completely refutes the allegations made by the Class. Specifically, even after the court’s determination that the Class was not entitled further discovery in the final three years the State agreed to provide the Class with sworn responses in an attempt to aid the data expert hired by the Class in understanding the longitudinal database. See JA at 2904 – 2926. And, yet, the Class’s data expert testified at the evidentiary hearing that she “did not recognize” the State’s sworn responses to her questions, which strongly indicates Class counsel did not share them with her. See Cross

Examination of Dr. Heather Hammer, pp. 216-18, Supp A at 216-218.

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Similarly, the court heard testimony that the State offered to “sit down with [the Class’s experts] and help them understand the [longitudinal] database” an offer the Class did not accept. See Testimony of Michael Smith, pp. 1490, lines 14-18, Supp A at 276. Suffice it to say, at all times during the Agreement the State worked tirelessly to accommodate the Class’s many requests despite a well-founded belief that fulfilling such requests was pulling state resources away from pursuing the goals of the Agreement. See, e.g., Supp A 205-214 (a ten page document listing all the data provided to plaintiffs); see also Supp. A 228-229. Furthermore, the district court heard evidence that this cooperation was one sided. Thompson testified: I can't say I ever felt that [plaintiffs and defendants] were partners. I always felt that we were striving to make a huge difference in the state and continually advance the cause, and I didn't feel that we were trying -- we were partnering in that and I had hoped that that would be more of where we were with things. I also thought we were being challenged rather than working together. Supp A 229. Emblematic of the lack of cooperation, Class counsel never shared the results of their expert site visits conducted in the spring of Anne Louise

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2007 despite the SDE’s expressed interest in them.28 JA 3296. Over the course of the Agreement Class counsel repeatedly asserted without any justification that the State didn’t embrace the goals of the Agreement. The district court did not err in finding otherwise. E. The District Court Did Not Err in Concluding that The Class Was Not Permitted Conventional Discovery in the Final Three Years of the Settlement Agreement

As noted above, in an interlocutory ruling the district court found that under the Agreement the Class was not entitled to formal discovery in the final three years. The State did provide Class counsel with sworn answers to interrogatories as well as data. The court’s ruling was based on the “Continuing Jurisdiction” section of the Agreement. The Agreement establishes two consecutive periods with respect to the jurisdiction of the district court: a first period lasting approximately five years and a second consecutive and contingent period lasting exactly three years. JA 4-5. The Agreement provides that during the first five years the district court shall have “jurisdiction…for enforcement of this

And, of course, the failure of Class counsel to share contemporaneously the findings with the State make any claims of concern regarding those findings ring hollow.
28

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Agreement.”

JA 4.

It can plausibly be argued that jurisdiction to

enforce includes the jurisdiction to compel discovery. Any other reading would seem unnecessarily narrow. But, the Agreement makes clear that the jurisdiction of the court “will” (not may) end after five years, the sole jurisdictional exception being that the district court would entertain jurisdiction over motions for substantial non-compliance. And the Agreement requires that during the final three years the State “shall cooperate with the [Class’s] reasonable requests to provide existing data to enable [the Class] to assess compliance during the fiveto-eight year period.” JA 5. The Class barely mentions the language of the Agreement in arguing that the district court erred on this point. But, any argument that the Class was entitled to limitless discovery during the final three years would render the last sentence of the above-quoted settlement language unnecessary. If the Class’s interpretation of the Agreement is correct, this entire sentence would be unnecessary because the Class would simply have normal discovery rights inherent in any litigation. The Settlement Agreement provides the Class not with a right to depose SDE employees or otherwise formulate legal theories but with a right to

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“existing data.” JA 5. Again, if the Agreement already provided the Class with the full panoply of discovery rights why would such a specific provision be necessary? It is a basic rule of contract interpretation that portions of a contract should not be construed so as to render them superfluous. See 11 Williston on Contracts, 4th Ed., § 32:5 (noting that contracts should not be interpreted to render a portion of the writing “superfluous[] . . . or inexplicable”). The Class’s apparent interpretation would render the final sentence of Section III(1) meaningless or inapplicable. Accordingly, it should be rejected. In fact, the only logical reason for that sentence is to provide the Class with a right to materials that they otherwise would not be entitled based on the language of the Agreement circumscribing jurisdiction. This is consistent with the rest of the paragraph which clearly seeks to phase out the relationship between the parties over the course of the eight years. Unquestionably, then, this sentence lends considerable weight to the State’s argument that in years five through eight the district court did not have the power to compel discovery. The Class also uses its discovery argument to protest the district court’s admission of to the “Progress/Data Report to the Expert

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Advisory Panel.” The district court denied the Class’s argument on this issue twice at the evidentiary hearing: once by denying the Class’s motion in limine and once when the State sought to admit the document as an exhibit. At times the Class’s argument appears to resemble an admissibility of evidence claim. For example, the Class claims in a footnote that the report was “inadmissible hearsay.” Class Brief 61 n.16. This Court reviews challenges to the admissibility of evidence “deferentially, reversing only for abuse of discretion.” United States v. Dupree, 706 F.3d 131, 135 (2d Cir. 2013). As noted by the district court, this document was properly admitted under a number of exceptions to the hearsay doctrine. SA 128-29. And it was not an abuse of discretion for the Court to admit it. With respect to the Class’s other arguments, even if the document (or a prior version of it) was privileged, well before the evidentiary hearing the document was made public pursuant to the court’s order to reconvene the EAP. The Court ruled that the EAP should be reconvened and that the State was to provide the EAP with “documents and data for the years 2006-2007 to the present and other updated information requested by the technical advisors.” Supp A 154, 155-156,

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157-159 (emphasis added) . Thus, even if the original report was inappropriately withheld – which it certainly was not – the materials sought by the State were shared with the Class some two months before the evidentiary hearing and pursuant to the court’s order. Accordingly, the Class was not unfairly prejudiced by any withholding of this document. Additionally, as noted by Judge Chatigny, the final EAP report that was ordered and considered by the Court utilized the State’s report and the Class did not challenge admission of the EAP report as an exhibit. 29 SA 128-29. Indeed, the Class filed a motion seeking that the EAP be reconvened. It was therefore not an abuse of discretion for the Court to admit it. On this point it is also necessary to point out the hypocrisy contained in the Class’s argument. The Class claims that they were “deprived . . . of the opportunity to conduct discovery into” some walkthrough assessments conducted by the State from 2006-2007 mentioned in the report. Class Brief 62. The Class argues that the district court It is also worth noting with respect to prejudice that Judge Chatigny stated that he was “not going to decide the case based on this report” and that the Class would have a chance to present argument about the various parts of the report. SA 129.
29

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improperly relied on this information instead of “information obtained through observations in over 100 school districts” conducted by the Class’s experts. Class Brief at 62. Yet, the Class’s reports – conducted years before the evidentiary hearing -- were never shared with the State until the evidentiary hearing. JA 3296; Supp A 219-220. It was neither an abuse of discretion nor error for the district court to find that this information – which did not come from a true sample of the state – did not support a finding of substantial noncompliance. SA 7-8. Moreover, while the “report” of the State did contain simple graphs and charts, the Class already possessed all the data from which the graphs and charts were created. Thus, at most, the Class was literally deprived of being told by State Defendants that two plus two equals four which they already knew. Supp A 234-238, 250. F. The State Did Not Improperly “Dismiss” the EAP and Under the Agreement the State’s Obligations Ran Only Five Years

As noted above, the State argued to the district court that its obligations under the Agreement ran for five years and, relatedly, that the EAP was not improperly “dismissed” in 2007. JA 3461. The Class disagreed. JA 3460-61. The district court agreed with the Class in two
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interlocutory rulings made prior to the evidentiary hearing and in its findings of fact and conclusions of law denying the Class’s motion for substantial noncompliance. JA 56. The court both assessed the State’s performance under the Agreement for approximately eight years and ruled that the State was required to maintain the EAP for the entire Agreement. The court found that that State “credibly maintains that it believed the Agreement permitted it to disband the EAP. The Court finds that the Department’s position, although mistaken, was reasonable in the circumstances and that the Department did not intend to terminate the EAP in violation of the Agreement.” SA 56. But, most importantly, the court found that the Class failed to show that more progress would have been made were it not for the termination of the EAP. SA 57. Instead, the court found “[t]he evidence shows that the Department continued to pursue the goals in the EAP’s absence.” SA 57. Respectfully, the district court erred in its finding that the state should be assessed based on its performance beyond August 12, 2007 and that the EAP was required to be maintained.

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The State’s view regarding the length of its obligations – which guides both issues – emanates from the “Continuing Jurisdiction” section of the Agreement. JA 4-5. That provision states that the

“jurisdiction of the Court for enforcement of this Agreement will end five (5) years from the empanelling of the [EAP].” added). JA 4 (emphasis

The only exception for enforcement of the Agreement is that

for a period of three years the Plaintiffs were permitted to bring a motion for substantial non-compliance. JA 4-5. This provision can’t be separated from the rest of the Agreement, particularly the five goals and the section on the EAP. JA 3-4; 11-13. The Agreement must be read as a whole. United States v. Local 1804-1, Int'l Longshoremen’s Ass’n, 44 F.3d 1091, 1097 (2d Cir. 1995)(“We are required, in interpreting a particular provision of a consent decree, to read that provision in light of the decree as a whole.”) The court’s

enforcement powers terminated with one exception five years from the empanelling of the EAP. It would not make sense for enforcement to end if there were ongoing obligations to enforce. Furthermore, the Agreement is abound with dates, none of which conflict with the State’s argument that its obligations continued for five

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years, not eight. Section III provides: “For a period of four (4) years after the effective date of the agreement, the Defendants shall prepare an annual written report….”; Section VII provides: “…Continuing through June 30, 2005, the CSDE will allocate funds to the Connecticut Parent Advocacy Center (CPAC) to conduct parent training…”; Section IX provides that the EAP has five years to: refer issues to the Court that cannot be resolved; receive the annual reports (see supra) and provide annual written comment to the Court, the Class and the State; and review annually and make recommendations relating to … parent training. JA 5, 11-13. With respect to the last provision, Section IX simply does not provide a role for the EAP in the final three years. The Class argues that the EAP was improperly dismissed and that the “discharge had significant consequences for implementation and continued improvement of state performance.” Class Brief at 55.

In support of this sweeping assertion the Class misrepresents the answer given by SDE employee Brian Cunnane at his deposition. In fact, in the pages cited by the Class Mr. Cunnane stated that SDE made clear to the local school districts that the five year anniversary of the empanelling of the EAP was irrelevant. JA 2729 (“so we were right

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around the period of time that the districts were thinking PJ was over, and we were saying, ‘No, it isn't over. We're going to continually

monitor you.’”) And throughout the evidentiary hearing SDE employees repeatedly testified that the State continued to monitor local school districts and the State remained committed to the PJ goals. JA-1310, JA-1323, JA 1778. The district court specifically found “that the Department continued to pursue the goals in the EAP’s absence.” SA 57. This finding was not an abuse of discretion. The Class also fails to demonstrate that the end of the EAP had a causal relationship with progress, let alone “significant consequences.” The State continued to make progress (e.g., Goal 1-Regular Class Placement. JA 3299. Goal 3-Time with Nondisabled Peers. JA 3314). The State continued to monitor the home school and extracurricular goals of the Agreement, with districts’ improvement plans including actions to address these. JA 1130. Notwithstanding the State’s arguments concerning its obligations in the final three years of the Agreement, it cannot be said that the court erred in finding that the Class failed to demonstrate that more

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progress would have been made “if not for the termination of the EAP.” SA 57. CONCLUSION For the foregoing reasons the decision of the district court denying the Class’s motion for substantial noncompliance should be AFFIRMED. Respectfully submitted, DEFENDANTS-APPELLEES STATE OF CONNECTICUT ET AL GEORGE JEPSEN ATTORNEY GENERAL By: /s/ Darren P. Cunningham Assistant Attorney General Federal Bar No. ct25380 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel: 860.808.5318 Fac: 860.808.5347 darren.cunningham@ct.gov

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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 18,333 words and complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), as amended by Order dated July 11, 2013 [ECF No. 164] granting Appellees permission to file an oversized brief not to exceed 19,000 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 Appellees’ brief has been prepared in a proportionally spaced Century Schoolbook, 14 point, using Microsoft Word 2010.

/s/ Darren P. Cunningham, Esq. Attorney for Defendants-Appellees July 12, 2013

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CERTIFICATION OF SERVICE I hereby certify that true and accurate copies of the foregoing brief were served by first class mail, postage prepaid, by Brescia’s Printing Service in accordance with Rule 25 of the Federal Rules of Appellate Procedure on this 12th day of July, 2013, to the Clerk of this Court and the following counsel of record: David C. Shaw, Esq. The Law Offices of David C. Shaw, LLC 34 Jerome Ave., Suite 210 Bloomfield, CT 06002 Tel. 860-242-1238 Fac. 860-242-1507 dcshaw@dcshawatty.com Frank J. Laski, Esq. Mental Health Legal Advisors Committee 399 Washington St., 4th Floor Boston, MA 02108 Tel. 617-338-2345 Fac. 617-338-2347 /s/ Darren P. Cunningham, Esq. Attorney for Defendants-Appellees

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