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10-3586 - CV To Be Argued By: DARREN P. CUNNINGHAM Assistant Attorney General IN THE United States Court of Appeals FOR THE SECOND CIRCUIT P.J., By & Through His Parents & Next Friends Mr. & Mrs. W.J., L.G., By & Through Her Parents & Next Friends Mr. & Mrs. L.G., M.L., By & Through Parents & Next Friends Mr. & Mrs. J.L., Plaintiffs-Appellants, Ian Ian Katz, By and Through His Parents and Next Friends Mr. & Mrs. Mark Katz, Connecticut Association for Retarded Citizens, Inc., Coalition for Inclusive Education, Connecticut Coalition of Citizens with Disabilities, People First, Inc., Intervenors-Plaintiffs-Appellants, v. CT Board of Ed., Education, Dept of, Tirozzi, Gerald, Comm., Defendants-Appellees, Regional School District 15, Board of Education, Regional School District No. 15, Board of Education, Consolidated Defendant, West Hartford Board of Education, Windham Board of Education, Stamford Board of Education, Wethersfield Board of Education, Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT 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 Case: 10-3586 Document: 165 Page: 1 07/12/2013 988664 100
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Connecticut Response to P.J. Appeal

Jan 02, 2016

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Page 1: Connecticut Response  to P.J. Appeal

10-3586-CVTo Be Argued By:

DARREN P. CUNNINGHAMAssistant Attorney General

IN THE

United States Court of AppealsFOR 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 COURTFOR THE DISTRICT OF CONNECTICUT

BRIEF OF DEFENDANTS-APPELLEES

GEORGE JEPSENATTORNEY GENERAL DARREN P. CUNNINGHAMAssistant Attorney General55 Elm Street, P.O. Box 120Hartford, CT 06141-0120Tel. (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 1 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 3429-

3434. Thereafter – and before the court issued any decision – the

parties engaged in extensive settlement negotiations that concluded in 2 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 non-disabled 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, 2007-

August 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

3 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

4 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) 5 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.

6 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.

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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.

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

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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 322-

23. 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

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

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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 110-

111. 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

9 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).

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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.

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

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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

order11 – 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

11 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 3458-59. 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.

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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.

12 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.

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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

13 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.

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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, 225-

227.

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 14 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.

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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 prism15 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.

15 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.”)

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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 decree16 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.

16 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).

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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

17 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.”) 18 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 non- compliance. JA at 4-5.

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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

19 The court itself referred to “[t]he Agreement’s substantial compliance standard.” SA at 36. 20 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.”

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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 non-

compliance 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

21 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

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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.

22 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.

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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 23 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)).

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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 school-

sponsored 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 25 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.

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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 445-

455. 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 254-

255.

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 non-

disabled 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.

26 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)

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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

27 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.

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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. Anne Louise

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

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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

28 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.

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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 five-

to-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 walk-

through assessments conducted by the State from 2006-2007 mentioned

in the report. Class Brief 62. The Class argues that the district court 29 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.

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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].” JA 4 (emphasis

added). 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 [email protected]

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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 [email protected] 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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