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
Case: 10-3586 Document: 165 Page: 100 07/12/2013 988664 100