D. Conn.: P.J., et al. v.... | Special Education Law

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

P.J., et al., :

Plaintiffs, :

V . : Case No. 2:91-CV-180(RNC)

STATE OF CONNECTICUT, et al., :

Defendants. :

MEMORANDUM

In 1991, this litigation, known as "the PJ case," was

initiated under the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. § 1400 et seq., on behalf of Connecticut

students with intellectual disabilities ("ID") against the

Connecticut State Board of Education, the State Commissioner of

Education and a number of local school districts. The plaintiffs

alleged that the State’s “hands-off” policy with regard to

placement decisions made by local school districts responsible

for educating children with intellectual disabilities resulted in

segregated placements of the plaintiffs in violation of the IDEA,

which requires states to ensure that, “to the maximum extent

appropriate,” students with disabilities are educated with their

nondisabled peers. 20 U.S.C. § 1412(a)(5)(A). In December 1993,

the case was certified as a class action. C.A.R.C. v. State of

Connecticut Board of Education, 2:91-CV-180(JAC), Ruling On

Motion to Reconsider Denial of Motion for Class Certification,

slip op. at 6 (D. Conn. Dec. 13, 1993).

In 2000, after a number of claims had been resolved, a bench

trial was conducted. The focus of the trial was the plaintiffs’

claim that the Connecticut State Department of Education ("the

Department" of “CSDE”) was allowing local districts to illegally

segregate students with intellectual disabilities solely on the

basis of their disability classification instead of ensuring that

the districts’ placement decisions took account of each student's

individual needs and abilities. Following the trial, the parties

entered into settlement negotiations before any findings were

made as to liability. As a result of the negotiations, the

parties reached a Settlement Agreement (“the Agreement” or "SA"),

which was approved by the Court on May 22, 2002.

As the Agreement itself states, the defendants continued to

deny the plaintiffs' allegations and admitted no liability. See

SA at 2. However, both sides wanted a resolution of the case

that was consistent with the requirements of the IDEA and its

implementing regulations. Id. To that end, 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 PJ goals"). 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 plaintiffs and the Court with information necessary

to enforce the Agreement. In addition, the Agreement provided

for the creation of an Expert Advisory Panel ("EAP") to advise

the parties and the Court regarding issues relating to

implementation.

In entering into the Agreement, the State submitted to the

Court’s jurisdiction for a period of approximately eight years.1

The parties agreed that the Court could act sua sponte to enforce

any provision of the Agreement during the first five years. The

Agreement also provided, however, that the Court would be able to

take enforcement action in the final three years only in the

event of a showing by the plaintiffs of the defendants'

substantial noncompliance.

The first five years passed without the Court exercising

enforcement authority.2 On April 16, 2008, approximately one

year after the conclusion of the initial five-year period, the

plaintiffs filed a motion alleging substantial noncompliance.

The motion was denied without prejudice based on indications that

1 The parties agree that the eight-year period ended on August 12, 2010. 2 The plaintiffs brought a number of motions alleging interference with their right to obtain data but those issues were resolved by agreement.

the parties might be able to resolve their differences, but no

agreement was reached and the motion was re-filed on April 15,

2009. After a period of discovery, an evidentiary hearing was

held in June 2010. Numerous witnesses testified and voluminous

exhibits were admitted into the record. Following the

evidentiary hearing, the plaintiffs’ motion for substantial

noncompliance was denied. This memorandum provides a statement

of reasons for that ruling.

I. Summary

The parties agree that the touchstone of the substantial

noncompliance inquiry is whether any noncompliance frustrated the

Agreement's essential purposes. The Agreement's essential

purposes are found in § II of the Agreement, entitled "Goals and

Outcomes." Comparison of data from the 2002-2003 school year

with data from the 2009-2010 school year demonstrates that

significant progress was made toward each goal. Indeed, as a

result of actions taken by the Department following approval of

the Agreement, in 2008 Connecticut ranked second in the nation in

terms of the percentage of students with the ID label who were

placed in regular classes.3 The Department urges that the

3 Forty-three states reported data for 2008. Iowa ranked first among the forty-three, with just over sixty percent of students with ID in regular class placements. Connecticut was just under fifty percent, a number that grew to 50.7% during the 2009-2010 school year.

State's impressive ranking shows that the goals of the Agreement

were met, if not surpassed.

The plaintiffs disagree. They submit that a finding of

substantial noncompliance is warranted because the Department

failed to make sufficient progress toward the goals. Central to

the plaintiffs' position is a claim that the Agreement required

the State to take measures to provide class members with

meaningful access to the general curriculum rather than just more

time in regular classes. The State failed to substantially

comply with this obligation, the plaintiffs contend, because site

visits revealed that students with intellectual disabilities in

integrated placements were excluded from the general curriculum,

cut-off from the rest of the class, or educated exclusively by

paraprofessionals.4 The plaintiffs urge that the State was

required to do more to ensure students would have meaningful

access to the general curriculum, for example, by giving general

education teachers more job-embedded assistance.

The evidence presented by the plaintiffs concerning the

results of their site visits, although troubling, is insufficient

to support a finding of substantial noncompliance. The essential

purposes of the Agreement involved increasing integrated

4 The plaintiffs collected this evidence by conducting eighty- four site visits in twenty-four schools that had been targeted by the defendants for focused monitoring.

placements for class members, rather than providing meaningful

access to the general curriculum. And although more job-embedded

assistance likely would have produced more progress toward the

goals in the Agreement, the Agreement did not require the State

to provide such assistance.

The plaintiffs' allegations of substantial noncompliance are

not without some support in the record. The plaintiffs' have

shown 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 Agreement. Moreover, while the State's own data show that

progress toward the goals slowed after 2007, it is undisputed

that the State continued to make good faith efforts to pursue the

goals in the face of recalcitrant districts and budget

constraints. Accordingly, a finding of substantial noncompliance

is unwarranted.

II. The IDEA

To understand the issues presented by the plaintiffs' motion

it is necessary at the outset to review the IDEA in some detail.

"Congress enacted the IDEA 'to ensure that all children with

disabilities have available to them a free appropriate public

education . . . designed to meet their unique needs . . . [and]

to ensure that the rights of children with disabilities and

parents of such children are protected.' 20 U.S.C. §

1400(d)(1)(A)-(B)." M.H. v. New York City Dept. Of Educ., ___

F.3d ___, 2012 WL 2477649,*1 (2d Cir. June 29, 2012). "The IDEA

offers federal funds to states that develop plans to assure 'all

children with disabilities' [residing in the state] a 'free

appropriate public education.' 20 U.S.C. § 1412(a)(1)(A)." Grim

v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

State education agencies (“SEAs), like the Department, are

responsible for carrying out the mandates of the IDEA.

"To meet [the IDEA's] requirements, a school district's

program must provide 'special education and related services[,]'

[20 U.S.C. § 1401(9)], tailored to meet the unique needs of a

particular child, and be reasonably calculated to enable the

child to receive educational benefits." Gagliardi v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)(internal

quotation marks omitted). The IDEA requires states to provide

disabled students with “appropriate education” in “the least

restrictive environment.” 20 U.S.C. § 1412(a)(1), (5). This

means that a child must not be placed in “special classes,

separate schooling,” or otherwise removed from the regular

educational environment unless “the nature or severity” of the

child’s disability “is such that education in regular classes

with the use of supplementary aids and services cannot be

achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).

State education agencies have a responsibility to take

action to protect the right of students with disabilities to

receive appropriate education in the least restrictive

environment as mandated by the IDEA. However, it is not up to

the defendants to decide where students with disabilities will be

served during the school day. Under the IDEA, decisions

concerning the setting in which a child will receive special

education and other services must be made at the local level in

accordance with an individualized education program ("IEP"),

which school districts are required to develop and implement each

year for every student with a disability. 20 U.S.C. § 1414(d)).

"The IEP is '[t]he centerpiece of the IDEA's educational

delivery system.'" M.H., 2012 WL 2477649,*1 (quoting D.D. ex

rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507 (2d Cir.

2006). It is a written statement that "sets out the child's

present educational performance, establishes annual and short-

term objectives for improvements in that performance, and

describes the specially designed instruction and services that

will enable the child to meet those objectives." D.D. ex rel

V.D., 465 F.3d 503, 507-08 (2d Cir. 2006). The IEP must be

written by a team of people familiar with the student, known in

Connecticut as the Planning and Placement Team (“PPT”), who must

follow certain procedures in developing the IEP. PPTs must

include the student’s parents, a general education teacher, a

special education teacher, and a representative from the Local

Education Authority (“LEA”) responsible for educating the student

(usually the local school district). 20 U.S.C. § 1414(d)(1)(B).

In crafting the IEP, the PPT must consider the strengths of

the child, the concerns of the parents, the results of the most

recent evaluation of the child’s disability status, and the

academic, developmental and functional needs of the child. 20

U.S.C. § 1414(d)(3)(A). The IEP must protect the substantive

guarantees of the IDEA by being reasonably calculated to provide

meaningful educational benefits to the student in a placement

that is integrated with nondisabled students to the maximum

extent appropriate. Newington Board of Education, 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.” Id.

If a student is not satisfied with his or her IEP, the

student has a right to appeal to a hearing officer. Hearing

officer decisions may be challenged in court. Courts reviewing

hearing officer decisions must be careful not to “substitute

their own notions of educational policy for those of the school

authorities they review.” Newington Board of Education, 546 F.

3d at 118. "To the contrary, federal courts reviewing

administrative decisions must give 'due weight' to these

proceedings, mindful that the judiciary generally 'lacks the

specialized knowledge and experience necessary to resolve

persistent and difficult questions of educational policy.'"

Gagliardo, 489 F.3d at 113 (quoting Board of Educ. of Hendrick

Hudson Central School v. Rowley, 458 U.S. 176, 206 1982).5

The IDEA provides for state level activities to help remove

impediments to regular class placements for students with

intellectual disabilities without trampling on the individualized

nature of the IEP protocol. SEAs can provide technical

assistance that teaches LEAs how to better meet the educational

needs of students with intellectual disabilities in the regular

classroom. And they must monitor LEAs to ensure that IDEA funds

are appropriately used to enlarge the LEAs’ capacity for

educating students with intellectual disabilities in the regular

5 Although the Court is not presently reviewing individual placement decisions, deference may be even more appropriate here because the Court is reviewing state-level activities without reference to their impact on individual students, placing the issues farther afield from those traditionally encountered in cases arising under the IDEA.

classroom. SEAs also can help educate parents about resources

available to improve disabled students’ access to the regular

clasroom and teach them how to advocate for regular class

placements in PPT meetings. In addition, SEAs are obligated to

provide a number of forums for seeking relief from adverse IEP

determinations, including a due process hearing before a neutral

officer.

The U.S. Secretary of Education monitors states’ compliance

with their obligations under the IDEA. 20 U.S.C. § 1416(a)(1).

The primary focus of the Secretary’s monitoring is on improving

educational results and functional outcomes for all students with

disabilities. 20 U.S.C. § 1416(a)(2). States are required to

collect information to report annually to the Secretary on

priority areas. 20 U.S.C. § 1416(b)(2). States are forbidden

from reporting any information on performance that would result

in disclosure of personally identifiable information about

individual children. Id.

The Secretary is required to review information provided by

a state to determine whether the state meets requirements, needs

assistance, needs intervention or needs substantial intervention.

Each determination is linked to specific enforcement actions. If

the Secretary determines, for two consecutive years, that a state

needs assistance, the secretary must take at least one of the

following actions: advise the state of available technical

assistance; direct the State to use funds to address certain

deficiencies; or impose condition’s on the State’s grant. 20

U.S.C. § 1416(e)(1). If the Secretary determines, for three or

more consecutive years, that a state needs intervention, the

Secretary may take additional action, which may include

withholding funds after providing the state with notice and an

opportunity for a hearing or referring the matter to the

Department of Justice. 20 U.S.C. § 1416(e).

III. The Settlement Agreement and the Defendants’ Performance

This section provides an overview of the provisions of the

Settlement Agreement and the defendants’ performance.

-Class Membership/Plaintiffs' Right to Information (Section I)

The Agreement required the defendants 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.” SA at 3 (§ I.1) The Agreement gave the

plaintiffs “a right to collect data relating to [the students

thus identified] and to challenge the adequacy of that list.”

Id. It also obligated the Department to grant the plaintiffs

“access to data and files relating to class members, to the

extent allowed by state and federal statute, for all purposes

relating to the enforcement and implementation of this

Agreement." Id.

Pursuant to this section of the Agreement, the Department

initially provided the plaintiffs with a paper list of non-unique

composite identifiers corresponding to students labeled ID at the

time the list was promulgated. The plaintiffs objected that the

lists were insufficient for purposes of enforcement and

implementation of the Agreement because the plaintiffs were

unable to monitor the performance of LEAs. The Department

responded that it could not provide better information without

running afoul of FERPA. In due course, the plaintiffs filed a

motion for relief. In November 2005, following a hearing before

Magistrate Judge Martinez, the defendants agreed to disclose

identifying information in a manner consistent with FERPA by

providing students labeled “ID” with an opportunity to opt out of

the disclosure. In January 2007, the State provided the

plaintiffs with a longitudinal database that enabled the

plaintiffs to more effectively and efficiently evaluate the data.

However, they did not provide a list of all class members leading

to another hearing before Magistrate Judge Martinez in December

2007. Following that hearing, the defendants disclosed

identifying information and data relating to all class members

after providing an opportunity for the class members not

currently labeled ID to opt out.

-Expert Advisory Panel (Section IV)

The Agreement provided that the “defendants shall establish

an Expert Advisory Panel to advise the parties and the Court

regarding the implementation of this Agreement.” The EAP was to

consist of four members, with each party nominating two members,

but with both parties agreeing to all four. The EAP was directed

to "advise and serve as a resource to [the Department] with

respect to implementation of all aspects of [the Agreement]

including the design and conduct of technical assistance,

training and monitoring of LEAs." SA at 11. The Agreement

provided that "All advice and recommendations of the [EAP] shall

be made by consensus and represent the collective judgment of the

Panel as a whole. The [Department] will not be bound by either

the individual or collective advice of the EAP." Id. at 12. In

furtherance of this advisory role, the EAP was directed to

identify difficulties in compliance, facilitate resolution of

compliance issues without court intervention, and refer to the

court any issues that could not be resolved by agreement. The

Panel also was directed to “review annually and make

recommendations relating to progress towards the goals stated in

Section II, development of statewide technical assistance,

targeted monitoring, complaint resolution, parent training, and

next steps.” Finally, the Panel was directed to “[c]ollect and

analyze data it deems necessary relating to class members and the

implementation of this agreement.” The State was required to

convene the Panel within ninety days and the Panel was expected

to meet at least three times per year.

The defendants established the EAP as required by the

Agreement and the EAP carried out its specified role until May

2007, when it was discharged by the defendants. The EAP issued

recommendations as contemplated by the Agreement, including

benchmarks regarding the goals in the Agreement.

Goals and Outcomes (Section II)

The Agreement obligated the defendants to "commit to

achieving" progress toward "five main overall goals" representing

a more inclusive system of public education. See SA at 3-4. The

five goals were to: 1) increase the percentage of students

spending 80% of the school day with non-disabled peers,6 2)

reduce disproportionately high rates at which certain discrete

groups were classified as intellectually disabled, 3) increase

the mean and median percentage of the school day students with

intellectual disability were spending with nondisabled peers, 4)

6 A student is considered to be with nondisabled peers when 50% or more of the other students in the setting are not disabled and are of similar age.

increase the percentage of students with intellectual disability

attending the school they would attend if they were not disabled

(their “home school”), and 5) increase the percentage of students

participating in extracurricular activities with nondisabled

peers. Id.

It is undisputed that the State met the second goal

concerning classification practices having a disparate impact on

some groups. With regard to the other goals, the record shows

the following:7

Goal One: Increase the percentage of students with

intellectual disabilities placed in regular classes:

In 2002-2003, 13.6% of students with ID were in regular

class placements. In 2009-2010, 48.2% were in regular class

placements. The percentage of students in regular class

placements increased every year during the eight-year term of the

Agreement. The greatest increase was between the 2004-2005

school year and the 2005-2006 school year, when the percentage

of students in regular classes increased 60.7% from 20.6% to

33.1%. The smallest increase was between the 2008-2009 school

year and the 2009-2010 school year, when the percentage of

7 The figures set forth in the text represent all students who were classified as ID at any point during the relevant period, including students who were reclassified to other disability categories.

students in regular classes increased 1.7% from 47.4% to 48.2%.

There were increases of greater than ten percent every year with

the following exceptions: between 2000-2001 and 2001-2002 (5%),

2001-2002 and 2002-2003 (7.9%), 2007-2008 and 2008-2009 (2.6%)

and 2008-2009 and 2009-2010 (1.7%).8

Goal Three: Increase the mean and median percentage of the

school day students with intellectual disability spend with

nondisabled students:

In 2002-2003, the mean percent of the school day students

with ID spent with nondisabled peers was 38.9%. In 2009-2010 it

was 67.9%. The mean time increased every year except between

2008-2009 and 2009-2010, when it dropped 0.1% from 68% to 67.9%.

The greatest increase was between the 2004-2005 school year and

the 2005-2006 school year, when the mean time increased 17.8%

from 51% to 60.1%.9

In 2002-2003, the median percent of the school day students

with ID spent with nondisabled peers was 34.4%. In 2009-2010, it

was 77.6%. The median time increased every year. The greatest

increase was between the 2004-2005 school year and the 2005-2006

8 The EAP recommended the following targets or benchmarks for this goal: 40% placement by 2005 and 80% by 2007. 9 The EAP benchmark for mean time with nondisabled peers was 75%.

school year, when the mean time increased 28% from 51.4% to

65.8%.10

Goal Four: Increase the percentage of students with

intellectual disability who attend their home school:

In 2002-2003, 70.8% of students with ID were placed in their

home school. In 2009-2010, 80.9% of ID students were placed in

their home school. Progress was made every year except

2002-2003, when it dropped 0.2% from 71% in 2001-2002, and

2009-2010, when it dropped 1.9% from 82.5%. The largest gain in

home school placement was between 2004-2005 and 2005-2006, when

it rose 7.9% from 75.4% to 81.4%.

Goal Five: Increase the percentage of students with mental

retardation or intellectual disability who participate in

school-sponsored extra curricular activities with non-disabled

students:

In 2002-2003, 19.4% of students with ID participated in

school-sponsored extracurricular activities with nondisabled

students. In 2009-2010, the participation rate was 44.4%.

Progress was made every year except 2007-2008, when the rate

dropped 1.9% to 44.2% from 45% in 2006-2007, and 2008-2009, when

it dropped another 1% to 43.7%. The largest gain was between

10 The EAP did not set a benchmark for median time with nondisabled peers.

2003-2003 and 2003-2004, when it rose 28.6% from 20.1% to

25.8%.11

-Annual Reports/Court Oversight (Section III)

The defendants were obliged to produce four annual reports

detailing the Department’s “activities related to the five goals

and implementation of the agreement for the prior school year,”

including “all statewide and district-by-district data related to

class members” and documenting “progress on each stated goal.”

The defendants produced four annual reports and the plaintiffs do

not allege any deficiency in the defendants’ compliance with this

provision.

The defendants also were obliged to submit to the

jurisdiction of the court for a period of eight years. As

discussed above, the Agreement provided that during the first

five years (through August 15, 2007), the Court could take

enforcement action on its own, but during the last three years

(through August 15, 2010), the Court’s enforcement authority was

contingent on a showing by the plaintiffs of substantial

noncompliance. The Court did not issue any orders to enforce the

terms of the Agreement during the first five years, although the

11 The EAP benchmark was that the percentage of participating ID students should equal or exceed the percentage of all participating students. The record does not show the level of participation of all students.

Court did hear arguments on motions regarding the plaintiff’s

right to receive information, which were ultimately resolved by

agreement.

-Policy Statements (Section IV)

The Agreement required the Department to issue policy

statements to LEAs affirming: (1) the right of each student with

disabilities to be educated with nondisabled children to the

maximum extent appropriate and (2) the requirement that PPTs

consider the placement of children with ID in the regular

classroom with supplementary aids and services. The Department

issued a number of policy statements emphasizing the requirement

that each student receive an individualized placement

determination and notifying districts that they would be held

accountable for progress toward the goals of the Agreement.

There is no dispute that the Department satisfied its

obligations under this section of the Agreement.

-Program Compliance Review (Monitoring)(Section V)

The Agreement required the Department to establish "a

targeted, data-based monitoring system to facilitate continuous

improvement in each of the stated goals." SA at 7 (§ V(1)). The

Department was directed "to collect, analyze, and use

quantitative and qualitative information and data to identify

problems and provide consistent feedback to all LEAs on their

performance in achieving the five stated goals." Id. The

Department was required to "monitor the participation and

progress of students . . . in the general curriculum, use of out-

of-district placements, and use of, in [the Department's]

judgment, promising practices with respect to the education of

class members with non-disabled students." Id. (V(2)). The

Agreement required the Department to focus on districts found

deficient and identify and provide solutions for their failure to

make progress. § V(3). The Department also was required to take

specific steps to closely monitor districts identified as being

"most in need" of assistance, starting with approximately eight

to twelve such districts. Id. § V(4).

The defendants began their monitoring efforts in the 2002-

2003 school year. They established three different levels of

monitoring: general monitoring applicable to every LEA, focused

monitoring of the LEAs in a geographical region, and “ID focused

monitoring” of eight districts identified as being “most in

need.”

The general monitoring program required each district to

submit data regarding progress toward the five goals in the

Agreement. Prior to the Agreement, LEAs submitted annual data

for all students with disabilities. After the Agreement, LEAs

were also required to report separately on students with

intellectual disabilities and their progress toward the five

goals in the Agreement.

As a result of the general monitoring, thirty-four districts

were notified that action was necessary to correct over-

identification of intellectually disabled students by race and

ethnicity. Six of these were required to develop action plans,

invited to attend a summit on disproportionate identification and

were provided with technical assistance to reduce over-

identification. In addition, sixteen districts were notified

that their data fell below state averages relating to at least

three of the four remaining goals, were required to submit action

plans for each deficient element, were provided with technical

assistance regarding the development of action plans and were

provided with information about grant opportunities.

The Department also implemented a “program review system-ID

specific.” This system was designed to review all the districts

in one of the State's six geographical regions every year so that

the districts in each region would be subjected to focused

monitoring at least once every six years. The program review

system was already in place to monitor data regarding all

students with disabilities, but the ID specific component was

implemented to address the requirements of the Agreement.

The “ACES” region, comprised of twenty-six districts, was

selected for focused monitoring during the 2002-2003 school year.

Each district in the region was required to conduct a self-

assessment of progress toward the five goals and develop an

improvement plan. The data for each of the twenty-six districts

were subjected to a desk audit. As a result of deficiencies

identified in the audits, twelve districts were selected for site

visits and three additional districts were selected at random for

site visits. The site visits included file reviews, interviews

of students and staff, school tours and class observations.

The defendants worked on a protocol to use for all site

visits. The protocol was designed to collect qualitative data

relevant to the Agreement. In 2002-2003, the protocol required

persons conducting site visits to focus on progress and

participation of students with ID in the general curriculum, use

of out-of-district placements, use of promising practices, and

use of supplementary aids and services. The tools developed to

collect this information were disseminated to all districts for

self-assessment purposes and formed the basis for a walkthrough

protocol subsequently used to collect qualitative data from all

districts.

The eight districts initially identified as being most in

need of assistance were subjected to “ID focused monitoring.” ID

focused monitoring was implemented by the ID focused monitoring

group. It was the most comprehensive monitoring program

administered by the defendants to oversee school districts’

treatment of students with intellectual disabilities. In the

2002-2003 school year, the program proceeded in two phases. In

phase one, a consultant from the Department visited each of the

eight districts to gather information from interviews with

faculty and staff and each of the eight districts was required to

submit an action plan. In phase two, the ID focused monitoring

group conducted file reviews and interviewed staff members to

verify the data reported in the districts’ annual reports and

then revised the districts’ action plans to address data accuracy

issues. The ID Focused Monitoring Group also worked with the

local districts to set reasonable targets for each of the five

goals in the Agreement.

During the 2003-2004 school year, the defendants continued

with each of the monitoring systems put in place the previous

year. The general monitoring was bolstered to require each

district to attest in writing to the development of an action

plan related to the goals. The program review process was

updated so all districts would be considered for focused

monitoring on an annual basis. Every district was notified of

the change and provided with a copy of the review protocols used

in the site visits. The sixteen problem districts identified in

the prior year’s annual review were placed in the ID Focused

monitoring program originally designed for the eight districts

most in need for a total of twenty-four heavily monitored

districts. These districts were subjected to site visits and

required to develop action plans and participate in mid-year

reviews on top of the regularly scheduled annual reviews.

Twenty-three of the twenty-four were approved for grants to

increase their regular class placement opportunities for students

with ID.

During the 2004-2005 school year, the defendants continued

to review the annual reports on data relating to the five goals

and notify districts of areas of concern. The program review

system was modified to focus primarily on the goals of increasing

mean time with nondisabled peers and reducing the disparate

identification of students with ID by race and ethnicity. The

defendants began publishing color-coded state maps that assigned

each district a color corresponding to how much progress it was

making with respect to these two goals. In addition, all the

rural districts with fewer than twenty students with intellectual

disabilities and seven other districts were added to the group of

heavily monitored districts, including the eight most in need.

These districts were required to develop action plans for

progress toward the goals and were given grants to implement

those plans. Some of the heavily monitored districts were

selected for site visits. The Department also began conducting

audits of the annual reports.

During the 2005-2006 school year, the defendants continued

with the general monitoring of districts’ annual reports. They

also replaced the program review system with a new monitoring

protocol called the "PJ Settlement Determination system." The

new system used data on regular class placement and mean time

with nondisabled peers to organize all districts into one of six

categories: meets requirements, needs assistance 1, needs

assistance 2, needs intervention 1, needs intervention 2, and

needs substantial intervention. The criteria for each category

related to a district's progress toward statewide targets for

regular class placement and time with nondisabled peers. A

determination that a district belonged in any of the categories

other than “meets requirements” triggered the applicability of

certain enforcement procedures, ranging from a requirement that a

district submit an improvement plans for progress on all five

goals to a requirement that a district submit to site visits and

report triennially on progress toward the five goals.

During the 2006-2007 school year, the defendants continued

with the general monitoring of districts’ annual reports. As a

result of the PJ Determination system, forty-three districts were

required to report triennially on their progress toward the

goals, craft annual improvement plans and self-assessments,

report on their involvement with the technical assistance

programs offered by the Department, and submit to site visits.

Beginning in the 2007-2008 school year, the defendants

subjected all 129 districts with fewer than twenty students with

ID to targeted monitoring. The defendants also completed the

walkthrough program. As a result of their findings, they

undertook to devise a program to address inadequacies in the use

of paraprofessionals. The defendants also continued with the

general monitoring of annual reports and the PJ determination

system through the 2009-2010 school year.

In a 2005 Report, the EAP commended the defendants'

targeted monitoring, noting that many of the targeted districts

were making progress. The EAP recommended instituting a triage,

whereby the fourteen worst districts would be pressed hard, the

best districts would be largely left alone aside from their

annual reporting requirements, and the districts in the middle

would be encouraged to improve. The EAP recommended focusing

primarily on the regular class placement goal and also looking

for major discrepancies relative to the other goals. See EAP

2005 report at 9. The Department acted in accordance with these

recommendations.

In a 2007 Report, the EAP again commended the defendants'

monitoring efforts: “The CSDE has developed and refined an on-

site monitoring process related to PJ that has reinforced both

the goals of PJ and compliance with state and federal law. This

targeted monitoring has been a valuable tool for leveraging

change towards the EAP Targets of PJ.” EAP 2007 Report at 8.

-Technical Assistance (Section VI)

"To support full implementation of [the] IDEA" and "fully

implement [the] Agreement," the Department was required to

"design and implement a system of technical assistance" to

"enable" districts to "extend and improve education in regular

classes for students with . . . intellectual disability." SA at

9 (§ VI.I.1). The Department was required to provide "a

sufficient number of qualified specialists to assist LEAs in

carrying out their training, supervision and support

responsibilities." Id. (§ VI.I.2). In addition, The State

Commissioner of Education was required to designate a staff

person to "design, implement and coordinate all efforts under

[the Agreement],including technical assistance." Id. The

Agreement provided that the designated person would be

"responsible for the good faith efforts of the [Department] in

meeting the five stated goals set forth Section II" and would

also serve "as the liaison to the [EAP]." Id.

–-Technical Assistance Programs

To meet its obligations to provide districts with technical

assistance, the Department used the Star program, the Coaches

Academy and the State Education Resource Center ("SERC"). The

Star program and the Coaches Academy were administered by the

University of Connecticut and funded by a grant from the

defendants. SERC is a state-funded, non-profit provider of

technical assistance for the education of all students with

disabilities.

The Star program operated from the 2005-2006 school year

until the 2007-2008 school year. The program provided technical

assistance regarding the education of individual students with ID

in the regular classroom. It addressed the needs of

approximately 54 students per year. The STAR program included

observing the child's school, reading his IEP, interviewing the

child, his family, and educators, bringing the PPT together,

identifying problems, and agreeing on an action plan. Once the

action plan was delivered to the LEA, STAR's involvement usually

ceased. The EAP commended the defendants on the STAR program.

The Coaches Academy operated for the same time period as the

Star program. Its mission was to help transform general

educators with mainstreaming skills into coaches to work with

general educators who lacked such skills. Schools were not

required to send teachers to the Academy, but they were strongly

encouraged to do so. The program was attended by over 355

employees from 54 school districts, two-thirds of them teachers.

The training focused on use of supplementary aids and services

and promising practices, including cooperative learning,

differential instruction and collaborative learning. Many of the

teachers who attended lacked the foundational knowledge to be

brought up to the level of competence necessary to coach other

educators. But these teachers were provided with valuable

skills. The EAP commended the defendants on the Coaches Academy.

SERC was the primary provider of ID-specific technical

assistance to local districts prior to the Star program and

Coaches Academy and it resumed the primary role of providing

ID-specific technical assistance when those programs were

discontinued. SERC made many advances in the provision of

ID-related technical assistance over the course of the Agreement.

It published new guidelines for (1) classifying students with

disabilities, (2) conducting PPT meetings and (3) working with

paraprofessionals. SERC trained district staff in the use of the

Step-by-Step approach to inclusive education, which is highly-

regarded. SERC also developed materials to assist districts with

transition-aged students.

Many of the services provided by SERC were subsidized by the

Department, but most districts were required to pay a portion of

the cost of receiving technical assistance. SERC personnel

worked with the ID Focused Monitoring Group to determine whether

districts needed fee waivers or other incentives to access

technical assistance regarding students with ID. Some poorly-

performing districts were provided with assistance at State

expense.

In accordance with a recommendation of the EAP, most of

SERC's ID-specific efforts during the last three years of the

Agreement were concentrated on the State's smallest districts.

These districts do not have as much experience serving students

with ID as larger districts and thus may be more reliant on

out-of-district or non-home school placements. SERC's focus on

the small districts was consistent with the overall goals of the

Agreement.

During the last three years of the Agreement, SERC provided

a substantial amount of technical assistance to districts

regarding the education of all students with disabilities. It

also began focusing on improving the performance of all disabled

students on standardized tests, which included providing

technical assistance with teaching strategies for ID students.

SERC provided assistance with co-teaching, differentiated

instruction, use of supplementary aids and services and use of

professionals. The EAP consistently commended SERC on the

quality of its technical assistance.

--Coordinator/Liaison

Pursuant to § VI of the Agreement, the Department designated

Anne Louise Thompson to be responsible for coordinating efforts

under the Agreement and to serve as the liaison to the EAP. Ms.

Thompson credibly testified that the Agreement resulted in a

welcome shift in emphasis toward inclusive education, that the

EAP's recommendations concerning the goals of the Agreement were

taken seriously, and that the EAP benchmarks were used to set

targets for districts in a realistic position to try to achieve

them.

During the term of the Agreement, Ms. Thompson

administered a technical assistance budget of $1.8 million, of

which $500,000 went to the STAR program and the Coaches Academy.

In addition, twenty-four districts were given $50,000 grants to

develop technical assistance plans, and five districts were given

$50,000 grants to set-up model classrooms.

The Court has no doubt that Ms. Thompson and her colleagues

at the Department who testified during the evidentiary hearing

embraced the goals of the Agreement, were committed to achieving

the goals, and consistently made good faith efforts to try to

meet them.

-Parent Involvement (Section VII)

The Agreement required the Department to "allocate funds for

training programs to enable parents of class members to

effectively advocate for the education of their children in least

restrictive environments." SA at 10 (VII). Funds were to be

allocated to the Connecticut Parent Advocacy Center through June

2005 to conduct training. The Department also was required to

"work closely with other parent-centered groups, such as the

Connecticut Coalition for Inclusive Education, in the design and

conduct of this training." Id. at 11.

In accordance with the Agreement, SERC funded training

programs with outside organizations to teach parents to be more

effective advocates for integrated placements for their children.

The training helped produce progress toward the goals: with

parents able to advocate for integrated placements (and other PPT

members considering regular class placements as the first option)

many PPTs were able to take advantage of existing capacity within

districts and the percentage of students in regular class

placements increased significantly.

-Complaint Resolution Process (Section VIII)

The Agreement required the Department to establish and

maintain a process to resolve complaints pursuant to 34 C.F.R. §

300.660. SA at 11. It is undisputed that the Department fully

performed its obligations in this regard.

IV. Discussion

The Agreement’s substantial compliance standard requires an

inquiry into whether the essential purposes of the Agreement have

been fulfilled. It is undisputed that the Agreement’s overall

purpose was to protect the rights and enforce the obligations

established by 20 U.S.C. § 1412(a)(5)(A). However, the

defendants’ obligations are not always clear from the face of the

Agreement and the parties disagree about what the Agreement

required. In particular, the plaintiffs contend that the

Agreement required the plaintiffs to ensure that students with ID

would have meaningful access to the general curriculum. The

Court respectfully disagrees for reasons set forth below.

A. The Agreement's Essential Purposes Are Concerned With

Increasing Integrated Placements

In construing the terms of the Agreement, it is important to

place the Agreement in context by considering where the ID

education movement stood at the time the Agreement was made. The

record shows that the ID education movement has progressed in

three phases. The first phase, which began in the late 1980s and

ended sometime in the 1990s, challenged the belief that students

with ID were not entitled to any type of public education. The

second phase, beginning sometime in the 1990s and ending in the

early 2000s, challenged the belief that students with ID, by

virtue of their diagnosis, belonged in segregated placements.

The third phase, which began in the early 2000s, challenges the

belief that students with ID cannot obtain meaningful academic

benefits in integrated settings.1

This case was filed toward the end of the first phase and

tried toward the end of the second phase, when the focus of the

ID education movement generally was still on desegregation. At

the trial, the plaintiffs undertook to prove that the Department

was allowing districts to segregate students on the basis of the

ID classification rather than on the basis of individualized

consideration of the students' abilities and needs. The

plaintiffs' focus on increasing integrated placements was

consistent with the interests of the class at the time. The

class is comprised of students with ID who are not educated in

regular classrooms, in other words, students who are segregated

1 The shift to the third phase was prompted by studies of integrated programs in Italy and England demonstrating that a larger percentage of students with ID could obtain more educational benefits from regular class placements than had been understood.

from their nondisabled peers. For students with ID, integrated

placements are meaningful in and of themselves as necessary

predicates to obtaining academic benefits in integrated classes.

Moreover, there are significant non-academic benefits that can be

achieved with integration.

Against this background, it is not surprising that the

Agreement states its essential purposes in terms focused on

increasing integrated placements, rather than on improving the

quality of education in integrated placements through access to

the general curriculum. Goal one is "an increase in the percent

of students with [ID] who are placed in regular classes." SA at

3. The use of the term "placed," as opposed to "educated,"

suggests that improved educational outcomes are not necessary for

progress toward the goal. As plaintiffs have recognized,

moreover, this goal could be "met through participation with

nondisabled children in non-academic subjects." See Plaintiffs'

Rebuttal to Department's Response to 2010 EAP Report, doc. 682 at

3 (observing that the regular class placement goal could be "met

through participation with nondisabled children in non-academic

subjects such as music, art, lunch, recess, home economic, etc.")

Goal two, dealing with the disparate impact of classification

practices on members of certain groups, is not concerned with the

quality of education in regular classes. Goal three refers to

"an increase in the mean and median percent of the school day

that students with [ID] spend with non-disabled students" without

saying how the time should be spent. SA at 4. Goal four refers

to "an increase in the percent of students with [ID] who attend

[their home school]," id., an outcome that can be met even if the

students are not in regular classrooms in their home schools.

Finally, goal five refers to "an increase in the percent of

students with [ID] who participate in school-sponsored

extracurricular activities with non-disabled students," id., a

goal that by its terms is not concerned with the general

curriculum.

Despite the emphasis on integrated placements, the Agreement

is not indifferent to the need to improve educational outcomes.

Section VI of the Agreement required the Department to "design

and implement a system of technical assistance . . . to enable

[local districts] to extend and improve education in regular

classes . . . ." SA at 9. Here, though, there is a distinction

drawn between extending and improving education in regular

classes. This distinction also appears in § V of the Agreement,

concerning the Department's duties to monitor local districts.

Section V(1) focuses on monitoring progress toward the five

goals, whereas § V(2) focuses on monitoring education quality.

Section V(3) maintains this distinction by describing two

circumstances that require focused monitoring: when districts are

not making satisfactory progress toward the goals or when

districts are "found deficient as a result of monitoring

established pursuant to [§ V(2)]." SA at 8.

The plaintiffs urge the Court to find that the word

"meaningful," as used in § II of the Agreement, demonstrates that

the goals are concerned with access to the general curriculum.

Section II requires the Department to "commit to achieving

meaningful continuous improvement annually with respect to goals

#1 and #4 and continuous improvement with respect to goals #2,

#3, and #5." SA at 4. The plaintiffs' position is inconsistent

with the way "meaningful" is used in the Agreement. "Meaningful"

is used only in connection with goal one, concerning regular

classroom placements, and goal four, concerning home schools.

Notably, a student can be counted as being in his home school for

purposes of goal four even if he is in a segregated setting. To

be consistent with the plaintiff's position, the Agreement would

use "meaningful" in connection with goals one, three and five,

and not in connection with goal four.

The plaintiffs suggest that meaningful access to the general

curriculum is embedded in goal one, even if the term "meaningful"

as used in the Agreement does not itself signify access to the

general curriculum. The evidence does not support a finding that

this was the understanding of the parties at the time the

Agreement was signed. The parties entered into the Agreement

because it offered a "resolution that is consistent with the

requirements of the [IDEA]." SA at 2. In other words, it offered

a means of resolving the litigation in accordance with the

State's existing duties under the statute. See SA at 2. In

entering into the Agreement, the State committed to achieving

improvement in (1) the percentage of students with ID in

integrated placements and (2) the percentage of the school day

students with ID spend in integrated placements. If the

plaintiffs' interpretation of the Agreement is correct, the State

effectively committed to achieving meaningful access to the

general curriculum for most students with ID within a span of

eight years and at the risk of continued litigation and oversight

by the plaintiffs, the EAP and the Court beyond the eight year

period in the event this ambitious goal was not met. It is

implausible that the State would knowingly agree to such a

resolution. The plaintiffs have not shown that at the time this

case was tried, the IDEA required the defendants to secure

meaningful access to the general curriculum for most members of

the class within the eight year period covered by the Agreement,

and there is no evidence that the defendants believed it did.

Indeed, as discussed above, the evidence does not support a

finding that meaningful access to the general curriculum was a

priority for class members at the time.

In summary, at the time the Agreement was negotiated and

signed, the main concern of the parties was the class members'

interests in obtaining integrated placements. Consistent with

that emphasis, the Agreement's goals are mainly concerned with

increasing integrated placements. Though some provisions of the

Agreement address education quality, they are means for

increasing integrated placements, not ends in themselves to which

the State agreed to be bound subject to the risk of a finding of

noncompliance.

B. The Department's Data Are Reliable

The plaintiffs contend that in judging the State's

performance under the Agreement, the Court should not rely on the

State's data. The plaintiffs attack the reliability of the data

on two grounds: they argue that it does not account for students

who no longer carry the ID label and that many districts over-

report the amount of time students with ID spend in integrated

settings. The Court has addressed the first concern by

calculating the relevant percentages for all students with ID.

The figures presented in this memorandum, including those

addressing progress toward the goals, reflect the data for all

students with ID.

The plaintiffs have not shown that over-reporting is so

commonplace as to undermine the reliability of the data.

Districts report data to the Department on the basis of what is

required by the students' IEP, not based on direct observations

of students. The plaintiffs planned to conduct a statistically

significant study of the extent to which the numbers in students'

IEPs over-represent the amount of time students are actually in

integrated placements. However, as the plaintiffs' experts

testified, they were unable to make statistically significant

findings. They observed eighty-six students in some of the

State's least integrated districts and took notes on the extent

to which those students' IEPs were inconsistent with their class

schedules. The evaluators found a number of discrepancies, most

of which were cases of over-reporting. But the reports from the

site visits make it clear that the evaluators were not applying

the same criteria in the same manner, so two evaluators could

come to opposite conclusions about whether a student was in an

integrated setting. Given these infirmities, the reports from

the site visits do not undermine the reliability of the data.

C. The Department Did Not Frustrate Progress Toward the Goals

The plaintiffs argue that the State's own data show

substantial noncompliance because the data reflect a pattern of

reduced progress and even losses rather than steady progress.

The plaintiffs' argument has some force. From 2003-2004 through

2006-2007, the annual percent change for goals one, three and

five increased more than ten percent every year, but in 2007-2008

progress toward all three goals slowed: regular class placement

increased 2.6%, mean time increased 2.3%, median time increased

3.5%, and extracurricular participation decreased 1.9%. Progress

slowed further in the 2008-2009 school year: regular class

placement increased 0.4%, mean time increased 1.8%, median time

increased 0.4%, and extracurricular participation decreased 1%.

The slump continued in the 2009-2010 school year: regular class

placement increased 1.7%, mean time decreased o.1%, median time

increased 0.5%, and extracurricular participation increased 1.5%.

The data on home school placement follow a somewhat similar

pattern. In the 2002-2003 school year, the percentage decreased

0.2%. It increased 4.7% in 2003-2004, 1.8% in 2004-2005, 7.9% in

2005-2006, 1.1% in 2006-2007, 0.1% on 2007-2008, and 0.2% in

2008-2009. It then decreased 1.9% in 2009-2010.

The plaintiffs contend that the declines, and in some

instances actual losses, were caused by the Department's

noncompliance with the Agreement. They note that the Department

mistakenly believed its obligations under the Agreement expired

in the summer of 2007, about the same time the rate of progress

began to decline. The plaintiffs' concerns are understandable.

Department employees credibly testified, however, that progress

toward the goals slowed because all the easy progress had been

made. Progress was easy when districts had the capacity to place

students with ID in integrated settings but the capacity was not

being used because of faulty placement determinations. By

improving the placement protocol and holding districts

accountable for following it, the Department was able to make

rapid progress by taking advantage of existing capacity within

the State. Once the easy progress was made, the Department was

left with the more difficult task of building capacity, often in

small districts that do not serve many students with ID.

Moreover, the evidence shows that the Department continued

to pursue the goals of the Agreement and continued to implement

most of the Agreement's provisions despite the mistaken belief

that the Agreement was no longer binding. Had it failed to do

so, a finding that the State frustrated the Agreement's essential

purposes might be warranted based on the data. But that is not

the case. Indeed, it is undisputed that the State continued to

make good faith efforts. In view of the State's overall

performance throughout the eight year term of the Agreement, a

finding of substantial noncompliance is unwarranted.

D, The State's Ability to Impact IEP Determinations Is Limited

Before turning to review the State's performance under

specific sections of the Agreement, it is important to recognize

that the IDEA imposes limits on the State's ability to place

students with intellectual disabilities in regular classrooms.

These limits flow from the requirement that each placement

decision be based on individualized consideration of the child’s

abilities and needs. Because of this requirement, the Department

cannot impose a categorical presumption that students should

spend a certain amount of time in an integrated setting.

Newington, 546 F.3d at 119. And while the Department can have an

indirect influence on IEP determinations through monitoring and

technical assistance, its personnel do not participate in PPTs.

In addition, the IDEA limits the amount of money that can be

withheld by the Department for state level activities. In 2009,

for example, Connecticut was authorized to withhold two percent

of its IDEA funds for state level administration and nine percent

for other state level activities. The remaining eighty-nine

percent of its IDEA funds had to be distributed to eligible LEAs.

Funds withheld for state level activities are required to be used

for monitoring, enforcement, and complaint investigation and the

establishment of a mediation process. § 1411(e)(2)(B). And any

remaining funds reserved under this provision may be used on a

discretionary basis for a number of activities, including

building LEA capacity to improve educational results for children

with disabilities. Even so, the statutorily required allocation

of IDEA funds limits the tools at the defendants’ disposal to

encourage and enable LEAs to provide class members with

integrated placement options.

Similarly, the IDEA limits the defendants’ ability to use

funds in other ways that would further the purposes of the

Agreement. The defendants cannot base funding decisions on the

type of setting in which a child is served in a manner that

discourages LEAs from considering the unique needs of each child

as described in the child’s IEP. 20 U.S.C. § 1412(a)(5)(B)(I).

This proviso, contained in the subpart of the Act affirming the

State’s responsibility to ensure that each child is educated in

the least restrictive environment, cautions against the

imposition of measures that could be regarded as providing a

financial incentive to LEAs to emphasize regular class placements

at the expense of considering students’ individual needs.

E. The Record Shows that the State Met Its Commitments

Under the terms of the Agreement, the Department agreed to

make commitments to pursue each of the goals. These commitments,

set forth in § II, describe the Department's obligations and, in

the absence of benchmarks, they describe the desired outcomes as

well. The desired outcomes are not all possible progress in the

direction the goals point, but the progress that would result

from acting in accordance with the requisite commitments.

Therefore, the substantial noncompliance determination turns on

whether the plaintiffs have shown that the Department failed to

take an action required by the Agreement that would have produced

more progress toward the goals. They have not done so.

1. Uncontested Provisions (§ IV, VII, VIII)

The plaintiffs do not allege noncompliance with §§ IV, VII

and VIII of the Agreement. Pursuant to § IV, the Department

issued a number of policy statements setting forth the

requirement that each student receive an individualized placement

determination and notifying districts that they would be held

accountable for progress toward the goals. The Department

improved the quality of parent advocacy by complying with § VII's

requirement to fund training programs to teach parents to

effectively advocate for the e3ducation of their children in the

least restrictive environment. Pursuant to § VIII, the

Department established and maintained a system to resolve

complaints regarding district-level compliance with the IDEA.

The Department's undisputed compliance with these provisions

supports a finding that they substantially complied with the

Agreement, as do the data demonstrating that progress was made.

2. Monitoring (§ V)

The plaintiffs contend that the Department failed to

adequately monitor the quality of education and also failed to

maintain appropriate focus on goals four and five. In addition,

they contend that the Department's level three monitoring was

insufficient and that the overall system was confusing. These

contentions do not provide a basis for relief.

(a) Monitoring Education Quality

Through the 2004-2005 school year, the Department monitored

education quality at the first level by conducting site visits of

randomly selected districts and by reviewing the implementation

of hearing officers' decisions. In the 2005-2006 and 2006-2007

school years, the Department conducted 789 "walkthroughs" whereby

each district was visited at least once to collect qualitative

data. The plaintiffs argue that the walkthrough data are not

reliable because districts were notified in advance of the site

visits. The Department responds that the districts had to be

notified in advance to ensure that students would likely be

available for observation and that districts were rarely notified

of the exact day students would be observed. I credit the

Department's response and find that the notice given was

reasonable in the circumstances.

The plaintiffs also argue that the system was unreliable

because the Department's findings were inconsistent with the

plaintiffs' findings on their site visits. For the reasons

explained above regarding the impact of the plaintiffs' findings

on the reliability of the quantitative data, the findings also do

not impugn the accuracy of the walkthrough data. The data

revealed that general education teachers were improperly relying

on paraprofessionals to educate students with ID, prompting the

Department to address the issue through its program of technical

assistance.

Although the walkthroughs stopped in 2006-2007, the

Department continued to monitor education quality at the second

and third levels through 2009-2010. By 2006, and continuing for

the duration of the Agreement, forty-three districts, serving

approximately two-thirds of the class, were monitored at the

second or third levels. The more troubling districts received

the closest scrutiny, with state employees conducting site-visits

and classroom observations. The least troubling districts were

required to address and report on quality issues that impeded

progress toward the goals. In addition, beginning in the 2007-

2008 school year, all 129 districts with fewer than twenty

students with ID were targeted for monitoring. The Department's

allocation of resources was consistent with a recommendation of

the EAP to focus on the worst districts. See EAP 2005 Report at

Under the Department's system, the only districts that were

not monitored for quality during the final three years were the

large districts that were making adequate progress toward the

goals. The record does not support a finding that districts in

this category would have made more progress toward the goals if

they had received qualitative monitoring called for by the

Agreement. Accordingly, the Court cannot find that the

Department's failure to subject these districts to qualitative

monitoring during the last three years frustrated progress toward

the goals.

(b) The Department Otherwise Complied With § V

The plaintiffs contend that the Department's monitoring

efforts did not appropriately focus on the fourth and fifth

goals. The Department emphasized goals one and three more than

the other goals, but it monitored progress on all five goals,

including goals four and five, every year through the annual

reporting requirement. The Department's conduct reflects

reasonable policy. It was not inconsistent with the terms of §

V. And it was consistent with the EAP's recommendation to focus

on the goal regarding regular class placement and any major

discrepancies in the other goals. See EAP 2005 Report at 9.

Moreover, credible evidence presented by the Department shows

that rates of extracurricular participation for all students,

disabled or not, dropped across the state because of fiscal

constraints. The plaintiffs have not shown that more progress

toward goal five would have been made if it had been emphasized.

The Department emphasized the home school goal by separately

focusing on 120 small districts. As mentioned above, small

districts are more likely to rely on out of district placements

than larger districts because they serve fewer students with ID.

They also lack consistent funding. The Department's efforts were

sufficient to meet the obligations imposed by § V to focus on the

home school goal.

The plaintiffs point to a number of poorly performing

districts as evidence that the Department failed to provide

adequate level-three monitoring required by the Agreement.

However, the plaintiffs have not shown that the Department failed

to take any of the actions required by § V(3). In its last

report, the EAP concluded that "[m]any districts appear to be

simply refusing to comply, despite massive and very expesnive

interventions provided by SERC, and other initiatives like the

parent training component, STAR, and the coaching academy." EAP

2010 Report at 22. In light of the EAP's reasonable conclusion,

and the absence of evidence that more monitoring by the

Department would have produced more progress in these districts,

the evidence relating to these districts does not provide a basis

for a finding of substantial noncompliance.

Finally, the plaintiffs contend that the Department's

monitoring system became confusing when the State started

monitoring districts on progress for all disabled students as

required by the IDEA. Under this dual system, a district could

receive satisfactory reviews regarding its treatment of disabled

students generally, but not regarding its treatment of students

with ID. The Department argues with some force that its system

was not unreasonable in light of the demands imposed on the State

by the IDEA. In any event, the plaintiffs have not shown that

doing things differently would have produced more progress toward

the goals.

3. Technical Assistance (§ VI)

The Department adequately complied with the provisions of

the Agreement governing technical assistance. As discussed

above, the Department relied on SERC to provide most of the

technical assistance. SERC published guidelines to ensure that

students were not improperly classified, that they received

individualized consideration, and that regular education teachers

did not improperly rely on paraprofessionals to teach students

with ID in regular classes. SERC also regularly held statewide

training in the Step-By-Step protocol.

SERC provided all districts with at least the following

customized assistance: revciew of data regarding time with

nondisabled peers, participation in extracurricular activities,

and regular class placement; review of responsible inclusive

practices and their alignment with the goals of the Agreement;

and a self-assessment tool to both identify training needs and

develop a plan to address them. Underperforming districts

received narrowly tailored assistance, including assistance with

differentiated instruction, co-teaching, student work analysis,

positive behavior support, assistive technology, and other tools

to improve education for students with ID in regular classes.

Many districts received technical assistance at no charge.

During the Agreement's final three years, SERC addressed

§ VI in two ways. Following the EAP's recommendation, it focused

on the State's smallest districts. Twenty-five small districts

in need of assistance were provided with fee waivers for

statewide professional development opportunities and seventeen of

them received one day of free customized technical assistance.

See EAP 2007 Report at 4.

As discussed above, SERC also provided a significant amount

of statewide and district-specific technical assistance in the

final three years. These efforts were not exclusively directed

toward achieving the goals of the Agreement, but SERC was careful

to draw links between the training and the five goals.

From 2005-2006 through 2007-2008, the Department also

maintained the Star program and the Coaches academy in order to

provide additional technical assistance to districts. As

discussed above, the Star program addressed the needs of

approximately fifty-four students per year, helping district

employees develop an action plan for each student. And the

Coaches Academy was attended by over 355 employees from 54

districts, two-thirds of them teachers.

The plaintiffs ask the Court to find that the system of

technical assistance was deficient. They contend that a list of

private consultants the Department published did not satisfy its

obligation to provide a sufficient number of qualified experts to

assist districts. In addition, they fault the Department for

discontinuing the Star program and Coaches Academy, and for

failing to provide more embedded technical assistance. These

contentions are unavailing.

The Department met the obligation to provide qualified

experts by providing districts with the assistance of qualified

personnel at the Department and SERC, in addition to publishing

the list of private consultants. The Department was not required

to continue the Star program or Coaches Academy or provide more

embedded assistance in order to comply with § VI. The efforts

made by SERC were designed to extend and improve regular class

placements and the data demonstrate that those efforts were

effective. SERC continued to provide the training that was

provided by the Coaches Academy. The record does not support a

finding that continuing the Star program would have produced more

progress. Provision of more embedded assistance might well have

produced more progress. However, SERC's efforts to provide

statewide training and district-specific technical assistance

were sufficient to meet the requirements imposed by § VI and, for

reasons discussed below, the Department's commitments under other

parts of the Agreement, specifically the § II commitments, did

not require it to provide more embedded support.

4. EAP (§ IX)

The Department failed to comply with the Agreement by

terminating the EAP in 2007, before the expiration of the eight

year term of the Agreement. The Department 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.

The plaintiffs, noting the correlation between the

termination of the EAP and the decline in progress discussed

above, urge that the termination of the EAP warrants a finding of

substantial noncompliance. However, the plaintiffs have not

shown that more progress would have been made were it not for the

termination of the EAP. The evidence shows that the Department

continued to pursue the goals in the EAP's absence and the EAP,

in reviewing the Department's efforts over the final three years

of the Agreement, blamed individual districts for resisting the

Department's efforts. See EAP 2010 Report at 22, 24.

5. Plaintiffs' Right to Data on Students with ID (§ I)

The plaintiffs take issue with the Department's failure to

provide them with a list of students with ID who were

reclassified to another disability category. Such a list was

finally provided in December 2007. The plaintiffs have not

shown, however, that more progress would have been made toward

the goals if the list had been provided earlier. The plaintiffs

also complain that the Department has failed to address high

rates of reclassification that had the effect of moving students

out of the "ID" category. But the evidence shows 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.

6. The Department Complied With § II

The nature of the commitments in § II may have required the

Department to go beyond the specific requirements set forth in

other sections of the Agreement. The plaintiffs suggest that the

Department's failure to adopt or meet benchmarks established by

the EAP demonstrates that it failed to substantially comply with

its obligations under § II. They also argue that the Department

should have provided more embedded technical assistance, which

likely would have produced more progress toward some of the

goals. Each of these issues is addressed separately below after

a discussion of the § II commitments and a review of the evidence

bearing on the commitment to each goal.

(a) The Department Upheld the Commitment to the Five Goals

Under § II of the Agreement, the Department had to "commit

to achieving meaningful continuous progress annually" toward

goals one and four. The terms contained in the quoted provision

are best construed as follows. "Annually" means a commitment to

achieve progress each year. "Continous" means a commitment to

preventing any losses. "Meaningful" means significant progress,

in other words, more than nominal progress but less than all

possible progress. Under § II, the Department also had to

"commit to achieving continuous progress" toward the other three

goals. This provision required the Department to commit to

preventing any losses with regard to those goals. The record,

viewed as a whole, supports a finding that the Department met its

obligations.

The Department emphasized goal one in its monitoring system

each year and it was the focus of most of the technical

assistance provided by SERC and the other programs. Although

more progress was made in the early years, the smaller gains in

the last three years still reflect a commitment to meaningful

progress because the State had reached the point where it was

necessary to build new capacity in order to make more progress.

The overall progress toward this goal was significant.

The Department emphasized the need to increase mean and

median time with nondisabled peers in the monitoring system every

year. Although the majority of the technical assistance efforts

were focused on increasing regular class placements, those

increases directly contributed to progress toward this goal as

well. Here again, overall progress was significant.

The general monitoring system emphasized the home school

goal during the first five years and the small district

initiative addressed it during the last three years. These

districts were provided with customized technical support to

increase their capacity to place children in regular classes,

directly increasing the opportunities for students in those

districts to attend their home school rather than a segregated

setting in another location. Some progress was lost. But the

evidence does not show that this was the result of noncompliance.

Overall progress toward this goal was significant as well.

With regard to goal five, the Department went beyond the

specific requirements of the Agreement and made three annual

grants of $10,000 to the Connecticut Association of Schools to

support districts' work toward this goal. Although some progress

was lost, the evidence shows that this was the result of budget

cuts affecting the participation rate of all students rather than

issues specific to students with ID.

(b) Job-Embedded Technical Assistance

The plaintiffs' experts testified that the State's system of

technical assistance could have produced more progress toward the

goals of the Agreement by providing more job-embedded training.

The Court agrees. In this context, job-embedded training is

provided by going into schools and assisting general education

teachers with the education of individual students. To be

effective, the training must be followed up with site visits to

ensure that the lessons are consistently applied. Although SERC

personnel were available to provide embedded assistance, such

assistance usually was provided only on request and at district

expense.

Many districts were able to hold school employees

accountable for applying the training provided by SERC, but some

districts had difficulty doing so. The evidence indicates that

the Department may have been able to correct this by placing

supervisory personnel in certain districts to oversee

implementation of the Agreement.

As reviewed above, the Agreement did not specifically

require the Department to take these steps and the Department's

good faith efforts to implement the Agreement support a finding

that the commitments were maintained. The Department's policy is

to take responsibility for providing district employees with the

skills necessary to properly integrate students, but each

district is responsible for ensuring that its employees apply

those skills to meet the needs of individual students. The

Department believes that this division of responsibility is

appropriately respectful of district autonomy. The Department's

policy seems reasonable. At a minimum, it is consistent with the

statutorily mandated allocation of IDEA funds.

The EAP's last report confirms that the Department provided

a substantial amount of assistance to districts and thereby

helped bring about significant progress. The EAP acknowledged

significant progress as a result of the Department working

"thoughtfully and skillfully to transform[] its interventions

over time . . . . The tailoring and customized professional

development by district and in most cases by school is

commendable and time consuming." EAP 2010 Report at 24. The EAP

went on to say that "local districts have to take up the

responsibility to carry-over that training into daily practice."

Id. at 24. This supports a finding that the Department's

decision not to provide additional embedded assistance was a

reasonable policy choice.

The Department ws not required to meet the EAP benchmarks or

adopt them as statewide targets. The EAP benchmarks would

support a finding of substantial noncompliance if they

represented the amount of progress the State would have made in

eight years if the Department had maintained the requisite

commitments. However, the EAP wrote that it "deliberately set

high benchmarlks" to convey "high expectations" and "stimulate

genuine effort" at the district level. EAP 2004 Report at 7.

There is no indication that the EAP accounted for fiscal, legal

or any other constraints on the Department's ability to bring

about statewide change in placement rates. Rather, it appears to

have set aspirational benchmarks at the highest possible levels

in light of data from other jurisdictions. Id.

The plaintiffs' witnesses testified that the EAP benchmarks

were achievable, but the evidence does not support a finding that

the benchmarks could have been achieved in eight years, let alone

that they would have been achieved but for the Department's

noncompliance with the Agreement.

The evidence does not show that more progress would have

been made if the Department adopted the benchmarks as statewide

targets. The Department published the EAP benchmarks in

connection with its efforts to bring about progress toward the

goals. There is no indication that deficient districts would

have done better if the benchmarks had been explicitly adopted by

the Department as targets. In any event, the Agreement did not

require the Department to adopt the benchmarks. The Department

made a reasonable policy decision to tailor targets to the needs

and potential of districts. Its approach reduced the risk that

districts would place students in integrated settings without

giving each student individualized consideration. In light of

this reasonable policy determination, and the lack of evidence

that using the benchmarks would have produced more progress, the

decision not to use the benchmarks did not conflict with the

§ II commitments.

Conclusion

For the foregoing reasons, the plaintiffs have not sustained

their burden of showing substantial noncompliance. In

particular, they have not shown that the Department failed to

take an action required by the Agreement that would have produced

more progress toward the essential purposes of the Agreement.

Accordingly, their motion has been denied.

Robert N. Chatigny United States District Judge

P.J., et al. v. Education, et al.