UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
NEW BRITAIN BOARD OF EDUCATION, : Plaintiff, :
v. : CIVIL ACTION NO. : 3:09-cv-1240 (VLB) NEW BRITAIN FEDERATION OF : TEACHERS, LOCAL 871, : Defendant. : November 17, 2010
MEMORANDUM OF DECISION AFTER TRIAL TO THE COURT
I. INTRODUCTION
This case arises out of a dispute between the New Britain Board of
Education (hereinafter the “Board”), and the New Britain Federation of Teachers,
Local 871 (hereinafter the “Union”), regarding class size limits for special
education classes contained in the parties’ current collective bargaining
agreement. The Board seeks the following declaratory, injunctive, and equitable
relief: 1) a declaration that the class size limits for special education classes
contained in the parties’ collective bargaining agreement are illegal, invalid, and
unenforceable under the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400, et seq., Connecticut state law implementing the IDEA, Conn. Gen.
Stat. § 10-76a et seq. and Connecticut Agencies Regs. § 10-76d-1 et seq., Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., and the Equal Protection Clause of the
United States Constitution; 2) an injunction enjoining the enforcement of such
provisions; 3) an injunction enjoining a pending grievance arbitration concerning
enforcement of the provisions brought by the Union; and 4) a declaration that
such provisions represent an illegal subject of bargaining for the upcoming
negotiations for a successor collective bargaining agreement between the
parties. A bench trial was conducted on September 1st and 2nd and November
1st, 2010. For the reasons stated below, the Court rules in favor of the Union with
respect to all of the Board’s claims.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 52(a), in a bench trial, “the
court must find the facts specially and state its conclusions of law separately.”
Fed. R. Civ. P. 52(a)(1). The Court’s findings of fact, “whether based on oral or
other evidence, must not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court’s opportunity to judge the witnesses’
credibility.” Fed. R. Civ. P. 52(a)(6).
III. FACTUAL FINDINGS
The Court makes the following findings of fact based upon the parties’
stipulations as well as the testimony and documentary evidence offered during
the bench trial. The Board is a body politic and corporate, organized and
operated pursuant to Connecticut General Statutes §§10-220, 10-240 and 10-241.
See Joint Trial Mem., Doc. #39, at 15. Furthermore, the Board is the local
educational agency responsible for providing students residing within New
Britain with a free appropriate public education pursuant to the IDEA and Conn.
Gen. Stat. § 10-76a et seq. Id. at 15-16. The Union is the exclusive bargaining
2
representative of all those employees of the Board in positions requiring a
teaching or special services certificate, except nurses, paraprofessionals,
persons in the "administrators' unit" as defined by Connecticut law and other
personnel excluded by state statute for the purpose of negotiating with respect to
salary schedules, working conditions, and other conditions relative to
employment. Id. at 16.
The Board and the Union are parties to a collective bargaining agreement
(hereinafter the “CBA”) that was and is in effect from July 1, 2007 through June
30, 2010. Pl. Exh. 5. The CBA was extended by agreement of the parties until
June 30, 2011. Pl. Exh. 6. Article V of the CBA contains provisions limiting the
sizes for academic classes. Included in this provision are sections governing
class size for special education students. Pl. Exh. 5 at 12-13. Specifically,
Sections 5.3 and 5.4 set forth seven categories with their own specific class size
limit, along with limited exceptions thereto and recommendations for the use of
paraprofessionals. Id. The categories are as follows:
(1) “Category I” provides a class size limit of 7 students for the following
programs: “DEP - Elementary, DEP - Severe, Pre-school Special Education.”
(2) “Category II” provides a class size limit of 10 students for the following
programs: “DEP - Intermediate, Advanced, Multiple Disability/Physical
Disabilities, Self-contained Behavior Class - Grades K.-5, Self-contained
Academic/Behavior - Grades K-2, Self-contained Academic - Grades K-2.”
3
(3) “Category III” provides a class size limit of 12 students for the following
programs: “Self-contained Academic/Behavior - Grades 3-8, Self-contained
Academic - Grades 3-5.”
(4) “Category IV” provides a class size limit of 15 students for the
following programs: “Self-contained Behavior - Grades 6-12, Self-contained
Academic/Behavior- Grades 9-12, Self-contained Academic - Grades 6-12,
Departmentalized Academics - Grades 9-12, IDEA/B - Grades 9-12.”
(5) “Category V” provides a class size limit of 25 students (or 115 student
hours) for the following programs: “Learning Resource, Inclusion Elementary
and Middle.”
(6) “Category VI” provides a class size limit of 16 students for the
following programs: “Two full time Special Education Teachers, IDEA High
School.”
(7) “Category VII” provides a limit of “30 Total contacts (students and
teachers)” for the following programs: “High School Inclusion.”
Id.
Section 5.5 of the CBA sets forth procedures for placing any new program
in the “proper category” under Section 5.3, with any disagreement between the
Board and the Union to be resolved by binding arbitration. Id. at 13. The
arbitrator will then have the power to decide the appropriate category for the new
program. In addition, Section 5.6 provides: “When class size exceeds the
maximums established hereby up to and including three (3) in categories IV or V,
or by up to and including two (2) in categories I, II, III or VI, then the decision of 4
the Board on appeal shall be final as prescribed in Section 5:7.” Id. at 14.
Parenthetically, Section 5.7 sets forth a grievance procedure for resolving class
size disputes between the Board and the Union, with the steps of the procedure
including appeal to the building principal, superintendent, Board of Education,
and under certain circumstances arbitration. Id. at 14-15. Section 5.6 further
provides that “whenever class size exceeds the maximums by more than three (3)
or two (2), respectively, then the decision of the Board on appeal is subject to
binding arbitration.” Id. The CBA does not specify the amount of monetary
penalties that may be imposed for violation of the class size limits.
The Union has filed numerous grievances pursuant to the grievance
procedures provided under Article IX of the CBA, alleging that the Board has
violated Article V (including Sections 5.3 and 5.4) and demanding, among other
things, that the Board “[r]eturn to a class size that does not exceed the limits in
the contract. And/or monetary compensation for the classes that exceed
contractual limits.” Def. Exh. B. The grievances submitted by the Union for the
2009-10 school year allege that the Board violated Article V of the CBA by
exceeding the class size limits set forth in Categories IV, V, and VII as described
above; there are no grievances relating to the remaining four categories. Def.
Exh. B. The majority of the grievances relate to Category VII. Def. Exh. B. The
Union subsequently invoked arbitration under the CBA’s grievance procedures
as to certain of the grievances. Pl. Exh. 8.
The grievance procedures under Article IX of the CBA provide for, inter
alia, binding arbitration, which shall be conducted by the American Arbitration 5
Association (“AAA”) in accordance with its rules and procedures. Pl. Exh. 5 at
24-26. Under Article IX, the arbitrator may only hear and decide grievances
involving an alleged “violation of, misinterpretation of, misapplication of, or
infringement upon the provisions of [the Collective Bargaining] Agreement.” Id.
at 24. According to Section 9.6 of the CBA, the arbitrator “shall be bound by and
must comply with all of the terms of this Agreement” and “shall have no power to
add to, delete from, or modify in any way any of the provisions of this
Agreement.” Id. at 25-26. The decision of the arbitrator shall be binding upon the
parties during the life of the CBA. Id. at 26. The cost for the services of the
arbitrator and the AAA is borne equally by the Board and the Union. Id.
The Union’s President, Ronda Barker, testified that, prior to the 2007-08
school year, grievances for special education class size overages were arbitrated
and the Board never objected to having an arbitrator preside over the
proceedings. During the 2007-08 school year, many grievances relating to class
size overages were filed. Barker participated in meetings with Board
representatives, including Dr. Jon Walek, the Board’s Director of Special
Education, in May of 2008. During the meetings, the two sides discussed
problems with scheduling for special education classes. Walek testified that he
indicated during these meetings that the CBA language regarding special
education class size was “problematic.” Barker testified that several Board
representatives stated at the meetings that it was “too expensive” to pay class
size overages. Barker further testified that the Union went through the IEP’s for
special education students with the Board and made suggestions regarding class 6
scheduling. However, the dialogue ended unsuccessfully, and the Union
thereafter filed for arbitration.
There were again special education class size overages for the 2008-09
school year. The Board agreed to pay for overages in regular education class
sizes, but held grievances for special education class size overages in abeyance
pending attempts to resolve the issue with the Union. However, efforts to reach a
resolution were again unsuccessful, and the Union filed for arbitration. The AAA
consolidated the grievances from the 2007-08 school year with the grievances for
the 2008-09 school year. The same process repeated for the 2009-10 school year.
Walek admitted that the Board never took the position that the special education
class size provisions contained in the CBA were illegal until this litigation was
commenced in August 2009.
Pursuant to the procedures of the AAA, Eric J. Schmertz was appointed as
arbitrator and the arbitration hearing was scheduled to commence on September
22, 2009. Pl. Exh. 9. However, the hearing was postponed, and the Union has
agreed to have the AAA hold the matter in abeyance pending the outcome of this
case. Pl. Exh. 10.
The Board objects to the arbitration proceedings on the basis that the CBA
provisions at issue are in violation of federal and state law protecting the rights of
students with disabilities (and their parents). Joint Trial Mem., Doc. #39, at 19.
The Union maintains, however, that the matter is arbitrable and that it has a duty
to enforce this and all provisions of its collective bargaining agreement with the
Board. Id. The Union wishes to proceed with the arbitration of the matter. Id. 7
Pursuant to Connecticut General Statutes §10-153b, et seq., negotiations
between the Board and the Union for a successor collective bargaining
agreement have commenced. Id. at 20.
The Board designs and implements special education programs for
individual students with disabilities though an Individualized Education Program
(“IEP”) which contains, inter alia, the student’s present levels of educational
performance, measurable goals, and the educational programs, services, and
accommodations to be provided to the student. See 20 U.S.C. § 1414(d)(1)(A); 34
C.F.R. § 300.320(a). If a student requires special education, the school district
must convene a Planning and Placement Team (“PPT”) to develop an IEP via an
individualized inquiry into the student’s needs. The PPT consists of the student’s
parents/guardians and appropriate regular and special education personnel,
including teachers and evaluators and, at the parents’ invitation and retention,
other individuals with relevant expertise may participate. The IEP must be
reviewed at least once per school year, and it should be periodically revised in
response to information provided by the parents and staff and to ongoing
evaluations of the child’s progress. See 20 U.S.C. § 1414(d); 34 C.F.R. §§ 300.320
– 300.324; Conn. Agencies Regs. §§ 10-76d-10 – 10-76d-12. The PPTs typically
convene in May or June so as to develop each student’s IEP for the ensuing year.
In addition to the student’s current teacher, the PPT may include regular and
special education teachers who would be teaching the student in the ensuing
school year. The IEP does not specifically list the name of the teacher, but does
list who will be the services provider for specific services. 8
New Britain employs an “inclusion” or “mainstreaming” model of special
education in which only a small number of special education students receive
their instruction solely in a special education classroom. The goal is that 80% of
special education students receive instruction in regular education classrooms
80% of the time. Most students with special education needs receive instruction
in regular classrooms where the class is “co-taught” by both a regular education
teacher and a special education teacher. This is consistent with the IDEA’s “least
restrictive environment” mandate, pursuant to which children with disabilities
must be educated in regular classes with children who are not disabled, unless
the nature or severity of the 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). Thus, special education students are
woven throughout all classes, such that there are general education classes with
special education teachers assigned to provide services to certain students who
need assistance in each particular class. In the Middle School and Ninth Grade
Academy, students are clustered in small learning communities, each with four
regular education teachers – one of whom teaches English, another Social
Studies, another Mathematics, and another Science – along with at least one
special education teacher who co-teaches. Contrastingly, for the Tenth through
Twelfth grades, students choose from a broad range of classes to earn the twenty
credits required for graduation, which must include the requisite number of
credits in specified disciplines. For the 2009-2010 school year, there were more
than 500 students at New Britain High School with special education needs. The 9
large number of students and class choices results in a large, but undefined and
unspecified number of group permutations.
The class size provisions at issue in this case, with the exception of
Category VII, have appeared in collective bargaining agreements between the
Board and Union since at least 1995. See Pl. Exh. 1-5. Category VII was first
included in the collective bargaining agreement for the parties covering the
period from 2001 to 2004 (Pl. Exh. 3), and was based upon a grievance arbitration
award on special education class size issued by Virginia W. Dethy on January 30,
1996. Pl. Exh. 12. None of the Board’s witnesses in this case played any role in
drafting or negotiating the special education class size provisions. Indeed, the
Board’s witnesses consistently testified that they lack an understanding of what
the terminology included in the various categories contained in Section 5.3
means.
Barker was, however, able to elaborate upon the meaning of the categories
to a certain extent. She explained that Category I, which provides a class size
limit of 7, applies to students at the elementary school level with severe
disabilities who require special attention. Categories II through IV apply to
students at various grade levels with disabilities in academic or behavioral areas,
or both, in “self-contained” classes, meaning classes consisting of only special
education students. Category V, which provides a class size limit of 25, applies
to students in a “learning resource” class, which is a class that students with
special education needs who have been “mainstreamed” into the general student
population attend for part of the day in order to obtain additional help with their 10
schoolwork. Category VI, which provides a class size limit of 16 students, applies
to a program at New Britain High School called the “Individual Development
Educational Alternative,” which is a class co-taught by two teachers that is
designed for students with long-term emotional or mental illnesses.
As noted above, Category VII has been the subject of the majority of
grievances for oversize classes. Unlike the other six categories, Category VII
does not impose a limitation on the total number of special education students
who may be placed in a particular class. Instead, Category VII imposes a limit of
30 “contacts” for teachers providing educational support to students who are
taught in “inclusion” classes at New Britain High School, which are classes in
which special education students are taught alongside their general education
peers in a regular classroom.
The Board’s witnesses testified that an inclusion class consists of no more
than 50% special education students. Because special education services are
provided on the basis of a student’s need as outlined in his or her IEP, a
particular student may be designated as a special education student for certain
classes, but not for others. Thus, for instance, a student may have a need for
special services in English class, but not Mathematics class. In such a scenario,
the student would only be considered a special education student in English
class. Normally, inclusion classes are “co-taught” by both a general education
teacher and a special education or “inclusion teacher,” who is responsible for
ensuring that special education students in that particular class receive the
services required by their IEPs. A paraprofessional may also be assigned to a 11
special education class depending upon the needs of the special education
students in that class.
The term “contacts” as used in Category VII refers to the total number of
special education students combined with the total number of teachers with
whom an inclusion teacher consults during the course of a day. By way of
illustration, if a special education teacher co-teaches five inclusion classes with
five different general education teachers, each of which contains five special
education students, his or her total number of contacts would be 30 (25 special
education students plus five general education teachers). Likewise, if another
special education teacher co-teaches five inclusion classes with the same
general education teacher in each class, and each class contains five special
education students, his or her total number of contacts would be 26 (25 special
education students plus one general education teacher).
Special education teachers at New Britain High School also serve as “case
managers” with a caseload of approximately 10 to 15 special education students
each. Case managers are generally responsible for ensuring the success of each
student assigned to their caseload. Their particular duties include ensuring that
students’ schedules align with their needs as required by their IEPs, attending
PPTs and assisting to develop IEPs, consulting with teachers regarding students’
academic and attendance issues, acting as a liaison for students, and addressing
problems that may arise regarding transportation, parents, or other issues. The
duties performed by teachers in their capacity as case managers are separate
and distinct from the duties they perform in their capacity as special education 12
teachers for particular classes. Case managers spend approximately 3.75 total
hours per week on case management functions for all of the students assigned to
their caseload combined. None of the duties performed by special education
teachers in their capacity as case managers count toward their “contacts” for
purposes of Category VII.
The Board’s witnesses described the process used for assigning special
education students to classes and ensuring that they received the services
required by their IEPs for the 2009-10 and 2010-11 school years. The Board did
not present evidence regarding how the scheduling process occurred prior to the
2009-10 school year. Anne Marie Niedzwiecki, Coordinator of Special Education
and Speech/Language Services for the New Britain School District (the “District”),
testified that, upon beginning her job in July 2008, she was tasked with the
responsibility of reviewing the IEPs for all special education students at New
Britain High School to ensure that they were receiving the appropriate services.
Upon reviewing over 450 IEPs, she discovered numerous discrepancies between
the services that special education students were supposed to be receiving and
the services they were actually receiving. To remedy the errors, she testified that
in May 2009 she created an excel spreadsheet listing the services that each
special education student was to receive, based upon their IEPs, for the
upcoming 2009-10 school year. Based upon the data included in the
spreadsheet, she determined the number of inclusion classes that were needed
and the types of services that would have to be provided in each class. She
provided this information to Steven Strand, Assistant Principal at New Britain 13
High School. Strand created a master schedule for all New Britain High School
students which incorporated this information. Strand did not testify and no other
evidence was introduced establishing what if any effort was made to comply with
the class size limits to which the Board agreed in the CBA or that such efforts
were unavailing. Niedzwiecki also testified that she neither understood nor
attempted to determine whether class assignments could meet both student
needs and class size limits as she never attempted to comply with the class size
provisions of the CBA.
Rebecca Deddona, District Supervisor for Special Education, was also
critically involved in scheduling for special education students at New Britain
High School. Deddona began her job with the District in July 2009. Her role in
scheduling for the 2009-10 school year was to check the class schedule for all
special education students against their IEPs, and to ensure that all services
required by the IEPs also appeared in the schedules. Subsequently, for the 2010-
11 school year, Deddona testified that she too created an excel spreadsheet, as
Niedzwiecki had done the previous year, which listed the services that each
special education student was to receive based upon their IEPs. She then
prepared a schedule for special education students. The schedule provided
instructions regarding the number of sections that would be needed for each
particular class, including both inclusion classes and self-contained classes,
based upon the number of students who had requested the class and the level of
need of those students. Deddona explained that, if students in a particular class
had a higher level of need, she would create an additional section or place 14
another paraprofessional in the class. Deddona also testified that she made no
effort to meet the class size limits contained in the CBA. After Deddona
completed the schedule for special education students, Strand again created a
master schedule for all students at New Britain High School which incorporated
the information provided by Deddona. Again, there is no evidence of the role if
any that the CBA played in that process, but Attorney Sommaruga, counsel for
the Board, stated during the trial that the Board made no effort to comply with the
CBA.
The Board failed to present any evidence or claim of any student ever
having been denied services called for by his or her IEP as a result of the class
size provisions contained in the CBA. Each of the Board’s witnesses testified
repeatedly that the CBA class size language was not considered when
determining the class schedule for special education students, and that no effort
was made to comply with the class size limits. Instead, the schedule was based
solely on students’ needs as required by their IEPs. The Union was not consulted
and played no role in developing the class schedule for the 2009-10 and 2010-11
school years.
The Board’s witnesses testified that it would be difficult to comply with the
special education class size provisions contained in the CBA, and particularly
Category VII, because of the IDEA’s “least restrictive environment” mandate,
which creates a presumption that special education students are to be placed in
general education classrooms with supplemental aids and services. However,
the Board was unable to illustrate this assertion or state with particularity why its 15
conclusory assertion was in fact true. On the contrary, the evidence presented at
trial indicated that the problem is largely one of resources and could be remedied
by adding class sections and teachers. To that end, Deddona testified that she
has the authority to add additional class sections, and that doing so would have
the effect of reducing the total number of special education students in each
class and thus reducing the number of “contacts” for special education teachers
for purposes of Category VII as well as reducing the student-teacher ratio with
respect to the other categories. Nothing in the CBA prevents the Board from
adding additional sections. Instead, Deddona explained, the primary impediment
to doing so is a lack of resources. Deddona admitted that, with “additional
teachers and classrooms,” it would be possible to comply with the inclusion
requirements of the IDEA and state law while also comporting with the CBA class
size provisions. Further, adding additional sections would have the benefit of
reducing class sizes at New Britain High School from the current standard of 30-
32 students which, according to educational theory, may benefit all students in
general.
Niedzwiecki was also questioned regarding the issue of whether hiring
more teachers would solve the class size overage problems at New Britain High
School and permit scheduling for special education students to be done in a
manner that complies with both the CBA class size provisions and with federal
and state law. Niedzwiecki was evasive, testifying that she was not able to
definitively say one way or the other because that would be “trying to predict into
the future.” She admitted, however, that there would likely be “other issues,” 16
including “building use, how many teachers actually have the rooms at the high
school, [and] the practicality of it,” all of which are resource rather than
educational or legal issues.
When recalled as a rebuttal witness, Niedzwiecki testified that none of the
class compositions for students in the Tenth through Twelfth grades proposed by
the Union would satisfy the requirements of the IDEA because they would deprive
special education students of the class choices available to non-special
education students. However, her testimony was conclusory and unsupported by
the facts. The curriculum at New Britain High School is divided into four levels of
instruction: college level, which are classes for students capable of doing
college level work and have the necessary prerequisites; honors level, which are
college preparatory classes available to academically talented students;
accelerated level, which are classes for students who want to work at a more
challenging pace than the standard level; and standard level, which are classes
for students who may need additional support in literacy and math skills. See
Doc. #55, Program of Studies for New Britain High School for school years 2007-
08, 2008-09, 2009-10, and 2010-11. There are limited course offerings at the
standard level, with the vast majority of courses being offered at the other three
levels. Id. In order to accept Niedzwiecki’s claim, the Court would have to make a
presumption that special education students would naturally be distributed
across course offerings at all four levels of instruction. However, no such
evidence was presented at trial. To the contrary, the testimony of the Board’s
witnesses suggested that, as a general matter, students designated as special 17
education students for a particular subject would not appropriately be assigned
to college, honors, or accelerated level courses in that subject. Instead, such
students would likely be assigned to standard level courses, for which course
offerings are quite limited.
Further, under New Britain High School’s drop policy, students are not
permitted to change or drop classes at the beginning of the school year in the
fall. Id. Instead, they must wait until after the first progress report if they feel
they have been misplaced to move down one level, and even then, such a change
requires the teacher’s attestation that the student put forth his or her best effort.
Id. This policy likely has the effect of discouraging students from choosing
courses that may prove challenging for them. Therefore, it would appear that the
course offerings available to special education students are inherently
constrained by New Britain High School’s curriculum and limited drop policy, and
the Court assigns little weight to Niedzwiecki’s testimony regarding the purported
effect of the CBA class size provisions on student choice.
IV. CONCLUSIONS OF LAW
A. Arbitrability
The Board asserts that this action arises under federal law and therefore
invokes this Court’s jurisdiction pursuant to 28 U.S.C. § 1331. The Union
contests this Court’s jurisdiction on the basis that the instant dispute is subject
to arbitration pursuant to the CBA. Therefore, the Court must address
arbitrability as a threshold matter.
18
Where, as here, a contract contains an arbitration clause, “there is a
presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular
grievance should not be denied unless it may be said with positive assurance
that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.’” AT & T Technologies, Inc. v. Communications Workers of
America, 475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. V. Warrior
& Gulf Nav. Co., 363 U.S. 574, 582-583 (1960)). However, “the presumption is
reversed when the question is whether the issue of arbitrability is subject to
arbitration. The determination of arbitrability is left to the court unless the parties
‘clearly and unmistakably’ indicate otherwise.” First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). This rule also applies under Connecticut law.
See Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467 (1990)
(“Whether a particular dispute is arbitrable is a question for the court, unless, by
appropriate language, the parties have agreed to arbitrate that question, also.”).
In this case, the parties expressly agreed to arbitrate grievances involving
an alleged “violation of, misinterpretation of, misapplication of, or infringement
upon the provisions of [the Collective Bargaining] Agreement.” Pl. Exh. 5 at 24.
This language encompasses violation of the special education class size
provisions, contained in Sections 5.3 and 5.4 of the CBA, which are at issue in
this case. Id. at 12. The Board contends, however, that the special education
class size provisions violate federal and state law, and therefore are not a proper
subject for arbitration.
19
If a contract provision “is unenforceable and void, it should not and cannot
form the basis for any arbitration award, irrespective of the holding of the
arbitrator, and the mere submission of the controversy to arbitration would
compound the statutory violation.” McLeod v. American Federation of Television
& Radio Artists, 234 F. Supp. 832, 841 (S.D.N.Y.1964). “In other words, if the
clause is void and unenforceable it was void and unenforceable as of the time of
its insertion into the contract and, ipso facto, cannot be the basis of any breach
of the collective bargaining agreement.” Id. As the Second Circuit has explained,
Where a contract clause calls for a result inconsistent with [federal law] and the jurisdiction of an arbitrator provided for by the contract is restricted, as here, to “disputes relating to the Interpretation or Performance of this Agreement”, resort to arbitration may be futile since it is not at all clear that the arbitrator may disregard the plain provisions of the contract.
Danielson v. International Organization of Masters, Mates and Pilots, AFL-CIO,
521 F.2d 747, 755 (2d Cir. 1975); see also Policeman’s & Firemen’s Retirement
Board v. Sullivan, 173 Conn. 1, 12 (1977) (upholding entry of injunctive relief
prohibiting union from proceeding with arbitration where the matter in dispute
was not subject to arbitration under the parties’ collective bargaining agreement).
Accordingly, if the Plaintiff’s position that the special education class size
provisions are unlawful is correct, it would be improper to submit the Union’s
grievances regarding class size overages to arbitration. If, however, the special
education class size provisions do not violate any federal or state law, the
grievances at issue are clearly arbitrable. Thus, the Court must address the
20
ultimate issue of the legality of these provisions before the question of
arbitrability may be decided.
B. Legality of Special Education Class Size Provisions
The Board contends that class size provisions for special education
classes contained in the CBA are illegal, invalid, and unenforceable under the
IDEA, Connecticut state law, Section 504 of the Rehabilitation Act, the Americans
with Disabilities Act, and the Equal Protection Clause of the United States
Constitution.
The IDEA, 20 U.S.C. §1400, et seq., was adopted in 1975 to ensure that all
children with disabilities have available to them a free appropriate public
education, including the provision of special education and related services
designed to meet their unique needs. The United States Department of Education
has adopted regulations to implement the IDEA, as amended from time to time.
See 34 C.F.R. § 300.1 et seq. The IDEA mandates that, to the maximum extent
appropriate, “children with disabilities [must be] educated in regular classes with
children who are not disabled, and special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment
[may occur] only when the nature or severity of the disability of a child is such
that education in regular classes with the use of supplementary aids and services
cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §
300.114(a)(2)(i). “Educating a handicapped child in a regular education
classroom . . . is familiarly known as ‘mainstreaming.’” P. v. Newington Board of
Educ., 546 F.3d 111, 119 (2d Cir. 2008). The Second Circuit has underscored the 21
IDEA’s “strong preference for children with disabilities to be educated, ‘to the
maximum extent appropriate,’ together with their non-disabled peers.” Id.
Nevertheless, “the presumption in favor of mainstreaming must be weighed
against the importance of providing an appropriate education to handicapped
students. Under the [IDEA], where the nature or severity of the handicap is such
that education in regular classes cannot be achieved satisfactorily,
mainstreaming in inappropriate.” Id.
As required by federal law, Connecticut has adopted a statutory scheme
and administrative regulations implementing the provisions of the IDEA. See
Conn. Gen. Stat. § 10-76a et seq.; Conn. Agencies Regs. § 10-76d-1 et seq.
Educational programs for students with disabilities are designed and
implemented through an IEP which contains the student’s present levels of
educational performance, measurable goals, and the educational program and
services and accommodations to be provided to the child. 20 U.S.C. §
1414(d)(1)(A); 34 C.F.R. § 300.320(a). The IDEA and implementing federal and
state regulations set forth procedures intended to provide a framework for
developing an appropriate IEP in light of a student’s needs and abilities and
ensuring parents’ participation in the ongoing development of their child’s
educational program. Pursuant to these procedures, if a student requires special
education, a school district must convene a PPT to develop an IEP via an
individualized inquiry into the child’s needs. The PPT consists of the student’s
parents/guardians and appropriate regular and special education personnel,
including teachers and evaluators, and parents may invite other individuals with 22
relevant expertise to participate. The IEP must be reviewed at least once per
year, and it should be periodically revised in response to information provided by
the parents and staff and to ongoing evaluations of the child’s progress. See 20
U.S.C. § 1414(d); 34 C.F.R. §§ 300.320 – 300.324; Conn. Agencies Regs. §§ 10-76d-
10 – 10-76d-12.
The United States Supreme Court has specifically rejected the contention
that the “appropriate education” mandated by the IDEA requires states to
“maximize the potential of handicapped children.” Bd. of Educ. of the Hendrick
Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 197 n.21 (1982).
The purpose of the IDEA was “more to open the door of public education to
handicapped children on appropriate terms than to guarantee any particular level
of education once inside.” Id. at 192. Nevertheless, the “door of public
education” must be opened for a disabled child in a “meaningful” way. Id. This
is not done if an IEP affords the opportunity for only “trivial advancement.” Mrs.
B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997) (citations omitted).
Instead, an appropriate education under the IDEA is one that is “likely to produce
progress, not regression.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195
(2d Cir. 2005) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130
(2d Cir. 1998)).
Section 504 of the Rehabilitation Act and the Americans with Disabilities
Act (“ADA”) also provide that students with disabilities must receive an
appropriate education in the least restrictive environment, with similar procedural
safeguards as those provided under the IDEA. See 34 C.F.R. §§ 104.33 through 23
104.36; 29 U.S.C. § 794; 42 U.S.C. § 12132; 28 C.F.R. § 35.130; see also Molly v.
Lower Merion School Dist., 194 F. Supp. 2d 422, 426 (E.D. Pa. 2002) (“The
substantive requirements of the Rehabilitation Act in the education context are
equivalent to the requirements set forth in the Individuals with Disabilities
Education Act[.]”).
Although the IDEA does not contain an explicit defense of undue burden,
as the ADA and regulations implementing the Rehabilitation Act do, see 42 U.S.C.
§ 12112(b)(5)(A) and 28 C.F.R. § 41.53, some courts have noted that such a
defense is “implicit in the statutory concepts of an ‘appropriate’ education and
‘related’ services.” Morton Cmty. Unit Sch. Dist. No. 709 v. J.M., 152 F.3d 583, 586
(7th Cir. 1998) (stating that at some point the expense of providing a service to a
severely disabled child during the school day “is so disproportionate to any
plausible educational objective for the child that the expense should not be
considered a component of an appropriate education for a severely disabled child
or a service reasonably related to such an education”); accord Lunceford v.
District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984) (because
public “resources are not infinite,” federal law “does not secure the best
education money can buy; it calls upon government, more modestly, to provide
an appropriate education for each child”) (emphasis in original).
The Second Circuit has adopted a two-pronged approach to be used in
determining whether an IEP satisfies the requirements of the IDEA, pursuant to
which a court should consider, “first, whether education in the regular classroom,
with the use of supplemental aids and services, can be achieved satisfactorily for 24
a given child, and if not, then whether the school has mainstreamed the child to
the maximum extent appropriate.” P. v. Newington, 546 F.3d at 120 (citation
omitted; quotation marks omitted). This determination involves “an
individualized and fact-specific inquiry into the nature of the student’s condition
and the school’s particular efforts to accommodate it, ever mindful of the IDEA’s
purpose of educating children with disabilities, ‘to the maximum extent
appropriate,’ together with their non-disabled peers.” Id.
The Board’s position in this case is that the special education class size
limits in the CBA interfere with the least restrictive environment and
individualized placement mandates of the IDEA, and the similar protections
provided by Section 504 of the Rehabilitation Act and the ADA, by requiring the
Board to place students by category in an educational setting other than the
setting they would be placed in but for the class size limits. See Pl. Proposed
Conclusions of Law, Doc. #39-1, at 26. According to the Board, the CBA forces
educational personnel to choose between complying with the CBA and satisfying
their statutory duty to provide disabled students with public education in the
least restrictive environment appropriate based upon an individualized inquiry of
students’ needs by limiting the number of special education students in each
class depending upon the extent of their disabilities and associated needs.
However, the Board’s position is not borne out by the evidence adduced at
trial. The Board’s witnesses each testified repeatedly that the CBA class size
language was not considered when determining placement for special education
students, and the Board has admitted that it has made no effort to comply with 25
the class size limits. Instead, the class schedule during the years in which the
subject grievances were filed was determined solely based upon the needs of
special education students as reflected in their IEPs. The Board did not present
any evidence of any student in the New Britain school system ever to have
asserted, much less actually been denied services required by his or her IEP as a
result of the class size provisions contained in the CBA. Therefore, the Board
has not shown that the class size provisions at issue have actually resulted in a
violation of federal and state law.
Nevertheless, the Board claims in essence that the CBA class size
provisions have placed it between Scylla and Charybdis – if it complies with the
CBA, it will be in violation of federal and state law concerning special education;
if it does not comply with the CBA, it will be required to pay hundreds of
thousands of dollars to special education teachers for class size overages.
However, the Board’s assertion that complying with the CBA will necessarily
result in it violating special education law is highly conjectural.
First, as noted above, the Board admitted that it makes no effort to comply
with the special education class size limits contained in the CBA, and thus its
contention that compliance would result it being unable to schedule classes for
special education students based upon the services required by their IEPs is
merely hypothetical.
Further, the testimony offered by the Board’s witnesses at trial established
that the Board could in fact comply with the class size limits if it were to create
additional sections for special education inclusion classes and to hire additional 26
teachers. The Board presented no evidence to suggest that it would be
impossible for it to add sections and teachers based upon a lack of funding or for
any other reason, and therefore there is nothing before this Court to suggest that
doing so is not a viable option. While financial considerations may affect what
constitutes an “appropriate” education, the Board has presented little or no facts
to support a conclusion that they do here. Similarly, although the Board’s
witness claimed that complying with the CBA would limit the class choices
available to special education students, there is insufficient evidence to support
this claim and, in fact, the evidence suggests that class choices are inherently
limited by the curriculum and the class selection policies and procedures of New
Britain High School rather than by the CBA. See Doc. #55, Program of Studies for
New Britain High School for school years 2007-08, 2008-09, 2009-10, and 2010-11.
Finally, the Board’s contention that the special education class size
provisions are illegal is contradicted by legal precedent and the history of
collective bargaining negotiations between the parties. The evidence before the
Court demonstrates that the class size provisions at issue in this case, with the
exception of Category VII which was first included in 2001, have appeared in
collective bargaining agreements between the Board and Union since at least
1995. See Pl. Exh. 1-5. However, the Board never voiced any objection at all to
the class size provisions until spring 2008, and never claimed that the provisions
were illegal until it initiated this lawsuit in August 2009. Instead, the Board, which
is a sophisticated entity which was represented by counsel in its negotiations
with the Union, continually approved the class size provisions in each iteration of 27
the collective bargaining agreement, and extended them for an additional year
until June 30, 2011.
Nevertheless, the Board now claims that the special education class size
provisions are anachronistic, having been developed before the IDEA was
enacted and thus before it was required to follow the modern “mainstreaming”
model of special education and the “least restrictive environment” mandate.
However, there is nothing inherent about the class size provisions that require
disabled students to be placed in classes categorically based upon their
disability or for any other arbitrary reason. To the contrary, Category VII, which
limits the number of teacher “contacts” rather than the number of disabled
students in any particular inclusion class, was specifically designed in order to
provide sufficient flexibility to ensure that the needs of special education
students at New Britain High School can be met within the framework of the
inclusion model. The remaining class size provisions place a maximum limit on
the number of special education students who may be placed in various types of
pull-out classes, but the CBA imposes no requirement that disabled students be
removed from the regular classroom for any period of time if doing so would be
inconsistent with their IEPs, nor does it mandate that any particular number of
classes be created for special education students. Therefore, the evidence
before the Court supports the Union’s position that the special education class
size provisions govern the workload of teachers who provide special education
services, and have no inherent impact on the placement of disabled students,
28
which is determined based upon their particular needs as required by federal and
state law.
At trial, the Board cited the Second Circuit’s decision in P. v. Newington for
the proposition that categorical or statistical guidelines that predetermine or
affect the placement of disabled students violate the IDEA’s requirement that an
individualized approach be taken as to each student. In P. v. Newington, the
parents of a learning disabled student who suffered from Down Syndrome,
hearing impairment, and other significant health problems brought suit against
the Newington Board of Education, contending that the student’s IEP for the
2005-06 school year did not include enough regular classroom time and therefore
did not place him in the least restrictive environment as mandated by the IDEA.
546 F.3d at 113-14. The IEP in question provided that the student would be
educated in the regular classroom 74% of the time, that he would receive
supplemental assistance while in the regular classroom, that he would be
removed from the regular classroom when necessary to “increase his
focus/attention” or to address behavioral issues, and that his regular and special
education teachers would consult on a weekly basis. Id. at 117-18. Both the
administrative hearing officer and the district court found that the IEP complied
with the requirements of the IDEA. Id. at 117-18.
On appeal, the parents challenged that finding, arguing that a presumption
should be adopted that a disabled student should be placed in a regular
classroom 80% of the time, based upon a class action settlement in which the
Connecticut State Department of Education agreed that it would be a “desired 29
outcome” for disabled students to spend 80% of their time in classes with non-
disabled students. Id. at 122. The Second Circuit rejected this argument, finding
that such a presumption would be inconsistent with the IDEA’s objective of
providing an education appropriately tailored to each disabled student’s
particular needs. Id. at 122. The Second Circuit noted that “the objective of
providing an education tailored to each student’s particular needs does not admit
of statistical generalizations.” Id. Applying the two-pronged test cited above
pursuant to which a court must consider whether a student can be educated in
the regular classroom with supplemental aids and services and, if not, whether
the student has been mainstreamed to the maximum extent appropriate, the
Second Circuit held that the school had fulfilled its duty under the IDEA to craft a
tailored educational plan that included the student in regular classes to the
maximum extent appropriate. Id.
The P. v. Newington case provides no support for the Board’s position
here. P. v. Newington stands for the proposition that schools must develop IEPs
for disabled students that are appropriately tailored to each student’s specific
needs, rather than based upon an arbitrary statistical generalization regarding the
appropriate percentage of time that a disabled student should spend in a regular
education classroom. As discussed above, the Board presented insufficient
evidence at trial to support its claim that it is incapable of complying with this
mandate because of the special education class size provisions in the CBA, and
was unable to identify any student in the New Britain school system who has ever
been denied appropriate services as a result of those provisions. 30
This case is also unlike Kalliope v. New York State Dep’t, - F. Supp. 2d -,
2010 WL 2243278 (E.D.N.Y. June 1, 2010), where the district court held that the
plaintiffs stated a plausible claim that the New York State Department of
Education (“NYSED”) violated the IDEA by promulgating a policy prohibiting the
use of a particular student-teacher ratio. In Kalliope, the plaintiffs alleged that the
NYSED’s policy prevented the School for Language and Communication
Development (“SLCD”) from utilizing a 12:2:2 student-teacher staffing ratio –
meaning a class with twelve students, two teachers, and two teacher’s aides –
even though their children’s IEPs recommended this class ratio. Id. at *2. The
plaintiffs further alleged that the NYSED directed Committees on Special
Education (“CSE”) to change IEPs for reasons other than the unique needs of
children and that the NYSED interfered with children’s access to the SLCD, even
though the CSEs had determined that SLCD was the appropriate educational
placement for the children. Id. at *9. The NYSED moved to dismiss, arguing that
the plaintiffs had failed to state a claim on which relief could be granted. The
district court denied the motion to dismiss, finding that the plaintiffs plausibly
stated a claim that the NYSED failed to comply with the IDEA’s procedural and
substantive requirements because its policy preventing CSE members from even
considering the appropriateness of a 12:2:2 class size ratio could constitute an
illegal “predetermination” and could interfere with the IEPs and thereby hamper
the progress of the plaintiffs’ children and other children attending the SLCD. Id.
at *9-10. Here, by contrast, there is no evidence that the class size limits
contained in the CBA interfered in any way with the IEPs of students in the New 31
Britain school system. Instead, the Board’s witnesses consistently testified that
the class schedule was created so as to implement the IEPs of special education
students, and no evidence was produced of any student having failed to receive
the services required by his or IEP. Therefore, the Board has identified no valid
reason why it cannot comply with both the IDEA and the class size provisions
that it bargained for, and its claim under the IDEA and corresponding federal and
state law fails.
Finally, the Board argues that the special education class size provisions
violate the Equal Protection Clause of the United States Constitution because
they mandate that students be treated differently based on their disability status
and category. “Where disability discrimination is at issue, the Fourteenth
Amendment only proscribes government conduct for which there is no rational
relationship between the disparity of treatment and some legitimate governmental
purpose.” Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98,
109 (2d Cir. 2001). “Indeed, ‘so long as [a state’s disparate] actions’ are rationally
related to a legitimate purpose, no Fourteenth Amendment violation is presented
even if the actions are done ‘quite hardheadedly’ or ‘hardheartedly.’” Id. (quoting
Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 367-68 (2001)).
The Board has failed to present any evidence to support an Equal
Protection claim in this case. The evidence presented at trial demonstrated that,
to the extent that disabled students at New Britain High School are treated
differently than their non-disabled peers, that differential treatment is based upon
their particular needs as determined by their IEPs and as required by the IDEA. 32
Further, the class size and contact limits of the CBA are designed to assure
student-teacher ratios that allow for the effective delivery of teaching services to
students and this is rationally related to the school’s pedagogical purpose.
Although the Board contends that it would be unable to schedule students based
upon their IEPs if it had to comply with the special education class size
provisions, as discussed above, it has failed to prove this claim.
Accordingly, because the Board has failed to meet its burden of proving
that the special education class size provisions at issue in this case are illegal, its
request for declaratory and injunctive relief is denied. The parties are directed to
proceed to arbitration in accordance with Section 9.6 of the CBA.
IV. CONCLUSION
Based upon the above reasoning, the Court holds that the Board has failed
to prove that the special education class size limits contained in its collective
bargaining agreement with the Union violate federal and state law concerning
students with disabilities. Accordingly, the Court rules in favor of the Union with
respect to all of the Board’s claims. The Clerk is directed to enter judgment for
the Union, and to close this case.
IT IS SO ORDERED.
/s/ Vanessa L. Bryant United States District Judge
Dated at Hartford, Connecticut: November 17, 2010.
33