Friday, January 10, 2014

Second Circuit Affirms Expiration of Connecticut's Special Education Consent Decree by Mark Weber

A recent case of interest with regard to special education is P.J. ex rel. W.J. v. Katz, No. 10-3586-CV, 2013 WL 6726948 (2d Cir.  Dec. 23, 2013). P.J. is an unpublished, nonprecedential ruling from the Second Circuit Court of Appeals. It concerned a consent decree entered in 2002 by a district court in Connecticut regarding education of children with intellectual disabilities (a term that has come to replace mental retardation). The defendants included the Connecticut Board of Education and Department of Education. The goals of the agreement as stated in its text were to increase the percent of students with intellectual disabilities in regular classes, decrease discriminatory identification of children as having intellectual disabilities, increase the portion of the school day children with intellectual disabilities spent with nondisabled students, raise the percent of students with intellectual disabilities attending the school they would attend if not disabled, and increase the percent of students with intellectual disabilities participating in extracurriculars with nondisabled students. Monitoring, outreach, and establishment of an advisory panel were required. The district court retained jurisdiction for enforcement of the agreement for five years, but the agreement restricted the jurisdiction to  reviewing motions for substantial noncompliance in the subsequent three years. The court’s jurisdiction ended after eight years. The plaintiffs made a motion asserting substantial noncompliance in 2009, one year before the jurisdiction was to expire.

 The Second Circuit affirmed orders from the district court that first denied a motion to compel discovery on the plaintiffs‘ 2009 motion and then denied the underlying noncompliance motion. The appellate court noted that the agreement required the defendants to provide nothing more than existing data to the plaintiffs for the final three years, and it upheld the district court’s finding that the defendants had not frustrated the essential purposes of the agreement. The essential purposes were limited to the goals enumerated in the decree; less consequential breaches did not matter, in the court’s estimation. The goals were numerical in nature, and the defendants showed numerical progress, even though progress slowed as time went on and easy gains were realized.

 The case illustrates the reluctance of the courts of appeals to overturn district court decisions in the conduct of long-running litigation over systemic educational discrimination issues. In that respect, the case bears some similarity to Corey H. v. Chicago Bd. of Educ., 528 F. App’x 666 (7th Cir. 2013), a plaintiff-favorable decision that refused to decertify a class and vacate a 1998 consent decree that dealt with some of the same concerns of educating children with disabilities in the least restrictive environment. P.J. also demonstrates a somewhat inconsistent approach by the court as to how literally to read a consent decree. On the one hand, the restrictions on discovery and limits on jurisdiction were read quite strictly; on the other, provisions of the decree in aid of the basic goals, which plaintiffs said were violated, were read as not consequential enough to support relief.

 The plaintiffs may well have achieved a great overall success from the litigation, even if the final result of the compliance effort was disappointing to them. With the expiration of the decree, new litigation could be filed to address continuing violations of the law.

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