Opinion Approving Settlement - Public Interest Law Center of ...

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 4 of 51panoply of subjects. During various stages of discovery, theparties also exchanged settlement proposals and participated insettlement discussions with a number of court-designatedfacilitators. Each settlement attempt, although not initiallysuccessful, brought the parties closer together.In 2002, following a discovery dispute, the Courtappointed The Honorable Louis C. Bechtle, former Chief Judge ofthe United States District Court for the Eastern District ofPennsylvania, as Discovery Master in the case. With JudgeBechtle’s guidance, the parties completed discovery on May 30,2003. Thereafter, the parties filed cross-motions for summaryjudgment, along with responses and replies. On March 24, 2004,the Court heard oral argument on the summary judgment motions.After oral argument, and at the Court’s suggestion, the partiesagreed to reconvene settlement discussions, with Judge Bechtleserving as a mediator.From July 2004 to December 2004, the partiesnegotiated--through mediation sessions with Judge Bechtle, faceto-facemeetings with negotiating teams that represented theparties, and the exchange of correspondence--a settlement thataddressed all of the issues in the case. On December 21, 2004,the parties filed a joint motion for provisional approval of theproposed Settlement Agreement (doc. no. 295), which the Court4

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 5 of 514granted on April 29, 2005 (doc. no. 305). The Court also (1)4As the Court indicated in its order grantingprovisional approval of the proposed Settlement Agreement, citingto its decision in Samuel v. Equicredit Corp., No. Civ. 00-6196,2002 WL 970396, at *1 n.1 (E.D. Pa. May 6, 2002),(doc. no. 305).[a] decision granting preliminaryapproval does not bind the court togranting final approval. As notedby the Third Circuit, “[the]preliminary determinationestablishes an initial presumptionof fairness . . . .” In re GeneralMotors Corp., 55 F.3d 768, 785 (3dCir. 1995) (emphasis added). “Ifthe proposed settlement appears tobe the product of serious,informed, non-collusivenegotiations, has no obviousdeficiencies, does not improperlygrant preferential treatment toclass representatives or segmentsof the class, and falls within therange of possible approval, thenthe court should direct that thenotice be given to the classmembers of a formal fairnesshearing . . . .” Manual forComplex Litigation, Second § 30.44(1985). In addition, “[t]he courtmay find that the settlementproposal contains some merit, iswithin the range of reasonablenessrequired for a settlement offer, oris presumptively valid.” Newbergon Class Actions § 11.25 (1992).In this case, the court finds thatthe settlement falls within the“range of possible approval” andshall be submitted to the classmembers for their consideration andfor a hearing to determine whetherthe settlement will be approved bythe court.5

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 6 of 51altered and approved the parties’ proposed form of notice; (2)prescribed time frames for the distribution of the notice; (3)established time frames for the submission of objections to theproposed Settlement Agreement; and (4) set a date for a FairnessHearing.The Court received nineteen objections to theSettlement Agreement, of which only sixteen where submitted byclass members or their parents. At the Fairness Hearing, whichwas held on June 24, 2005, the Court heard oral argument from theparties and other interested persons and received testimony froma special-education expert, Commonwealth officials, parents ofseveral named Plaintiffs, and certain representatives fromadvocacy groups. The parties submitted additional evidencethrough declarations and reports. Thereafter, the Court orderedthe parties to file a joint motion for final approval of theproposed Settlement Agreement (doc. no. 318). The joint motionwas filed on August 5, 2005. (doc. no. 326).II.PROPOSED SETTLEMENT AGREEMENTWith the Court’s final approval, the SettlementAgreement will resolve--finally and completely--the case ofGaskin v. Pennsylvania, No. Civ. A. 94-4048 (E.D. Pa. 1994).Rather than continuing to litigate this action, the parties haveagreed to follow the terms and conditions of the proposed6

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 7 of 51Settlement Agreement fully and comprehensively to resolve alloutstanding claims in the case.The life of the Settlement Agreement will be the fiveyearperiod of time commencing on the date on which the Courtformally enters an order dismissing the case and ending exactlyfive years later. (Settlement Agreement, Provisions II(B)-(C),doc. no. 295.) As a foundation to the Settlement Agreement, theparties have affirmed the following mutual goals and principlesthat will guide interpretation of the Settlement Agreement.(1) The IDEA and related case law,including Oberti v. Board ofEducation, 995 F.2d 1204 (3dCir. 1993), require specialeducation students to beeducated with students who donot have disabilities to themaximum extent appropriate.(2) It is desirable that schooldistricts increase theircapacity to provideappropriate specially designedinstruction, related services,supplementary aids andservices and support tospecial education studentsplaced in regular educationclassrooms.(3) When the law requires thatspecial education studentsreceive supplementary aids andservices in order to beeducated with students who donot have disabilities to themaximum extent appropriate,such supplementary aids andservices should be: (a)available to all students in7

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 8 of 51need of them; (b) designed toprovide meaningful educationalbenefits; and (c) provided ina manner sensitive to the needto avoid stigmatizing specialeducation students who receivethem.(4) Pennsylvania school districtseducate all children andwelcome children with specialneeds.(Id. at Provision III(A)(1)-(4).)follows.A summary of certain Settlement terms and conditionsA. Policy Development and ImplementationThe overarching policies undergirding the SettlementAgreement are divided into five categories. (Id. at ProvisionIV.1.) First, PDE agrees to require school districts to adherestrictly to the IDEA, and the case law construing that statute,when making decisions regarding the placement of students withdisabilities. To meet this condition of the SettlementAgreement, the PDE will ensure: (1) students may not be removedfrom regular education classes simply because of the severity oftheir disabilities; (2) school districts have an obligation toprovide students with disabilities, including students withsignificant cognitive disabilities, specially designedinstruction or other supplementary aids and services, if needed,to benefit from participating in a regular education classrooms;8

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 9 of 51(3) before considering removal of a student with disabilitiesfrom a regular education classroom, the IEP team must firstdetermine whether the goals in the student’s IEP can beimplemented in a regular education classroom with supplementaryaids and services; and (4) school districts will consider thefull range of supplementary aids and services, based on peerreviewedresearch to the extent practicable, that can be utilizedin regular education classrooms before contemplating removal of astudent with disabilities from a regular classroom. (Id. atProvision IV.1(A).)Second, when non-PDE Commonwealth agencies or privateagencies are required to provide a free appropriate publiceducation in the least restrictive environment, “the serviceswill be provided, coordinated, and paid in accordance with theinteragency coordination [set forth in the] Memorandum ofUnderstanding entered into among PDE, the Pennsylvania Departmentof Public Welfare, the Pennsylvania Department of Labor andIndustry, and the Pennsylvania Department of Health.” (Id. atProvision IV.1(B).)Third, students who are entitled to gifted support or5Chapter 15 accommodations will have one IEP that incorporates5As Chapter 15 of Pennsylvania’s Administrative Code onEducation provides:(a)This chapter addresses aschool district's9

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 10 of 51responsibility to comply withthe requirements of Section504 and its implementingregulations at 34 CFR Part 104(relating to nondiscriminationon the basis of handicap inprograms and activitiesreceiving or benefiting fromfederal financial assistance)and implements the statutoryand regulatory requirements ofSection 504.(b)Section 504 and itsaccompanying regulationsprotect otherwise qualifiedhandicapped students who havephysical, mental or healthimpairments fromdiscrimination because ofthose impairments. The lawand its regulations requirepublic educational agencies toensure that these studentshave equal opportunity toparticipate in the schoolprogram and extracurricularactivities to the maximumextent appropriate to theability of the protectedhandicapped student inquestion. School districtsare required to provide thesestudents with the aids,services and accommodationsthat are designed to meet theeducational needs of protectedhandicapped students asadequately as the needs ofnonhandicapped students aremet. These aids, services andaccommodations may include,but are not limited to,special transportation,modified equipment,adjustments in the student's10

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 11 of 51all specially designed instruction, accommodations, or othersupport identified by the IEP team. (Id. at Provision IV.1(C).)Fourth, PDE agrees to create readily available,informational materials about the types of supplementary aids andservices that children with disabilities can receive in a regulareducation classroom and how parents can seek assistance inobtaining these aids and services for their children. PDE willseek input from the Advisory Panel (see Part II.A below) for thisinitiative. (Id. at Provision IV.1(D).)Finally, PDE agrees to create materials representingthat all children, including those children with disabilities,are welcome in school. These materials will be displayed inschool buildings. PDE also agrees to seek input from theAdvisory Panel (see Part II.A below) for this initiative. (Id.at Provision IV.1(E).)B. Advisory PanelPDE agrees to establish a special advocacy group, knownas the “Bureau Director’s Advisory Panel on Least Restrictive22 Pa. Code § 15.1.roster or the administrationof needed medication. Forpurposes of the chapter,students protected by Section504 are defined and identifiedas protected handicappedstudents.11

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 12 of 516Environment Practices” (or simply the “Advisory Panel”), toengage in the following functions: (1) to review system-wideprogress in the delivery of individualized, specially designedinstruction in regular education classrooms to students withdisabilities; (2) to analyze and report periodically on thestatus of implementation of the Settlement Agreement; and (3) toadvise PDE on the implementation of the Settlement Agreement’sterms and conditions. (Id. at Provision IV.2(A).) The AdvisoryPanel will be comprised of fifteen members, at least nine of whomwill be parents of children with disabilities who are notemployed by PDE, or by any school district in Pennsylvania, or byany other local education agency in Pennsylvania. (Id. atProvision IV.2(B).) More specifically, during the life of theSettlement Agreement, the organizational Plaintiffs will annuallyselect twelve Advisory Panel members, and the Bureau Directorwill annually select three Advisory Panel members. (Id.)Although all Advisory Panel members will initially be appointedto a one-year term, the Settlement Agreement provides that eachmember is eligible for reappointment, up to a maximum of fiveyears. (Id.)The Settlement Agreement also establishes guidelinesfor how vacancies on the Advisory Panel will be filled, how often6The “Bureau Director” refers to the Director of PDE’sBureau of Special Education.12

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 13 of 51the Advisory Panel will meet, how the Advisory Panel willoperate, and what types of data will be accessible to theAdvisory Panel. (Id. at Provision IV.2(C)-(M).) Notably, theBureau of Special Education agrees to provide “a reasonable levelof support, including support staff, to the Advisory Panelconsistent with the PDE’s budgetary resources and as determinedby the Bureau Director.” (Id. at Provision IV.2(K).) Two of theAdvisory Panel’s main initiatives will be: (1) to assist indesigning a needs assessment, based on research-based practicesand the supplementary aids and services available in regulareducation classrooms, of the school districts’ and intermediateunits’ personnel; and (2) to aid the Director of the Bureau ofSpecial Education in identifying school districts that haveestablished exemplary LRE programs and practices, rewarding thosedistricts, and creating materials to help other school districtsreplicate the LRE initiatives of the exemplary school districts.(Id. at Provision IV.2(L)-(M).)C. Individualized Education Program or Plan (“IEP”) FormatAs done previously, PDE will provide an Annotated IEPFormat to guide school districts in developing IEPs. (Id. atProvision IV.3(A).) Under the Settlement Agreement, however, theLRE portion of the Annotated IEP Format will be modified toreflect the new LRE Monitoring, which is described below. (Id.13

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 14 of 51at Provision IV.3(C)-(E).) Additionally, the SettlementAgreement sets forth how and when the LRE portion of the IEP maybe modified during the life of the Settlement Agreement, and whattype of guidance PDE will provide to school districts concerningthe modified LRE portion of the IEP.D. Compliance MonitoringPerhaps the most significant aspect of the SettlementAgreement involves the provision for “compliance monitoring” byPDE of the individual school district’s performance. Compliancemonitoring is intended to ensure, inter alia, that local schooldistricts are adhering to the IDEA and other federal and statelaws that protect the rights of children with disabilities. (Id.at Provision IV.4(A).)Of the three types of compliance monitoring that PDEagrees to conduct, one is new (“LRE Monitoring”) and two areexisting, but will be modified under the Settlement Agreement(“Regular Cyclical Monitoring” and “Targeted Monitoring”). (Id.)All types of compliance monitoring will be “data- andinformation- based and verifiable.” (Id. at ProvisionIV.1(B)(1)(A).) PDE will use this data-based information as aguide for determining how to allocate resources to address “areasof greatest need[,]” relating to the support for children withdisabilities. (Id. at Provision IV.1(B)(1)(B).) “As permitted14

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 15 of 51by its resources, PDE will provide support, including focused,customized technical assistance, to school districts in need ofsuch support.” (Id. at Provision IV.1(B)(1)(C).) Moreover,parents of children with disabilities will be afforded theopportunity, on a continuous basis, to provide PDE withinformation. (Id. at Provision IV.4(B)(1)(e).) And for thoseschool districts failing to take corrective action as mandated byPDE, sanctions will result. (Id. at Provision IV.4(I).)LRE Monitoring, which is a new type of monitoring underthe Settlement Agreement, will be based of five guidingprinciples:(a)(b)LRE monitoring will be basedon a limited number ofpriorities (goal statements)identified by PDE followinginput from a diverse group ofstakeholders through theAdvisory Panel. Prioritieswill include: (1) increasingthe number of students withdisabilities included inregular education classes andneighborhood schools withneeded supplementary aids,services and support; and (2)developing IEPs capable ofproviding students withdisabilities a meaningfulbenefit from education.LRE monitoring will be basedon a limited number ofindicators (objective measuresof the goal) identified by PDEwithin each priority area.15

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 16 of 51(c)(d)LRE monitoring will be basedon comparisons to stateaverages identified by PDE.Monitoring standards will beclearly communicated to schooldistricts.Triggers (levels ofperformance at which PDE willintervene and requirecorrective action) will beclearly communicated to schooldistricts.(Id. at Provision IV.4(A)(3)(a)-(d).)Under LRE Monitoring, PDE will closely monitor andprovide specialized support to half of Pennsylvania’s schooldistricts--selected according to “LRE Index Score” rankings--thathave not been meeting the needs of children with disabilities.(Id. at Provision IV.4(C).) The LRE Index Score will derive fromweighted “data factors,” which will be agreed to by the partiesand reviewed on an annual basis. (Id.) Based on the LRE IndexScore, half of all school districts in Pennsylvania will beidentified under one of three categories on an annual basis.(Id.) “Tier One LRE Monitoring” will be comprised of the twentyschool districts with the lowest LRE Index Scores. (Id. atProvision IV.4(C)(1).) “Tier Two LRE Monitoring,” also known asthe “warning list,” will consist of school districts in thebottom ten percent of the LRE Index Scores that have not beenidentified for “Tier One LRE Monitoring.” (Id. at ProvisionIV.4(C)(2).) Finally, “Tier Three LRE Monitoring,” also known as16

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 17 of 51the “alert list,” will be comprised of school districts in thebottom fifty percent of the LRE Index Score that have not beenidentified for Tier One LRE Monitoring or Tier Two LREMonitoring. (Id. at Provision IV.4(C)(3).) The LRE Index Scoresof all school districts will be made publicly available as partof the school and district report cards under the No Child LeftBehind Act and the IDEA. (Id. at Provision IV.4.)Regular Cyclical Monitoring, a pre-existing monitoringprocess that is mandated by the United States Department ofEducation (“USDOE”), involves the monitoring of each Pennsylvaniaschool district once every six years to ensure that the districtis in compliance with the state and federal special educationlaws and regulations. (Id. at Provision IV.4(A)(1).)Targeted Monitoring, the other pre-existing type ofcompliance monitoring, is performed by the Bureau of SpecialEducation in response to specific deficiencies within aparticular school district that were identified through theRegular Cyclical Monitoring process. (Id. at ProvisionIV.4(A)(2).)The parties have agreed to a five-tier process forcompliance monitoring, including initial triggers for each levelof intervention:(a) Tier One LRE Monitoring of 20school districts (excluding anyschool district implementing a17

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 18 of 517Tier One CAP) identified viadata analysis as most in needof systemic LRE-relatedchanges.(b)(c)(d)(e)Tier Two LRE Monitoring basedon a warning designation forschool districts identified inthe bottom ten percent(approximately) of dataanalysis (excluding any schooldistrict implementing a TierOne or Tier Two CAP).Tier Three LRE Monitoring basedon an alert designation forschool districts identified inthe remaining bottom half(approximately) of dataanalysis.Targeted [M]onitoring based onreferral by a Bureau staffmember due to extenuatingcircumstances within the schooldistrict.Regular [C]yclical [M]onitoringof all Pennsylvania schooldistricts coordinated to thedistrict strategic planprocess, currently on a sixyearcycle as approved in thePennsylvania state planapproved by the USDOE.(Id. at Provision IV.4(B)(2)(a)-(e) (emphasis in original)(footnote added).)7Under the Settlement Agreement, “CAP” means “acorrective action plan ordered by PDE as the consequence ofdeficiencies identified during compliance monitoring conductedunder Section IV.4 of the Settlement Agreement.” (SettlementAgreement, Provision II(L), doc. no. 295.)18

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 19 of 51Those school districts failing to comply with PDE’scorrective action plans--created to rectify deficienciesidentified through any type of compliance monitoring--will besubject to sanctions and enforcement powers, including:(Id. at Provision IV.4(I).)(1) A mandatory meeting with PDEin Harrisburg in which thesuperintendent and chair ofthe school board will beobligated to participate.(2) Appropriate sanctions as setforth in PDE’s “BasicEducation Circular” onenforcement, including thewithholding of funds from theschool district andredirecting those funds to theappropriate body to supportspecific expenditures (e.g.,hiring personnel) to implementthe action required.(3) If appropriate, the initiationof professional disciplinaryaction against thesuperintendent or others whoseconduct is found to haveresulted in the schooldistrict’s failure to meet itsobligations under the CAP.E. Complaint ResolutionUnder the Settlement Agreement, PDE will modify andexpand its present system of complaint investigation andresolution. (Id. at Provision IV.5.) First, the Bureau willinvestigate all complaints filed by parents or students. (Id. at19

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 20 of 51Provision IV.5(A).) If PDE determines that the complaint wastimely filed and that jurisdiction lies with PDE to investigatethe complaint, pursuant to 34 C.F.R. § 300.662, then PDE willresolve the matter using its best efforts to interview: (1) theparents or student, and (2) a reasonable number of personsidentified by the complainant(s) as having actual knowledge ofthe facts. (Id.)Second, when PDE finds in the course of the complaintresolution process that a school district has violated astudent’s right to receive supplementary aids and services in aregular education class or when such a violation is establishedafter a due process hearing, PDE will investigate whether theoffending school district has corrected the violation for allsimilarly situated students during the school district’s nextcompliance monitoring. (Id. at Provision IV.5(B).)F. Financial TermsDefendants will pay named Plaintiffs $350,000 in full,final, and complete settlement and release of Plaintiffs’ claimsfor compensatory damages that have been asserted in this case.(Id. at Provision IV.9(A).) Plaintiffs will be responsible forallocating the $350,000 among themselves. Additionally,Defendants will pay Plaintiffs’ counsel $1,825,000 in full,final, and complete settlement and release of all claims by20

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 21 of 51Plaintiffs or their attorneys for attorneys’ fees and litigationcosts. (Id. at Provision IV.9(B).)G. Other Components of the Proposed Settlement AgreementUnder the Settlement Agreement, PDE will “build uponand refine its present system of review and approval ordisapproval of special education plans [that are] submitted bythe 501 school districts in Pennsylvania[.]” (Id. at ProvisionIV.6.) In part, PDE will require those school districts thatfailed to meet the needs of children with disabilities, asdetermined by compliance monitoring, to include appropriatecorrective actions in their special education plans. Id.Additionally, the Settlement Agreement establishes thatthe Bureau of Special Education will provide extensive on-sitetraining, technical assistance, and professional development toschool districts to ensure that the terms of the SettlementAgreement are being met. (Id. at Provision IV.7.) The AdvisoryPanel will offer support in this initiative by recommendingcontent, delivery systems, and evaluation processes, inter alia,for the training programs. (Id.)Plaintiffs’ counsel will continue to advocate fortrained, informed, and effective support to parents on issuesrelating to specially designed instruction to students withdisabilities. (Id. at Provision IV.8.) As Plaintiffs’ counsel21

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 22 of 51has informed PDE, part of their advocacy will include submittinggrant proposals to PDE and seeking funding for programs thatsupport their special-education goals. (Id.) During the life ofthe Settlement Agreement, PDE agrees to review such grantproposals. (Id.) If the proposals submitted by Plaintiffs’counsel are consistent with PDE’s obligations, priorities, andgoals, and do not jeopardize PDE’s own grant proposals, then PDEwill support such grants and take reasonable steps to assistPlaintiffs’ counsel in obtaining the grants. (Id.)III. SUMMARY OF PROOFS, AFFIDAVITS, AND TESTIMONYClass members and their parents had the opportunity tofile written objections to the proposed Settlement Agreement byJune 10, 2005. Nineteen objections were either filed or receivedby the Court. All objectors were given the opportunity toproduce evidence and be heard at the Fairness Hearing. Thefollowing proofs, affidavits, and testimony were produced by theparties to support approval of the Settlement Agreement.A. Experts1. Christopher Kliewer, Ph.D., Associate Professor ofSpecial Education at the University of NorthernIowaThe parties submitted the declaration of ChristopherKliewer, Ph.D., Associate Professor of Special Education at the22

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 23 of 51University of Northern Iowa, to support their joint motion forfinal approval of the Settlement Agreement. Dr. Kliewer servedas an expert in an earlier phase of the litigation and isfamiliar with the Settlement Agreement. Based on a substantialbody of scholarly and empirical research, Dr. Kliewer stated thatspecial needs children perform better, both academically andsocially, when educated in regular classrooms then when educatedin a non-inclusive setting. (Dr. Christopher Kliewer’s Decl. 3-8, doc. no. 302.) Moreover, Dr. Kliewer indicated that greatdisparities exist among the states in placing children withspecial needs, which is evidenced by data that the United StatesDepartment of Education collected in 2002. (Id. at 14.)According to that data, Pennsylvania educated only 35% of itsspecial education students (aged 6-21) in general educationclassrooms for 80% of a day or more. (Id.) Comparably, Vermontand New Hampshire educated approximately 80% and 75% of itsspecial education students (aged 6-21), respectively, in generaleducation classrooms for 80% of a day or more. (Id.) Thisdisparity helps to demonstrate that Pennsylvania’s practices foreducating children with disabilities are not reflective of whatexperts know about “best practices.” (Id.)23

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 24 of 512. Gail McGregor, Ed.D., Research Professor ofEducation at the University of MontanaDr. Gail McGregor, a research professor of education atthe University of Montana, testified at the Fairness Hearing.(Fairness Hr’g Tr., 06/24/2005, at 53-77.) With over thirtyyears of experience in the area of special education, whichincludes approximately twelve years working in Pennsylvania, Dr.McGregor served as an expert witness in earlier stages of thislitigation and, if the Court gives final approval to theSettlement Agreement, will be assisting the Bureau of SpecialEducation in implementing the Settlement Agreement. (Id. at 53-57.)As an expert on behalf of Plaintiffs, Dr. McGregorstudied Pennsylvania’s approach to professional development forteachers. (Id. at 57-58.) In Dr. McGregor’s opinion, theSettlement Agreement provides strong training, technicalassistance, and professional development. (Id.) Notably, theSettlement Agreement also emphasizes “system accountability.”(Id. at 62.) In her declaration submitted to the Court and fromher testimony at the Fairness Hearing, Dr. McGregor highlightscertain aspects of the Settlement Agreement that meet thetraining and accountability directives.First, the Settlement Agreement establishes “policyguidance” to the IEP teams by requiring them to considerinitially whether a special needs child can be supported in a24

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 25 of 51regular classroom with supplementary aids and services. (Id. at59.) Accordingly, for this policy to be implemented, the IEPteams must be aware of the research-based practices that allowchildren with disabilities to learn in a general educationclassroom. (Id. at 58-59.) Additionally, because the SettlementAgreement will require PDE and the Bureau of Special Education toprovide parents of special needs children with information aboutsupplementary aids and services, both the parents and the IEPteams will start “on the same page.” (Fairness Hr’g Tr.,06/24/2005, at 60.)Second, under the Settlement Agreement, professionaldevelopment needs will be assessed throughout the Commonwealth,whereby actual practice will be contrasted with research- andevidence-based “best practices” in the special education field.(Id. at 61-62.)Third, the LRE Monitoring created under the SettlementAgreement, which requires the ranking of school districtsaccording to data factors that measure how well children withdisabilities are being included in regular classrooms, willprovide an objective mode for determining the impact of training.(Id. at 62-67.) According to Dr. McGregor, tiered monitoring andcorrective action create accountability. (Id.) And although theLRE Index Scores will be based on data factors that have not yetbeen determined by the parties, Dr. McGregor testified that the25

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 26 of 51realm of possible data factors is limited and includesinformation that the school districts are already required toreport to PDE. (Id. at 74.)Fourth, the Settlement Agreement establishes systemaccountability by creating provisions for review and approval ofeach school district’s special education plans, which in turnwill help direct training and technical assistance. (Id. at 62-67.) Moreover, parents will be able to address their grievancesthrough the complaint resolution process. (Id. at 60.)Based on the aforementioned and “a very, very largebody of evidence that suggests that there are positive outcomesfrom students with disabilities” to be placed in regularclassrooms, Dr. McGregor is confident that the SettlementAgreement will “absolutely” benefit Pennsylvania’s special needschildren. (Id. at 66-67.)B. PDE OfficialsTwo PDE officials--Francis V. Barnes, Ph.D., Secretaryof Education for the Commonwealth of Pennsylvania, and LindaRhen, Ed.D., Director of the Bureau of Special Education of thePennsylvania Department of Education--testified at the FairnessHearing. Both officials expressed, on behalf of theCommonwealth, full support for the Settlement Agreement.26

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 27 of 511. Francis V. Barnes, Ph.D., Secretary of Educationfor the Commonwealth of PennsylvaniaAt the time the Settlement Agreement was entered into,Dr. Barnes served as the Secretary of Education for theCommonwealth. In that capacity, he was the highest educationalofficial in Pennsylvania. At the Fairness Hearing, Dr. Barnestestified that he was familiar with the Settlement Agreement,that the Pennsylvania Department of Education was entering intothe Settlement Agreement willingly and voluntarily, and that theterms of the Settlement Agreement would be implementedfaithfully. (Id. at 12-14.) Additionally, Dr. Barnes statedthat the Commonwealth had both the staff support and financialsupport to implement the terms of the Settlement Agreement. (Id.at 13.) Although Dr. Barnes acknowledged that he planned toleave his position as Secretary of Education within a few monthsof the Fairness Hearing, he stressed that his departure would“absolutely not” impact the commitment of the Commonwealth tocarry out the terms of the Settlement Agreement. (Id.) Dr.Barnes indicated that the Settlement Agreement would not onlyserve the best interests of special education children in theCommonwealth, but also those children receiving a generaleducation. (Id.)27

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 28 of 512. Linda Rhen, Ed.D., Director of the Bureau ofSpecial Education of the Pennsylvania Departmentof EducationAs Director of the Bureau of Special Education of PDE,and with more than thirty-four years of experience in the fieldof special education, Dr. Rhen is the Commonwealth official whowill have the most direct responsibility for implementing theterms and conditions of the Settlement Agreement. (Id. at 17-20.) At the Fairness Hearing, Dr. Rhen defined special educationas: “In a generic sense, special education is providing thesupport[] and services to students with disabilities from theages 3 through 21 to help them be successful in school andprepare them for adult life.” (Id. at 20.) Also, Dr. Rhenindicated that 255,264 students with disabilities are school-agedin Pennsylvania, according to the most recent official data thatPDE reported to the United States Department of Education, as ofDecember 1, 2003. (Id. at 21-22.)Dr. Rhen testified that she has “studied ... andstudied” the Settlement Agreement and is very familiar with itsterms. (Id. at 22.) Under the Settlement Agreement, the Bureauwill be responsible for convening the Advisory Panel and namingthree of the Panel’s fifteen members. (Id. at 19.)Additionally, the Bureau will present information andrecommendations to the Advisory Panel, help devise the LRE IndexScore, and conduct compliance monitoring. (Id.) According to28

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 29 of 51Dr. Rhen’s testimony, the Bureau of Special Education iscommitted to implementing the terms and conditions of theSettlement Agreement, which “serves the best interests of theCommonwealth and our students.” (Id. at 22.) Dr. Rhen alsorepresented that PDE can afford the implementation costs for thefive-year life of the Settlement Agreement. (Id. at 23.)As to the life of the Settlement Agreement, Dr. Rhentestified that the five-year period gives PDE and the Bureauadequate time to “address the issues and the tasks that are infront of us in the settlement agreement. Some are more complexthan others. But, I think it gives us the time to be able toidentify and work with each and every issue.” (Id.) Under therecently enacted federal Individuals with Disabilities EducationImprovement Act of 2004, Dr. Rhen indicated that “LeastRestrictive Environment Monitoring” will be required, which isvery similar to monitoring that is mandated under the SettlementAgreement. (Id. at 24.) With changing laws, however, Dr. Rhenstated that it would be hard to predict what exactly would happenafter the life of the Settlement Agreement, but the “five yearsgives us the time to implement the settlement agreement and getsome sound information on which . . . to build future plans.”(Id. at 24-25.)Finally, Dr. Rhen testified about a series of town hallmeetings that the Bureau participated in throughout the29

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 30 of 51Commonwealth to inform parents, school districts, intermediateunits, charter schools, agencies, and other interested partiesabout the Settlement Agreement. (Id. at 27-30.)C. PlaintiffsThree parents of individually named Plaintiffs--including Joseph Gaskin, the father of lead Plaintiff LydiaGaskin--testified at the Fairness Hearing. These parents sharedtheir experiences with navigating through the educational systemin an effort to have their children with disabilities included inregular classroom settings. Moreover, the parents explained thelitigation, mediation, and settlement phases of this case. Theseparents fully support the Settlement Agreement and believe thatit is in the best interest of Pennsylvania students. Inparticular, Mr. Gaskin stated that his greatest reservation withthe Settlement Agreement had been the limited five-year timeframe, but determined that this provision was a betteralternative than a lengthy trial without guaranteed results.(Id. at 46.) Mr. Gaskin noted, however, that with the SettlementAgreement, “we [can] start implementing it right away and starthelping kids throughout Pennsylvania immediately.” (Id.)Additionally, representatives from state and regionaldisability advocacy groups--some named organizational Plaintiffs--testified and/or submitted declarations. These representatives30

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 31 of 51described the arms-length negotiations and expressed full supportof the Settlement Agreement.Finally, twelve parents of children with disabilitiesrequested to speak at the Fairness Hearing, and the Courtafforded them the opportunity to do so. (Id. at 91-120.) Withone exception, these parents commended the efforts of the partiesto the action and expressed their support for the SettlementAgreement. (Id.) One parent evinced several concerns that theSettlement Agreement would limit parents’ choices in placement oftheir children. (Id. at 92.)IV.LEGAL ANALYSISA. Standard of Review“Even if [a proposed settlement agreement] hassatisfied the requirements for certification under Rule 23, aclass action cannot be settled without the approval of the courtand a determination that the proposed settlement is ‘fair,reasonable, and adequate.’” In re Prudential Ins. Co., 148 F.3d283, 316 (3d Cir. 1998) (citing In re Gen. Motors Corp. Pick-UpTruck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 785 (3dCir. 1995)); see also Fed. R. Civ. P. 23(e)(1)(C) (“The court mayapprove a settlement . . . that would bind class members onlyafter a hearing and on finding that the settlement . . . is fair,reasonable, and adequate.”). This determination “is left to the31

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 32 of 51sound discretion of the district court.” Girsh v. Jepson, 521F.2d 153, 157 (3d Cir. 1975).Before delving into legal analysis, it is important todelineate the role of the Court in the shaping of the publicpolicy choices that are embedded in the Settlement Agreement.Contrary to the expectations of some who object to the SettlementAgreement or who appeared at the Fairness Hearing, it is not theCourt’s role (or intent) to superintend from henceforth thedelivery of educational services to the members of the class, orto adjudicate individual disputes between parents and the schooldistricts, or to pick and choose among programs or policies to beimplemented by the Commonwealth or its school districts. Whetherthe Settlement Agreement embodies optimum educational choices orstrikes the proper allocation of resources among competingeducational needs is not the business of the Court. The task ofgiving life to the statutory mandate of providing a “freeappropriate public education” to children throughout theCommonwealth and to fund those mandates adequately will remain,as it should, under the stewardship of the executive andlegislative branches of state government, and not the Court. 20U.S.C. § 1412; 34 C.F.R. § 300.13. Rather, the role of the Courtis focused and more modest, which is simply to ensure that thepublic policy choices embodied in the Settlement Agreement arenot inconsistent with federal or state law.32

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 33 of 51In addition, the Court has the statutory role ofverifying that the Settlement Agreement is “fair, reasonable, andadequate.” Fed. R. Civ. P. 23(e)(1)(C). In Girsh, the ThirdCircuit enumerated certain factors that district courts mayconsider in determining whether to grant final approval of aclass action settlement. Id. at 157. The Girsh factors include:(1) the complexity, expense andlikely duration of the litigation .. .; (2) the reaction of the classto the settlement . . . ; (3) thestage of the proceedings and theamount of discovery completed . . .; (4) the risks of establishingliability . . . ; (5) the risks ofestablishing damages . . . ; (6)the risks of maintaining the classaction through the trial . . . ;(7) the ability of the defendantsto withstand a greater judgment;(8) the range of reasonableness ofthe settlement fund in light of thebest possible recovery . . . ; (9)the range of reasonableness of thesettlement fund to a possiblerecovery in light of all theattendant risks of litigation . . ..Id. (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463(2d Cir. 1974)).These factors, however, are not exclusive. Nor arethey all relevant to every class action. Id. at 156 (stating“[s]ome of the factors which are relevant to a determination ofthe fairness of a settlement [are] . . . as follows.”). In fact,the Third Circuit has suggested that district courts consider33

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 34 of 51additional factors given the “sea-change [which has occurred] inthe nature of class actions.” Prudential, 148 F.3d at 323.These additional factors include:Id.[1] the maturity of the underlyingsubstantive issues, as measured byexperience in adjudicatingindividual actions, the developmentof scientific knowledge, the extentof discovery on the merits, andother factors that bear on theability to assess the probableoutcome of a trial on the merits ofliability and individual damages;[2] the existence and probableoutcome of claims by other classesand subclasses; [3] the comparisonbetween the results achieved by thesettlement for individual class orsubclass members and the resultsachieved-or likely to beachieved-for other claimants; [4]whether class or subclass membersare accorded the right to opt outof the settlement; [5] whether anyprovisions for attorneys’ fees arereasonable; and [6] whether theprocedure for processing individualclaims under the settlement is fairand reasonable.As this Court recognized in Schwartz v. Dallas CowboysFootball Club, Ltd., 157 F. Supp. 2d 561 (E.D. Pa. 2001)(Robreno, J.),Distilled to their essence,Girsh-Prudential compels courts toobtain satisfactory answers to thefollowing questions:1. What benefit did the litigationconfer upon the putative class34

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 35 of 51members either by way of financialcompensation or by [structural]relief?2. What past, present or futureclaims are surrendered by the classmembers by settling the case?3. Do the administrative costs,including attorneys fees, reflectthe market value of the servicesperformed and are they commensuratewith the results achieved?4. Are the terms of the SettlementAgreement consistent with thepublic interest and is the public’sconfidence in the administration ofjustice and the integrity of theclass action process enhanced orimpeded by the settlement?5. What are the prospects that, ifthe Settlement Agreement isrejected, further litigation wouldenlarge the recovery of the classand, if so, at what financial cost?Id. at 572. It is within this framework that the Court willconsider the pending Settlement Agreement.B. Analysis of the Settlement Agreement1. What benefit did the litigation confer upon theclass members?While the Settlement Agreement does not create newnorms of conduct for the PDE or the school districts, it doesprovide for systematic changes in the manner in which PDEmonitors, advises, and trains the local school districts insupporting children with disabilities. Significant impacts in35

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 36 of 51monitoring will be implemented. Improved measuring instrumentswill permit closer monitoring, and a more efficient and effectivedelivery of student services. This focus on how better to meetthe needs of children with disabilities in Pennsylvania willgreatly benefit more than 255,000 students.Agreement,2. What past, present or future claims aresurrendered by the class members by settlingthe case?As set forth in Provision IV.9(E) of the Settlementthe payments . . . of theSettlement Agreement are intendedby the parties to constitute, andwill be construed by the parties toconstitute, consideration exchangedby the defendants for a full,final, and complete release of allclaims that the plaintiffs assertedor could have asserted against anyand all of the defendants arisingout of or relating directly orindirectly to the causes of actionasserted in Gaskin v. Commonwealthof Pennsylvania, No. 94-CV-4048(E.D. Pa.).(Settlement Agreement, Provision IV.9(E), doc. no. 295.)Therefore, the sweep of the release is not overly broad and doesnot extinguish the rights of parents to otherwise vindicatefederal- or state-provided rights through due process hearings.36

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 37 of 513. Do the administrative costs, includingattorneys fees, reflect the market valueof the services performed and are theycommensurate with the results achieved?Under the Settlement Agreement, Plaintiffs’ counselwill receive $1,825,000 for attorneys’ fees and litigation costs.“In determining the appropriate amount of attorneys’ fees to bepaid to class counsel, the principal consideration is the successachieved by the plaintiffs under the terms of the settlement.”Schwartz, 157 F. Supp. 2d at 578; see also Prudential, 148 F.3dat 338 (“‘[N]umerous courts have concluded that the amount of thebenefit conferred logically is the appropriate benchmark againstwhich a reasonable . . . fee charge should be assessed.’”)(quoting Conte, 1 Attorney Fee Awards § 2.05, at 37).After litigating for over eleven years, Plaintiffsrepresent that the Settlement Agreement provides them “with aremedy that addresses virtually every form of relief that wasrequested in the Complaint.” (Joint Mot. for Final Approval ofSettlement Agreement at 56.) In their complaint, Plaintiffsrequested that PDE: (1) provide comprehensive development andtraining to regular and special education personnel concerningprovisions for supplementary aids and services to students withdisabilities in regular classrooms; (2) monitor local schooldistricts to determine whether they are improperly removing classmembers from regular education classrooms and whether the localschool districts are providing specialized instruction and37

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 38 of 51supplementary aids and services that could enable students withdisabilities to be educated satisfactorily in a regularclassroom; and (3) require local school districts to takecorrective action when failure to provide the aforementionedservices occurs. (Id.) These requests have been met under theSettlement Agreement.Moreover, the Settlement Agreement provides for policydevelopment and implementation that will require school districtsto adhere to the standards for placing students in regulareducation classrooms; to change the IEP format to includeadditional guidance to IEP teams in making placement decisions;and to implement a complaint resolution process that isresponsive to parental complaints.Plaintiffs’ counsel has filed an itemized listing ofall attorneys’ costs and fees associated with this litigation.The actual fees and costs amount to $2,651,000. (MichaelChurchill’s Decl. 4, doc. no. 302.) Plus, an estimated$90,000, which reflects over 300 hours of attorney time duringnegotiations, is excluded from the actual fees and costs. (Id. 8.)The $1,825,000 sought by counsel reflects only 62% ofcounsel’s actual fees and costs, as of June 1, 2004. Thisreduced amount is lower than the lodestar method would command.See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.38

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 39 of 51Litig., 55 F.3d 768, 821 (3d Cir. 1995) [hereinafter GeneralMotors].88In General Motors, the Third Circuit determined that “acourt making or approving a fee award should determine what sortof action the court is adjudicating and then primarily rely onthe corresponding method of awarding fees[, either the lodestaror the percentage of recovery methods].” 55 F.3d at 821. TheThird Circuit recognized:Courts generally regard thelodestar method, which uses thenumber of hours reasonably expendedas its starting point, as theappropriate method in statutory feeshifting cases. Because thelodestar award is de-coupled fromthe class recovery, the lodestarassures counsel undertakingsocially beneficial litigation . .. an adequate fee irrespective ofthe monetary value of the finalrelief achieved for the class.Id. On the other hand, a percentage of recovery method isused in common-fund cases, based on “the theory that the classwould be unjustly enriched if it did not compensate the counselresponsible for generating the valuable fund bestowed on theclass.” Id.As this Court recognized in Lake v. First NationwideBank, 900 F. Supp. 726 (E.D. Pa. 1995), “[n]either the lodestarmethod nor the percentage of recovery method, however, ismandatory. Thus, the district court has wide discretion todecide which method of fee calculation to apply.” Id. at 734(citing General Motors, 55 F.3d at 821).Here, Plaintiffs secured substantial changes in themonitoring, training, and delivery of special-education services.While the exact value of these changes is difficult, if notimpossible, to quantify, the Court can consider these changes innormative terms. That is, the provisions of the SettlementAgreement will presently affect approximately 255,264 childrenand thousands more over the life of the Settlement Agreement.The extent of counsel’s recovery is not disproportional to theequitable relief obtained.39

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 40 of 51Most of the work for which compensation is soughtappears to have been necessary and diligently performed. Theattorneys’ hourly rates are not unreasonable, and, in the Court’sexperience, are consistent with market rates. Therefore, theattorneys’ fees and costs under the Settlement Agreement are fairand reasonable.4. Are the terms of the Settlement Agreementconsistent with the public interest and isthe public’s confidence in the administrationof justice and the integrity of the classaction process enhanced or impeded bythe Settlement?The Settlement Agreement is the product of lengthy andarms-length litigation and negotiations conducted by experiencedcounsel with the assistance of well-qualified experts and askilled mediator. All policies embodied in the SettlementAgreement have been fully endorsed at the highest levels of theCommonwealth’s educational decision makers. The objections tothe Settlement Agreement are de minimis. The Court is alsosatisfied that the terms of the Settlement Agreement are notinconsistent with federal or state law. Nor does the SettlementAgreement entangle the judiciary in the future management ordelivery of state services. The attorneys’ fees and costs arereasonable, particularly in light of the results achieved. Underthese circumstances, public confidence in the administration of40

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 41 of 51justice and the integrity of the class system will not beundermined.5. What are the prospects that, if the SettlementAgreement is rejected, further litigationwould enlarge the recovery of the class and,if so, at what financial cost?As this Court has previously recognized, in this finalstep of the analysis,the sole reason for approving theSettlement Agreement must be that,in the opinion of counsel, furtherlitigation will generatesignificant expenses and isunlikely to result in greaterrecovery for the class members.The opinion of experienced counsel,particularly one with knowledge ofthis area of the law, is entitledto substantial weight.Schwartz, 157 F. Supp. 2d at 580.Both parties maintain that the costs and timeassociated with further litigation, which would most likelyresult in a trial, would be large. The Court agrees. As theparties contend in their joint motion for final approval of theSettlement Agreement, this case involves novel issues concerning,generally, the responsibility of state agencies for the educationof special needs children. If this case were to proceed tosummary judgment and/or to trial, the result would be uncertain.An appeal would almost be certain to follow. Consequently, the41

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 42 of 51parties would most likely have to wait years for resolution ofthe case.As it currently stands, this case has been before theCourt for over eleven years. Most of the individually namedPlaintiffs have graduated from public high school and will notdirectly benefit from the new procedures being implemented underthe Settlement Agreement. Moreover, Plaintiffs initiated thisaction to effectuate change in the future policies and practicesof PDE and other Commonwealth agencies, all of which are achievedby the Settlement Agreement. Considering these factors, theCourt finds that further litigation is not likely to result in agreater recovery for the class and would entail significantfinancial costs and risks.In light of the above discussion, the Court concludesthat the terms and conditions of the Settlement Agreement arefair, reasonable, and adequate.V. OBJECTIONS TO THE PROPOSED SETTLEMENT AGREEMENTThe Court received nineteen objections to the9provisionally approved Settlement Agreement. Although the Courtdirected objectors to file their concerns with the Clerk’s9The Court prepared a summary of all objections thatwere either filed with the Clerk’s Office or submitted to theCourt prior to the Fairness Hearing. This summary was filedafter the Fairness Hearing so that the parties could comment onthem in post-Fairness Hearing briefs (doc. no. 320).42

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 43 of 51Office, only three objectors followed this directive. One ofthose three objectors later sought leave from the Court towithdraw the objection, which the Court granted (doc. no. 313).Out of the nineteen objections, three were submitted by non-classmembers, which included identical objection letters from twelveschool districts, one objection by a former teacher, and oneobjection by the Berks County Intermediate Unit and ChesterCounty Intermediate Unit. The Court will not directly entertainobjections from non-class members. See Fed. R. Civ. P.23(e)(4)(A). Notably, some of the objections submitted by nonclassmembers have also been asserted by class members.First, of the 255,264 members of the class, onlysixteen class members (or parents of class members) filedobjections. These objections to the Settlement Agreement can bebroken down into eight categories, each of which will bediscussed in turn. 1010The Berks County Intermediate Unit and Chester CountyIntermediate Unit (the “Intermediate Units”)--non-parties to thisaction--filed a motion to intervene for purposes of filing amotion to strike the proposed Settlement Agreement (doc. nos. 303and 304), which the Court denied. Although the IntermediateUnits have no standing to object to the Settlement Agreement,they did assert a procedural issue that is worth comment. Underthe Commonwealth Documents Law, 45 Pa. Stat. Ann. §§ 1102-1602,administrative agencies must follow specialized procedures forimplementing a new standard of conduct. The parties to theaction vehemently deny that the Settlement Agreement creates newor modified standards of conduct.As one Pennsylvania Commonwealth Court stated:43

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 44 of 51Administrative agencies oftendevise rules or regulations, someof which create a controllingstandard of conduct, while some donot. In order for an agency ‘toestablish a substantive rule[thereby] creating a controllingstandard of conduct, it must complywith the provisions of theCommonwealth Documents Law.’ These‘substantive regulations . . . whenproperly enacted under theCommonwealth Documents Law, havethe force of law.’ Agencies alsodevise rules, known as‘interpretive rules,’ which do notestablish a binding standard ofconduct. These interpretive rules‘need not be promulgated inaccordance with the CommonwealthDocuments Law.’ For aninterpretive rule to be viable,however, it ‘must genuinely trackthe meaning of the underlyingstatute, rather than establish anextrinsic substantive standard.Lowing v. Public Sch. Employees’ Retirement Bd., 776 A.2d 306,308-09 (Commonwealth Court of Penn. 2001) (internal citationsomitted) (alteration in original); see also Giant Food Stores,Inc. v. Commonwealth of Pa., Dep’t of Health, 713 F.2d 177, 180(Pa. Commw. Ct. 1998) (“The [Commonwealth Documents Law, or“CDL,”] establishes a process for issuing regulations thatincludes public notice of a proposed rule, receiving commentsfrom interested parties, and holding hearings whenappropriate.”).By entering into the Settlement Agreement, neither PDEnor any Commonwealth agency is creating a new substantive rule.No obligations are directly imposed on the Intermediate Units.Rather, the Settlement Agreements provides for increasedmonitoring, inter alia, to ensure that school districts arefollowing both federal and state educational laws, such as theIDEA. This monitoring does not substantively change the state ofeducation law in Pennsylvania. On the contrary, the monitoringcreated under the Settlement Agreement provides a means to better44

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 45 of 51A. Failure to Compensate Absent Class Members for PastWrongsFour class members questioned why only the namedPlaintiffs, as opposed to all class members, were receivingcompensation under the Settlement Agreement. According to theparties, Plaintiffs initiated this action to effectuate change inthe future policies and practices of PDE and other Commonwealthagencies, and not to receive compensation for previous harm.Moreover, most of the individually named Plaintiffs havegraduated from public school and will not directly enjoy thebenefits created under the Settlement Agreement.The Court agrees with the parties. This lawsuit wasnot about compensatory damages. The compensation to Plaintiffsis appropriate considering the time and effort spent inprosecuting this lengthy and complex litigation. Accordingly,the Court will overrule this objection.B. Failure to List “Brain Injury” Among the SpecificInjuries in the Definition of “Eligibility’Two objectors requested that “brain injury” be added tothe list of conditions requiring training and technicalassistance under the Settlement Agreement. According to thedetermine whether school districts are following federal andstate educational law. In fact, it appears that the Commonwealthhas the power to implement the provisions of the SettlementAgreement, whether or not the Settlement Agreement is approved bythe Court, without violating the Commonwealth Documents Law.45

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 46 of 51parties, students with brain injury who are eligible for specialeducation services are included in the category of “students withsignificant disabilities,” under Provision IV.7 of the SettlementAgreement. Additionally, the list of disabilities following thedefinition of “students with significant disabilities” is notexhaustive and cannot be used to exclude students with braininjury from benefitting under the Settlement Agreement. Theparties also comment that if a needs assessment required underProvision IV.2(L) of the Settlement Agreement reveals thatteachers lack knowledge and experience in teaching children withbrain injury in a regular classroom, then training will beprovided in response to the assessment.The Court finds that brain injury is addressed underthe Settlement Agreement, as argued by the parties. As such, theCourt will overrule this objection.C. Inadequate Length of the Settlement AgreementTwo class members opposed the length of the SettlementAgreement, arguing that a five-year time frame is inadequate.The parties, however, have indicated that this duration was anecessary compromise to reach a Settlement Agreement.Additionally, as the parties appropriately point out, “[m]any ofthe provisions of the settlement, when implemented, will have animpact lasting far longer than the agreement terms and will buildthe Commonwealth’s capacity for inclusive practices.” (Joint46

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 47 of 51Motion for Final Approval of Settlement Agreement at 30-31; seealso Gaskin Decl. 10.) In fact, at the Fairness Hearing, Dr.Rhen testified that the “five years gives us the time toimplement the settlement agreement and get some sound informationon which . . . to build future plans.” (Fairness Hr’g Tr.,06/24/2005, 24-25.)The Court concludes that any period lengthier than fiveyears will require Court entanglement in the delivery of stateeducational services for longer than necessary to fulfill theobjectives of the Settlement Agreement. Accordingly, theobjection will be overruled.D. Large Compensation to the Individual Plaintiffs andAttorneysTwo class members object to the compensation that theindividually named Plaintiffs and Plaintiffs’ counsel willreceive under the Settlement Agreement. As previously addressedin Part IV.B.3 of this decision, the Court finds that thecompensation is fair and reasonable. Therefore, this objectionwill be overruled.E. Potential Effects of Provisions for Training andTechnical AssistanceOne parent expressed concern that the school districtswould use Provision IV.7 of the Settlement Agreement, which47

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 48 of 51concerns training, “to argue against the provision of trainingand consultation with respect to individual students rather thanto ‘school districts.’” (Joint Motion for Final Approval ofSettlement Agreement at 31.) According to the parties, ProvisionIV.7 does not prevent training and technical assistance withrespect to individual students, but rather requires such trainingand assistance identified by a needs assessment.The Court finds the parties’ argument to be persuasive.When considering the parties’ position in light of Dr. McGregor’stestimony at the Fairness Hearing, the Court determines thattraining and technical assistance are adequately addressed in theSettlement Agreement, as driven by the educational policy of theCommonwealth. Thus, the Court will overrule this objection.F. Failure to Increase State Funding to Local SchoolDistrictsParents of a child with a disability objected that theSettlement Agreement did not guarantee increased state funding toassist the school districts in meeting their obligations. First,Plaintiffs did not seek increased state funding in theircomplaint. Second, it is doubtful that the Court has the powerto require any specific expenditures of state funds under thecircumstances of the case. Third, to the extent that moneys areneeded to fund the Settlement Agreement, both the Secretary ofEducation and the Director of PDE’s Bureau of Special Education48

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 49 of 51testified at the Fairness Hearing that the Commonwealth had thefunds and resources to implement the provisions of the SettlementAgreement. (Fairness Hr’g Tr., 06/24/2005, 13, 23.)Accordingly, the Court will overrule this objection.G. Need for a Change in Placement PracticesOne parent proposed that children who have not metcertain testing and grading standards should immediately beplaced in a learning support program, while the school districtsand parents arrange for appropriate testing to determine thespecific learning disability and then tailor the IEP to addresseach child’s specific needs. According to the parties, theSettlement Agreement does not--and cannot--change the provisionin the IDEA that requires evaluation and development of an IEPbefore a student’s placement can be changed. 20 U.S.C. § 1414.The parties note, however, that the Settlement Agreement providesfor professional development, which may help teachers identifystudents in need of supplementary aids and services, but who havenot been identified as having a disability because they can beclearly included in a regular classroom. The Court concurs withthe parties and will overrule this objection.49

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 50 of 51H. Lack of Time Between Notice of Proposed Settlement andDeadline for Filing ObjectionTwo class members take issue with the amount of time inwhich they had to file objections to the Settlement Agreement.As this Court set forth in its provisional approval of theSettlement Agreement (doc. no. 305), notice of the proposedSettlement Agreement was to be published to certain Pennsylvanianewspapers and distributed to educational agencies, entities, andknown parents of children with disabilities by May 20, 2005. TheCourt determined that class members and their parents could filewritten objections to the proposed Settlement Agreement no laterthan June 10, 2005. Thus, objectors should have hadapproximately twenty-one days, give or take, to file objections.In any event, at the Fairness Hearing, the Court heard from anyindividual wanting to share his or her thoughts about theSettlement Agreement, whether or not that individual filed awritten objection. There is no evidence that the parties did notmeet the notice requirements established by the Court, or thatany member of the class lacked notice or the opportunity toobject. Accordingly, the Court will overrule this objection.VI.CONCLUSIONFor the foregoing reasons, the Court will grant theparties’ motion, approve the Settlement Agreement, and dismissthe case with prejudice.50

Case 2:94-cv-04048-ER Document 330 Filed 09/19/2005 Page 51 of 51IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIAGASKIN, ET AL., : CIVIL ACTION: NO. 94-4048Plaintiffs, ::v. ::COMMONWEALTH OF :PENNSYLVANIA, ET AL., ::Defendants. :O R D E RAND NOW, this 16th day of September, 2005, it is herebyordered that this case shall be REMOVED FROM SUSPENSE and PLACEDON ACTIVE STATUS.IT IS FURTHER ORDERED, upon consideration of the JointMotion for Final Approval of the Settlement Agreement (doc. no.326) and objections from class members and interested parties atthe Fairness Hearing, that the motion is GRANTED and the parties’Settlement Agreement is APPROVED in the form submitted to thisCourt.IT IS FURTHER ORDERED that the case is DISMISSED WITHPREJUDICE. The court shall retain jurisdiction to enforcecertain aspects of the Settlement Agreement as provided therein.AND IT IS SO ORDERED.EDUARDO C. ROBRENO, J.