U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:16-cv-01197-CSH

R. v. Connecticut State Board of Education Assigned to: Judge Charles S. Haight, Jr Referred to: Judge William I. Garfinkel Cause: 20:1401 Education: Handicapped Child Act

Date Filed: 07/15/2016 Date Terminated: 07/10/2020 Jury Demand: None Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Plaintiff
A. R. on behalf of a class of those similarly situated

represented by Jason H. Kim Schneider Wallace Cottrell Konecky LLP 2000 Powell Street Suite 1400 Emeryville, CA 94608 415-421-7100 Email: jkim@schneiderwallace.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy B. Alisberg Disability Rights Connecticut 846 Wethersfield Avenue Hartford, CT 06114 860-990-0175 Fax: 860-296-0055 Email: nancy.alisberg@disrightsct.org TERMINATED: 06/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine E. Cushman 23 Elizabeth Rd 06043 Bolton, CT 06043 860-614-5520 Email: cathyteller@comcast.net TERMINATED: 09/11/2020 ATTORNEY TO BE NOTICED

V. Defendant Connecticut State Board of Education

Kasey Considine Disability Rights Connecticut 846 Wethersfield Avenue Hartford, CT 06114 860-297-4300 Fax: 860-296-0055 Email: kasey.considine@disrightsct.org ATTORNEY TO BE NOTICED
Sonja Deyoe Law Offices of Sonja L. Deyoe 395 Smith St. Providence, RI 02908 401-864-5877 Fax: 401-354-7464 Email: sldeyoe@gmail.com ATTORNEY TO BE NOTICED
represented by Darren P. Cunningham Office of the Attorney General 165 Capitol Avenue Hartford, CT 06106 860-808-5074 Fax: 860-808-5385 Email: darren.cunningham@ct.gov ATTORNEY TO BE NOTICED
Ralph E. Urban Attorney General's Office -Elm Htfd 55 Elm Street P.O. Box 120 Hartford, CT 06141 860-808-5210 Fax: 860-808-5385 Email: ralph.urban@ct.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

07/15/2016 1

COMPLAINT D.J., through his parent O.W. on behalf of a class of those similarly situated against Connecticut State Board of Education ( Filing fee $400 receipt number 0205-4069976.), filed by O. W..

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07/15/2016
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(Attachments: # 1 Civil Cover Sheet)(Alisberg, Nancy) (Entered: 07/15/2016)
Judge Charles S. Haight, Jr added. (Oliver, T.) (Entered: 07/15/2016)
2 Order on Pretrial Deadlines: Discovery due by 1/14/2017 Signed by Clerk on 7/15/2016.(Nuzzi, T) (Entered: 07/15/2016)
3 ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Charles S. Haight, Jr on 7/15/2016.(Nuzzi, T) (Entered: 07/15/2016)
4 NOTICE TO COUNSEL/PRO SE PARTIES : Counsel or pro se parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 3 Electronic Filing
Order, 2 Order on Pretrial Deadlines, 1 Complaint, Signed by Clerk on 7/15/2016.(Nuzzi, T) (Entered: 07/15/2016)
5 NOTICE of Appearance by Sonja Deyoe on behalf of D. J. (Deyoe, Sonja) (Entered: 07/18/2016)
Request for Clerk to issue summons as to D. J.. (Deyoe, Sonja) (Entered: 07/18/2016)
6 MOTION for Attorney(s) Jason H. Kim to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 0205-4072659) by D. J.. (Attachments: # 1 Affidavit Declaration in Support of Motion to Admit)(Alisberg, Nancy) (Entered: 07/19/2016)
7 ORDER granting 6 Motion for Jason S. Kim to Appear Pro Hac Vice Certificate of Good Standing due by 9/17/2016. Signed by Clerk on 7/19/2016. (LaMura, K.) (Entered: 07/19/2016)
8 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Connecticut State Board of Education* with answer to complaint due within *21* days. Attorney *Law Office of Sonja L. Deyoe* *395 Smith Street* *Providence RI 02908*. (LaMura, K.) (Entered: 07/19/2016)
9 CERTIFICATE OF GOOD STANDING re 6 MOTION for Attorney(s) Jason H. Kim to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 0205-4072659) by D. J.. (Kim, Jason) (Entered: 07/25/2016)
10 SUMMONS Returned Executed by D. J.. Connecticut State Board of Education served on 8/29/2016, answer due 9/19/2016. (Deyoe, Sonja) (Entered: 09/07/2016)

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11 NOTICE of Appearance by Darren P. Cunningham on behalf of Connecticut State Board of Education (Cunningham, Darren) (Entered: 09/15/2016)
12 MOTION for Extension of Time until November 18, 2016 Respond to

09/16/2016
09/16/2016 09/16/2016 10/25/2016 10/26/2016

the Complaint 1 Complaint, by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 09/15/2016)

13 ELECTRONIC ORDER granting Defendant's unopposed 12 Motion for Extension of Time to Respond to the Complaint for good cause shown. Accordingly, Defendant must respond to Plaintiffs' Complaint on or before November 18, 2016. Signed by Judge Charles S. Haight, Jr. on September 16, 2016. (Kahl, A) (Entered: 09/16/2016)

14 NOTICE of Appearance by Ralph E. Urban on behalf of Connecticut State Board of Education in addition to the appearance of Darren P. Cunningham, Assistant Attorney General (Urban, Ralph) (Entered: 09/16/2016)

Answer deadline updated for Connecticut State Board of Education to 11/18/2016. (Gould, K.) (Entered: 09/16/2016)

MOTION for Extension of Time until October 28to File Rule 26(f)

15

Report by Connecticut State Board of Education. (Cunningham,

Darren) (Entered: 10/25/2016)

16 ELECTRONIC ORDER granting nunc pro tunc Defendant's

10/27/2016 10/28/2016 11/02/2016

unopposed 15 Motion for Extension of Time for good cause shown. Accordingly, the parties must file a Rule 26(f) Report on or before October 28, 2016. Signed by Judge Charles S. Haight, Jr. on October 26, 2016. (Kahl, A) (Entered: 10/26/2016)
Set Deadline: Rule 26 Meeting Report due by 10/28/2016 (LaMura, K.) (Entered: 10/27/2016)
17 REPORT of Rule 26(f) Planning Meeting. (Deyoe, Sonja) (Entered: 10/28/2016)
18 ELECTRONIC SCHEDULING ORDER: The Court has reviewed [Doc. 17] the Rule 26(f) Report of Parties' Planning Meeting, which is hereby APPROVED AS MODIFIED. Defendant has requested that the Court not issue a scheduling order and stay all discovery pending resolution of a motion to dismiss Defendant intends to file. The Court declines to do so at this point without such a motion pending. The parties may later file a motion requesting a stay of discovery and the deadlines in this Scheduling Order. The following deadlines, adopted from the parties' Rule 26(f) Report with a few modifications, are set for this action. Plaintiff must file to join any additional parties on or before December 30, 2016 and amend the pleadings on or

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01/10/2017

before December 30, 2016 or twenty-one (21) days after this Court rules on any motion to dismiss filed. Defendant must file to join any additional parties on or before January 31, 2017 and must respond to Plaintiff's complaint on or before November 14, 2016. All discovery, including depositions of expert witnesses and fact witnesses, will be completed on or before June 30, 2017. Any dispositive motions will be filed on or before July 31, 2017. The joint trial memorandum will be filed on or before August 31, 2017 or within thirty (30) days after the Court issues its last ruling on a dispositive motion, whichever is later. The case will be trial ready on or before October 2, 2017 or within thirty (30) days after the filing of the joint trial memorandum, whichever is later. Signed by Judge Charles S. Haight, Jr. on November 2, 2016. (Kahl, A) (Entered: 11/02/2016)
Set Deadlines: Discovery due by 6/30/2017 Dispositive Motions due by 7/31/2017 Trial Brief due by 8/31/2017 Trial Ready Date 10/2/2017 (LaMura, K.) (Entered: 11/03/2016)
19 Second MOTION for Extension of Time until January 13, 2017 To Respond to the Complaint 13 Order on Motion for Extension of Time,
Update Answer Deadline, 1 Complaint, by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 11/14/2016)
20 ELECTRONIC ORDER granting Defendant's unopposed 19 Second Motion for Extension of Time for good cause shown. Accordingly, Defendant must respond to Plaintiffs' complaint on or before January 13, 2017. Signed by Judge Charles S. Haight, Jr. on November 15, 2016. (Kahl, A) (Entered: 11/15/2016)
Answer deadline updated for Connecticut State Board of Education to 1/13/2017. (LaMura, K.) (Entered: 11/16/2016)
21 Third MOTION for Extension of Time until February 14, 2017 to
Respond to Complaint Update Answer Deadline, 1 Complaint, 20 Order on Motion for Extension of Time, by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 12/29/2016)
22 ELECTRONIC ORDER granting Defendant's 21 Third Motion for Extension of Time for good cause shown. Accordingly, Defendant must respond to Plaintiffs' Complaint on or before February 14, 2017. Plaintiffs do not consent. This extension is peremptory. No further applications for extensions will be entertained. Defendant is receiving this final extension in order to continue settlement negotiations among a number of state entities. Signed by Judge Charles S. Haight, Jr. on January 10, 2017. (Kahl, A) (Entered: 01/10/2017)

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08/24/2017

Answer deadline updated for Connecticut State Board of Education to 2/14/2017. (LaMura, K.) (Entered: 01/11/2017)
23 ANSWER to 1 Complaint, with Affirmative Defenses by Connecticut State Board of Education.(Cunningham, Darren) (Entered: 02/14/2017)
24 MOTION for Extension of Time until August 14, 2017 for the Discovery Deadline; and to September 14, 2017 for the Dispositive Motion Deadline by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 06/05/2017)
25 ELECTRONIC ORDER granting Defendant's unopposed 24 Motion for Extension of Time for good cause shown. Accordingly, the ELECTRONIC SCHEDULING ORDER is amended as follows. All discovery, including depositions of expert witnesses and fact witnesses, will be complete on or before August 14, 2017. Any dispositive motions will be filed on or before September 14, 2017. The joint trial memorandum will be filed on or before October 16, 2017 or within thirty (30) days after the Court issues its last ruling on a dispositive motion, whichever is later. The case will be trial ready on or before November 16, 2017 or within thirty (30) days after the filing of the joint trial memorandum, whichever is later. Signed by Judge Charles S. Haight, Jr. on June 8, 2017. (Kahl, A) (Entered: 06/08/2017)
Set Deadlines/Hearings: Discovery due by 8/14/2017 Dispositive Motions due by 9/14/2017 Trial Brief due by 10/16/2017 Trial Ready Date 11/16/2017 (Villano, P.) (Entered: 06/09/2017)
26 Joint MOTION for Extension of Time Pertaining to Summary Judgment Motions 25 Order on Motion for Extension of Time,,, by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 08/22/2017)
27 ELECTRONIC ORDER granting, for good cause shown, Parties' 26 Joint Motion to Amend Scheduling Order. Accordingly, the scheduling order is amended as follows: Plaintiffs must file any dispositive motion on or before Thursday, September 14, 2017. Defendant must file any opposition to Plaintiff's motion, and any dispositive motion of its own, on or before November 8, 2017. Plaintiffs must file any opposition and reply memorandum to Defendant's dispositve motion on or before November 22, 2017. Defendants must file any sur-reply on or before December 13, 2017. Signed by Judge Charles S. Haight, Jr. on August 24, 2017. (Pskowski, R.) (Entered: 08/24/2017)
Set Deadlines: Dispositive Motions due by 12/13/2017 (Freberg, B) (Entered: 08/25/2017)

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10/11/2017 10/20/2017

28 MOTION to Certify Class Pursuant to FRCP 23(b)(2) by D. J..Responses due by 9/22/2017 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Jason H. Kim, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E)(Kim, Jason) (Entered: 09/01/2017)
29 MOTION for Summary Judgment by D. J..Responses due by 10/5/2017 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts, # 3 Affidavit Jason H. Kim, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Affidavit O.W.)(Kim, Jason) (Entered: 09/14/2017)
30 First MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Certify Class Pursuant to FRCP 23(b)(2) until October 2, 2017 by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 09/15/2017)
32 Reset Deadlines as to 29 MOTION for Summary Judgment . Responses due by 11/8/2017 (Freberg, B) (Entered: 09/18/2017)
31 ELECTRONIC ORDER granting, absent objection and for good cause shown, Defendant's 30 Motion for Extension of Time to Respond to Plaintiff's Motion for Class Certification. Accordingly, Defendant must file its response to Plaintiff's 28 Motion for Class Certification Pursuant to F.R.C.P. 23(b)(2) on or before October 2, 2017, and Plaintiff may, if so advised, file a reply to Defendant's response on or before October 16, 2017. Signed by Judge Charles S. Haight, Jr. on 9/18/2017. (Kaczmarek, S.) (Entered: 09/18/2017)
33 OBJECTION re 28 MOTION to Certify Class Pursuant to FRCP 23(b)(2) filed by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 10/02/2017)
34 First MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Certify Class Pursuant to FRCP 23(b)(2) until 10/20/2017 by D. J.. (Kim, Jason) (Entered: 10/10/2017)
35 ELECTRONIC ORDER granting, absent objection and for good cause shown, Plaintiff's 34 Motion for Extension of Time to File Reply Memorandum in Support of his Motion for Class Certification. Accordingly, Plaintiff may, if so advised, file a reply to Defendant's response to Plaintiff's 28 Motion for Class Certification Pursuant to F.R.C.P. 23(b)(2) on or before 10/20/2017. Signed by Judge Charles S. Haight, Jr. on 10/11/2017. (Kaczmarek, S.) (Entered: 10/11/2017)
36 Set Reply Deadline as to 28 MOTION to Certify Class Pursuant to FRCP 23(b)(2). Replies due by 10/20/2017 (Freberg, B) (Entered: 10/13/2017)
37 REPLY to Response to 28 MOTION to Certify Class Pursuant to FRCP 23(b)(2) filed by D. J.. (Attachments: # 1 Affidavit Jason H.

11/08/2017
11/22/2017 12/13/2017 03/23/2018 03/23/2018

Kim (Second), # 2 Exhibit A, # 3 Exhibit B, # 4 Affidavit OW (Redacted))(Kim, Jason) (Entered: 10/20/2017)

38 MOTION for Summary Judgment by Connecticut State Board of Education.Responses due by 11/29/2017 (Attachments: # 1 Memorandum in Support and in Opposition to Plaintiffs' Motion for Summary Judgment, # 2 Statement of Material Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Statement of Material Facts in Opposition to Summary Judgment)(Cunningham, Darren) (Entered: 11/08/2017)

39 Memorandum in Opposition and Reply re 29 MOTION for Summary Judgment , 38 MOTION for Summary Judgment filed by D. J.. (Kim, Jason) (Entered: 11/22/2017)

40 Memorandum in Opposition and Reply re 29 MOTION for Summary Judgment , 38 MOTION for Summary Judgment filed by Connecticut State Board of Education. (Attachments: # 1 Exhibit 1)(Cunningham, Darren) (Entered: 12/13/2017)

MEMORANDUM AND ORDER REGARDING STANDING (see

41

attached). An evidentiary hearing consistent with the attached

Memorandum and Order will take place on April 23, 2018 at 10:30

a.m. A separate calendar will issue. Signed by Judge Charles S.

Haight, Jr. on 3/23/2018. (Kaczmarek, S.) (Entered: 03/23/2018)

42 NOTICE OF HEARING. Consistent with the Court's 41

04/06/2018 04/09/2018

Memorandum and Order Regarding Standing, an evidentiary hearing will be held on April 23, 2018, at 10:30 a.m., in the Courtroom on the 17th Floor of the Connecticut Financial Center, 157 Church Street, New Haven, Connecticut, before Judge Charles S. Haight, Jr. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. (Kaczmarek, S.) (Entered: 03/23/2018)
43 Joint MOTION to Continue by D. J.. (Alisberg, Nancy) (Entered: 04/06/2018)
44 ELECTRONIC ORDER granting the parties' 43 Joint Motion for a Continuance and Plaintiff's Motion for Pre-Hearing Discovery. The Evidentiary Hearing scheduled for April 23, 2018, will be continued to a date to be determined. In answer to the parties' request for a telephonic conference, the parties shall jointly dial chambers on Thursday, April 19, 2018, at 2:00 p.m. A separate calendar will issue. Plaintiff's request for leave to conduct a deposition of an official from the Hartford Public Schools is hereby granted. Signed by Judge Charles S. Haight, Jr. on 4/9/2018. (Kaczmarek, S.) (Entered: 04/09/2018)

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45 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Telephonic Scheduling Conference is set for April 19, 2018, at 2:00 PM before Judge Charles S. Haight Jr. Counsel shall initiate the conference by phoning Chambers, with all attending counsel on the line, at (203) 773-2052. (Kaczmarek, S.) (Entered: 04/09/2018)
46 Minute Entry for proceedings held before Judge Charles S. Haight, Jr.: Telephonic Status Conference held on 4/19/2018. Total Time: 35 minutes. (Kaczmarek, S.) (Entered: 04/19/2018)
47 MEMORANDUM and ORDER (see attached). Consistent with the discussions held during the April 19, 2018, telephonic conference, the case will be called for an evidentiary hearing on the issue of Plaintiff's standing on Tuesday, June 5, 2018, at 10:00 a.m. A separate calendar will issue. The parties are directed to file letters to the Court by 12:00 p.m. on June 1, 2018, consistent with the attached Order. Signed by Judge Charles S. Haight, Jr. on 4/19/2018. (Kaczmarek, S.) (Entered: 04/19/2018)
48 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Telephonic Status Conference is set for May 29, 2018 at 2:00 PM before Judge Charles S. Haight Jr. Counsel shall initiate the conference by phoning Chambers, with all attending counsel on the line, at (203) 773-2052. (Kaczmarek, S.) (Entered: 04/19/2018)
49 NOTICE OF HEARING. RESET FROM April 23, 2018, at 10:30
a.m. Consistent with the Court's 41 Memorandum and Order Regarding Standing, and with the discussions held during the April 19, 2018, telephonic conference, see Doc. 47 , an evidentiary hearing and oral argument will be held on June 5, 2018, at 10:00 AM in the Courtroom on the 17th Floor of the Connecticut Financial Center, 157 Church Street, New Haven, Connecticut, before Judge Charles S. Haight, Jr. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. (Kaczmarek, S.) (Entered: 04/19/2018)
50 Minute Entry for proceedings held before Judge Charles S. Haight, Jr.: Telephonic Status Conference held on 5/29/2018. Total Time: 25 minutes. (Kaczmarek, S.) (Entered: 05/29/2018)
51 ELECTRONIC MEMORANDUM and ORDER. On May 29, 2018, this Court conducted a telephonic status conference with counsel for both parties. During the conference, counsel for the plaintiff indicated that, in an effort to resolve the standing issue raised by this Court sua sponte, they intend to seek to substitute the current plaintiff with a different individual, and will also seek to file an amended complaint.

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The Court expresses no view on that position, except to note that if the present plaintiff lacks Article III standing, "a plaintiff cannot remedy that constitutional defect via Rule 17 substitution." Kinra v. Chicago Bridge & Iron Co., No. 17-CV-4251(LGS), 2018 WL 2371030, at *4 (S.D.N.Y. May 24, 2018) (citing and quoting Cortlandt St. Recovery Corp. v. Hellas Telecommunications, S.A.R.L., 790 F.3d 411, 423 (2d Cir. 2015)). In any event, the need for the evidentiary hearing, currently scheduled for June 5, 2018, has been obviated. Accordingly, the Court hereby cancels the June 5, 2018, evidentiary hearing. Consistent with the discussions held during the May 29, 2018, telephonic conference, on or before June 15, 2018, the parties are directed to file letters to the Court, briefly summarizing the status of the case. The parties' letters should indicate their respective positions on the proposal discussed by counsel for plaintiff during the May 29, 2018, conference. Signed by Judge Charles S. Haight, Jr. on 5/29/2018. (Kaczmarek, S.) (Entered: 05/29/2018)
Set Deadlines/Hearings: Status Report due by 6/15/2018. (Kaczmarek, S.) (Entered: 05/29/2018)
52 Joint STATUS REPORT by D. J.. (Kim, Jason) (Entered: 06/15/2018)
53 NOTICE of Appearance by Catherine E. Cushman on behalf of D. J. (Cushman, Catherine) (Entered: 06/26/2018)
54 First MOTION for Nancy B. Alisberg to Withdraw as Attorney by D. J.. (Alisberg, Nancy) (Entered: 06/27/2018)
55 ELECRONIC ORDER granting Attorney Nancy B. Alisberg's 54 Motion to Withdraw as Attorney. Plaintiff continues to be represented by Attorneys Jason H. Kim, Catherine E. Cushman, and Sonja Deyoe. Thus, in accordance with Local Rule 7(e), Attorney Nancy B. Alisberg's appearance is terminated. Signed by Judge Charles S. Haight, Jr. on 6/27/2018. (Kaczmarek, S.) (Entered: 06/27/2018)
56 ELECTRONIC ORDER. On March 23, 2018, this Court entered a Memorandum and Order that raised the question of Plaintiff D.J.'s
standing to bring this case. Doc. 41 . The Court noted that if Plaintiff lacks Article III standing, the Court has no jurisdiction to hear his claims. Finding that resolution of the issue required the development of a more complete factual record, and further submissions of counsel, the Court scheduled an evidentiary hearing for April 23, 2018. Doc. 42. The parties' motion to continue that hearing and for leave to conduct certain pre-hearing discovery was thereafter granted. Doc. 44. During a telephonic status conference on May 29, 2018, counsel for Plaintiff stated that he would seek to substitute a new plaintiff to address the Court's concerns about

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Plaintiff D.J.'s standing. In light of this representation, the parties agreed that the need for the scheduled evidentiary hearing was obviated. Doc. 51. In a subsequent joint status report, dated June 15, 2018, counsel for Plaintiff stated that he intends to file a motion for leave to file an amended complaint, with a "new proposed plaintiff, A.R.," noting that counsel for Defendant has voiced opposition to this plan. Doc. 52 . To date, no such motion has been filed. Under the foregoing circumstances, Plaintiff's 28 Motion for Class Certification Pursuant to FRCP 23(b)(2); Plaintiff's 29 Motion for Summary Judgment Pursuant to FRCP 56; and Defendant's 38 Motion for Summary Judgment are hereby DENIED AS MOOT, without prejudice to refiling, if the question of standing is ultimately resolved in Plaintiff's favor. Signed by Judge Charles S. Haight, Jr. on 7/20/2018. (Kaczmarek, S.) (Entered: 07/20/2018)
57 MOTION to Amend/Correct 1 Complaint, by D. J..Responses due by 9/7/2018 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Jason H. Kim, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Affidavit Scott Wells)(Kim, Jason) (Entered: 08/17/2018)
58 Consent MOTION for Extension of Time until September 28, 2018 to
respond to 57 MOTION to Amend/Correct 1 Complaint, by Connecticut State Board of Education. (Cunningham, Darren) (Entered: 08/29/2018)
59 ELECTRONIC ORDER granting Defendant's 58 Consent Motion for Extension of Time to Respond to Plaintiff's Motion for Leave to File Amended Complaint, absent objection, and for good cause shown. Accordingly, Defendant's response to Plaintiff's 57 Motion for Leave to File Amended Complaint must be filed on or before September 28, 2018. Signed by Judge Charles S. Haight, Jr. on 8/29/2018. (Kaczmarek, S.) (Entered: 08/29/2018)
60 Set/Reset Deadlines as to 57 Motion for Leave to File Amended Complaint. Responses due by 9/28/2018. (Kaczmarek, S.) (Entered: 08/29/2018)
61 Memorandum in Opposition re 57 MOTION to Amend/Correct 1
Complaint, filed by Connecticut State Board of Education. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cunningham, Darren) (Entered: 09/28/2018)

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62 REPLY to Response to 57 MOTION to Amend/Correct 1

04/05/2019
04/05/2019 05/10/2019 05/31/2019
11/27/2019 12/09/2019 01/03/2020

Complaint, filed by D. J.. (Attachments: # 1 Affidavit Jason H. Kim (Second), # 2 Exhibit E)(Kim, Jason) (Entered: 10/12/2018)

RULING (see attached) granting Plaintiff's 57 Motion to Amend.

63

Accordingly, the previously filed Amended Complaint [Doc. 57-4]

becomes the operative complaint in this action. Signed by Judge

Charles S. Haight, Jr. on April 5, 2019. (Ghosh, R.) (Entered:

04/05/2019)

AMENDED COMPLAINT against Connecticut State Board of

64

Education, filed by A. R..(Reis, Julia) (Entered: 04/15/2019)

65 STIPULATION re 56 Order on Motion for Summary Judgment,,,,,,,, Order on Motion to Certify Class,,,,,,,,,,,,,,, by A. R.. (Attachments: # 1 Exhibit A)(Kim, Jason) (Entered: 05/10/2019)

66 Second MOTION to Certify Class by A. R..Responses due by 6/21/2019 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Jason H. Kim, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Affidavit A.R.)(Kim, Jason) (Entered: 05/31/2019)

67 EXHIBIT Declaration of A.R. by A. R. re 66 Second MOTION to Certify Class . (Considine, Kasey) (Entered: 11/27/2019)

68 MOTION to Seal Plaintiff A.R.'s Declarations by A. R.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Cushman, Catherine) (Entered: 12/09/2019)

69 ELECTRONIC ORDER granting 68 Motion to Seal Plaintiff A.R.'s Declarations. Pursuant to Local Rule 5(e), any order sealing a judicial document "shall include particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons." D. Conn. L. Civ. R. 5(e)(3); see Kleftogiannis v. Inline Plastics Corp., 2019 WL 4244810, at *11 (D. Conn. Sept. 6, 2019) (noting that the party moving to seal must demonstrate "that closure is essential to preserve higher values and is narrowly tailored to serve that interest."). Courts "routinely... redact or otherwise restrict access to sensitive personally identifying information contained in court documents" where there is "substantial privacy interest" in Plaintiff's anonymity. See id.; B. v. City of New York, 2016 WL 4530455, at *5 n.6 (E.D.N.Y. Aug. 29, 2016) (ordering sealing of the documents that disclosed the full name of a minor plaintiff proceeding under a pseudonym). In the instant case, Plaintiff A.R., a student with disabilities, has been proceeding under a pseudonym in order to prevent disclosure of specific information concerning Plaintiff's disabilities and to protect Plaintiff's privacy. Plaintiff's counsel represents that the disclosure of Plaintiff's full

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name and home address in the declarations that Plaintiff filed on May 31, 2019 (Exhibit 8 to Doc. 66 ) and November 27, 2019 (Doc. 67 ) was inadvertent and asks the Court to "retract the original versions of the declarations and substitute redacted versions in their place." See Doc. 68, at 1. Defendant does not object to Plaintiff's request. See id., at 2. Accordingly, the court finds that redacting Plaintiff's full name and home address is narrowly tailored to protect Plaintiff's privacy and preserve Plaintiff's anonymity in this matter. See B. v. City of New York, 2016 WL 4530455, at *5 n.6; Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 11-cv1209 (CSH), 2013 WL 4012772, at *17 (D. Conn. Aug. 5, 2013). The Clerk is directed to place Exhibit 8 to Doc. 66 May 31, 2019 Affidavit of A.R. and Doc. 67 November 27, 2019 Declaration of A.R. under seal and file redacted versions of these documents (Exhibits 1 and 2 to Doc. 68 ) in their place. Signed by Judge Charles S. Haight, Jr. on January 3, 2020. (Marienko, A.) (Entered: 01/03/2020)

RULING (see attached) granting Plaintiff's 66 Second Motion to

70

Certify Class. For the reasons stated in the attached opinion, Plaintiffs'

claims for class-wide injunctive and declaratory relief are certified

under Rule 23(b)(2), and Plaintiffs' claims for compensatory

education are certified under Rule 23(b)(3). Signed by Judge Charles

S. Haight, Jr. on May 1, 2020. (Marienko, A.) (Entered: 05/01/2020)

RULING (attached). For the reasons set forth in the attached Ruling,

71

Plaintiffs' 29 Motion for Summary Judgment is GRANTED, and

Defendant's 38 Motion for Summary Judgment is DENIED. Signed by

Judge Charles S. Haight, Jr. on June 10, 2020. (Marienko, A.)

(Entered: 06/10/2020)

72 ORDER REFERRING CASE to Magistrate Judge William I.

07/01/2020 07/01/2020

Garfinkel in accordance with Ruling 71 . Signed by Judge Charles S. Haight, Jr on 06/22/20. (Barry, Donna) (Entered: 06/23/2020)
73 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Virtual Status Conference set for 7/8/2020 at 10:00 AM before Judge William I. Garfinkel. The parties will receive further instructions by email with a link to the Zoom conference. (Esposito, A.) (Entered: 07/01/2020)
74 ORDER. This case was referred to the undersigned by Judge Haight in his ruling on cross motions for summary judgment as follows:

The parties are directed to work together regarding identification and notice to potential class members, as well as consideration of the Board's ability to provide compensatory education to class members. To facilitate this process, the Court will refer the case to a Magistrate

07/06/2020 07/08/2020
07/08/2020 07/08/2020
07/08/2020

Judge. See E.R.K., 2014 WL 12887631, at *12 (ordering the parties to work with a Magistrate Judge regarding issues such as identification and notice to potential class members, consideration of the states ability to provide compensatory education to class members, and identification of potential service providers likely to be needed to provide compensatory education to class members).
A virtual status conference is scheduled for July 8, 2020 at 10:00AM. The parties will provide a status report on the efforts made to identify the class members and the Board's ability to provide compensatory education to the class members. The parties will also provide suggestions on how the Court can help facilitate this process. The status reports may be emailed to the law clerk no later than July 7, 2020 at 12:00PM to: alyssa_esposito@ctd.uscourts.gov Signed by Judge William I. Garfinkel on 7/1/20.(Esposito, A.) (Entered: 07/01/2020)
75 NOTICE of Appearance by Kasey Considine on behalf of A. R. (Considine, Kasey) (Entered: 07/06/2020)
76 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. A Follow-up Telephonic Status Conference set for 7/22/2020 at 01:30 PM before Judge William I. Garfinkel. The parties will call the conference line at the appointed time at: (877) 336-1831; Access Code: 49-24-598. The parties may email the law clerk by July 21 at 12:00PM if they would prefer to proceed by Zoom and/or to update the Court on pending matters at: alyssa_esposito@ctd.uscourts.gov (Esposito, A.) (Entered: 07/08/2020)
77 Minute Entry for proceedings held before Judge William I. Garfinkel: Virtual Status Conference held on 7/8/2020. Total Time: 1 hour (Esposito, A.) (Entered: 07/08/2020)
78 NOTICE OF HEARING: Counsel are hereby notified that the Court will hold a status conference on Thursday, July 9, 2020, at 2:00 p.m. in a teleconference hearing. Counsel should be prepared to address any outstanding issues in the case (e.g., judgment, requests to stay the case, settlement of any unresolved matters). Counsel are directed to dial into the conference at (877) 3361829 at the appointed time and enter the code 5451650 (followed by pound (#)). Signed by Judge Charles S. Haight, Jr. on July 8, 2020. (Dorais, L.) Modified on 7/8/2020 - corrected date of hearing (Barry, Donna). (Entered: 07/08/2020)
Docket Entry Correction re 78 Notice of Hearing on Motion: Hearing date was updated to Thursday, July 9, 2020 at 2:00 p.m. All other information contained within the Notice remains unchanged. (Barry, Donna) (Entered: 07/08/2020)

07/09/2020 07/10/2020 07/10/2020
07/10/2020 07/10/2020

79 Minute Entry for proceedings held before Judge Charles S. Haight, Jr: Telephonic Status Conference held on 7/9/2020. Total Time: 1 hour and 8 minutes (Barry, Donna) (Entered: 07/09/2020)

80 NOTICE OF APPEAL by Connecticut State Board of Education. Filing fee $ 505, receipt number ACTDC-5966282. (Cunningham, Darren) (Entered: 07/10/2020)

JUDGMENT (see attached) entered in favor of Plaintiff A. R. and the

81

members of the Class against Defendant Connecticut State Board of

Education. Accordingly, pursuant to Rule 65(d) of the Federal Rules

of Civil Procedure, and in accordance with Rule 58(a), it is hereby

ADJUDGED and ORDERED that the Defendant, its successors in

office, agents, servants, employees, and attorneys, and those in active

concert and participation with any of the foregoing who receive actual

notice of this Order, are PERMANENTLY ENJOINED from

terminating a free appropriate public education as to Plaintiff A.R.

and the members of the Class before they reach the age of 22. Signed

by Judge Charles S. Haight, Jr. on July 10, 2020. (Marienko, A.)

(Entered: 07/10/2020)

82 ELECTRONIC ORDER. During a telephone conference hearing on July 9, 2020, counsel for Defendant contended in favor of a stay by the Court of the injunction set forth in the Court's Ruling dated June 10, 2020. Construing counsel's contention as an oral motion for a stay, the motion is DENIED. An opinion explaining the Court's reasons for that denial will be filed subsequently. Signed by Judge Charles S. Haight, Jr. on July 10, 2020. (Marienko, A.) (Entered: 07/10/2020)

JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link:

07/13/2020

https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Barry, Donna) (Entered: 08/06/2020)
83 Index to Record on Appeal re 80 Notice of Appeal. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Nuzzi, Tiffany) (Entered: 07/13/2020)

07/13/2020 84

MEMORANDUM (see attached) setting forth the Court's reasoning for denying Defendant's oral motion for a stay of the injunction

07/22/2020 07/22/2020
07/23/2020 07/24/2020
07/31/2020 08/04/2020 08/11/2020
08/27/2020

granted by the Court's 71 June 10, 2020 Ruling. Signed by Judge Charles S. Haight, Jr. on July 13, 2020. (Marienko, A.) (Entered: 07/13/2020)
85 Minute Entry for proceedings held before Judge William I. Garfinkel: Telephonic Status Conference held on 7/22/2020. 50 minutes. (Esposito, A.) (Entered: 07/22/2020)
86 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.Follow-up Telephonic Status Conference set for 8/11/2020 at 11:00 AM before Judge William I. Garfinkel. Please call the Chamber's Conference line at the appointed time: (877) 336-1831; Access Code: 49-24-598 (Esposito, A.) (Entered: 07/22/2020)
87 NOTICE by A. R. OF FIRM NAME CHANGE (Kim, Jason) (Entered: 07/23/2020)
88 MOTION for Attorney Fees and Litigation Expenses by A. R..Responses due by 8/14/2020 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Jason H. Kim, # 3 Exhibit A, # 4 Exhibit B, # 5 Affidavit Sonja L. Deyoe, # 6 Exhibit A, # 7 Affidavit Catherine E. Cushman, # 8 Exhibit A, # 9 Affidavit Kasey Considine, # 10 Exhibit A)(Kim, Jason) (Entered: 07/24/2020)
89 Consent MOTION to Stay re 88 MOTION for Attorney Fees and Litigation Expenses by Connecticut State Board of Education.Responses due by 8/21/2020 (Cunningham, Darren) (Entered: 07/31/2020)
90 ELECTRONIC ORDER granting Defendant's 89 Unopposed Motion to Stay Briefing Regarding Plaintiff's Motion for Attorneys' Fees. Accordingly, Plaintiff's Motion for Attorneys' Fees is stayed pending appeal on the merits. Signed by Judge Charles S. Haight, Jr. on August 4, 2020. (Marienko, A.) (Entered: 08/04/2020)
91 Minute Entry for proceedings held before US Magistrate Judge William I Garfinkel: Follow-up Telephonic Status Conference held on 8/11/2020. 10 minutes. The case is currently on appeal to the Second Circuit. The parties will contact the Court to seek assistance and/or mediation with any issues as they may arise. (Esposito, A.) (Entered: 08/11/2020)
92 ORDER of USCA as to 80 Notice of Appeal filed by Connecticut State Board of Education USCA Case Number 20-2255 (Nuzzi, Tiffany) (Entered: 08/28/2020)

09/07/2020 09/11/2020

93 MOTION for Catherine E. Cushman to Withdraw as Attorney by A. R.. (Cushman, Catherine) (Entered: 09/07/2020)
94 ELECTRONIC ORDER granting Attorney Catherine E. Cushman's 93 Motion to Withdraw as Attorney for good cause shown. Attorney Cushman represents that she will be resigning from Disability Rights Connecticut effective September 11, 2020 to pursue a new employment opportunity. Plaintiff A.R. continues to be represented in this matter by Kasey Considine of Disability Rights Connecticut, Jason Kim of Schneider Wallace Cottrell Konecky LLP, and Sonja L. Deyoe of the Law Offices of Sonja L. Deyoe. Signed by Judge Charles S. Haight, Jr. on September 11, 2020. (Marienko, A.) (Entered: 09/11/2020)

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 Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

____________________________________

A.R.

:

on behalf of a class of those similarly

:

situated,

:

:

Plaintiff,

:

:

vs.

:

:

CONNECTICUT STATE BOARD OF :

EDUCATION

:

:

Defendant.

:

___________________________________ :

Civil No. 3:16-cv-01197-CSH AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
August 17 , 2018

AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff, on her own behalf and on behalf of a class of those similarly situated, alleges as

follows against Defendant Connecticut State Board of Education (the “Board”).

INTRODUCTION

1. This is a class action to establish the rights of Plaintiff A.R. and the class she

seeks to represent to a free appropriate public education (“FAPE”) under the Individuals with

Disabilities Education Act (“IDEA”).

2. Plaintiff A.R. is an individual with a disability who will turn 21 years old on April

7, 2020. She is being provided a FAPE under the IDEA by the Local Educational Agency

(“LEA”) for her region but as of June 30, 2020 will be denied such an education because she will

have reached the age of 21 during the school year that ends on June 30, 2020.

3. [Intentionally omitted.]

4. [Intentionally omitted.]

EXHIBIT B

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 2 of 11
5. Plaintiff A.R. sues under a pseudonym because the record in this action may disclose specific information about her disabilities, information as to which she has right of privacy.
6. The termination of a FAPE to Plaintiff A.R. will be pursuant to a statute and regulation that affects only students with disabilities. Conn. Gen. Stat. § 10-76d(b) provides in relevant part that “[i]n accordance with the regulations of the State Board of Education, each local and regional board of education shall … [p]rovide special education for school-age children requiring special education” but that “[t]he obligation of the school district shall terminate when such child is graduated from high school or reaches age twenty-one, whichever occurs first.” (Emphasis added.) This statute is implemented by Conn. Agencies Reg. § 10-76d-1(a)(4), which provides in relevant part that special education “shall be continued until the end of the school year in the event that the child turns twenty-one during that school year.” For purposes of this regulation, the school year runs from July 1 through June 30.
7. There is no comparable Connecticut law or regulation that imposes a maximum age limit for entitlement to public education for non-special education students.
8. Under the IDEA, Plaintiff A.R. is entitled to receive a FAPE until the age of 22. 20 U.S.C. § 1412(a)(1)(B).
9. Plaintiff A.R. would meaningfully benefit from almost an additional year of special education and related services under the IDEA.
10. As set forth below, the Board’s future denial of any further education to Plaintiff A.R. violates the IDEA and Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d1(a)(4) are accordingly unenforceable as contrary to federal law.
2

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JURISDICTION AND VENUE 11. This Court has jurisdiction over Plaintiff’s claims and the parties pursuant to 28 U.S.C. § 1331 because such claims arise under federal law, specifically the IDEA, 20 U.S.C. § 1400 et seq. 12. This Court has jurisdiction to award declaratory and preliminary and permanent injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule 65 of the Federal Rules of Civil Procedure. 13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the Board resides in this district and the events and omissions giving rise to Plaintiff’s claims occurred in this district. 14. Exhaustion of administrative remedies is not required before this Court may exercise jurisdiction over Plaintiff’s claims. As the Second Circuit has recognized, exhaustion is not required where resort to administrative remedies would be futile and such futility is established where the plaintiff challenges the validity of a state law or regulation. Heldman on Behalf of T.H. v. Sobol, 962 F.2d 148 (2nd Cir. 1992). Clearly, it would be futile to ask the Board through the administrative process to ignore a state law and the Board’s own regulation implementing that law.
THE PARTIES
15. Plaintiff A.R. is a now 19-year-old IDEA-eligible student who receives a FAPE pursuant to the IDEA at the West Hartford Public Schools. She is receiving special education and related services at Options.
16. As a result of various circumstances and her disabilities, A.R. fell behind in obtaining credits towards high school graduation. To graduate, A.R. needs a total of 21.75 credits. As of the end of the 2018 school year, she requires 12.375 additional credits.
3

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17. If A.R. continues earning credits towards high school graduation at the rate she has obtained such credits at Options, she will complete between 9 and 10 credits during the next two school years. As a result, she will be approximately 3 credits short of obtaining a high school diploma when her eligibility for special education is terminated on June 30, 2020.
18. Plaintiff A.R. needs and would meaningfully benefit from continued special education and related services under the IDEA. Because of her disability, she requires a supportive and structured environment to develop her academic and prevocational skills. Specifically, additional eligibility for special education would allow her to complete the requirements to obtain a high school diploma and work on other transition goals.
19. Plaintiff A.R. has not received a high school diploma. 20. Plaintiff A.R. will be forced to exit special education on June 30, 2020 pursuant to the Connecticut law and regulation cited above. 21. Defendant Board is responsible for providing public education for Connecticut residents, both children and adults. The Board’s responsibilities include the supervision and control of special education and adult education in Connecticut. Conn. Gen. Stat. § 10-4. 22. Connecticut receives funds under the IDEA for special education. As such, under the IDEA, the Board is responsible for ensuring that the LEAs under the Board’s supervision and control provide appropriate special education services to Connecticut residents. Specifically, 20 U.S.C. § 1407 provides that each State that receives IDEA funds must “ensure that any State rules, regulations, and policies relating to this chapter conform to the purposes of this chapter.” Similarly, 20 U.S.C. § 1412(11) requires that the State’s primary educational agency “is responsible for ensuring that – (i) the requirements of this subchapter [referring to 20 U.S.C. §§ 1411-1419] are met.”
4

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23. The Board is also required under Connecticut law to “provide for the development and supervision of the educational programs and services for children requiring special education ….” Conn. Gen. Stat. § 10-76b(a).
24. Pursuant to Connecticut law, the school districts and other entities under the Board’s supervision and control are required to provide public education to adults. Pursuant to Conn. Gen. Stat. § 10-69(a), “[e]ach local and regional board of education shall establish and maintain a program of adult classes or shall provide for participation in a program of adult classes for its adult residents ….” (Emphasis added.) Such programs shall be provided in among other things “elementary and secondary school completion or classes.” Id.
25. Adult education for “elementary and secondary school completion or classes” is required to be offered free of tuition or registration fees. Conn. Gen. Stat. § 10-73a(a).
26. As set forth below, the school districts and other entities under the Board’s supervision and control actually do provide public education, including elementary and secondary education, to adults.
FACTUAL ALLEGATIONS 27. The IDEA mandates that a “free and appropriate public education” shall be “available to all children with disabilities . . . between the ages of 3 and 21, inclusive . . . .” 20 U.S.C. § 1412(a). Eligibility under the IDEA for special education and related services ends, therefore, when a student becomes 22. 28. States may limit age eligibility for special education students, however, only to the extent it is limited for public education generally: The obligation to make a [FAPE] available to all children with disabilities does not apply with respect to children—
(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of
5

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 6 of 11

any court, respecting the provision of public education to children in those age ranges . . .

20 U.S.C. § 1412(a)(1)(B).

29. Thus, under the IDEA, the Board is obliged to treat special education students the

same as general education students with respect to age eligibility.

30. Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) purport

to terminate the entitlement of Connecticut residents to a FAPE under the IDEA at the age of 21

or at the conclusion of the school year in which that resident turns 21. This law and regulation

cannot do so consistent with 20 U.S.C. § 1412(a)(1)(B), however, because they apply only to

special education students and not to non-special education students.

31. There is no Connecticut law or regulation that imposes an age limitation of 21 on

the entitlement to public education generally. To the contrary, Connecticut law directs the school

districts and other entities under the Board’s supervision and control to provide programs of

public education, including elementary and secondary education, to adults. Conn. Gen. Stat.

§ 10-69(a).

32. There is no Connecticut practice with respect to public education generally that is

inconsistent with providing special education students a FAPE until the age of 22. To the

contrary, it is the practice of the school districts and other entities under the Board’s supervision

and control to offer programs of public education to adults, including a General Educational

Development preparation program, an adult high school credit diploma program, and a National

External Diploma program. Website of Connecticut State Department of Education, Adult

Education,

Adult

Education

Overview,

Instructional

Programs:

www.sde.ct.gov/sde/cwp/view.asp?a=2620&q=320686&sdePNavCtr=|45467|#45494. These

programs offer a high school equivalency diploma if the requirements for such programs are

6

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 7 of 11
satisfied and these programs are intended to be the functional equivalent of a secondary education. Id.
33. As of 2014, thousands of Connecticut adults were enrolled in these programs, most of whom were over the age of 22. Specifically, 12,276 students were enrolled in the three high school completion programs discussed above. Website of Connecticut State Department of Education, Adult Education, Reports, Program Profiles, 2013-14: http://www.sde.ct.gov/sde/cwp/view.asp?a=2620&Q=321924&sdePNavCtr=|45570|#45575. And of the 24,751 students enrolled in all of Connecticut’s adult education programs, 19,736 were 22 or older. Id.
34. The State of Connecticut, school districts, and the federal government spend millions of dollars annually for adult education in Connecticut. In 2014, $39,647,670 in state and local funds and $4,231,297 in federal funds were devoted to this purpose. Id.
35. The United States Court of Appeals for the Ninth Circuit has held that a Hawai`i law that purported to limit eligibility of students for public education to age 20 was inconsistent with 20 U.S.C. § 1412(a)(1)(B) because, despite this law, Hawai`i continued to provide adults with public education programs that were in all material respects identical to Connecticut’s adult high school completion programs. E.R.K. v. State of Hawaii Dep’t of Educ., 728 F.3d 982 (9th Cir. 2013). Therefore, despite this Hawai`i law, that court ruled that students with disabilities in Hawai`i were entitled to a FAPE under the IDEA until they reached the age of 22. Id.
CLASS ALLEGATIONS 36. Plaintiff A.R., brings this action on her own behalf and on behalf of a class of all those similarly situated pursuant to Rule 23(b)(1) and 23(b)(2) of the Federal Rules of Civil Procedure. The proposed plaintiff class consists of:
All individuals who turned 21 within two years before the filing of this action or will turn 21 during the pendency of this action who are provided
7

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 8 of 11
or were provided a FAPE under the IDEA by any LEA subject to the supervision and control of the Board and who but for their turning 21 would otherwise qualify or would have qualified for a FAPE because they have not or had not yet earned a regular high school diploma (“the Plaintiff Class”). 37. Membership in the Plaintiff Class is so numerous that joinder of all members is impractical. There are hundreds or thousands of Connecticut students who are receiving or have received a FAPE under the IDEA who are, were during the applicable limitations period, or will be between the ages of 21 and 22 and who but for their age would otherwise qualify or would have otherwise qualified for a FAPE. 38. Common questions of law and fact exist, including the overarching issue of whether Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) and the Board’s enforcement of that statute and regulation as to Plaintiff A.R. and the Plaintiff Class violates the IDEA. 39. The claim and injury of Plaintiff A.R. is typical of the claims and injuries of the other members of the Plaintiff Class. Plaintiff A.T. will be denied any further FAPE based on her age and will be injured by this denial as she will no longer receive a FAPE on June 30, 2020 despite being eligible to receive a FAPE until April 7, 2021 pursuant to the IDEA. This is the same injury that members of the Plaintiff Class have suffered, are suffering, or will imminently suffer unless this Court grants relief. 40. Plaintiff A.R. will fairly and adequately represent and protect the interests of the Plaintiff Class. Plaintiff intends to prosecute this action vigorously in order to secure remedies for the Plaintiff Class. Counsel of record for Plaintiff are experienced in federal civil rights litigation and class actions, including systemic litigation against state defendants challenging disability discrimination. Jason H. Kim successfully litigated the E.R.K. case, which presented the same issues as this case presents.
8

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 9 of 11
41. Certification of the Plaintiff Class is appropriate pursuant to Fed. R. Civ. Proc. Rule 23(b)(1) because prosecution of separate actions by individual members of the Plaintiff Class against the Board may establish incompatible standards of conduct for the Board. If the claims brought in this action were litigated numerous times, it is possible that some members of the Plaintiff Class would be entitled to greater IDEA benefits than other members of the Plaintiff Class.
42. Certification of the Plaintiff Class is also appropriate pursuant to Fed. R. Civ. Proc. Rule 23(b)(2) because the Board has acted or refused to act on grounds that apply generally to the Plaintiff Class and final injunctive or declaratory relief is appropriate for the Plaintiff Class as a whole.
FIRST CLAIM FOR RELIEF (VIOLATION OF THE IDEA) 43. Plaintiff repeats and realleges each and every allegation above as if fully set forth. 44. Under the IDEA, the Board is obliged to provide a FAPE to all individuals with disabilities until such individuals reach their 22nd birthday unless to do so would be “inconsistent with State law or practice … respecting the provision of public education to children” in that age range. 20 U.S.C. § 1412(a)(1)(B). 45. Providing students with disabilities in Connecticut a FAPE until the age of 22 would not be inconsistent with any Connecticut law or practice respecting the provision of public education in general to individuals over the age of 21. 46. Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) are not laws that relate to the provision of public education in general. Rather, they apply solely to special education students. There is no comparable law or regulation of general applicability that imposes an age limit of 21 for the entitlement to public education.
9

Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 10 of 11
47. Connecticut, as a matter of both law and practice, provides a public education to individuals over the age of 21. Connecticut law requires the school districts and other entities under the Board’s supervision and control to provide adults a free public education, including elementary and secondary education. The Board complies with this legislative mandate by supervising the provision of various programs of adult education, including high school completion programs which are intended to provide a secondary education for such adults and prepare them for post-secondary education and vocational opportunities.
48. These adult education programs are paid for by public funds and programs for the completion of elementary and secondary education are required to be provided free of tuition and registration fees.
49. Thus, the default age limitation of the IDEA continues to apply because students without disabilities who are over the age of 21 in Connecticut can still pursue the equivalent of a public high school education through the Board’s adult education programs.
50. The Board’s refusal to provide A.R. and the members of the Plaintiff Class a FAPE violates the IDEA and A.R. and the members of the Plaintiff Class are entitled to a FAPE until they reach the age of 22.
51. The Board has also violated 20 U.S.C. § 1407 by not ensuring that its regulations conform to the IDEA and 20 U.S.C. § 1412(11) by failing to ensure that the LEAs under the Board’s supervision and control are meeting the requirements of 20 U.S.C. § 1412(a)(1)(B).
WHEREFORE, Plaintiff prays that this Court: (a) Find and declare that the Board’s current or future refusal to provide Plaintiff A.R. and the members of the Plaintiff Class with a FAPE on account of their age violates the IDEA; (b) Find and declare that, by this conduct, the Board has violated 20 U.S.C. § 1407 and 20 U.S.C. § 1412(11);
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Case 3:16-cv-01197-CSH Document 64 Filed 04/05/19 Page 11 of 11
(c) Find and declare that Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg.
§ 10-76d-1(a)(4) are invalid as contrary to the IDEA;
(d) Enjoin the Board from terminating FAPEs as to Plaintiff A.R. and the members of
the Plaintiff Class who have not yet turned 22;
(e) Award compensatory education to members of the Plaintiff Class to the extent
they have already been denied a FAPE unlawfully;
(f) Award Plaintiff her reasonable attorney’s fees, costs, and expenses under any
applicable law; and
(g) Grant such other and further relief as this Court deems just and proper.
DATED: Hartford, Connecticut, August 17, 2018.
__________________________
CATHERINE E. CUSHMAN Disability Rights Connecticut, Inc. 846 Wethersfield Avenue Hartford, CT 06114 Tel: 860 297-4300 E-mail: catherine.cushman@disrightsct.org
SONJA L. DEYOE #6301
Fed. Bar. No. CT 420118
LAW OFFICES OF SONJA L. DEYOE. P.C. 395 Smith Street Providence, RI 02908 Telephone: (401) 864-5877 Email: sld@the-straight-shooter.com
JASON H. KIM (admitted pro hac vice) SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS, LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608
Counsel for Plaintiff
11

 
 Case 3:16-cv-01197-CSH Document 70 Filed 05/01/20 Page 1 of 29
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

A.R., on behalf of a class of those similarly situated,
Plaintiff, v.
CONNECTICUT STATE BOARD OF EDUCATION,
Defendant.

3:16–cv–01197 (CSH) MAY 1, 2020

RULING ON PLAINTIFF’S MOTION TO CERTIFY CLASS HAIGHT, Senior District Judge:
Plaintiff A.R., an individual with a disability, brings this putative class action pursuant to Federal Rule of Civil Procedure 23(b)(2) against Connecticut State Board of Education, alleging that the Board’s enforcement of age limitations to special education established by Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) violates the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1412(a). Several motions are pending before the Court, including Plaintiff’s renewed motion for class certification, and the parties’ cross motions for summary judgment. The instant ruling resolves Plaintiff’s renewed motion for class certification.
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I. BACKGROUND
Defendant Connecticut State Board of Education (“Defendant” or the “Board”) maintains “general supervision and control” of elementary and secondary education, special education, and adult education in the state of Connecticut. Conn. Gen. Stat. § 10-4(a). As the educational agency responsible for general supervision of special education in Connecticut, the Board is also responsible for ensuring the state’s compliance with the requirements of the federally enacted Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1412.
Plaintiff A.R.1 is an individual with a disability who turned 21 years old on April 7, 2020. See Doc. 66-8 (“Decl. A.R.”), ¶ 2. In November 2014, A.R. began receiving special education from West Hartford Public School district. Id. at ¶ 4. Due to various disability-related issues, A.R. was able to earn only 5.625 credits towards her high school diploma by November 2017. Id. at ¶ 5. Since then, A.R. has been earning additional credits at Options Employment and Education Services, LLC (“Options”). See id. Nevertheless, A.R. anticipates that she will not be able to earn the credits needed to receive her high school diploma before her eligibility for special education terminates in June 2020, at the end of the school year during which A.R. turns 21. See id. at ¶¶ 6–10.
A.R.’s eligibility to receive special education will terminate pursuant to Connecticut statute and regulations, which provide that a child with a disability, who turns 21 during the school year, is entitled to receive special education only until the end of that school year. See Conn. Gen. Stat. § 10-76d(b); Conn. Agencies Reg. § 10-76d-1(a)(4).
1 A.R. was substituted as plaintiff and purported class representative in place of former plaintiff D.J., acting through his parent O.W., pursuant to the Court’s April 5, 2019 Ruling, 2019 WL 1499377.
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A.R. contends that the Board’s enforcement of this age limitation violates the IDEA, which obligates a state to provide a free appropriate public education to children with disabilities until the age of 22 if the state also provides public education to non-disabled persons of the same age. See Am. Compl. ¶¶ 43–51 (citing 20 U.S.C. § 1412(a)(1)(B)). A.R. asserts that, because the Board generally provides public education to non-disabled persons regardless of their age, the Board must also provide special education to individuals with disabilities between ages of 21 and 22. Id.
A.R. brings this action against the Board on behalf of herself and a class of similarly situated individuals defined as follows:
All individuals who were over 21 and under 22 within two years before the filing of this action or will turn 21 during the pendency of this action who are provided or were provided a [free appropriate public education] under the IDEA by any [Local Education Agency] in the State of Connecticut and who, but for turning 21, would otherwise qualify or would have qualified for a [free appropriate public education] until age 22 because they have not or had not yet earned a regular high school diploma (“the Class”). Doc. 66-1 (“P.’s Br.”), at 3. A.R., on behalf of the Class, seeks a declaratory judgment that Conn. Gen. Stat. § 1076d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) violate the IDEA because “[t]here is no Connecticut law or regulation that imposes an age limitation of 21 on the entitlement to public education generally”—rather, the age limitation “appl[ies] only to special education students” and does not apply to “non-special education students” who may continue to receive public education as adults. See Am. Compl. ¶¶ 30–32, 51(c). Plaintiff requests a declaration that the Board’s current or future refusal to provide a free appropriate public education to Plaintiff and the members of the Class on account of their age violates the IDEA. Id. ¶ 51(a), (b). Plaintiff
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also seeks to enjoin the Board from terminating a free appropriate public education as to Plaintiff and the members of the Class who have not yet turned 22. Id. ¶ 51 (d).
Additionally, Plaintiff, who believes that she would meaningfully benefit from receiving special education until she turns 22,2 requests the Court to “[a]ward compensatory education to members of the Plaintiff Class to the extent they have already been denied a [free appropriate public education] unlawfully.” Id. ¶ 51(e). Plaintiff also seeks an award of reasonable attorney’s fees, costs and expenses. Id. ¶ 51(f).
II. DISCUSSION (A) Applicable Substantive Law A state receiving federal funds under the IDEA must provide “a free appropriate public education”3 to children with disabilities “between the ages of 3 and 21, inclusive.” See 20 U.S.C. § 1412(a)(1)(A) (emphasis added); 34 C.F.R. § 300.101(a). Interpreting this language, the Second Circuit concluded that children with disabilities are entitled to receive a free appropriate public education until the day they turn 22. See Lillbask ex rel. Mauclaire v. State of Conn. Dep’t. of Educ., 397 F.3d 77, 86 n.4 (2d Cir. 2005) (“We have interpreted the word ‘inclusive,’ in this provision, to indicate that a child remains eligible for a free appropriate education under IDEA until his 22nd birthday.”); St. Johnsbury Acad. v. D.H., 240 F.3d 163, 168–69 (2d Cir. 2001) (“If the word ‘inclusive’ is to mean something, as it must, it means that the relevant period
2 Plaintiff believes that she would need six or eight months of additional special education services to complete the credits requirement. Decl. A.R. at ¶¶ 9–10. 3 A free appropriate public education (sometimes abbreviated as FAPE) is defined as special education and related services that “have been provided at public expense, under public supervision and direction, and without charge,” “meet the standards of the State educational agency,” “include an appropriate preschool, elementary school, or secondary school education in the State involved,” and “are provided in conformity with the individualized education program.” See 20 U.S.C. § 1401(9).
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begins on a child’s third birthday and ends on the last day of his 21st year (which culminates in his 22nd birthday).”); see also K.L. v. Rhode Island Bd. of Educ., 907 F.3d 639, 641 (1st Cir. 2018) (the IDEA eligibility continues until a child with disability turns 22); L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 959 (9th Cir. 2012) (children eligible to receive services under the IDEA “are entitled to continue receiving those services until they turn twenty-two”).4
Despite this mandate, a state need not provide a free appropriate public education to children with disabilities ages 18 to 21 if doing so would conflict with “State law or practice” regarding “the provision of public education to children in those age ranges.” See 20 U.S.C. § 1412(a)(1)(B)(i); 34 C.F.R. § 300.102(a)(1). Thus, a state may deny a free appropriate public education to children with disabilities ages 18 through 21 only to the extent it denies “public education” to non-disabled individuals of the same age. See K.L., 907 F.3d at 642 (holding that Rhode Island Board of Education violated the IDEA by denying special education to individuals with disabilities between ages of 21 and 22 while providing public education services to nondisabled individuals of the same age); E.R.K. ex rel. R.K. v. Hawaii Dep’t of Educ., 728 F.3d 982, 987 (9th Cir. 2013) (holding that Hawaii Department of Education violated the IDEA by denying special education to disabled individuals ages 20 to 21 while providing adult secondary education programs to non-disabled persons of the same age); see also St. Johnsbury Acad., 240 F.3d at 169–70 (noting that New York, unlike Vermont, was not required to provide special education to individuals between ages of 21 and 22 because New York law offered “public education” only to persons “under twenty-one years of age,” while Vermont law did not specify
4 But see Board of Educ. v. Illinois State Bd. Of Educ., 79 F.3d 654, 656 (7th Cir. 1996) (“the [IDEA] entitles disabled individuals to special education assistance only until they reach the age of 21”).
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an “upper age limit” on public education) (citing Burr v. Ambach, No. 86 Civ. 7164, 1987 WL 19957, at *1 (S.D.N.Y. Nov. 10, 1987)).
Under Connecticut law, each child with a disability is entitled to special education until that child “is graduated from high school or reaches age twenty-one, whichever occurs first.” (emphasis added) . See Conn. Gen. Stat. § 10-76d(b). A child who turns 21 during the school year will continue to receive special education until the end of that school year. See Conn. Agencies Reg. § 10-76d-1(a)(4).5
(B) Class Action Certification To be certified, a class must satisfy the requirements set forth in Rule 23(a), which include numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a)(1)–(4); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 538 (2d Cir. 2016). Additionally, when seeking certification under Rule 23(b)(2), a plaintiff must establish that the defendant “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23 “does not set forth a mere pleading standard”—rather, a plaintiff must satisfy its requirements through “evidentiary proof.” See Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); see also Amara v. CIGNA Corp., 775 F.3d 510, 519 (2d Cir. 2014) (stating that a plaintiff must establish Rule 23 requirements by “a preponderance of the evidence”). To determine whether a plaintiff has done so, a district court must conduct a “rigorous analysis” that may “overlap with the merits of the plaintiff’s underlying claim.” See Comcast, 569 U.S. at 33.
5 For purposes of this regulation, the school year runs from July 1 through June 30. Conn. Agencies Reg. § 10-76d-1(a)(4).
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When presented with the parties’ conflicting evidentiary submissions, a district court may make factual findings to resolve the evidentiary disputes. See Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3, 5 (2d Cir. 2015) (summary order).
Notably, Defendant has not filed any objection to Plaintiff’s renewed motion for class certification. Nor have the parties stipulated that Defendant’s briefing in opposition to Plaintiff’s first motion for class certification should continue to apply to Plaintiff’s renewed motion.6 Even if such stipulation existed, however, Defendant could hardly continue to advance the arguments raised in its opposition to Plaintiff’s first motion for class certification. See Doc. 33. These arguments, which contended that former plaintiff D.J. was not an adequate class representative and lacked standing to bring the purported class action because he had already received a high school diploma,7 became moot in light of the Court’s April 5, 2019 Ruling, 2019 WL 1499377, which allowed the purported class to file an amended complaint substituting A.R. as the named plaintiff and class representative in place of D.J.8
Defendant has raised no arguments that A.R. is an inadequate class representative, or that the purported class fails to meet any other Rule 23 requirements. Nor has Defendant contested A.R.’s standing.9 See April 5, 2019 Ruling, 2019 WL 1499377, at *6 n.8.
6 By contrast, the parties expressly stipulated that the briefing filed in support of their original crossmotions for summary judgment will continue to apply to the renewed cross-motions for summary judgment. See Doc. 65. 7 While Defendant briefed this issue as one of mootness, the Court noted that the issue of whether D.J. could properly bring this action after receiving a high school diploma was one of standing. See April 5, 2019 Ruling, 2019 WL 1499377. 8 The Court also found that D.J. had standing to bring the instant lawsuit in the first place. See April 5, 2019 Ruling, 2019 WL 1499377, at *4. 9 Regardless, A.R. has sufficiently demonstrated standing to bring this class action. To establish Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a
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Even in the absence of opposition, however, it is still Plaintiff’s duty to “affirmatively
demonstrate” that a purported class complies with Rule 23 requirements. See Comcast, 569 U.S.
at 33. In accordance with this principle, the Court will examine below whether class
certification should be granted.
(1) Rule 23(a) Requirements
a. Numerosity
To be certified, the class must be so numerous that joinder of all members would be
“impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is generally presumed when a class
consists of forty or more members. See Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan
Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014); Morrison v. Ocean State Jobbers, Inc., 290
F.R.D. 347, 353 (D. Conn. 2013). A named plaintiff need not prove the exact number or identity
of proposed class members, as long as the size of the class can be reasonably estimated. See
Scott v. Aetna Servs., Inc., 210 F.R.D. 261, 266 (D. Conn. 2002); see also Fogarazzao v. Lehman
Bros., Inc., 232 F.R.D. 176, 179 (S.D.N.Y. 2005) (explaining that “precise calculation of the
number of class members is not required, and it is permissible for the court to rely on reasonable
inferences drawn from available facts”).
favorable decision will redress that injury.” Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). A.R.’s alleged injury—the denial of a free appropriate public education by the Board in violation of the IDEA—is imminent because it is “certainly impending,” rather than merely “speculative.” See Clapper v. Amnesty Intern USA, 568 U.S. 398, 409 (2013) (citing Lujan, 504 U.S. at 564 n.2). Under the existing Connecticut statute and regulations, the Board will inevitably deny A.R. special education on June 30, 2020, at the end of the school year during which A.R. turns 21. See Conn. Gen. Stat. § 10-76d(b); Conn. Agencies Reg. § 10-76d-1(a)(4). Indeed, as recounted in A.R.’s November 26, 2019 Declaration, on November 8, 2019, the hearing officer in the due process matter filed by A.R. against the Board held that, pursuant to Conn. Agencies Reg. § 10-76d-1(a)(4), A.R.’s education cannot be extended past the end of the school year during which A.R. turns 21. See Doc. 67, Decl. A.R. ¶ 5. Additionally, a favorable decision will redress A.R.’s alleged injury because the result of a favorable decision would be an order enjoining the Board from terminating A.R.’s education pursuant to the IDEA until A.R. turns 22.
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In the instant case, Plaintiff seeks to certify a class that includes all individuals “who were over 21 and under 22 within two years before the filing of this action” in July 2016, as well as those who “will turn 21 during the pendency of this action,” if such individuals, “but for turning 21,” would have qualified for receiving services under the IDEA in the state of Connecticut until reaching the age of 22.10 The data compilation produced by the Board shows that, in 2014 and 2015 alone, 204 Connecticut students stopped receiving special education services under the IDEA because they reached the age of 21.11 As Plaintiff correctly notes, this number “more than satisfies the numerosity requirement with respect to the Class even without consideration of class members who aged out [of the IDEA eligibility] in 2016 through 2018 and future class members.” See P.’s Br. at 7; see also Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (accounting for potential future class members in the determination of numerosity). Nor does Defendant dispute that the purported class is sufficiently numerous. Therefore, the class satisfies the numerosity requirement.
b. Commonality A class will not be certified unless there are “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Such questions exist if the class members “suffered the same injury” and their claims “depend upon a common contention,” which can be resolved through a class-wide proceeding. See Wal-Mart Stores, Inc v. Dukes, 564 U.S. 338, 350 (2011) (internal citations omitted); Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015). The common contention must be of such nature “that determination of its truth or falsity will resolve
10 P.’s Br. at 3. 11 See Docs. 66-7; P.’s Br. at 7.
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an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350.
The central issue in this litigation is whether Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) are sufficient to override the IDEA’s default age requirements and release the Board from its obligation to provide a free appropriate public education to children with disabilities until they reach the age of 22. This issue turns on whether providing special education to children with disabilities until the age of 22 would be inconsistent with any Connecticut law or practice regarding providing public education to non-disabled individuals of the same age. See 20 U.S.C. § 1412(a)(1)(B)(i); K.L., 907 F.3d at 642; E.R.K., 728 F.3d at 987.
Here, Plaintiff’s contention is that the Board must provide a free appropriate public education to children with disabilities until the age of 22 because the Board generally provides public education to non-disabled individuals regardless of age. Specifically, Plaintiff points to Conn. Gen. Stat. § 10-69(a), which requires the Board to “establish and maintain a program of adult classes . . . for its adult residents,” including “secondary school completion programs.” Eligibility for such programs is not limited on the basis of age—in fact, the statute defines an adult as “any person seventeen years of age or older.” See Conn. Gen. Stat. § 10-67(1). As the Board confirmed during the deposition of its designated 30(b)(6) representative Susan Pierson, every Local Educational Agency (“LEA”) in Connecticut is required to offer some form of adult education. See Exh. A to Kim Decl. at 43:4–17. Such education must be provided to adults free of tuition or registration fees. Conn. Gen. Stat. § 10-73a(a).
Among the adult education programs supervised by the Board, Plaintiff lists the General Educational Development Program (“GED”), the National External Diploma Program (“NEDP”), and the Adult High School Credit Diploma Program (“AHSCD”). See Exh. C to
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Kim Decl. As the Statewide Profile Report for 2016 suggests, more than 16,000 adults enrolled in these programs were over the age of 22. See Exh. B to Kim Decl. at 1.
Plaintiff asserts that GED, NEDP, and AHSCD constitute “public education” because these programs: (1) are almost entirely publicly funded from the federal, state and local sources, (2) are provided by the LEAs and supervised by the Board, and (3) allow participants to attain a high school diploma. See id.; Exh. A to Kim Decl., 33:3–11; 46:1–9; & 55:15–56:1; see also K.L., 907 F.3d at 647–48 (noting that the core attributes of public education include “(1) significant funding from a public source;” “(2) public administration or oversight;” and “(3) the education of students to the academic competence ordinarily associated with completion of secondary school”); E.R.K., 728 F.3d at 988 (stating that “free public education is one that is 1) provided at public expense, under public supervision and direction, and without charge; and 2) involves preschool, elementary, or secondary education”) (internal quotation marks omitted). Plaintiff’s characterization of GED, NEDP and AHSCD as programs providing public education for adults is largely corroborated by the testimony of the Board’s designated 30(b)(6) representative. Exh. A to Kim Decl., 33:3–11; 46:1–9; & 55:15–56:1.
Relying on this evidence, Plaintiff contends that the Board generally provides public education to non-disabled individuals over the age of 21. For that reason, Plaintiff asserts that the Board’s enforcement of Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4), which deny a free appropriate public education to children with disabilities before they reach the age of 22, violates the IDEA.
It is evident that A.R.’s contention is common to all members of the purported class, which encompasses individuals in the state of Connecticut who—but for turning 21— would have qualified for a free appropriate public education under the IDEA until reaching the age of
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22. Plaintiff A.R. and the members of the purported class are necessarily complaining of the same alleged injury—being denied special education services by the Board upon turning 21 despite the Board’s practice of providing public education to non-disabled individuals of the same age. Indeed, any difference in the class members’ individual circumstances would have practically no effect on the determination of the Board’s liability because the alleged “acts and omissions” of the Board “are not specific to any particular Plaintiff” but are directed at the entire class of disabled individuals over the age of 21. See Raymond v. Rowland, 220 F.R.D. 173, 180 (D. Conn. 2004) (“While the details of each individual plaintiff’s alleged injury may vary, the predominant issues of fact and law include plaintiffs’ disability, defendants’ alleged reduction of [services] and the alleged resulting denial of meaningful and timely access to public assistance.”) (internal citation omitted).
The common question, central to the validity of each class member’s claim in this litigation, is whether the Board’s enforcement and application of Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) violate the IDEA in light of the Board’s practices regarding the provision of public education in general. If this Court finds that the Board generally provides public education to non-disabled individuals over the age of 21, it would follow that the Board’s enforcement of Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) violates the IDEA. See E.R.K., 728 F.3d at 984 (concluding that Hawaii Department of Education violated the IDEA by denying special education to disabled individuals between ages of 20 and 22 because Hawaii provided public education to non-disabled individuals of the same age in the form of state-funded high school diploma programs); K.L., 907 F.3d at 642 (holding that Rhode Island Board of Education violated the IDEA by denying special education to individuals with disabilities between ages of 21 and 22 because it provided
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public education services to non-disabled individuals of the same age). Because a class action would necessarily “generate common answers” central to the resolution of each class member’s claim, the commonality requirement is satisfied. See Dukes, 564 U.S. at 350.
c. Typicality A class will not be certified unless the claims or defenses of the named plaintiff “are typical of the claims and defenses of the class.” Fed. R. Civ. P. 23(a)(3). A named plaintiff’s claims are typical of those of the class when they arise from “the same course of events,”12 such as a common policy or practice directed at the class. See Westchester Indep. Living Ctr., Inc., v. State Univ. Of New York, Purchase Coll., 331 F.R.D. 279, 293–94 (S.D.N.Y. 2019); Maziarz v. Hous. Auth. of the Town of Vernon, 281 F.R.D. 71, 82 (D. Conn. 2012) (citing Robidoux, 987 F.2d at 937); Morgan v. Metropolitan Dist. Com’n, 222 F.R.D. 220, 230 (D. Conn. 2004). Additionally, the claims of the named plaintiff and the class must require “similar legal arguments to prove the defendant’s liability.” See Audet v. Fraser, 332 F.R.D. 53, 67 (D. Conn. 2019) (citing Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)); see also Lemire v. Wolpoff & Abramson, LLP, 256 F.R.D. 321, 326 (D. Conn. 2009) (“The typicality element is distinct from commonality in that typicality focuses on ‘claims or defenses,’ rather than on ‘questions of law or fact.”) (emphasis in the original). Here, the claims of A.R. and other class members arise from the same common policy and general practice by the Board— a failure to provide a free appropriate public education to class members until they reach the age of 22. See Robidoux, 987 F.2d at 936–37 (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor
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variations in the fact patterns underlying individual claims.”). The claims asserted by A.R. and the class members necessarily require the same legal arguments to prove the Board’s liability—that the Board’s practice violates the IDEA because providing special education to class members until they reach the age of 22 is not inconsistent with any Connecticut law or practice, as the Board generally provides public education programs to non-disabled individuals of the same age.
For these reasons, A.R.’s claim is typical of the claims of the class. d. Adequacy
A named plaintiff must “fairly an adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To do so, a plaintiff must establish that her interests are not “antagonistic” to the interest of other class members. See Audet, 332 F.R.D. at 67 (citing Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). Additionally, a plaintiff must be represented by counsel that is “qualified, experienced and able to conduct the litigation.” Id.
The Court finds no conflict between the interests of A.R. and the interests of other class members. Indeed, all members of the purported class, including A.R., share an identical interest—establishing that they are entitled to receive a free appropriate public education under the IDEA until they reach the age of 22.
Furthermore, A.R. is represented by qualified and experienced counsel. One of these is Jason H. Kim, with the firm of Schneider Wallace Cottrell Konecky Wotkyns LLP. Attorney Kim served as counsel for plaintiff classes in similar IDEA litigations before the Unites States Court of Appeals for the Ninth Circuit, E.R.K., 728 F.3d at 982, and the United States Court of Appeals for the First Circuit, K.L., 907 F.3d at 639. See Kim. Decl. at ¶ 2. In addition to the E.R.K. and K.L. matters, Mr. Kim has substantial experience in representing plaintiffs with
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disabilities in federal civil rights and public benefit matters, including litigations under the Americans With Disabilities Act and Rehabilitation Act. See id. at ¶ 4. A.R. is also represented by the Law Offices of Sonja L. Deyoe, P.C. and Disability Rights Connecticut, “an organization with deep expertise and knowledge of special education in Connecticut.” See P.’s Br. at 9–10.
For these reasons, the Court is assured that A.R. will fairly and adequately protect the interests of the class.
(2) Certification under Rule 23(b)(2) A class may be certified under Rule 23(b)(2) if the defendant “acted or refused to act on grounds that apply generally to the class” so that “a single injunction or declaratory judgment would provide relief to each member of the class.” See Dukes, 564 U.S. at 360 (citing Fed. R. Civ. P. 23(b)(2)). By contrast, a (b)(2) class may not be certified if “each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. (emphasis in the original). Nor may a (b)(2) class include claims for individualized monetary relief unless such claims are “merely incidental to the injunctive or declaratory relief sought.”13 See Gale v. Chicago Title Ins. Co., 929 F.3d 74, 76–77 (2d Cir. 2019) (citing Dukes, 564 U.S. at 360). In essence, “claims for individualized relief . . . do not satisfy the Rule.” Dukes, 564 U.S. at 360 (emphasis in the original). For these reasons, Rule 23(b)(2) “is most commonly relied upon by litigants seeking institutional reform” through class-wide declaratory or injunctive relief. See Stinson v. City of New York, 282 F.R.D. 360, 379 (S.D.N.Y. 2012) (internal citations omitted). For example,
13 Prior to the Supreme Court’s decision in Dukes, many courts, including the Second Circuit, maintained that the relief sought by a 23(b)(2) class may include claims for individualized monetary damages, as long as such claims do not “predominate” over the claims for class-wide injunctive or declaratory relief. See Robinson, 267 F.3d at 169–70. Dukes, however, meaningfully narrowed the scope of Rule 23(b)(2).
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certification under Rule 23(b)(2) is appropriate when a plaintiff seeks to enjoin a “systemic failure” on the part of a governmental body or public entity to comply with statutory requirements. See, e.g., Westchester Indep. Living Ctr., 331 F.R.D. at 300 (certifying a Rule 23(b)(2) class of individuals with mobility disabilities alleging that the state university failed to comply with the requirements set forth in the Americans with Disabilities Act and Rehabilitation Act); Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409, 412, 420 (S.D.N.Y. 2012) (certifying a Rule 23(b)(2) class of individuals with disabilities alleging that the City of New York systemically failed to address the needs of disabled persons in the City’s emergency and disaster planning in violation of the Americans with Disabilities Act and Rehabilitation Act).
In the instant case, the Board’s alleged practice—denial of special education to disabled individuals between ages of 21 and 22 despite providing public education to non-disabled persons of the same age—constitutes a “systemic failure” to comply with the IDEA’s statutory requirements. See Westchester Indep. Living Ctr., 331 F.R.D. at 300; Brooklyn Ctr. for Indep. of the Disabled, 290 F.R.D. at 420. Because this practice stems from the age limitations established by Connecticut statute and regulations, the Board’s alleged violation of the IDEA is “institutional,” rather than “merely a cumulation of individual cases.” See Westchester Indep. Living Ctr., 331 F.R.D. at 300. To remedy the Board’s failure to comply with the IDEA, the class seeks the following injunctive and declaratory relief:
(a) Find and declare that the Board’s current or future refusal to provide Plaintiff A.R. and the members of the Plaintiff Class with [a free and appropriate public education] on account of their age violates the IDEA; (b) Find and declare that, by this conduct, the Board has violated 20 U.S.C. § 1407 and 20 U.S.C. § 1412(11);
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(c) Find and declare that Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg.§ 10-76d-1(a)(4) are invalid as contrary to the IDEA; (d) Enjoin the Board from terminating [a free and appropriate public education] as to Plaintiff A.R. and the members of the Plaintiff Class who have not yet turned 22; (e) Award compensatory education to members of the Plaintiff Class to the extent they have already been denied [a free and appropriate public education] unlawfully.14 Here, claims (a), (b), (c), and (d) may be properly certified under Rule 23(b)(2) because they seek a class-wide injunctive and declaratory judgment aimed at remedying the Board’s systemic failure to comply with the IDEA requirements. If granted, a declaration that the applicable Connecticut statute and regulations and the Board’s enforcement of these laws violate the IDEA, and an injunction prohibiting the Board from terminating the class members’ special education, would provide relief to each member of the class. See Dukes, 564 U.S. at 360. Indeed, these claims are exactly the types of claims for which Rule 23(b)(2) certification was designed. See id. at 361; Westchester Indep. Living Ctr., 331 F.R.D. at 300; Stinson, 282 F.R.D. at 379; Brooklyn Ctr. for Indep. of the Disabled, 290 F.R.D. at 420. However, whether the class members’ claims for compensatory education may be similarly certified under Rule 23(b)(2) is a more complex question. Neither Plaintiff, nor the Board suggest that the class members’ compensatory education claims do not belong in a (b)(2) class—indeed, the Board, by failing to address this issue either on the present motion or in its opposition to Plaintiff’s first motion for class certification, has essentially conceded that certification under Rule 23(b)(2) is proper. Despite a lack of briefing, a class may not be certified unless it satisfies every requirement of Rule 23. See Comcast, 569 U.S. at 33.
14 Am. Compl. ¶ 51(a)–(f). 17

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Compensatory education is an award of educational services designed to remedy “any earlier deprivations in the child’s education.” See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (compensatory education “requir[es] a school district to fund education beyond the expiration of a child’s eligibility”); Brennan v. Reg’l Sch. Dist. No. Bd. of Educ., 531 F. Supp. 2d 245, 264–65 (D. Conn. 2008) (compensatory education is “a prospective award of educational services designed to catch-up the student to where he should have been absent the denial of a [free appropriate public education]”). Compensatory education is distinct from an award of damages15 and constitutes “discretionary, prospective, injunctive relief” that is equitable in nature. See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 523 (D.C.C. 2005); Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267, 273–74 (1st Cir. 2004); G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309 (4th Cir. 2003); Dervishi v. Stamford Bd. of Educ., No. 3:11-cv-01018 (WWE), 2018 WL 8967297, at *14 (D. Conn. Apr. 18, 2018) (quoting Reid, 401 F.3d at 524); East Lyme Bd. of Educ., 790 F.3d at 454, 456.
Plaintiff contends that, because compensatory education is an equitable remedy akin to an injunction and distinct from monetary damages, claims for compensatory education may be certified pursuant to Rule 23(b)(2).16 However, not all claims for equitable or injunctive relief belong in a (b)(2) class. See Dukes, 564 U.S. at 365 (noting that the “equitable” nature of the remedy is “irrelevant” to the Rule 23(b)(2) inquiry). Rather, certification is appropriate “only when a single injunction . . . would provide relief to each member of the class.” Id. at 360. By
15 See, e.g., East Lyme Bd. of Educ., 790 F.3d at 454 (distinguishing between “[a]n award of damages,” which is “not available” under the IDEA, and “various forms of retroactive and prospective equitable relief” that are recoverable under the IDEA, “including reimbursement of tuition [and] compensatory education”) (internal citations omitted). 16 See P.’s Br. at 10.
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contrast, “claims for individualized relief”—such as“when each individual class member would be entitled to a different injunction” against the defendant—“do not satisfy the Rule.”17 Id. (emphases in the original). Therefore, the pertinent inquiry is whether the class members’ compensatory education claims seek class-wide or “individualized” relief . Id.
In the instant case, the class members are not requesting a class-wide injunction that would equally affect each member of the class—for example, an injunction directing the Board to develop a common remedial plan aimed at providing compensatory education or other appropriate relief to affected individuals. Cf. Brooklyn Ctr. for Indep. of the Disabled, 290 F.R.D. at 412, 420 (certifying a Rule 23(b)(2) class of individuals with disabilities seeking “an injunction requiring the City [of New York] to develop and implement an emergency preparedness program that addresses the unique needs of people with disabilities”). Rather, the class asks the Court to “award compensatory education to members of the Plaintiff Class to the extent they have already been denied a [free and appropriate public education] unlawfully.” See Am. Compl. ¶ 51(e) (emphasis added).
Awards of compensatory education necessarily constitute individualized relief. Under the IDEA, each child with a disability must receive special educational services in accordance with an “individualized education program” (IEP). See 20 U.S.C. § 1401(9)(D) (emphasis added). Such program, created by the educational agency, must be “tailored for the particular needs of the child” and must be “reasonably calculated to enable the child to receive educational benefits.” See Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 207–08 (2d Cir. 2012)
17 The Dukes court noted that this interpretation of the scope of Rule 23(b)(2) “accords with the history of the Rule.” 564 U.S. at 361. Specifically, “[i]n none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction.” Id. at 361 (citing Advisory Committee’s Note, 28 U.S.C. App., pp. 1260–1261 (1964 ed., Supp. II).
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(citing Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)); see also East Lyme Bd. of Educ., 790 F.3d at 448 (stating that the individualized educational plans must “specify[] the educational needs of the handicapped child and the specially designed instruction and related services to be employed to meet those needs”) (internal citations and quotation marks omitted).
For this reason, designing an equitable award of compensatory education “requires a flexible, case-by-case approach.” Willington Bd. of Educ. v. G.W., No. 3:15-cv-00614 (MPS), 2015 WL 4164876, at *11 (June 15, 2015); see also Reid, 401 F.3d at 524 (stating that “amount of compensatory education appropriate in [the plaintiff]’s case cannot be determined as a matter of law” because “designing [the plaintiff]’s remedy will require a fact-specific exercise of discretion by either the district court or a hearing officer”). A compensatory education award must be tailored to the child’s “current” educational needs and account for the possibility that such needs might have changed since the commencement of the litigation. See East Lyme Bd. Of Educ., 790 F.3d at 457 (“Given the possibility that the Student’s educational needs have changed since the commencement of proceedings, we leave to the district court whether compensatory education should be limited to the kinds of services specified in the amended 2008–2009 IEP, or encompass analogous educational services appropriate to the Student’s current needs.”).
Therefore, although the class members’ claims arise from the same alleged violation of the IDEA, compensatory education awards, which turn on each child’s individual circumstances, constitute individualized injunctive relief that is distinct from a single, uniform injunction that Rule 23(b)(2) envisions. Cf. Gulino v. Bd. of Educ. of City Sch. Dist. of New York, 907 F. Supp. 2d 492, 507–08 (S.D.N.Y. 2012) (holding that claims for individualized injunctive relief—namely, claims for injunctions providing teaching certificates and affording seniority rights and other non-monetary benefits to class members under Title VII—do not belong in a
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(b)(2) class); Easterling v. Connecticut Dep’t. Of Corr., 278 F.R.D. 41, 47, 51 (D. Conn. 2011) (modifying an earlier class certification order because the plaintiff’s claims for “individualized injunctive relief”—including requests for an “order restoring Plaintiff and Class members to their rightful positions at Department of Correction, as applicants or employees”—could not be certified under Rule 23(b)(2)).
Furthermore, an award of compensatory education might not adequately address the injury of every class member, because the relief needed to remedy the Board’s denial of services may differ depending on each class member’s individual circumstances. Plaintiff’s proposed class encompasses individuals that were denied services under the IDEA upon turning 21 between two years from the filing of this action in 2016 and the present. The individual circumstances and educational needs of at least some of these individuals may have changed since the commencement of this litigation. Specifically, while an award of compensatory education may constitute a complete remedy for those class members that did not continue their education after the Board’s denial of services, class members that were able to continue their education by enrolling in private special education programs might wish to seek reimbursement of their tuition expenses.18 See, e.g., Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 247 (2009) (“IDEA authorizes reimbursement for private special-education services when a public school fails to provide a [free and appropriate public education] and the private-school placement is appropriate, regardless of whether the child previously received special-education services
18 Though not addressed by Plaintiff, reimbursement of tuition is another equitable remedy available under the IDEA that is distinct from compensatory education or an award of monetary damages. See East Lyme Bd. Of Educ., 790 F.3d at 454 (distinguishing between an award of damages and equitable remedies of compensatory education and reimbursement of tuition); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370–71 (1985) (“the Town repeatedly characterizes reimbursement [for educational services] as ‘damages,’ but that simply is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP”) (emphasis added).
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through the public school”); Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir. 1988) (“a parent can enroll a child in a private placement and then recover the tuition paid by the parent during the proceedings against the school board, if the proceedings ultimately establish that the parent’s placement was appropriate.”); Burlington, 471 U.S. at 370 (“we are confident that by empowering the court to grant ‘appropriate’ relief Congress meant to include retroactive reimbursement [for educational costs] to parents as an available remedy in a proper case”) (internal citations omitted).
Class members’ ability to refuse compensatory education and seek other remedies, however, would be curtailed by the mandatory nature of Rule 23(b)(2). Because the rule envisions relief that “must perforce affect the entire class at once,” it does not permit class members to exclude themselves from the class “and does not even oblige the District Court to afford them notice of the action.” Dukes, 564 U.S. at 361–62. Indeed, because of this lack of procedural protections, the Dukes court reasoned that “[p]ermitting the combination of individualized and classwide relief in a (b)(2) class is . . . inconsistent with the structure of Rule 23(b).” Id. at 361. Because the Court is certain that class members should receive notice and have an opportunity to opt out from a class that seeks to award compensatory education to each class member regardless of their educational needs, certification under Rule 23(b)(2) is simply not appropriate.19
19 Indeed, following the Ninth Circuit’s decision in E.R.K., 728 F.3d at 982, holding that Hawaii’s denial of special education to individuals ages 20 and 21 violated the IDEA, the district court on remand ordered identification and notice to potential class members eligible for compensatory education, recognizing that some of these individuals might wish to opt out of the class. See 2014 WL 12887631, at *1–2 (D. Haw. Aug. 22, 2014) (ordering identification and notice); 2016 WL 2930893, at *1, 5 (D. Haw. May 19, 2016) (stating that the list of potential class members eligible for compensatory education should account for “individuals who have expressly declined to be in the class” and noting that Hawaii need not “begin providing compensatory services until after the final list of class members has been submitted” ).
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However, the Court sees no reason why the class members’ compensatory education claims may not be separately certified under Rule 23(b)(3), which “allows class certification in a much wider set of circumstances” and guarantees “greater procedural protections.” Dukes, 564 U.S. at 362. Unlike a (b)(2) class, a (b)(3) class may be certified where a class suit, though not mandatory, is “convenient and desirable.” See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). Because a (b)(3) class is not mandatory, its members are entitled to receive notice of the action and may elect to withdraw from the class. Dukes, 564 U.S. at 362 (citing Fed. R. Civ. P. 23(c)(2)(B)).
Certifying a separate class for compensatory education claims is consistent with Rule 23(c)(4)(A), which allows a court to create classes “with respect to particular issues.” See Fed. R. Civ. P. 23(c)(4)(A). Indeed, the Second Circuit has encouraged district courts to “take full advantage of [Rule 23(c)(4)] to certify separate issues in order to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies.” Robinson, 267 F.3d at 167. On another occasion, the Second Circuit has indicated that a court may properly employ Rule 23(c)(4) “to separate the issue of liability from damages.” See In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 226 (2d Cir. 2006) (internal citations omitted).
Following this guidance, many district courts have certified claims for class-wide declaratory or injunctive relief under Rule 23(b)(2), while simultaneously certifying claims for individualized relief under Rule 23(b)(3). See, e.g., Easterling, 278 F.R.D. at 51 (modifying an earlier class certification order in light of Dukes, so that “the plaintiff’s claims for class-wide declaratory and injunctive relief are certified under Rule 23(b)(2), while the plaintiff’s claims for monetary and individualized injunctive relief are certified under Rule 23(b)(3)”); Maziarz, 281 F.R.D. at 83 (stating that “[Dukes] did not reject the Robinson court’s interpretation of Rule
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23(c)(4)” and that “it is consistent with [Dukes] for the court, in an appropriate situation, to certify an ‘injunction class’ under Rule 23(b)(2) and a ‘damages class’ under Rule 23(b)(3)”); Gulino, 907 F. Supp. 2d at 507–08 (decertifying a (b)(2) class as to the claims for individualized injunctive relief under Title VII in light of Dukes, but noting that such claims may be separately certified under (b)(3)); see also U.S. v. City of New York, 276 F.R.D. 22, 34 (E.D.N.Y. 2011) (“The Second Circuit’s interpretation of Rule 23(c)(4) is consistent with [Dukes]’s interpretation of Rule 23(b).”).
Accordingly, despite Plaintiff’s failure to seek certification of compensatory education claims under Rule 23(b)(3), the Court will consider whether these claims may be so certified. See Edward F. Sherman, Class Actions and Duplicative Litigation, 62 Ind. L.J. 507, 516 (1987) (“[a] class action should not be found unmanageable without [first] exploring the procedural devices available for bringing it in line. These include subclassing and trial of subclass issues separately, bifurcating liability and damages, ... [and] appointing a special master for difficult evidentiary matters”).
(3) Certification of Compensatory Education Claims under Rule 23(b)(3) When seeking certification under Rule 23(b)(3), a plaintiff must establish that “questions of law or fact common to class members predominate over any questions affecting only individual members,” and “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013) (quoting Fed. R. Civ. P. 23(b)(3)).
a. Predominance Common issues predominate “if resolution of some of the legal or factual questions that qualify each member’s case as a genuine controversy can be achieved through generalized proof,
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and if these particular issues are more substantial than the issues subject only to individualized proof.” See Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). Issues subject to generalized proof generally predominate “when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” Maziarz, 281 F.R.D. at 84 (quoting In re Visa Check/ MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001)); see Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, (D. Conn. 2000) (“if the liability issue is common to the class, common questions are held to predominate over individual questions.”) (internal quotation marks omitted). A class action is particularly appropriate where the plaintiffs are allegedly aggrieved by a single policy of the defendants. See Strip Search Cases, 461 F.3d at 228.
Here, questions of law or fact common to the class predominate over any questions affecting only individual class members. The class members’ compensatory education claims depend on several common questions of law and fact including: (1) whether the Board is required under the IDEA to provide a free appropriate public education to class members until the age of 22 despite the age limitations established by Connecticut statute and regulations, (2) whether the Board generally provides public education to non-disabled individuals in the same age group, and (3) whether the Board’s alleged violation of the IDEA obliges it to provide compensatory education to class members. These questions, which determine the Board’s liability, can be resolved on a class-wide basis through generalized proof and do not depend on class members’ individual circumstances.
As repeatedly acknowledged by courts in this circuit, where liability “can be determined on a class-wide basis,” an existence of “some individualized damage issues” does not defeat certification. See In re Visa Check, 280 F.3d at 139; see also Macarz, 193 F.R.D. at 54 (“While
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damage amounts may vary, the claims of the class present the same legal theories based on identical facts such that common questions clearly predominate.”). In the instant case, although compensatory education awards may require individualized determinations, the underlying questions of liability and the class members’ entitlement to compensatory education do not depend on the class members’ individual circumstances. Rather, these questions center on the Board’s conduct directed at the class as a whole. Indeed, before awarding compensatory education, as a threshold matter, the Court may need to determine whether the Board’s alleged violation constitutes a “gross” violation of the IDEA. See, e.g., East Lyme Bd. of Educ., F.3d at 456 n.15 (suggesting that the remedy of compensatory education “is unavailable to a claimant over the age of twenty-one in the absence of gross procedural violations”) (citing Garro v. State of Conn., 23 F.3d 734, 737 (2d Cir. 1994)).
Accordingly, the Court finds that issues common to the class predominate over any issues affecting only individual class members.
b. Superiority To determine whether a class action is a superior method of adjudicating the controversy, the Court must consider the following factors: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3). In the instant case, the interests of the class members—disabled students who might find it difficult to pursue their claims individually— would be best served by a single class action. This Court is a desirable forum for litigating the class members’ compensatory education claims
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because a parallel class action seeking class-wide declaratory and injunctive relief would also be pending before the Court. Furthermore, just as it would be inefficient to have several hundred class members separately litigate the question of the Board’s liability, it would be inefficient to have these class members separately litigate their entitlement to compensatory education arising out of the Board’s class-wide denial of services under the IDEA.
Allowing the claims for compensatory education to proceed as a class action would also promote the uniformity of decision as to all class members affected by the Board’s failure to provide special education to individuals with disabilities between ages of 21 and 22. See Amchem Prods., 521 U.S. at 615 (stating that Rule 23(b)(3) is intended “to cover cases in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results”) (quoting Advisory Committee’s Notes on Rule 23(b)(3)).
Finally, because the Court may turn to case-managing devices, such as appointment of a special master to handle any individual elements of class members’ claims, “any difficulties likely to arise in managing this class action . . . are far less daunting than the difficulties involved in litigating over a hundred separately captioned actions.” See Easterling, 278 F.R.D. at 50; see also City of New York, 276 F.R.D. at 49 (“In deciding whether class certification will achieve substantial efficiencies, the proper comparison is not between class litigation and no litigation at all, but between class litigation and actions conducted separately by individual class members.”); Strip Search Cases, 461 F.3d at 231 (“The District Court should bear in mind that “[t]here are a number of management tools available to a district court to address any individualized damages issues,” such as bifurcation, the use of a magistrate or special master, alteration of the class definition, the creation of subclasses, or even decertification after a finding of liability.”).
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For these reasons, the Court finds that certification of the class members’ compensatory education claims is superior to other available methods for fairly and efficiently adjudicating the controversy. A class action would “achieve economies of time, effort, and expense” for all parties to this litigation. See Amchem Prods., 521 U.S. at 615.
Because both predominance and superiority requirements are satisfied, certification under Rule 23(b)(3) is appropriate.
(4) Classes are Certified pursuant to Rules 23(b)(2) and 23(b)(3) Accordingly, the Court certifies the class members’ claims for class-wide injunctive and declaratory relief under Rule 23(b)(2). The Court also certifies the class members’ claims for compensatory education under Rule 23(b)(3). Both classes are defined as follows:
All individuals who were over 21 and under 22 within two years before the filing of this action or will turn 21 during the pendency of this action who are provided or were provided a FAPE under the IDEA by any [Local Education Agency (LEA)] in the State of Connecticut and who, but for turning 21, would otherwise qualify or would have qualified for a FAPE until age 22 because they have not or had not yet earned a regular high school diploma. In accordance with Rule 23(g), the Court appoints Attorney Jason H. Kim of Schneider Wallace Cottrell Konecky Wotkyns LLP, The Law Offices of Sonja L. Deyoe P.C., and Disability Rights Connecticut as counsel for both classes. As discussed earlier in this Opinion, counsel collectively possess the expertise, knowledge and experience needed to adequately represent the classes in this litigation. See Fed. R. Civ. P. 23(g) (when appointing class counsel, the district court should consider, among other factors, counsel’s experience in handling class actions with similar types of claims and counsel’s knowledge of the applicable law).
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III. CONCLUSION For the foregoing reasons, Plaintiffs’ claims for class-wide injunctive and declaratory relief are certified under Rule 23(b)(2), and Plaintiffs’ claims for compensatory education are certified under Rule 23(b)(3). It is SO ORDERED.

Dated:

May 1, 2020 New Haven, Connecticut

/s/ Charles S. Haight, Jr. CHARLES S. HAIGHT, JR. United States Senior District Judge

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 Case 3:16-cv-01197-CSH Document 71 Filed 06/10/20 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

A.R., on behalf of a class of those similarly situated,
Plaintiff, v.
CONNECTICUT STATE BOARD OF EDUCATION,
Defendant.

3:16-cv-01197 (CSH) June 10, 2020

RULING ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT HAIGHT, Senior District Judge:
Plaintiffs, individuals with disabilities, bring this class action against Connecticut State Board of Education, alleging that the Board’s enforcement of age limitations on special education established by Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4) violates the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1412(a). This Ruling resolves the parties’ cross-motions for summary judgment.
I. BACKGROUND A detailed background of this case and an account of Plaintiff A.R.’s individual circumstances appear in this Court’s previous Class Certification Ruling, 2020 WL 2092650 (May 1, 2020), familiarity with which is assumed, and are recounted herein only to the extent necessary to explain this Ruling. Plaintiffs are individuals with disabilities who were or are provided with special education under the IDEA by Defendant Connecticut State Board of Education (“the Board”), an agency

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responsible for general supervision and control of elementary and secondary education, special education, and adult education in the State of Connecticut. See Conn. Gen. Stat. § 10-4(a). The Board is also responsible for ensuring Connecticut’s compliance with the IDEA requirements regarding the provision of special education. See 20 U.S.C. § 1412(11) (the state educational agency is responsible for ensuring that the IDEA’s requirements are met); and 20 U.S.C. § 1407 (each state receiving federal funds must ensure that its laws and policies comply with the IDEA’s requirements).
The plaintiff class1 in this action is defined as follows: All individuals who were over 21 and under 22 within two years before the filing of this action or will turn 21 during the pendency of this action who are provided or were provided a [free appropriate public education] under the IDEA by any [Local Education Agency] in the State of Connecticut and who, but for turning 21, would otherwise qualify or would have qualified for a [free appropriate public education] until age 22 because they have not or had not yet earned a regular high school diploma (“the Class”). See May 1, 2020 Class Certification Ruling, 2020 WL 2092650. Plaintiffs now move for summary judgment. Plaintiffs challenge the Board’s enforcement of age limitations to special education established by Connecticut’s statute and regulations, which provide that an individual with a disability, who turns 21 during the school year, is entitled to receive special education only until the end of that school year. See Conn. Gen. Stat. § 10-76d(b); Conn. Agencies Reg. § 10-76d-1(a)(4). Plaintiffs argue that the Board’s failure to provide special education to individuals with disabilities between the ages of 21 and 22 violates the IDEA because the Board provides public education to non-disabled individuals in that age range through adult education programs that allow their students to earn high school diplomas. See Pls.’ Summ. J. Br., Doc. 29-1, at 1–2 (“Pls.’ Summ. J. Br.”) (citing 20 U.S.C. § 1412(a)(1)(B)).
1 Plaintiffs’ claims for class-wide injunctive and declaratory relief were certified under Rule 23(b)(2), and Plaintiffs’ claims for compensatory education were certified under Rule 23(b)(3). See May 1, 2020 Class Certification Ruling, 2020 WL 2092650.
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To remedy the Board’s alleged failure to comply with the IDEA, the Class seeks the following injunctive and declaratory relief:
(a) Find and declare that the Board’s current or future refusal to provide Plaintiff A.R. and the members of the Plaintiff Class with [a free and appropriate public education] on account of their age violates the IDEA; (b) Find and declare that, by this conduct, the Board has violated 20 U.S.C. § 1407 and 20 U.S.C. § 1412(11); (c) Find and declare that Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg.§ 10-76d-1(a)(4) are invalid as contrary to the IDEA; (d) Enjoin the Board from terminating [a free and appropriate public education] as to Plaintiff A.R. and the members of the Plaintiff Class who have not yet turned 22; (e) Award compensatory education to members of the Plaintiff Class to the extent they have already been denied [a free and appropriate public education] unlawfully. Am. Compl. ¶ 51(a)–(e).
The Board cross-moves for summary judgment. The Board contends that its failure to provide special education to individuals with disabilities between the ages of 21 and 22 does not violate the IDEA because individuals over the age of 21 do not have a right to public education in Connecticut. See Def.’s Summ. J. Br., Doc. 38-1, at 16–17 (“Def.’s Summ. J. Br.”). The Board maintains that, while many local educational agencies in Connecticut provide adult education programs for nondisabled individuals ages 21 and over, these programs do not constitute “public education” within the meaning of the IDEA. See id. at 17–18; Def.’s Local Rule 56(a)(2) Statement of Facts in Opp’n. to Pls.’ Mot. Summ. J. (“DSFO”), Doc. 38-6, ¶ 1.2
2 The parties submitted their briefing in support of cross-motions for summary judgment prior to the filing of the Amended Complaint, which substituted Plaintiff A.R. for former plaintiff D.J. The Court notes that, in light of the substitution, the parties’ arguments regarding the standing and mootness of former plaintiff D.J.’s claim are no longer applicable. See May 1, 2020 Class Certification Opinion, 2020 WL 2092650, at *3–4. As to all other issues, however, “Plaintiff and Defendants agree that the existing briefing . . . is adequate for the Court to decide the issues
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II. DISCUSSION A. Summary Judgment Standard Summary judgment may be granted if the moving party shows that “there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248 (1986)). Only disputes over facts that are material will preclude the entry of summary judgment. See id. A fact is material “if it might affect the outcome of the case under governing law.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of New York, 822 F.3d 620, 631 n.12 (2d Cir. 2016) (internal citation omitted). A material fact is in genuine dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 256 (1986); Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). To show that a material fact cannot be genuinely disputed, a moving party must “cit[e] to particular parts of materials in the record,” including depositions, affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials. See Fed. R. Civ. P. 56(c)(1)(A). If the moving party has met its burden under Rule 56(c), the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott, 550 U.S. at 380. The nonmoving party may not defeat a grant of summary judgment by “rest[ing] upon the mere allegations or denials
set forth therein despite the amended complaint” and maintain that “no further briefing is necessary.” See May 10, 2019 Stipulation, Doc. 65, at 2.
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of [its] pleading”3 or relying on “conclusory allegations or unsubstantiated speculation.” See F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998)). Rather, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” See Amaker, 274 F.3d at 680–81 (citing Fed. R. Civ. P. 56(e)).
When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2017). In making its determination, the court may consider the materials cited by the parties as well as “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
If the parties file cross-motions for summary judgment, “each party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001). That principle applies to the case at bar, where the Plaintiff class and the Defendant Board cross-move for summary judgment.
“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Barlow v. Connecticut, 319 F. Supp. 2d 250, 260 (D. Conn. 2004) (citing Anderson, 477 U.S. at 247–48).
B. The IDEA Framework A state receiving federal funds under the IDEA must provide “a free appropriate public
3 Amaker v. Foley, 274 F.3d 677, 680–81 (2d Cir. 2001).
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education”4 to children with disabilities “between the ages of 3 and 21, inclusive.” See 20 U.S.C. § 1412(a)(1)(A) (emphasis added); 34 C.F.R. § 300.101(a); see also 20 U.S.C. § 1407 (“Each State that receives funds under this chapter shall—(1) ensure that any State rules, regulations, and policies relating to this chapter conform to the purposes of this chapter . . .”).
Accordingly, under the IDEA, children with disabilities remain eligible to receive a free appropriate public education until they reach the age of 22. See Lillbask ex rel. Mauclaire v. State of Conn. Dep’t. of Educ., 397 F.3d 77, 86 n.4 (2d Cir. 2005) (“We have interpreted the word ‘inclusive,’ in this provision, to indicate that a child remains eligible for a free appropriate education under IDEA until his 22nd birthday.”); St. Johnsbury Acad. v. D.H., 240 F.3d 163, 168–69 (2d Cir. 2001) (“If the word ‘inclusive’ is to mean something, as it must, it means that the relevant period begins on a child’s third birthday and ends on the last day of his 21st year (which culminates in his 22nd birthday).”); see also K.L. v. Rhode Island Bd. of Educ., 907 F.3d 639, 641 (1st Cir. 2018) (the IDEA eligibility continues until a child with disability turns 22); L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 959 (9th Cir. 2012) (children eligible to receive services under the IDEA “are entitled to continue receiving those services until they turn twenty-two”).5
Nevertheless, the IDEA permits states to further limit age eligibility for a free appropriate public education under certain conditions. See 20 U.S.C. § 1412(a)(1)(B). A state need not provide a free appropriate public education to individuals with disabilities ages 18 to 21 if doing so would be
4 A free appropriate public education (sometimes abbreviated as FAPE) is defined as special education and related services that “have been provided at public expense, under public supervision and direction, and without charge,” “meet the standards of the State educational agency,” “include an appropriate preschool, elementary school, or secondary school education in the State involved,” and “are provided in conformity with the individualized education program.” See 20 U.S.C. § 1401(9). 5 But see Bd. of Educ. v. Illinois State Bd. Of Educ., 79 F.3d 654, 656 (7th Cir. 1996) (“the [IDEA] entitles disabled individuals to special education assistance only until they reach the age of 21”).
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“inconsistent with State law or practice” regarding “the provision of public education to children in those age ranges.” See 20 U.S.C. § 1412(a)(1)(B)(i); 34 C.F.R. § 300.102(a)(1).
Interpreting this provision in light of the IDEA’s legislative history, the Ninth Circuit and the First Circuit concluded that a state may deny a free appropriate public education to children with disabilities ages 18 through 21, inclusive, only if it denies “public education” to non-disabled individuals of the same age. See K.L., 907 F.3d at 642; E.R.K. ex rel. R.K. v. Haw. Dep’t of Educ., 728 F.3d 982, 986–87 (9th Cir. 2013) (quoting S. Rep. No. 94–168, 1975 U.S.C.C.A.N. 1425, 1442–43 (1975) (explaining that the state may not avail itself of the exception with respect to children with disabilities ages 18 through 21 “where a state does now in fact provide or assure the provision of free public education to non-handicapped children in these age groups”)).
Accordingly, a state that provides “public education” for non-disabled individuals ages 18 through 21, inclusive, must also provide a free appropriate public education for individuals with disabilities in the same age range. See K.L., 907 F.3d at 642 (holding that Rhode Island Board of Education violated the IDEA by denying special education to individuals with disabilities ages 21 and over because Rhode Island provided public education programs to non-disabled individuals of the same age); E.R.K., 728 F.3d at 987 (holding that Hawaii Department of Education violated the IDEA by denying special education to individuals with disabilities ages 20 through 21, inclusive, because Hawaii provided adult secondary education programs to non-disabled persons of the same age); see also St. Johnsbury Acad., 240 F.3d at 169–70 (remarking that New York, unlike Vermont, was not required to provide special education to 21-year-old individuals with disabilities because New York law offered “public education” only to persons “under twenty-one years of age,” while Vermont law did not specify an “upper age limit” on public education) (citing Burr v. Ambach, No. 86 Civ. 7164,
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1987 WL 19957, at *1 (S.D.N.Y. Nov. 10, 1987)). Under Connecticut law, an individual with a disability is entitled to receive special education
until he or she “is graduated from high school or reaches age twenty-one, whichever occurs first.” (emphasis added). That provision appears in Conn. Gen. Stat. § 10-76d(b), which is captioned “Duties and powers of boards of education to provide special education programs and services.” An individual with a disability who turns 21 during the school year will continue to receive special education only until the end of that school year. See Conn. Agencies Reg. § 10-76d-1(a)(4).6
Plaintiffs argue that the Board’s enforcement of this age limitation to special education violates the IDEA because Connecticut generally provides public education to non-disabled individuals ages 21 and over through adult education programs that allow their participants to earn high school diplomas. The Board, however, contends that adult education programs offered by the state’s local educational agencies do not constitute “public education” because they significantly differ from education provided in Connecticut’s public schools.
The proper resolution of the case at bar depends in large measure on an exercise in semantics. It is easy enough to recite the rule derived from the decisions in E.R.K. and K.L.: a board of education must provide special education to individuals with disabilities between the ages of 21 and 22 to the extent that the board also provides public education to non-disabled individuals of the same age. The difficult and decisive question is whether particular programs and services administered by a board of education fall within the phrase “public education.” In that context, we must ask: (1) what constitutes “public education” under the IDEA; and (2) whether adult education programs offered in
6 For purposes of this regulation, the school year runs from July 1 through June 30. Conn. Agencies Reg. § 10-76d1(a)(4).
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Connecticut qualify as such “public education.” I consider those questions in order. (1) “Public Education” under the IDEA The term “public education” is not defined under the IDEA. See 20 U.S.C. § 1401. Nor has
the Second Circuit examined this term. In the absence of such guidance, a term should be given its ordinary, common-sense meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a statute, we give the term its ordinary meaning.”); United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000) (when Congress fails to define a term, the court must consider the term’s “ordinary, common-sense meaning”). Apart from its ordinary meaning, a term must be interpreted according to “its placement and purpose in the statutory scheme.” Dauray, 215 F.3d at 261 (citing Bailey v. United States, 516 U.S. 137, 145 (1995) (“[T]he meaning of statutory language, plain or not, depends on context.”)); see Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 320 (2014) (when interpreting terms, courts must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”) (internal quotation marks omitted).
Relying on these principles, the Ninth Circuit in E.R.K. ex rel. R.K. v. Haw. Dep’t of Educ., 728 F.3d 982 (9th Cir. 2013), and the First Circuit in K.L. v. Rhode Island Bd. of Educ., 907 F.3d 639 (1st Cir. 2018), provided helpful guidance regarding the interpretation of the term “public education” within the meaning of the IDEA when confronted with plaintiffs’ challenges to, respectively, Hawaii’s and Rhode Island’s age limitations on special education.
To arrive at the definition of “public education,” the Ninth Circuit looked at the related term expressly defined in the IDEA—“free appropriate public education.” See E.R.K., 728 F.3d at 987–88.
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The IDEA defines “free appropriate public education” as “special education and related services” that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9).
The Ninth Circuit reasoned that “[o]nce we strip out those aspects of the IDEA’s definition of ‘free appropriate public education’ that clearly relate to the education’s ‘appropriateness,’ as opposed to its ‘free’ and ‘public’ character, we are left with a reliable index of what ‘free public education’ means in § 1412(a)(1)(B)(I).” See 728 F.3d at 988. Observing that “an education can be both free and public even if it is inappropriate because it fails to meet state standards or to conform with an individualized education program,” E.R.K. concluded that “public education” within the meaning of the IDEA “is one that is 1) provided at public expense, under public supervision and direction, and without charge; and 2) involves preschool, elementary, or secondary education.” Id.
E.R.K. noted that the first prong of this definition is consistent with the ordinary, dictionary meaning of the term public education. Id. (citing Webster’s Third New International Dictionary 1836 (1968) (A “public” institution is one that is “accessible . . . to all members of the community” and which “provid[es] services to the people . . . under some degree of civic or state control.” ). Id. The second prong of the definition, E.R.K. explained, “is derived from the IDEA’s limited scope”—“[b]ecause the IDEA applies only to preschool, elementary, or secondary education, see 20
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U.S.C. § 1401(9), we do not think §1412(a)(1)(B)(i) refers to public education outside those same categories.” Id.
Five years after the Ninth Circuit’s decision in E.R.K., the First Circuit in K.L. arrived at a substantially similar definition of “public education.”7 Focusing on the ordinary meaning of the term, supplied by multiple dictionaries, K.L. reasoned that “public education” must involve “(1) a significant level of state or local governmental funding, and (2) the public administration or oversight of the educational services.” See 907 F.3d at 642–43 (“we find helpful the shared dictionary focus on state funding and a degree of state control for the confirmation it offers of our understanding of the ordinary meaning of ‘public education’”) (citing, inter alia, The Oxford English Dictionary 780 (2d ed. 1989) (defining “public” as “provided or supported at the public expense, and under public control: as in public elementary school”)).
Additionally, K.L. concluded that, in light of the IDEA’s statutory context, this ordinary understanding of “public education” must be supplemented with an additional attribute—“the objective of educating students up to the level of academic proficiency associated with the completion of secondary school.” Id. at 644. K.L. reasoned that “public education” must be “limited to educational opportunities only through the academic level associated with completion of secondary school” based on the guidance provided by other provisions of the IDEA, including its definitions of the terms “free appropriate public education” and “transition services”:
7 Despite arriving at a substantially similar definition of “public education,” the K.L. court declined to adopt the analysis employed by the Ninth Circuit: “We are unpersuaded by that analysis, which uses FAPE, a term of art that applies to ‘special education and related services,’ 20 U.S.C. § 1401(9), to define the general term ‘public education.’ We look to the FAPE definition only in the limited way noted above.” 907 F.3d at 643 n.2. At the same time, however, K.L. found that its definition of “public education" is “consistent” with the IDEA's definition of "free appropriate public education” because “free appropriate public education” contemplated by the IDEA is “provided at public expense, under public supervision and direction.” Id. at 643 (citing 20 U.S.C. § 1401(9)(A)).
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For example, the IDEA defines a type of services called “transition services” as activities designed “to facilitate [a child with a disability’s] movement from school to post-school activities, including post-secondary education[.]” 20 U.S.C. § 1401(34). The definition of “transition services” implies that “public education” within the meaning of the IDEA includes only education up through a “secondary education.” Similarly, the IDEA defines [a free appropriate public education (FAPE)] as including “an appropriate preschool, elementary school, or secondary school education.” 20 U.S.C. § 1401(9)(C). Since providing “public education” triggers the FAPE requirement, it is logical that the two terms apply to the same levels of schooling. We find further confirmation of this scope in the IDEA’s statement of purpose, which likewise uses terminology commonly associated with secondary-level achievement: “educational outcomes,” § 1400(c)(9), “educational results,” § 1400(d)(3), and “graduation rates,” § 1400(c)(14). 907 F.3d at 643–44.
In accordance with this analysis, K.L. concluded that “public education” must possess the following attributes: (1) a significant level of state or local governmental funding, (2) the public administration or oversight of the educational services, and (3) the objective of educating students up to the level of academic proficiency associated with the completion of secondary school.” Id.
The First Circuit in K.L. and the Ninth Circuit in E.R.K. identified the same core characteristics of “public education” within the meaning of the IDEA: they concluded that such education must be provided at public expense, under public supervision, and be limited to preschool, elementary, or secondary educational services, rather than post-secondary or vocational training. See id.; E.R.K., 728 F.3d at 988. In resolving the present case, I find the reasoning of both K.L. and E.R.K. persuasive. Adopting the collective guidance and analyses of those decisions, I hold that “public education,” within the context of the IDEA, should be defined as one that is provided: (1) at public expense through significant state or local governmental funding; (2) under the administration, supervision or oversight of state educational agencies; and (3) with the objective of educating students up to the level of academic proficiency associated with the completion of secondary school. See K.L.,
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907 F.3d at 644; E.R.K., 728 F.3d at 988.
The Board contends that, for the purposes of this case, the term “public education” should be
further limited to encompass only the education provided in state elementary and secondary public
schools, rather than adult education programs. See Def.’s Summ. J. Br. at 14–16. The Board argues
that the adult secondary school completion programs offered in Connecticut should not constitute
“public education” because they are not provided through the public school system and are not subject
to the same state standards regarding curriculum and instruction.8 Def.’s Summ. J. Br. at 15–16,
18–19.
Defendant’s position finds support in the dissenting opinion in K.L. authored by Judge Sandra
L. Lynch, who argued that “public education” should not encompass adult education programs
because the IDEA “only concerns instruction associated with public preschool, elementary, and
secondary school.” See 907 F.3d at 655 (Lynch, J., dissenting). Judge Lynch observed that the term
“adult education” appears in the IDEA under the umbrella of “transition services,”9 which are meant
8 The Board also seeks to interpret the term “public education” in light of Connecticut state law. Citing to various provisions of Connecticut constitution and statutes, the Board argues that the term “public education” under Connecticut law refers only to education provided by public elementary and secondary schools. See Def.’s Summ. J. Br. at 14–16. For example, citing Article 8 Section I of the Connecticut Constitution, which states that “[t]here shall always be free public elementary and secondary schools in the state,” the Board concludes that public education in Connecticut is synonymous with public school education. The Board’s attempt to incorporate state law in the definition of “public education” under the IDEA is misguided. As stated by the First Circuit, state law should not play any role in determining the meaning of “public education” as used in § 1412(a)(1)(B)(i) of the IDEA, because “[t]hat section does not delegate the definition of ‘public education’ to the states.” K.L., 907 F.3d at 645. “Indeed, to allow each state to define ‘public education’ would not only result in fifty different interpretations of the IDEA, but it would also permit states to circumvent the FAPE requirement by characterizing any educational services they provide to students aged 18 through 21 as something other than ‘public education.’” Id. The Court agrees with this analysis and declines to tailor the definition of “public education” to Connecticut law. 9 “The term “transition services” means a coordinated set of activities for a child with a disability that— (A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation . . .” 20
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to help children advance from “school” to “post-school” activities. See id. at 655–56 (citing 20 U.S.C. § 1401(34)). Relying on this provision, Judge Lynch concluded that the IDEA classifies “adult education” as a “post-school activity,” and that “school” must refer to traditional “[p]reschool, elementary school, and secondary school.” See id. Reasoning that “[i]t was clearly not Congress’s intent that ‘post-school activities’ would trigger the [free appropriate public education] requirement for disabled students in ‘preschool, elementary school, or secondary school,” Judge Lynch concluded that “adult education” cannot constitute “public education” within the meaning of the IDEA. See id. at 656. Thus, despite the fact that Rhode Island’s adult education programs allowed non-disabled students to earn high school diplomas or high school equivalency diplomas, Judge Lynch concluded that such programs did not constitute “public education” under the IDEA because they were not offered through the state public school system and were not subject to the same curriculum or graduation requirements. See id. at 658–59 (“The fact that these programs help adult learners obtain high school diplomas or high school equivalency diplomas does not make them the functional equivalent of secondary school for purposes of the IDEA.”).10
Judge Lynch dissented in a First Circuit opinion which is not binding on me. I may accept
U.S.C. § 1401(34). 10 Judge Lynch’s dissent also raised a concern regarding “the undeniable financial consequences” that would follow from requiring local school systems to extend special education to individuals with disabilities until the age of 22 so as to bring the state’s special education program in line with its adult education program for non-disabled persons. See K.L., 907 F.3d at 656–57 (Lynch, J., dissenting). However, as stated by K.L.’s majority: “the very purpose of the IDEA provision at issue here is to ensure equivalent educational opportunities for students with and without disabilities. It is simply not a response to the requirement of equality to say that students with disabilities may properly be afforded less education because equal treatment will be too costly.” Id. at 652; see also E.R.K., 728 F.3d at 992 (stating that, although “[Hawaii adult education] programs—unfettered by the obligation to address the needs of disabled students—are surely much cheaper to operate than a public-school system with a full complement of special-education services . . . . the IDEA stands for the principle that exclusion is a false economy unbefitting a society committed to the complete integration of its disabled citizens.”).
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her views or those of the K.L. majority. I think the majority has it right. I accept that “public education” within the meaning of the IDEA must, indeed, refer to educational opportunities associated with preschool, elementary or secondary school, rather than post-secondary learning. See E.R.K., 728 F.3d at 988 (citing 20 U.S.C. § 1401(9)); K.L., 907 F.3d at 644 (citing 20 U.S.C. § 1401(34) & (9)(C)). However, contrary to the view expressed by Judge Lynch, nothing in the IDEA suggests that these educational opportunities can be provided only through traditional public schools. See E.R.K., 728 F.3d at 990. Limiting “public education” to instruction provided in state public schools and ignoring adult secondary school completion programs misconstrues the IDEA’s purpose by prioritizing the format of the education provided over its content. See E.R.K., 728 F.3d at 990 (“Nothing in the IDEA, however, supports the proposition that a program constitutes ‘secondary education’ or ‘free public education’ only if it is structurally identical to the ordinary public high school curriculum offered to nondisabled students.”); see also K.L., 907 F.3d at 646 (“The fact that some forms of adult education constitute ‘transition services’ under the IDEA does not remotely suggest that adult education in other forms is not ‘public education’ within the meaning of the IDEA.”). This is a point stressed by the K.L. majority, which reasoned:
[T]he dissent states, in effect, that it is irrelevant that Rhode Island offers students without disabilities the opportunity to achieve high school diplomas or equivalency diplomas through adult education programs. In our colleague’s view, those programs are not “the functional equivalent of secondary school for purposes of the IDEA,” and “they do not resemble preschool, elementary school, or secondary school.” But in so arguing, the appellees and our colleague turn the IDEA on its head. They rely on language intended to ensure that students with disabilities are provided opportunities to learn in traditional school settings -- from which they routinely had been excluded -- as a rationale for excluding them from non-traditional forms of public education. In other words, depicting IDEA as focused solely on so-called traditional school settings misses the point. The pertinent question is not where public education is provided to students without disabilities who are beyond age 18, but whether it is provided to them in some form.
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907 F.3d at 651 (emphasis in the original).11
In accordance with these principles, K.L. found that adult education programs offered in Rhode Island constituted “public education” within the meaning of the IDEA because their “primary objective” was “to assist students in achieving a secondary-education level of academic competence.” 907 F.3d at 650–51.
The Ninth Circuit similarly concluded that adult secondary education programs may constitute “public education” despite their divergence from the curriculum and instruction provided in state public schools, and found that Hawaii’s adult education programs constituted “public education” within the meaning of the IDEA because they allowed students to earn high school diplomas. See E.R.K., 728 F.3d at 990–91.
“Defining ‘public education’ only as education that is delivered at so-called ‘traditional’ public schools would significantly curtail the number of students with disabilities—particularly those students ages 18 through 21—who would be entitled to [free appropriate public education] under the IDEA.” K.L., 907 F.3d at 644. Such narrow interpretation of the term “public education” would also conflict with the IDEA’s remedial purpose. See also Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 372 (1985) (“The [IDEA] was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.”); E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 454 (2d Cir. 2014) (noting the IDEA’s “remedial purpose”); K.L., 907 F.3d at 644 (stating that the IDEA is a remedial statute,
11 See also id. at 644 n.4 (noting that “IDEA itself emphasizes the need to coordinate its requirements with other local, state, and federal efforts to ensure that ‘special education can become a service for [children with disabilities] rather than a place where such children are sent’”) (citing 20 U.S.C. § 1400(c)(5)(C)).
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which “should be construed broadly to effectuate its purposes”) (citing Tcherepnin v. Knight, 389 U.S. 332, 336 (1967).
I hold that adult education programs may constitute “public education” within the meaning of the IDEA, provided that such programs possess the three core attributes of “public education” discussed earlier.
(2) Age Limitations to Public Education in Connecticut
The Board argues that it need not provide a free appropriate public education to individuals with disabilities between the ages of 21 and 22 because individuals over the age of 21 do not have a right to public education in Connecticut. See Def.’s Summ. J. Br., at 16–18. In support of its position, the Board cites, inter alia, Conn. Gen. Stat. § 10-186(a), which provides in relevant part:
Each local or regional board of education shall furnish, by transportation or otherwise, school accommodations so that each child five years of age and over and under twenty-one years of age who is not a graduate of a high school or technical high school may attend a public school . . . (emphasis added).
The Board also points to Conn. Gen. Stat. § 10-220(a), which provides that a local or regional board of education may require a student age 19 or older, and who cannot attain sufficient credits for graduation by the age of 21, to enroll in alternative education program:
Each local or regional board of education . . . may place in an alternative school program or other suitable educational program a pupil enrolling in school who is nineteen years of age or older and cannot acquire a sufficient number of credits for graduation by age twenty-one . . . (emphasis added).
These provisions, however, only govern the right of adult individuals to attend or enroll in Connecticut public schools. Because “public education” under the IDEA is not limited to educational
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opportunities provided by state public schools, the Board’s reliance on these provisions to establish an age limitation to public education generally is misplaced. Even assuming, arguendo, that Conn. Gen. Stat. § 10-186(a) and Conn. Gen. Stat. § 10-220(a), in fact, limit the right of individuals over the age of 21 to attend public school,12 these provisions do not limit the right of individuals in that age range to complete their secondary education through other programs funded and administered by the state.
Indeed, Conn. Gen. Stat. Sec. 10-220(a) expressly permits local educational agencies to place in alternative education programs individuals who might not be able to acquire the necessary graduation credits before reaching the age of 21. Such alternative education schools or programs are maintained and operated by local or regional boards of education in accordance with the guidelines established by the Board. See Conn. Gen. Stat. § 10-74j (“[a] local or regional board of education may provide alternative education to students, in accordance with guidelines established by the State Board of Education . . . .”).13 Under Connecticut law, alternative education schools or programs are “subject to all federal and state laws governing public schools.” Id.
Separately, Conn. Gen. Stat. § 10-69(a) obliges each local and regional board of education to
12 Furthermore, as noted by Plaintiffs, Conn. Gen. Stat. § 10-186(a)—a provision concerning the duty of local agencies to provide school accommodations, such as transportation, to children under the age of twenty-one—does not affirmatively establish an age limitation to public school education. See Pls.’ Opp’n. Br., Doc. 39, at 8. Similarly, the permissive language of Conn. Gen. Stat. Sec. 10-220(a) leaves it to the local board of education to decide whether to enroll in an alternative education program a student who would not be able to graduate by the age of 21, or allow such student to continue attending public school. 13 Conn. Gen. Stat. § 10-74j defines “alternative education” as follows: “‘alternative education’ means a school or program maintained and operated by a local or regional board of education that is offered to students in a nontraditional educational setting and addresses the social, emotional, behavioral and academic needs of such students.”
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“establish and maintain a program of adult classes . . . for its adult residents,” including “secondary school completion programs.” The statute provides that each local or regional board of education “may admit an adult to any public elementary or secondary school.” Id. Eligibility for such programs is not limited on the basis of age—in fact, the statute defines an adult as “any person seventeen years of age or older.” See Conn. Gen. Stat. § 10-67(1). The Board’s own website states that “Sections 10-67 to 10-73(d), inclusive, of the Connecticut General Statutes (C.G.S) require that the adult education services described in this section be provided by local school districts, free of charge, to any adult 17 years of age or older who is not enrolled in a public elementary or secondary school program.”14 The Board admits that individuals over the age of 21 regularly enroll in Connecticut adult education programs. See DSFO, ¶ 4.
Thus, despite the Board’s assertion to the contrary, Connecticut law allows individuals over the age of 21 to pursue secondary education through adult education programs administered by the state.
(3) Connecticut’s Adult Education Programs A. Overview
Plaintiffs assert that, among adult education programs administered in Connecticut, at least three programs constitute “public education” within the meaning of the IDEA because they are publicly funded, mandated by Connecticut statute and supervised by the state, and allow their enrollees to earn high school diplomas. These programs include the General Educational
14 Adult Education Instructional Programs Overview, Connecticut State Department of Education, https://portal.ct.gov/SDE/Adult-Ed/Adult-Education-Instructional-Programs (last visited May 28, 2020).
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Development Program (“GED”), the National External Diploma Program (“NEDP”), and the Adult High School Credit Diploma Program (“AHSCD”). As evident from Connecticut’s Statewide Profile Report for 2016—and not disputed by the Board—more than 16,000 adults enrolled in these programs were over the age of 22. See Exh. B to Kim Decl., Doc. 29-5, at 1; see also DSFO, ¶ 4. The Board admits that GED, NEDP, and AHSCD programs allow participants to earn high school diplomas. DSFO, ¶ 5.
(a) General Educational Development Program (GED) GED instructional programs are provided by every local and regional educational agency in Connecticut in order to prepare adults for the GED examination. See Def.’s Resps. to Pls.’ 1st Req. For Answers to Interrogs. (“Def.’s Interrogs. Resps.”), ¶ 4. Adults who have not completed high school may take the GED examination and, if they pass the examination, achieve a Connecticut High School Diploma issued by the Board. See id. To pass the GED examination, an individual must demonstrate the attainment of academic skills and concepts normally acquired through completion of a high school program through a four-part examination which includes a writing sample. Id. There are no costs or fees to the student taking the GED preparation classes. Id. Although there is a thirteen-dollar fee to take the GED examination, pursuant to Conn. Gen. Stat. Sec. 10-5(c) the fee may be waived by the state if the student is unable to pay. See id.; Conn. Gen. Stat. Sec. 10-5(b), (c).
(b) Adult High School Credit Diploma Program (AHSCD) AHSCD programs are provided by local educational agencies or regional educational service centers and allow adults to earn credits toward a high school diploma. See Def.’s Interrogs. Resps., ¶ 6; Conn. Gen. Stat. Sec. 10-69(b), (c). Each provider can enhance the basic AHSCD program, but
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must adhere to the minimum state requirements: (1) use certified teachers and counselors; (2) adhere to State Department of Education requirements regarding assessment, enrollment, accountability, and reporting; (3) meet required credit standards; and (4) ensure that a one credit course offers a minimum of 48 instructional hours. Def.’s Interrogs. Resps., ¶ 6. There are no costs or fees to the student seeking the AHSCD. Id.
(c) The National External Diploma Program (NEDP) NEDP is an on-line portfolio assessment program that offers no classroom instruction and requires participating adults to work with an assessor to complete the program. See Def.’s Interrogs. Resps., ¶ 5. An adult who successfully completes the portfolio assessment is awarded a high school diploma by the providing local educational authority or regional educational service center. Id. The providing local educational authority or regional educational service center must seek the Board’s permission before administering NEDP. See S. Pierson 30(b)(6) Dep., Doc. 38-5, at 47:9–48:20. There are no costs or fees to the student participating in the NEDP. See Def.’s Interrogs. Resps., ¶ 5. B. Whether GED, AHSCD and NEDP Constitute “Public Education” under the IDEA The Court now examines whether there is any genuine dispute of material fact that GED, NEDP, and AHSCD constitute “public education” under the IDEA.
(a) Public Funding The record is clear—nor does the Board dispute—that Connecticut provides funding for adult education programs administered by local educational agencies, including GED, AHSCD and NEDP.
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See, e.g., DSFO, ¶ 6; Conn. Gen. Stat. § 10-52 (“A regional district . . . shall be eligible for reimbursements for adult education programs in accordance with sections 10-67 and 10-71.”); Conn. Gen. Stat. § 10-71(a) (“Each local or regional board of education or regional educational service center which has submitted an adult education proposal to the State Board of Education pursuant to section 10-71a shall, annually, be eligible to receive, within available appropriations, a state grant based on a percentage of eligible costs for adult education as defined in section 10-67”); Conn. Gen. Stat. § 10-71a (“To be eligible for aid pursuant to section 10-71 or pursuant to requirements of federal law, a local or regional board of education, or a regional educational service center . . . shall, on or before April 15, 1991, and annually thereafter, file with the Commissioner of Education, on such forms as the commissioner shall prescribe, an adult education proposal”).
All adult education programs in Connecticut must be provided to students free of tuition or registration fees. See Conn. Gen. Stat. § 10-73a(a) (“Tuition or registration fees shall not be charged by any school district to adults enrolled in any adult class or program required under subparagraph (A) of subsection (a) of section 10-69.”). The Board’s own website confirms that adult education services must be provided by local school districts “free of charge,” and that “[l]ocal school districts and other eligible agencies providing mandated adult education programs are reimbursed by the Connecticut State Department of Education on a cost-sharing, sliding scale based on the relative wealth of a district.”15
As the Board admits, GED, AHSCD and NEDP programs are almost entirely publicly funded. DSFO, ¶ 6. Furthermore, GED, AHSCD and NEDP are administered free of tuition or registration
15 Adult Education Instructional Programs Overview, Connecticut State Department of Education, https://portal.ct.gov/SDE/Adult-Ed/Adult-Education-Instructional-Programs (last visited May 28, 2020).
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fees. See Def.’s Interrogs. Resps., ¶¶ 4–6; S. Pierson 30(b)(6) Dep., at 33:3–11, 46:1–9, 55:15–56:1. While there is a nonrefundable fee of thirteen dollars to take the GED examination, Connecticut covers the fee if a student demonstrates inability to pay. See Conn. Gen. Stat. § 10-5(b), (c); Def.’s Interrogs. Resps., ¶ 4.
Additionally, the Board admits that Connecticut receives federal funding for GED, NEDP and AHSCD programs under the Adult Education and Family Literacy Act (AEFLA). See Def.’s Interrogs. Resps., ¶ 8; DSFO, ¶ 3. Each year, the Board receives approximately $5 million in federal grants for these programs. See Def.’s Interrogs. Resps., ¶ 8 (providing AEFLA grant amounts for years 2013 through 2016).
Thus, there is no genuine dispute that GED, NEDP and AHSCD programs are publicly funded through state and local funds and are free of charge to participating students.
(b) State Supervision and Oversight The Board does not dispute that Connecticut law requires every local educational agency in the state to provide adult education programs to adult residents, including programs of elementary and secondary education. See Conn. Gen. Stat. § 10-69(a) (“Each local and regional board of education shall establish and maintain a program of adult classes or shall provide for participation in a program of adult classes for its adult residents . . .”); DSFO, ¶ 2; S. Pierson 30(b)(6) Dep., at 43:4–17. Although GED, NEDP and AHSCD programs are administered by the local educational agencies, rather than the Board, it cannot be genuinely disputed that the Board supervises and oversees these programs as the educational agency responsible for “general supervision and control”
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of secondary and adult education in Connecticut. See Conn. Gen. Stat. § 10-4(a); see also Def.’s Interrogs. Resps., ¶ 7 (admitting that the Board “supervises” GED, NEDP and AHSCD programs). Furthermore, Conn. Gen. Stat. § 10-69(d) expressly authorizes the Board to “adopt regulations . . . to establish standards and procedures governing the awarding of adult education credits . . .”
While the Board does not itself administer the GED examination or provide instructional courses, high school diplomas awarded upon successful completion of the GED examination are awarded by the Board. See S. Pierson 30(b)(6) Dep. at 51; Def.’s Interrogs. Resps., ¶ 4. Additionally, the Board has a designated GED program administrator who oversees all GED testing centers in Connecticut. See S. Pierson 30(b)(6) Dep., at 37–38, 40–41. The Board also monitors the local GED programs by reviewing reports produced by local GED providers. Id. at 40–41.
Although high school diplomas awarded upon successful completion of NEDP and AHSCD programs are issued by the local educational agencies, rather the Board, such diplomas are signed by the Board and must conform to certain statewide requirements. See S. Pierson 30(b)(6) Dep. at 54. As stated on the Board’s website, every local educational agency providing AHSCD program must ensure compliance with instruction, curriculum and credit requirements established by Conn. Gen. Stat. § 10-69(b).16 Similarly, any local educational agency that wishes to offer an NEDP program must first obtain the Board’s approval and ensure compliance with certain requirements, such as teacher certification. S. Pierson 30(b)(6) Dep., at 47:9–50:12.
Thus, there is no genuine dispute that the Board and the state of Connecticut supervise and
16Adult Education Instructional Programs Overview, Connecticut State Department of Education, https://portal.ct.gov/SDE/Adult-Ed/Adult-Education-Instructional-Programs (last visited May 28, 2020).
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maintain oversight over GED, NEDP and AHSCD programs.
(c) Objective of Secondary Education
Finally, there can be no genuine dispute that GED, AHSCD and NEDP programs possess the objective of educating students up to the level of academic proficiency associated with the completion of secondary school because adults who successfully complete these programs are awarded high school diplomas. See DSFO, ¶5. Adults who successfully pass the GED examination achieve a Connecticut High School Diploma issued by the Board. See Def.’s Interrogs. Resps., ¶ 4. Adults who successfully complete AHSCD and NEDP programs receive adult high school diplomas issued by the providing local educational agency or regional educational service center. See Def.’s Interrogs. Resps., ¶¶ 5–6; S. Pierson 30(b)(6) Dep., 53:24–54:13.
Nevertheless, the Board argues that high school diplomas earned through adult education programs, such as GED, AHSCD or NEDP, are not equivalent to traditional public high school diplomas. First, the Board points to 34 C.F.R. § 300.102(a)(3)(iv), an IDEA regulation defining the term “high school diploma,” which states that “the term regular high school diploma does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).” See Def.’s Summ. J. Br., at 19.
This exact argument was rejected by the First Circuit in K.L., which reasoned that adult education programs that award high school diplomas constitute “public education” within the meaning of the IDEA:
Appellees misconstrue the IDEA regulation. Although an equivalency diploma or other alternative credential may differ in some respects from a regular high school diploma, it does not follow that educational services which help students attain an equivalency diploma are not
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“public education.” Education is the process by which students attain academic competency, not the document memorializing that process. Indeed, the evident purpose of the regulation is to prohibit states from terminating FAPE services early by bestowing a potentially inferior “general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential.” 34 C.F.R. § 300.102(a)(3)(iv) (emphasis added). In other words, the regulation is aimed at preventing termination of FAPE services before a student actually demonstrates the level of academic achievement commensurate with receiving a regular high school diploma. This regulation furthers the IDEA's remedial purpose of protecting the educational rights of students with disabilities, an objective at odds with appellees' reliance on it to curtail access to special education services. 907 F.3d at 647.17
Second, the Board argues that GED, NEDP, and AHSCD programs cannot constitute “public education” under the IDEA because their curriculum differs greatly from the one provided by Connecticut public schools. See Def.’s Summ. J. Br., at 16. The Board argues that because GED, AHSCD and NEDP constitute “very minimal secondary school completion programs,”18 “adult education in Connecticut does not provide the equivalent of a secondary school public education to general education students.” Id.
“Nothing in the IDEA, however, supports the proposition that a program constitutes ‘secondary education’ or ‘free public education’ only if it is structurally identical to the ordinary public high school curriculum offered to nondisabled students. . . . In light of the variety of specialized secondary education the IDEA makes available to disabled students, it is simply implausible that the phrase ‘free public education’ in the § 1412(a)(1)(B)(i) exception refers narrowly to a ‘conventional’ high school curriculum.” E.R.K., 728 F.3d at 990–91. In E.R.K., the Ninth Circuit
17 Accord E.R.K., 728 F.3d at 990 n.6 (stating that “[Hawaii’s adult education] programs’ common characteristic—that they all lead to ‘the high school diploma’—is more relevant to their status as ‘secondary education’ than differences in curriculum, structure, and rigor”). 18 See Def.’s Opp’n. Br., Doc. 30, at 3.
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found that Hawaii’s GED and Competency Based adult education programs constituted “public education” under the IDEA despite offering a curriculum that differed from “‘conventional’ high school curriculum,” because these programs allowed students to earn state high school diplomas. Id. at 990 n.6 (noting that “[Hawaii’s adult education] programs’ common characteristic—that they all lead to ‘the high school diploma’—is more relevant to their status as ‘secondary education’ than differences in curriculum, structure, and rigor”).
Similarly, in K.L. the First Circuit found that Rhode Island’s adult education system, which “provide[d] for the education of students to the level of academic proficiency needed to sit for and pass the GED exam or to complete the National External Diploma Program (NEDP),” constituted public secondary education under the IDEA despite lacking “comparable classroom hours and course credit requirements as the other supposedly traditional public schools.” See 907 F.3d at 650–51 (internal quotation marks omitted).
Thus, an adult education program that seeks to educate students up to the level of academic proficiency associated with the completion of secondary school constitutes “public education” under the IDEA even if such program does not mirror traditional public school instruction and curriculum. See K.L., 907 F.3d at 650–51; E.R.K., 728 F.3d at 988–89. The lack of a curriculum-based definition of public education is consistent with the overall scheme of the IDEA because the IDEA does not provide “any substantive standard prescribing the level of education to be accorded handicapped children.” See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 188 (1982).
Applying these principles, there is no genuine factual dispute that GED, AHSCD and NEDP
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programs, which seek to educate students up to the level of academic proficiency associated with the completion of grade 12 and allow adults to earn state or local high school diplomas, constitute secondary education under the IDEA.
Because GED, AHSCD, and NEDP are publicly funded through state and local funds, are supervised by the Board, and seek to educate students up to the level of academic proficiency associated with the completion of secondary school, these programs constitute “public education” under the IDEA.
(4) Connecticut Violated the IDEA The record in this case compels the conclusion that Connecticut, as a matter of both law and practice, provides public education to non-disabled individuals over the age of 21.
As long as Connecticut continues to do so, it must also provide a free appropriate public education under the IDEA to disabled students who have not yet obtained the age of 22. See E.R.K., 728 F.3d at 987 (“[W]e interpret 1412(a)(1)(B)(i) to mean that Hawaii cannot deny special education to disabled students aged 18 through 21 if in fact it provides ‘free public education’ to nondisabled students in that range of ages.”).
It follows that the Board’s enforcement of Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4), which allow school districts to deny special education to students with disabilities at the end of the school year during which such students reach the age of 21, violates the IDEA.19
19 Although the Board disputes Plaintiffs’ assertion that no local educational agency in Connecticut provides special education to disabled individuals between the ages of 21 and 22, the Board merely states that it is “not aware of what
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III. CONCLUSION
For the foregoing reasons, the motion of Defendant Connecticut State Board of Education
for summary judgment is DENIED.
The motion of the Plaintiff Class for summary judgment and its demand for class-wide injunctive and declaratory relief pursuant to Rule 23(b)(2) are GRANTED. Accordingly, the Court GRANTS the following class-wide declaratory and injunctive relief:
(a) DECLARES that the Board’s current or future refusal to provide Plaintiff A.R. and the members of the Class a free appropriate public education pursuant to the age limitations established by Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg.§ 10-76d-1(a)(4) violates the IDEA, 20 U.S.C. §§ 1412(a)(1),1407, 1412(11);
(b) ENJOINS the Board from terminating a free appropriate public education as to Plaintiff A.R. and the members of the Class before they reach the age of 22.
Compensatory Education
It is necessary, as part of this Conclusion, to consider whether the members of the Plaintiff
all the [local educational agencies] do” and offers no evidence whatsoever suggesting that any local educational agency in Connecticut, in fact, continues to provide special education to students that have reached the age of 21. See DSFO at ¶ 1. Furthermore, the Board’s representative Mary Jean Schierberl stated that she is “not aware of an LEA continuing a student’s services beyond the school year in which the students turn 21.” M. J. Schierberl 30(b)(6) Dep., Doc. 29-4, at 102:21–23. Importantly, the Board concedes, that “individualized education programs pursuant to the IDEA are not generally available in the adult education programs,” despite the existence of adult education programs for non-disabled individuals. See Def.’s Interrog. Resps., ¶ 7. Because the Board cannot produce any facts that suggest otherwise, there is no genuine dispute that Connecticut fails to provide special education to individuals with disabilities between the ages of 21 and 22 despite providing public education to non-disabled individuals in that age range. See BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (noting that a party may not defeat a grant of summary judgment by merely asserting a conclusion “without supplying supporting arguments or facts”).
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Class should be awarded compensatory education. The complaint requests the Court to “award compensatory education to members of the Plaintiff Class to the extent they have already been denied a [free appropriate public education] unlawfully.”20
In any action brought under the IDEA, the court “shall grant such relief as the court determines is appropriate.” See 20 U.S.C. § 1415(i)(2)(C). Such relief must be “appropriate in light of the purpose of the Act.” See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citing Sch. Comm. of Town of Burlington v. Dep’t. of Educ. of Mass., 471 U.S. 359, 369 (1996) (internal quotation marks omitted)).
Compensatory education is an award of educational services designed to remedy “any earlier deprivations in the child’s education.” See East Lyme Bd. of Educ., 790 F.3d at 456 (compensatory education “requir[es] a school district to fund education beyond the expiration of a child’s eligibility”); Brennan v. Reg’l Sch. Dist. No. Bd. of Educ., 531 F. Supp. 2d 245, 264–65 (D. Conn. 2008) (compensatory education is “a prospective award of educational services designed to catch-up the student to where he should have been absent the denial of a [free appropriate public education]”). Compensatory education is distinct from an award of damages21 and constitutes “discretionary, prospective, injunctive relief” that is equitable in nature. See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 523 (D.C.C. 2005); Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267, 273–74 (1st Cir. 2004); G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309 (4th Cir.
20 Am. Compl. ¶ 51(e). 21 See, e.g., East Lyme Bd. of Educ., 790 F.3d at 454 (distinguishing between “[a]n award of damages,” which is “not available” under the IDEA, and “various forms of retroactive and prospective equitable relief” that are recoverable under the IDEA, “including reimbursement of tuition [and] compensatory education”) (internal citations omitted).
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2003); Dervishi v. Stamford Bd. of Educ., No. 3:11-cv-01018 (WWE), 2018 WL 8967297, at *14 (D. Conn. Apr. 18, 2018) (quoting Reid, 401 F.3d at 524); East Lyme Bd. of Educ., 790 F.3d at 454, 456.
A remedy of compensatory education is generally unavailable to a claimant over the age of twenty-one in the absence of “gross procedural violations” of the IDEA. See East Lyme Bd. of Educ., 790 F.3d at 456 n.15 (citing Garro v. State of Conn., 23 F.3d 734, 737 (2d Cir. 1994)). An “exclusion of the student from school for a substantial period of time” may constitute such gross violation of the IDEA. See Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir.1990) (finding that the plaintiff, who was “completely deprived” of an educational placement until he was 21, stated a claim for compensatory education); see also Burr by Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988) vacated sub nom. Sobol v. Burr, 492 U.S. 902 (1989), reaff’d, Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989) (finding that a compensatory education award was appropriate where the student was excluded from school for a substantial period of time).
Following the Ninth Circuit’s decision in E.R.K., 728 F.3d at 982, the district court in Hawaii, on remand, found that compensatory education was an appropriate award to remedy Hawaii’s systemic denial of a free appropriate public education under the IDEA to individuals with disabilities ages 20 and 21, inclusive. See 2014 WL 12887631, at *1–2 (D. Haw. Aug. 22, 2014).
In accordance with this precedent, the Court finds that the Board’s systemic denial of a free appropriate public education to individuals with disabilities between the ages of 21 and 22, which has resulted in complete exclusion of such individuals from educational placement, constitutes a gross violation of the IDEA. Therefore, Plaintiffs’ demand for compensatory education is GRANTED.
The parties are directed to work together regarding identification and notice to potential class 31

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members, as well as consideration of the Board’s ability to provide compensatory education to class members. To facilitate this process, the Court will refer the case to a Magistrate Judge. See E.R.K., 2014 WL 12887631, at *1–2 (ordering the parties to work with a Magistrate Judge regarding issues such as identification and notice to potential class members, consideration of the state’s ability to provide compensatory education to class members, and identification of potential service providers likely to be needed to provide compensatory education to class members).
The foregoing is SO ORDERED.

Dated:

New Haven, Connecticut June 10, 2020

/s/ Charles S. Haight, Jr. CHARLES S. HAIGHT, JR. United States Senior District Judge

32

 
 Case 3:16-cv-01197-CSH Document 81 Filed 07/10/20 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

____________________________________

)

A.R., on behalf of a Class of those similarly )

situated,

)

)

Plaintiff,

)

No. 3:16-cv-1197 (CSH)

)

v.

)

)

CONNECTICUT STATE BOARD OF ) JULY 10, 2020

EDUCATION,

)

)

Defendant.

)

____________________________________)

PERMANENT INJUNCTION JUDGMENT AND ORDER

HAIGHT, Senior District Judge:

The current or future refusal of Defendant Connecticut Board of Education to provide

Plaintiff A. R. and the members of the Class a free appropriate public education pursuant to the age

limitations established by Conn. Gen. Stat. § 10-76d(b) and Conn. Agencies Reg. § 10-76d-1(a)(4)

violates the IDEA, 20 U.S.C. §§ 1412(a)(1), 1407, and 1412(11). This conclusion is explained in

the Court’s Ruling on cross-motions for summary judgment filed on June 10, 2020, and reported at

2020 WL 3086032, familiarity with which is assumed.

Accordingly, pursuant to Rule 65(d) of the Federal Rules of Civil Procedure, and in

accordance with Rule 58(a), it is hereby ADJUDGED and ORDERED that the Defendant, its

successors in office, agents, servants, employees, and attorneys, and those in active concert and

participation with any of the foregoing who receive actual notice of this Order, are:

PERMANENTLY ENJOINED from terminating a free appropriate public education as to

1

Case 3:16-cv-01197-CSH Document 81 Filed 07/10/20 Page 2 of 2 Plaintiff A.R. and the members of the Class before they reach the age of 22. Dated: New Haven, Connecticut
July 10, 2020 /s/ Charles S. Haight, Jr. CHARLES S. HAIGHT, JR. Senior United States District Judge
2