The opinion of the court was delivered by: GETTLEMAN
Children with disabilities in the Chicago public schools have been and continue to be segregated into separate and unequal educational environments, contrary to established federal law. Although the local school district has recognized its deficiencies and agreed to a remedial plan, the State educational agency has continued to deny its responsibility. As discussed below, that denial squarely conflicts with the clear Congressional intent to make the State ultimately responsible for compliance with the long-standing federal mandate that children with disabilities be educated in the least restrictive environment ("LRE").
The LRE mandate was first enacted in the Education for All Handicapped Act of 1975 ("EAHCA"), and became effective on October 1, 1977.
In 1990, Congress replaced the prior statutory scheme with the Individuals With Disabilities Education Act ("IDEA").
In 1997, Congress reorganized, added and expanded various IDEA provisions in the reauthorization of the IDEA ("IDEA 1997").
Foremost among the requirements of the IDEA is the mandate that children with disabilities be educated in the least restrictive environment. While the local schools and the children's parents are the "front line" providers of educational services for children with disabilities, the IDEA squarely places the ultimate responsibility for ensuring compliance with its mandates on the state educational agencies, such as the ISBE. 20 U.S.C. § 1412(6).
In 1992, several Chicago public school students with disabilities and their parents, on behalf of themselves and a putative class, brought this action against the City of Chicago Board of Education and its Chief Executive Officer (collectively, the "City" or the "CBE"), and the Illinois State Board of Education and its Superintendent (collectively, the "ISBE" or the "State"). Plaintiffs sought declaratory and injunctive relief to correct alleged systemic failures by the City and the ISBE to educate children with disabilities in the least restrictive educational environment, in violation of the IDEA. By order dated February 1, 1993, Judge Leinenweber, to whom this case had previously been assigned, denied motions to dismiss that had been filed by all defendants and certified the plaintiff class, consisting of all children who are enrolled in the Chicago public schools and are or will be classified by the CBE as having a disability.
The joint experts conducted an extensive, scientifically sound investigation and concluded that the City was seriously out of compliance with the LRE requirements of the IDEA. According to the joint experts, children with disabilities in the Chicago public schools are typically educated in overly restrictive placements. The joint experts concluded that the children's placements were based mostly on the categories or severities of their disabilities, rather than their individual needs. Both the City and the State were found to have failed to monitor or implement the principles of educating children with disabilities in the least restrictive environment, or to train teachers and other educational professionals in these principles.
After the joint experts communicated their conclusions to the parties, efforts were made to reach a global settlement. Negotiations broke down in late 1996, and the court set the case for trial in October of 1997. During the course of pretrial preparation, plaintiffs and the City reached a tentative settlement, which the court preliminarily approved on October 23, 1997. Notice of the proposed settlement was published and distributed to all children with disabilities currently enrolled in the Chicago public schools and, at a fairness hearing conducted on January 16, 1998, the court approved the settlement agreement with certain minor modifications. Under that agreement, the City will, over an eight year period, take actions designed to bring between one-third and one-half of its 553 schools into compliance with the IDEA's LRE mandate, at a total cost of approximately $ 24 million. A monitor
has been appointed to oversee the implementation of the agreement, which is already underway.
Unfortunately, plaintiffs and the ISBE could not reach a settlement, and the case against the ISBE went to trial as scheduled. At the trial, two of the three joint experts testified, along with other experts and administrative personnel from the City and the State.
As discussed in greater detail below, the trial vividly demonstrated in general the correctness of the joint experts' previous conclusion that the City was and is severely out of compliance with the LRE mandate of the IDEA, and that the ISBE has not only failed to meet its statutory responsibility to ensure such compliance, but has in certain respects impeded compliance by what appears to be a disregard of its duties. The testimony of plaintiffs' witnesses--who were highly qualified and credible--demonstrated beyond doubt that the Chicago public schools have been and continue to be saddled with archaic notions of educating children with disabilities in restrictive placements determined more by the categories of their disabilities than by their individual needs, in clear violation of the IDEA.
Fortunately, the City, through its counsel and administrators, has recognized its past failures and has embarked on a program to correct them. Unfortunately, and inexplicably, the ISBE continues to deny the undeniable and defend the undefendable. The "case" it presented at trial was unpersuasive and unsupported by the facts and the law. An objective observer--including this court--can conclude only that the ISBE has engaged in this exercise more to delay the inevitable result than to change or avoid it.
II. THE IDEA AND IMPLEMENTING REGULATIONS
Congress enacted the IDEA and its predecessor statutes "to assure that all children with disabilities have available to them . . . a free appropriate public education . . . ." 20 U.S.C. § 1400(c).
To effectuate this goal, Congress placed the ultimate responsibility of compliance with the state educational agency ("SEA"), declaring that in order for the State to receive federal IDEA funds, the SEA "shall be responsible for assuring that the requirements of this [Act] are carried out . . . ." 20 U.S.C. § 1412(6). To qualify for this assistance, each SEA must submit a plan to the Department of Education's Office of Special Education Programs ("OSEP") detailing the state's policies and procedures that assure compliance with the Act. 20 U.S.C. §§ 1412-1413.
While the IDEA requires SEAs to develop and accept responsibility for many different policies and procedures, the LRE mandate requires that children with disabilities be educated in the least restrictive environment. 20 U.S.C. § 1412(5)(B). Pursuant to this statute, SEAs must establish "procedures to ensure that, to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled . . .." 20 U.S.C. § 1412(5). To ensure compliance, Congress developed funding guidelines and procedural safeguards within the IDEA. Before explaining the LRE mandate, the funding formulas and the procedural safeguards, it is helpful to review the general responsibilities that the IDEA places on SEAs and local education agencies ("LEAs").
A. The Relationship Between State and Local Agencies.
After the SEA submits a plan to OSEP, the SEA receives the IDEA funds from the Department of Education. Upon receiving these funds, the SEA is not only responsible for distributing the IDEA funds to each LEA, but is also responsible for assuring local compliance.
More specifically, in the SEA's application to OSEP, the SEA must submit a plan that assures, among other things, that: (1) funds received under the IDEA are expended in accordance with the provisions of the Act, 20 U.S.C. §§ 1413(a)(1)-(2); (2) an adequate number of special education personnel are adequately and appropriately trained through a comprehensive system of personnel development, 20 U.S.C. § 1413(a)(3); and (3) the SEA annually evaluates the effectiveness of the IDEA programs in meeting the educational needs of children with disabilities, 20 U.S.C. § 1413(a)(11).
In order to obtain the IDEA funds, each LEA must submit an application to the SEA setting forth assurances, inter alia, that: (1) funds will be used for programs that implement the provisions of the IDEA, 20 U.S.C. § 1414(a)(1); (2) the LEA will maintain records and furnish information as may be necessary for the SEA to perform its duties under the IDEA, 20 U.S.C. § 1414(a)(3); and (3) the LEA will establish or revise individual education programs ("IEPs") for each disabled child at the beginning of each school year, 20 U.S.C. § 1414(a)(5).
Thus, "the State educational agency shall be responsible for assuring that the requirements of this [Act] are carried out . . ." 20 U.S.C. § 1412(6). The federal regulations issued under section 1412(6), 34 C.F.R. section 300.600 explain in a note that the language of this provision:
. . . reflects the desire of the Congress for a central point of responsibility and accountability in the education of children with disabilities within each State. With respect to SEA responsibility, the Senate Report on Pub.L. 94-142 includes the following statements:
Without this requirement, there is an abdication of responsibility for the education of handicapped children. Presently, in many states, responsibility is divided, depending upon the age of the handicapped child, sources of funding, and type of services delivered. While the Committee understands that different agencies may, in fact, deliver services, the responsibility must remain in a central agency overseeing the education of handicapped children, so that failure to deliver services or the violation of the rights of handicapped children is squarely the responsibility of one agency. [Emphasis added].
Thus, the provisions of the IDEA delegate to the SEAs the responsibility for compliance as well as the supervisory power to implement policies and procedures to make certain that LEAs have complied with the Act. Alternatively, if the LEA is unable or unwilling to provide services in compliance with the Act, the SEA must provide services directly to such students. 20 U.S.C. § 1414(d)(1). However, when an LEA is able and willing to provide services to disabled students, the LEA is responsible for providing services directly to disabled children, primarily through IEPs. 20 U.S.C. § 1414(a)(5).
An IEP is a written statement, uniquely designed for each disabled child, that specifically describes, among other things, the special education and related services that will be provided to the child and the extent that the child will be able to participate in regular educational programs. 20 U.S.C. § 1401(20) and 34 C.F.R. §§ 300.341 - 300.350. Once a local agency develops an IEP for a child, the local agency must place the child in an educational setting according to the LRE mandate.
The LRE mandate requires SEAs to establish "procedures to ensure that, to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled . . .." 20 U.S.C. § 1412(5). 34 C.F.R. §§ 300.550-300.556 detail the mandate as well as the SEA's responsibility to assure compliance. Specifically, 34 C.F.R. § 300.550(a) requires that "each SEA shall ensure that each public agency establishes and implements procedures that meet the requirements of the [LRE mandate]." In placing the responsibility for the least restrictive environment squarely in the hands of the SEA, these regulations require SEAs to ensure "that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 C.F.R. § 300.550(b)(2)(emphasis added). The SEA, however, is not principally responsible for individually placing each child in the LRE. Instead, LEAs must ensure that each child with a disability is evaluated annually and placed in the LRE based on his or her unique needs as determined by his or her IEP. Unless a child's IEP requires an alternative placement, each child with a disability must be educated in the school that he or she would have attended had he or she not been disabled. 34 C.F.R. § 300.552.
Although SEAs are not responsible for the development and placement of each child, SEAs must take considerable steps to "ensure" that each child is afforded a placement in his or her least restrictive environment. The regulations clearly state that each SEA "shall carry out activities to ensure that teachers and administrators in all public agencies . . . are fully informed about their responsibilities for implementing [the LRE mandate] and . . . are provided with technical assistance and training necessary to assist them in this effort." 34 C.F.R. § 300.555. To ensure that the local agencies are complying with the LRE mandate, each SEA "shall carry out activities to ensure that [the LRE mandate] is implemented by each public agency." 34 C.F.R. § 300.556(a). If there is evidence that the local districts are not complying with the mandate, the SEA must "review the local agency's justification for its actions [and] assist in planning and implementing any necessary corrective action." 34 C.F.R. § 300.556(b)(1)-(2).
While the IDEA requires each LEA to develop an IEP that incorporates the LRE mandate for each child before the beginning of each school year, the IDEA does not specify any particular process through which an IEP must be established. The CBE, however, has established a complex system of developing an IEP in accordance with Illinois law. See 105 ILCS 5/14-8.02. According to CBE's written procedure, each child's IEP is developed only after a local agency has engaged in a process that includes: detecting the characteristics of a potential disability; interviewing and testing the child either informally or through a case study evaluation that formally addresses the various components of the child's disability; and determining the presence of a disability and the eligibility for special education at a multidisciplinary staff conference. At that conference, the child's disability is determined through the categorical assessment of the child's disability characteristics. The child's placement in the LRE should be determined, however, only after the IEP is written.
Federal regulations provide that each public agency must ensure that educational placements are based on each child's IEP. 34 C.F.R. § 300.552(a)(2). Because the regulations require an individual program and placement based on each child's individual needs rather than a categorical assessment of the child's disabilities, the placement may not be made before the IEP is completed and the child's needs are determined.
Before 1990, however, ISBE regulations required LEAs to make IEP placement decisions at the multidisciplinary conference. In 1990, OSEP ordered Illinois to change its regulations to conform with the IDEA by disallowing any placement decisions before the end of the IEP meeting.
See 23 Illinois Administrative Code §§ 226.555, 226.560.
As a supplementary provision under the LRE mandate, in IDEA 1997, Congress expressly prohibits states from using funding formulas that inhibit placements in the LRE: "If the State uses a funding mechanism by which the State distributes funding on the basis of the type of setting in which a child is served ... the State shall provide the Secretary an assurance that it will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements." Pub. L. 105-17, 111 Stat. 61.
Before IDEA 1997, however, Congress specified the use of IDEA funds. Of the total funds that each SEA receives from OSEP under IDEA, the federal regulations designate the greater of $ 450,000 or five percent for administrative costs to ensure state and local compliance with IDEA (34 C.F.R. § 300.620), and up to twenty percent: (1) for direct services to children who are not receiving an adequate education; (2) for support services including personnel development, public information and parent training activities; and (3) for the SEA's monitoring activities and complaint investigations (34 C.F.R. § 300.370). Each SEA is expected to distribute the remaining seventy-five percent of the funds to the LEAs. Thus, Congress did not leave the SEAs ill-equipped to carry out their statutory duty of ensuring compliance with the Act. Instead, ...