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Things change around the office when you settle a class action after 10 years of discovery and failed negotiations. Staff from the Pennsylvania Department of Education and the Public Interest Law Center of Philadelphia – who on Dec. 21 reached an agreement in the action brought by special education students seeking increased inclusion in regular classes – can attest to that. “When I told the staff last week that it was settled, they said, ‘Thank God, we can get rid of all the boxes’,” said Linda Rhen, director of the PDE’s Bureau of Special Education. Judith Gran, director of PILCOP’s disability projects and lead class counsel, said that she spent roughly 4,300 hours over the past decade on the case, which was captioned Gaskin v. Commonwealth. “Our out-of-pocket costs were nearly half a million dollars,” Gran said. “It was very, very burdensome.” Among other measures, the settlement – still in its provisional stages pending approval by Eastern District Judge Eduardo C. Robreno – would require PDE to increase its monitoring of local school districts’ compliance with requirements for including students with disabilities in regular classes, as well as its involvement in training local districts’ teachers to deal with students with special education needs. The settlement also includes a payment of $350,000 – to be divided between the dozen original named plaintiffs – and $1.8 million in fees and expense reimbursements for class counsel. According to estimates from both sides involved in Gaskin, there are approximately 280,000 students with disabilities in Pennsylvania. Lead plaintiff Lydia Gaskin, who has Down syndrome, had sought increased participation in regular classes at her Cumberland County public school. The class action bearing her name was filed in June 1994. After a number of preliminary motions were considered, Robreno certified the Gaskin class in June 1995, according to Gran. “Judge Robreno always urged us to try to settle the case,” Gran said. “I think he really went out of his way to try to encourage the state to come to the table.” Following certification, a lengthy discovery process got underway. PILCOP staff found themselves wondering how to develop evidence about just shy of 300,000 potential class members when each student’s experience and situation was unique by nature. “Discovery was difficult because it was a statewide case,” Gran said. “The students in the class were all students in local school districts. To find out [statistical data] in their cases meant getting discovery in local school districts.” Eventually, a statistician working as an expert witness for the plaintiffs developed a stratified, random sample approach that allowed class counsel to develop the evidence they would need to make their case. By summer 1999, the two sides – heeding a suggestion from Robreno – had submitted to settlement negotiations before then U.S. Chief Magistrate Judge James R. Melinson, Gran said. (Melinson now serves as a neutral with JAMS.) Those talks did not result in an agreement, and by fall 2000, the parties were in negotiations before Magistrate Judge Arnold C. Rapoport. That attempt, also unfruitful, lasted until April 2002. In fall 2002, retired federal judge Louis Bechtle – now with Conrad O’Brien Gellmann & Rohn – was appointed discovery master upon Robreno’s recommendation. “That was really what turned a corner in the entire case,” Gran said. “We needed someone to work on a day-to-day basis to resolve discovery issues and get things moving.” After discovery was completed in May 2003, motions for summary judgment were filed, according to Gran. After oral arguments on those motions this past March, Robreno called counsel into his chambers and asked them again to consider a settlement attempt. “That sent a strong message of a need for a settlement,” said Rhen, who began her position in November. (Members of the PDE’s legal team in Gaskin were unavailable for comment.) Gran said Bechtle’s participation made the difference in the matter’s third settlement attempt. “The parties had really developed a relationship of great trust with Judge Bechtle,” she said. “We felt he had the judgment to talk candidly with all of us.” In addition to the provisions for increased monitoring of school districts – in particular, the 50 districts with the poorest inclusion record of the state’s 501 districts – and assistance with training from the PDE, the settlement’s current terms also call for modifications to the process by which parents can lodge individual complaints, and the creation of an advisory panel of parents, advocates and educators to review the state’s progress. Gran said PILCOP received roughly $70,000 in grants to support its involvement in Gaskin. Two were from the Philadelphia Foundation. Rhen would not comment on how much the matter has cost the PDE since 1994. She said that local school districts would ultimately foot the majority of the costs of complying with the settlement’s requirements. “I’ve never seen [the department's] calculations,” Gran said. “But they have always said that it would cost them a lot of money to comply.” PDE general counsel Larry White headed negotiations on behalf of the state. PILCOP general counsels Michael Churchill and Thomas Gilhool assisted Gran and her staff over the course of the case.

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