Corey H. Ex Rel. Shirley P. v. Board of Education

MEMORAND UM OPINION AND ORDER

I. INTRODUCTION

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 longstanding 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. 1 In 1990, Congress replaced the prior statutory scheme with the Individuals With Disabilities Education Act (“IDEA”). 2 In 1997, Congress reorganized, added and expanded various IDEA provisions in the reauthorization of the IDEA (“IDEA 1997”). 3

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 ease 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.

*903 After the class was certified, the parties engaged in extensive and prolonged settlement negotiations. On August 25, 1994, the court entered an “Agreed Order to Use Joint Experts,” pursuant to which the parties selected three independent experts to conduct an inquiry into plaintiffs’ allegations. It was hoped that the conclusions of these joint experts (which under the terms of the Agreed Order were not binding on any party) would form the basis of a reasoned, amicable settlement of this litigation and an early resolution that would benefit children with disabilities who were enrolled in the Chicago public schools.

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 ease 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 4 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.

In any event, the record established at trial compels judgment for plaintiffs and against the ISBE, declaring that the state *904 has been and is violating the LRE requirements of the IDEA, and enjoining future violations as more fully described in the remedy section below.

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(e). 5 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)(l)-(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)(ll).

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, “[t]he 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: *905 This provision is included specifically to assure a single line of responsibility with regard to the education of handicapped children, and to assure that the implementation of all provisions of this Act and in carrying out the right to education for handicapped children, the State educational agency shall be the responsible agency ***

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.

B. 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 “[e]ach 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 “[t]hat 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 *906 “[r]eview the local agency’s justification for its actions [and] [a]ssist 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. 6 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. 7 See 23 Illinois Administrative Code §§ 226.555, 226.560.

C. Funding Formulas

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, Congress allocated up to twenty-five percent of the state’s total IDEA funds to monitor LEAs, train personnel, educate the public, provide direct services to children with disabilities and administer these functions.

D. Procedural Safeguards

In order for an SEA to receive IDEA funds, the SEA must submit a plan to OSEP, which monitors the SEA for compliance with 20 U.S.C. §§ 1412-1413. If OSEP has reason to believe that the SEA is not complying substantially with the IDEA, OSEP must give the SEA and any agency affected by the *907 non-compliance notice and an opportunity for a hearing to explain the alleged noncompliance. 20 U.S.C. § 1416. If, after the hearing, OSEP determines that the SEA is still in substantial non-compliance, OSEP may withhold the IDEA payments to the SEA until OSEP determines that the SEA is no longer out of compliance. Id. If the SEA is dissatisfied with OSEP’s final action, the SEA may file a request for review with the Circuit Court in which the SEA is located. Id.

OSEP, however, is not the IDEA’S only procedural safeguard. The IDEA also requires any SEA or LEA receiving IDEA funds to establish procedures to ensure that the parents or guardians of a disabled child are notified of any decisions affecting the child’s education and afforded an opportunity to contest those decisions. 20 U.S.C. § 1415; Gadsby v. Grasmick, 109 F.3d 940, 944 (4th Cir.1997). These procedures include: the right of parents or guardians to examine all records regarding their child’s education, evaluation and placement, 20 U.S.C. § 1415(b)(1)(A); the right to obtain an independent educational evaluation of the child, id.; and the right to file a complaint and obtain a due process hearing with either the state or local agency, 20 U.S.C. § 1415(b)(2). After this due process hearing, the aggrieved party may appeal the decision to the state agency if the original hearing was conducted with the local agency. See 20 U.S.C. § 1415(c). Once a healing occurs at the state level, the aggrieved party may file a complaint in a United States District Court, which shall “grant such relief as the court deems appropriate.” See 20 U.S.C. § 1415(e).

III. DISCUSSION

A. Failure of the Chicago Board of Education to Comply with IDEA

As the foregoing discussion demonstrates, the IDEA and its predecessor statute were intended by Congress to address and correct institutional segregation of children with disabilities. The evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental and behavioral disabilities. 8

Indeed, the City has effectively admitted as much. The court finds that the testimony of Sue Gamm, the City’s Chief Specialized Services Officer, 9 to be highly credible and persuasive on the issue of the City’s noncompliance with the LRE mandate of the IDEA. Ms. Gamm’s testimony, along with other evidence presented by plaintiffs, 10 established the following facts:

1. Approximately 425,000 students are enrolled annually in the city’s 553 schools and are instructed by some 32,000 teaching staff. Five thousand staff are dedicated to educating approximately 52,000 of these children who have disabilities, at a total cost of approximately $400 million. In addition to the public schools, the City places children with disabilities in approximately 100 non-public facilities.

2. Disabilities that qualify for special education services, such as those that are at issue in this litigation, include learning disabilities (approximately 50%), mental retardation, autism, traumatic brain disorders, behavioral disabilities, and impaired vision and hearing.

*908 3. Historically, the City placed children according to the categories, or “labels,” of their disabilities; that is, a child’s program and educational location were determined by the type of disability the child had. 11 This is known as the “categorical system of education.”

4. Despite the fact that the LRE mandate was first enacted in 1975 and became effective two years later, the City continues to place disabled children by category of disability rather than by individual needs. Thus, although federal law and administrative regulations require that children should not be removed from regular classrooms unless there is a sound educational reason, children with disabilities in Chicago continue to be segregated with other such children throughout the system in special schools for the “edueable mentally handicapped” (“EMH”), “learning disabled” (“LD”) and the like. 12

5. It was not until 1992 (seventeen years after the enactment of the LRE mandate) that the city changed its policy from a categorical system of placement to one that made some attempt to educate children with disabilities in the schools they would attend if not disabled. The City began using a “resource model” in which children with disabilities would spend part of the day in a regular classroom and part in a “resource room” where their special needs would be addressed.

6. Even with this new emphasis, the CBE failed to comply with the LRE mandate due to lack of resources, inadequate training and certification of teachers, community attitudes, and (as more fully discussed below) State regulations and funding formulas that contradict the notion of educating children with disabilities in the least restrictive environment.

7. These and other failures by the City to comply with its obligations under the IDEA have resulted in a number of manifestations that were identified by ’Ms. Gamm and the experts who testified for plaintiffs at trial:

a. Although up to 90% of children with “mild cognitive” disabilities 13 can be served 50% or more of the time in regular classrooms, the Chicago public schools’ own survey in 1997 indicated that only 15% to 22% of these children spent more than 50% of their school days in such regular classrooms.

b. IEPs typically fail to justify the segregation of children with disabilities in restrictive settings outside regular classrooms. Again, these IEPs regularly place children by the categories of their disabilities rather than by their individual educational needs and objectives.

c. Contrary to the LRE mandate and contemporary educational practices, IEPs in Chicago rarely place children with disabilities in regular classrooms with appropriate supports and adaptations. 14 This systemic failure results from poor understanding by and training of general education teachers and administrators in the meaning of LRE. Consequently, disabled children are typically “pulled out” of regular classrooms for specialized services. 15

*909 d. Similar to the joint experts’ investigations, the CBE’s own self monitoring reports conducted in 95 schools for the 1995-96 and 1996-97 school years (which Dr. McNulty testified convincingly could be generalized to all 553 city schools), concluded that the city was substantially out of compliance. According to the CBE’s reports, approximately one-half of the schools were out of compliance with the LRE mandate in some fashion, and two-thirds were out of compliance as measured by such factors as adequacy of IEPs, lack of coEaboration between general and special educators, and inadequate knowledge by general educators of curricular modifications to adapt to the needs of children with disabihties.

e. Perhaps the most concise summary, of the state of the Chicago pubhc schools with respect to eomphance with the LRE mandate can be found in OSEP’s “Programs Monitoring Report” issued in February 1996 to the ISBE and the CBE. The portion concerning the CBE reads in its entirety:

Placement data for Agency J [the CBE] showed that 90% of students identified as trainable mentaüy handicapped, 96% of students identified as severe/profound mentaüy handicapped, and 92% of students with autism, were placed in a full-time separate class, wing, annex, separate pubhc or private day schoolf, or] were placed full-time in a segregated class, wing, annex, private day or residential school. Administrators explained that the agency has been working to ensure that the fuE continuum of placement options is considered by multidisciplinary committees when they determine the placement for all students with disabihties. They acknowledged, however, that ehüdren’s disability labels have historicahy determined their placement, and that in many instances multidisciplinary committees continued to make categorical placement decisions. Thus, for example, separate private day placements have traditionally been the only placement options for students with severe or profound disabihties, and most students with such disabihties continue to be placed—based on their category of disability—in such placements. The administrators confirmed that—as demonstrated by the placement data—less restrictive placement options are avaüable from ■ the [CBE] for students with low-incidence disabüities, but that most of these students are still placed in highly restrictive placements based on their category of disability, the “culture” (i.e., historical placement practices), and lack of space in regular education buddings. A teacher and an administrator in a junior high school informed OSEP that the assumption' was that all of chüdren identified as trainable mentaüy retarded would be placed in a separate categorical program once they went onto the high school level and that this was the only real option considered.

f. As discussed more fully below, statistically children with disabihties in Chicago are educated in the general classroom in far smaüer percentages than the national average.

B. Failure of the ISBE to Comply with IDEA

Despite several inadequate initiatives beginning in the early 1990s, the ISBE has failed in its responsibility to ensure that chüdren with disabihties in Chicago are educated in the least restrictive environment. Based on the evidence presented at trial, the court finds that the foüowing facts demonstrate the ISBE’s liabEity in this case:

1. Pre-1990 Regulations. As mentioned above, prior to the 1990 ISBE regulations—contrary to the clear directives of the IDEA—Illinois regulations required the LEA to make LRE placement decisions based on the ehEd’s category of disability at the multidisciplinary -conference rather than at the IEP meeting. As the OSEP report demonstrates, the legacy of this misguided and unlawful state regulation persists today.

*910 2. State Monitoring and Enforcement. The testimony of Ms. Gamm and Dr. McNulty, which, as previously noted, the court finds to be credible and persuasive, established that the ISBE has failed to perform its monitoring and enforcement function as required by the IDEA and the regulations of the Department of Education. 16 As Dr. McNulty (who is in charge of enforcing the LRE mandate for the State of Colorado) explained, the state education agency must identify LRE violations by local districts and follow through to ensure that such violations are corrected. Although there is evidence that the ISBE, from time to time, identified failures by the CBE to comply with the LRE mandate, the evidence demonstrates that the State took few if any actions to “ensure” that these failures were corrected, and in fact consciously allowed Chicago to continue violating the mandate. In fact, according to Gail Lieberman (a current senior ISBE employee who was in charge of its Department of Special Education from 1989-1995), the ISBE, in clear violation of its obligations under IDEA, performed no comprehensive monitoring of the City’s compliance with the LRE mandate from 1989 to some time in 1991. Perhaps the strongest proof of the ISBE’s failure to perform its monitoring obligations is the pervasive, systemic and continuous failure by the CBE to comply with the LRE mandate despite consistent findings by state and federal agencies of noncompliance. As discussed previously, the IDEA makes the ISBE directly responsible for this failure by the CBE.

3. Training. Federal regulations require that the ISBE “shall carry out activities to ensure that teachers and administrators in all. public agencies (a) [a]re fully informed about their responsibilities for implementing [the LRE mandate]; and (b) [a]re provided with technical assistance and training necessary to assist them in this effort.” 34 C.F.R. § 300.555. As Dr. Freagon put it, the most important factor in ensuring that children with disabilities are educated in the least restrictive environment is “[t]hat they have teachers who are knowledgeable and have the appropriate attitude and skills.” The evidence demonstrates that although the ISBE operates two programs that address training issues, these programs do not come close to meeting the ISBE’s responsibility to “ensure” that teachers and administrators in Chicago are properly trained. The first such program, “Project Choices,” provides “technical assistance” 17 to address the LRE needs of children with moderate to profound intellectual disabilities and multiple handicaps. Only $140,000 of Project Choices funds goes to Chicago, enough to pay for only two professionals to provide assistance to 553 schools. The ISBE does not compel non-compliant schools to accept these services; rather, they are provided (to the extent possible given the meager funding) only to those schools that request them. 18 Dr. Freagon, Dr. McNulty and Ms. Gamm all testified—and the court agrees—that Project Choices is totally inadequate to provide necessary training in LRE to the CBE’s teachers and administrators.

These witnesses also established that the other ISBE training program, the “Regular Education Initiative” (“REI”), is similarly inadequate. Under REI, the ISBE trains individuals in specific schools on LRE issues. Again, the program is far too small to make a difference in Chicago. *911 Consequently, CBE teachers continue to be trained in disability categories to work in specific kinds of settings such as a resource room or other segregated setting, rather than regular classrooms, as expected by the LRE mandate. It is important to remember that through that mandate, the IDEA requires that children with disabilities be educated in the regular classroom unless there are sound, articulated educational reasons not to do so, and only then to the extent appropriate for each child. Unfortunately, the evidence at trial clearly establishes that Chicago teachers and administrators have not been trained in the basic principles of LRE, and continue to stand the mandate on its head by presuming that children with disabilities should be educated in segregated settings according to the categories of their disabilities. 19

4.. Teacher Certification. Although the categorical system of educating children with disabilities, which was historically implemented in Chicago and Illinois, is contrary to the LRE mandate, the ISBE continues to certify teachers 20 by categorical labels associated with particular disabilities. Because teachers are trained and certified to teach by category of disability, they are unable to service disabled children in the integrated settings presumed by the LRE mandate. Consequently, antiquated certification categories have combined with inadequate training and teacher education in Illinois (geared to the certification categories) impermissibly to perpetuate categorical segregation of' children with disabilities. While plaintiffs’ experts offered their solutions to remedy this violation by the State, the court, as discussed in the remedies section below, believes that it is in keeping with Congressional intent to direct the ISBE to offer modifications in the words of the regulations, “to carry out activities”) to ensure that teacher certification in Illinois complies with rather than contradicts the LRE mandate.

5. Funding formulas. As the ISBE acknowledges, the program by which it reimburses the CBE for educating children with disabilities creates a financial incentive to take these children out of the public school system and place them in private, segregated schools. As the ISBE points out, in IDEA 1997, Congress specifically required that state funding formulas not be dependent on the type of educational setting, 21 thus requiring the ISBE to alter its current practice. While this new statutory mandate—assuming (perhaps naively) the ISBE’s compliance with it— might influence the appropriate remedy in this case, it does not affect the necessary conclusion that the ISBE’s current funding formula totally contradicts the LRE mandate by perpetuating segregated education of children with disabilities.

6. Continuing denial of responsibility. Perhaps most disturbing, the ISBE continues to this day to deny the seriousness of the CBE’s noncompliance with the LRE mandate, and continues to deny its own clear statutory obligations to ensure compliance by the City. Instead, the State has chosen to assume the role of a victim of overzealous litigation seeking to make it “strictly hable” for minor failures by the CBE. To the contrary, the ISBE is not the “victim”; it is, by virtue of having accepted federal educational funds, the statutorily designated' responsible agency for “ensuring” compliance by all districts in the state with the LRE mandate. Neither the named defendant, Joseph Spagnolo, Illinois Superintendent of Education, nor any member of the Illinois State Board of Edu *912 cation testified at trial to explain the reasoning behind the ISBE’s neglect of the duties imposed on it by the IDEA. Perhaps the seemingly casual attitude taken by the State with respect to educating children with disabilities in the least restrictive-environment explains the specific failures of the ISBE detailed above.

7. Unfavorable statistical comparisons. The ISBE’s failure to fulfill its responsibilities to ensure that children with disabilities are educated in the least restrictive environment is reflected in the statistical comparison of Illinois to national averages. In a ranking in descending order of the 50 states comparing the total percentages of students ages 6 to 21, Illinois ranked at or near the bottom in every category: any disability, educated in a regular or resource setting, 47/50; any disability, educated in separate classrooms, 47/50; any disability, educated in separate facilities, 47/50; cognitive or multiple disabilities, educated in a regular or resource setting, 50/50. 22 The performance of the Chicago public schools in these categories, as measured by data supplied by the City, was even worse than the State’s.

C. The ISBE’s Defenses

The ISBE raises various defenses against plaintiffs’ charges to support its position that it should not be held responsible for the Chicago public school system’s pervasive and systematic failure to comply with the LRE mandate. With certain exceptions, these defenses are without merit.

Defense # 1—“Standard of Perfection” and Limited Responsibility

As mentioned above, the ISBE contends that plaintiffs are holding it to a standard of perfection by making it responsible for the “correctness of each IEP and the appropriateness of each placement.” Instead of “becoming the guarantor .of the day-to-day actions of all its local schools,” the ISBE maintains that it is responsible only for “oversight and general supervision” by making sure that the Chicago public schools have special education regulations, procedures and monitoring requirements that comply with the LRE guidelines. To further support this theory of limited responsibility, the ISBE explains that it is unreasonable to hold it to a standard of perfection because federal and state laws fail to provide adequate funding and tools to conduct the supervision, training, and monitoring necessary to “miero-manage” all of the schools in Illinois.

Plaintiffs, on the other hand, repeatedly explain that they do not seek to hold the ISBE responsible for each child’s IEP and placement. Instead, plaintiffs maintain that the ISBE is “the ultimate guarantor of the LRE mandate” and thereby “required to intervene in order to remedy a local school district’s systematic and pervasive failure to provide an adequate opportunity for students with disabilities to be educated in the LRE.”

After extensively reviewing the trial record, the statute and the pertinent case law, the court finds that the ISBE has repeatedly failed to make the necessary distinction between micro-managing every child’s placement and ensuring that the CBE has sufficient guidelines ánd resources to systematically place children with disabilities in the least restrictive environment. By referring to bits and pieces of the statute and regulations, the ISBE repeatedly, and incorrectly, maintains that its responsibility is limited to providing “general supervision” to the local school districts so that it need not follow through to ensure that the necessary procedures have been implemented and the remedies have corrected past violations. Significantly, the ISBE fails to cite to any case law to support this theory of limited responsibility. This is quite understandable, since no such case law exists.

In fact, the courts have consistently found against state agencies—including the ISBE—that have attempted to deny responsibility for the systematic failure of local school districts to provide necessary educational services. In Gomez v. ISBE, 811 F.2d 1030, 1043 (7th Cir.1987), the ISBE tried to place all of the responsibility on the *913 local school districts for their failure to comply with the provisions of the Equal Education Opportunity Act (“EEOA”). When challenged for failing to promulgate, monitor and enforce uniform and consistent guidelines for the identification, placement, and training of students with limited English skills, the ISBE argued that it was not empowered to supervise and enforce local compliance with the EEOA. Id. at 1042. The Seventh Circuit, however, interpreted the EEOA to require states to issue uniform guidelines as well as monitoring and enforcement schemes consistent with EEOA regulations. Id. Thus, despite the fact that the language of the EEOA was fairly generalized, only requiring an educational agency “to take appropriate action,” and lacking legislative history to specify its intent, the Seventh Circuit found the ISBE responsible for promulgating, monitoring and enforcing guidelines consistent with the EEOA. The instant case is even less favorable to the ISBE than was Gomez because the IDEA, its regulations and its legislative history, explicitly provides that the State is responsible to assure compliance by local districts with the LRE mandate.

In a more recent case, this time under Part H of the IDEA, the ISBE tried to limit its responsibility to implement a statewide system of early intervention services to infants with disabilities by claiming, among other things, that the statute is too vague to be enforced by individuals in an action under 42 U.S.C. § 1983. Rejecting the ISBE’s argument, the Seventh Circuit found that the statute unambiguously used language such as “all,” “shall,” and “must” to indicate that the state’s obligation to provide services is “mandatory, not precatory.” Marie O. v. Edgar, 131 F.3d 610, 620 (7th Cir.1997). In a similar fashion in the context of the instant ease, the statutory language of Part B of the IDEA, by repeatedly using the word “ensure,” unambiguously requires the state “to make certain” 23 that the IDEA’S statutory requirements are carried out by local school districts.

Many other circuits have analyzed Part B of the IDEA and arrived at this conclusion. In Kruelle v. New Castle County School Dist., 642 F.2d 687 (3rd Cir.1981), the court found the Delaware Board of Education