SID WOLINSKY (California Bar No. 33716) ALISON AUBREJUAN (California Bar No. 194107) MONICA GORACKE (California Bar No. 218758) STEPHEN TOLLAFIELD (California Bar No. 221170) DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, California 94612 Telephone: (510) 451-8644 Facsimile: (510) 451-8511 TTY: (510) 451-8716 Email: general@dralegal.org JOAN M. WILSON (Alaska Bar No. 9611069) DAVID W. OESTING (Alaska Bar No. 8106041) DAVIS WRIGHT TREMAINE LLP 701 West Eighth Avenue, Suite 800 Anchorage, Alaska 99501-3468 Telephone: (907) 257-5300 Facsimile: (907) 257-5399 DAVID FLEURANT (Alaska Bar No. 8611109) DISABILITY LAW CENTER OF ALASKA 3330 Arctic Boulevard, Suite 103 Anchorage, Alaska 99503 Telephone: (800) 478-1234 Email: akpa@dlcak.org UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ALEXANDER NOON, a minor, by his guardian ad litem TRACY BARBEE, et al., Plaintiffs, v. ALASKA STATE BOARD OF EDUCATION AND EARLY DEVELOPMENT; ROGER SAMPSON, Commissioner of Education & Early Development, sued in his official capacity; ANCHORAGE SCHOOL DISTRICT; RICHARD SMILEY, Administrator, Standards and Assessment, Alaska Department of Education & Early Development, sued in his official capacity, Defendants. Case No. A04-0057 CV (JKS) CLASS ACTION SETTLEMENT AGREEMENT Before The Hon. James K. Singleton TABLE OF CONTENTS RECITALS 1 I. DEFINITIONS 2 A. Accommodations 2 B. Board 2 C. Class or Class Members 2 D. Class Counsel 2 E. Compliance Period 2 F. Commissioner 2 G. Defendants 2 H. Department 3 I. School District 3 J. Fairness Hearing 3 K. Final Approval 3 L. Modification 3 M. Named Plaintiffs 3 N. Parties 3 O. Preliminary Approval 3 P. Released Claims 3 Q. Released Parties 4 R. Settlement Agreement 4 S. Subtest 4 II. APPROVAL 4 A. Joint Approval Action 4 B. Objections 4 C. Equitable Provisions Binding 4 D. Fairness Hearing 4 E. Notice to the Class Regarding the Proposed Settlement 5 III. EQUITABLE PROVISIONS 5 A. Accommodations 5 B. Sequence of Testing 7 C. Non-standardized Assessment Format that Leads to a Standard Diploma 8 D. Appeals of Accommodation and Modification Decisions 9 IV. PHASE-IN PROVISIONS FOR CLASS OF 2005 9 V. IMPLEMENTATION & REPORTING 10 VI. MEDIA 13 VII. TERM OF THE AGREEMENT 13 VIII. DISPUTE RESOLUTION 13 IX. RELEASES 14 A. Releases By The Class 14 B. Releases By Named Plaintiffs 14 X. ATTORNEYS’ FEES AND COSTS 15 XI. ORDERS AND DISMISSAL 15 A. Continuing Jurisdiction 15 B. Dismissal 15 XII. MISCELLANEOUS 15 A. Entire Agreement 15 B. Counterparts 16 C. Interpretation 16 D. Additional Documents 16 E. Authority to Bind 16 RECITALS 1. Defendants are the Alaska State Board of Education and Early Development; Roger Sampson, in his official capacity as the Commissioner of Education & Early Development; Richard Smiley, in his official capacity, the Alaska Department of Education & Early Development (collectively, “the Department”); and the Anchorage School District. 2. On or about March 16, 2004, Named Plaintiffs Alexander Noon, Kendall Leibach, Douglas Mate, Tiana Lupie, Irene Takak, and Learning Disabilities Association of Alaska commenced a civil action in the United States District Court for the District of Alaska, Case No. A04-0057 CV (JKS) (“Lawsuit”), against Defendants, alleging discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (“Section 504”), AS 14.03.075 and AS 18.80.200 et seq. (“state statutes”), and the federal and Alaska Constitutions regarding access to the Alaska High School Graduation Qualifying Exam (“HSGQE”) for students with disabilities in Alaska public schools. 3. On or about April 7, 2004, the Court in the Lawsuit entered an Order granting the Parties’ stipulated limited interim relief, which (a) excused from the HSGQE graduation requirement those students with disabilities in the Class of 2004 who were otherwise qualified to receive a diploma and (b) included a certification of a Plaintiff Class under FRCP 23. 4. Defendants deny any and all liabilities to the Named Plaintiffs and to Class Members and deny that they have violated any laws pertaining to access to the HSGQE for students with disabilities or that they have discriminated against students with disabilities. 5. The Lawsuit has been vigorously prosecuted and defended. 6. The Parties now desire to resolve their differences and disputes by settling the suit in such a manner as to: a. Improve access to the HSGQE for students with disabilities; b. Assure that neither the Named Plaintiffs nor the Class nor any Class Member will attempt to enforce, and Defendants will not thereby be subject to, conflicting standards regarding compliance with the ADA, IDEA, Section 504, state law, and state and federal constitutional law concerning access to and implementation of the HSGQE for students with disabilities. I. DEFINITIONS As used in this Agreement, the following terms shall have the meaning ascribed to them in this Section. All other terms shall be interpreted according to their plain and ordinary meaning. A. Accommodations An “Accommodation” is a change made in the administration of the HSGQE to ensure that the information obtained from a test is an accurate reflection of what the test is intended to measure rather than a measure of the student’s disability. Accommodations are permitted on the regular HSGQE. B. Board “Board” means the Alaska State Board of Education. C. Class or Class Members “Class” or “Class Members” means and refers to all persons who meet the definition of the Class as entered by the Court in its Order dated April 7, 2004. D. Class Counsel “Class Counsel” means and refers to Disability Rights Advocates, the Disability Law Center of Alaska, and Davis Wright Tremaine LLP, including the attorneys therein. E. Compliance Period “Compliance Period” means the period from the date of Final Approval of this Settlement Agreement until 30 months from Final Approval. The duration of the Compliance Period can be modified by the Court upon on a showing of good cause. F. Commissioner “Commissioner” means the Commissioner of the Alaska Department of Education and Early Development. G. Defendants “Defendants” means each of the named Defendants. H. Department “Department” means the Alaska Department of Education and Early Development. I. School District “District” means an Alaska school district as defined in AS 14.17.990. J. Fairness Hearing “Fairness Hearing” means the hearing described in Section II.D and required pursuant to Federal Rule of Civil Procedure 23(e)(1)(C). K. Final Approval “Final Approval” means the date when the Court issues an order granting final approval of this Settlement Agreement in Case No. A04-0057 CV (JKS). L. Modification A “Modification” is a change made in the administration of the HSGQE which distorts the measurement of the skills targeted by a test or compromises the validity of the testing results. Modifications are only allowed on the Modified HSGQE. M. Named Plaintiffs “Named Plaintiffs” means and refers to Plaintiffs Alexander Noon, by his guardian ad litem Tracy Barbee; Kendall Leibach, by her guardian ad litem Jacqueline Leibach; Douglas Mate; Tiana Lupie, by her guardian ad litem, Evelyn Lupie; Irene Takak; and Learning Disabilities Association of Alaska. N. Parties “Parties” means the Defendants and Named Plaintiffs. O. Preliminary Approval “Preliminary Approval” means the preliminary approval by the Court in Case No. A04-0057 CV (JKS) of the terms of this Settlement Agreement which shall occur prior to any notice being provided in accordance with Section II.E. P. Released Claims “Released Claims” means those claims described in Section IX. Q. Released Parties “Released Parties” means those parties described in Section IX. R. Settlement Agreement “Settlement Agreement” or “Agreement” means this document. S. Subtest “Subtest” or “Subtests” means any one or all of the three subtests which make up the HSGQE: the Writing, Reading, and Mathematics subtests. II. APPROVAL A. Joint Approval Action The parties shall jointly move the Court for an order granting Preliminary Approval of this Settlement Agreement within 15 days of this settlement, directing notice to the settlement class as described in Section II.E, below, and setting a hearing for Final Approval allowing for notice as directed by the Court. B. Objections Any Class Member may object to the proposed Settlement Agreement by filing with the Clerk of the Court a written objection (“Objection”) filed or postmarked no later than a date set by the Court after Preliminary Approval of the Settlement Agreement. C. Equitable Provisions Binding Upon Final Approval of this Settlement Agreement, all Class Members shall be bound by all equitable provisions of this Settlement Agreement and orders issued pursuant thereto, notwithstanding any objection filed by a class member under II.B of this Agreement and subject to Release provisions under IX.A of this Agreement. In the event that the Board does not ultimately adopt the substantive terms of this Agreement in whole as recommended by the Commissioner, this Agreement is null and void. D. Fairness Hearing The Court shall hold a hearing under FRCP 23(e)(1)(C) to establish the fairness of the final settlement of the claims of the Class against Defendants and to decide whether there will be Final Approval of the Settlement Agreement. This hearing shall take place at a date allowing for a period of reasonable notice to the Class as the Court may direct. At this hearing, the Parties shall jointly move for Final Approval of this Settlement Agreement and entry of the Stipulated Injunctive Order. The Parties specifically intend that some sections of the Settlement Agreement shall be implemented prior to formal Court approval of the Settlement in accordance with the timelines set forth herein. E. Notice to the Class Regarding the Proposed Settlement The Department will provide at its sole expense notice regarding the terms of the proposed Settlement Agreement. The Parties will prepare a notice plan for submission to the Court at the Fairness Hearing. III. EQUITABLE PROVISIONS The Parties agree that, conditioned upon entry of Final Approval, Defendants shall do the following in order to ensure an appropriate opportunity to fulfill the HSGQE graduation requirement for students with disabilities: A. Accommodations 1. The Commissioner will recommend regulations to the Board that will clarify and revise the information regarding the HSGQE in the “Participation Guidelines for Alaska Students in State Assessments” (“Participation Guidelines”) with respect to options for participation by students with disabilities. The information will include descriptions of the options for participation in the HSGQE by students with disabilities, the implication of each of the options, and the appeals process. The Department shall further clarify in the Participation Guidelines (and in any other publications or websites designed to provide information about accommodations on the HSGQE) that: a. the guideline concerning the use of a proposed HSGQE accommodation for three months prior to test in the classroom is a recommendation only and is not a requirement; b. any list (regulatory or otherwise) of approved accommodations published by the Department as a guide for school Districts shall not be deemed exclusive by the Department. With respect to any potential accommodation that is not on the “approved” list, the Department will provide IEP and 504 Plan teams with a checklist and/or guidelines with criteria to be used in determining if an accommodation is appropriate. 2. The Department shall work with Districts to ensure test security while allowing students with disabilities the opportunity to: a. take the HSGQE over the course of more than one day if necessary to accurately demonstrate proficiency on the HSGQE; and b. take the HSGQE at home, provided that, due to a disability, the student’s primary instruction location is the student’s own home. 3. IEP and 504 Plan teams shall meet in accordance with the timeline set forth herein. Plans for all students with disabilities shall be reviewed in their next annual IEP or 504 Plan review (and then at least annually thereafter) for the presence and appropriateness of accommodations to be used in the HSGQE. 4. In addition to other trainings described below in Section V.3, the Commissioner will recommend regulations to the Board that will require Districts to plan and make available training for parents of special education students in the ninth grade (freshman) regarding the HSGQE and the range of participation options for students with disabilities. The trainings shall occur in preparation for the student’s first HSGQE experience the spring of the student’s sophomore year. 5. The Department will broaden the current list of appropriate accommodations for students with disabilities and shall at least annually consider the appropriateness of other proposed accommodations that may arise. Districts retain the right to deny a requested accommodation on a case-by-case basis and provide the reasons or basis for the denial. 6. A student’s IEP or 504 Plan Team will initially determine whether a particular proposed modification for use on the Modified HSGQE will be helpful to a student on the Subtest(s) of the HSGQE which the student has not passed. The IEP or 504 Plan team will then apply to the Department for approval of the proposed modification. The Department will determine whether the benefit of the modification outweighs its potentially adverse effect on the validity of the test. In balancing the benefits against the potential drawbacks, the Department shall consider the effect of the proposed modification on an entire Subtest, not just on a single construct of that Subtest. B. Sequence of Testing 1. The Commissioner shall promptly recommend to the Board appropriate regulations concerning the alternative assessment program under the provisions of Alaska Statutes § 14.03.075(c) to implement the following procedure for accessing the HSGQE: a. If an eligible student fails to pass any subtests of the HSGQE, the student’s IEP or 504 Plan team shall determine whether the student should: i. retake those subtests of the HSGQE with other accommodations; or ii. take the Modified HSGQE for those subtests with appropriate accommodations and any of the modifications approved by the Department, including, but not limited to: 1. asking a test proctor for clarification of a test question, 2. sign language interpretation of test questions for a deaf student, 3. spell-checker on a word processor, 4. grammar checker on a word processor, 5. oral presentation (read-aloud) of test question (including recorded oral presentation), 6. graphing calculator, 7. dictionary or thesaurus, 8. math or writing resource guides, 9. voice recognition software and word processor, 10. asking test proctor for synonym of unknown word; or iii. take a non-standardized assessment instrument designed to measure competency in skills tested by HSGQE for whichever subtest(s) the student failed if the IEP or 504 Plan team certifies that the student meets the applicable qualifications (see Section III.C.1 below). C. Non-standardized Assessment Format that Leads to a Standard Diploma 1. The non-standardized assessment is reserved only for those diploma-track students who: a. are working at or near grade level; b. have a documented history of being unable to demonstrate proficiency on a standardized assessment because of one or more of the following conditions: (i) the student has a severe emotional or behavioral impairment or a pervasive developmental or other disability that causes the student to be unable to maintain sufficient concentration to participate in standard testing, even with accommodations or appropriate modifications; (ii) the student cannot cope with the demands of a prolonged test administration because of multiple physical disabilities, severe health-related disabilities, or a neurological disorder; (iii) the student has a significant motor, learning, or communication disability that causes the student to need more time than is reasonable or available for testing, even with the allowance of extended time. 2. The Department shall make available an appropriate non-standardized assessment using formats or a format that fairly assesses a disabled student’s mastery of state content standards and eligibility for a standard high school diploma. This non-standardized format: a. May be, but is not required to be, a student work portfolio that incorporates a review of a student’s work and/or classroom performance and/or grades over a period of time which demonstrates mastery of state content standards. b. May be, but is not required to be, a system of individualized assessment whereby a student’s IEP or 504 Plan team develops (with the oversight and approval of the Board or Department of Education) a system of assessment for that particular student that measures the student’s qualifications to obtain a high school diploma without directly assessing the student’s disability. 3. The Department will provide appropriate and thorough guidance and information to Districts, which will provide training to IEP teams, 504 teams, other instructional planning teams, parents, and students concerning this non-standardized assessment option leading to a standard high school diploma for students who qualify under this provision. D. Appeals of Accommodation and Modification Decisions 1. Parents of students with IEPs and 504 Plans may request that a District consult with the Department before a District rejects an accommodation or modification on the grounds that the accommodation or modification would make a test invalid. In response to such a request, the Department will provide to the District and parents a non-binding written statement regarding the accommodation or modification. The parent of a student with an IEP or 504 Plan may request mediation, a due process hearing, or a state complaint, consistent with state and federal law and regulations. In this type of an appeal, the procedure will be consistent with 4 AAC 52.550(g) and applicable federal law. The Parties also agree that the Department will issue a directive to all hearing officers that in these appeals, the hearing officers will make every reasonable effort to issue a decision as soon as possible but not later than 25 days. The Parties do not intend that the state shall have to adopt new regulations to implement this provision. IV. PHASE-IN PROVISIONS FOR CLASS OF 2005 1. For school year 2004-05 only, a District shall grant a waiver to a student with a disability who has an IEP or 504 Plan, is a senior, and has met all other requirements of graduation, and the student’s IEP or 504 Plan team does not meet on or before September 24, 2004, and because of the failure to meet, a. the student does not have two opportunities during the 2004-2005 school year to use an allowable modification that an IEP or 504 Plan team determines the student needs to demonstrate proficiency on the state assessment; or b. the student does not receive the non-standardized assessment for which the student is eligible during the 2004-2005 school year. 2. The parties acknowledge that the non-standardized assessment will be a new instrument and that training of personnel and development of this instrument will be evolving over the year. Therefore, it is appropriate that the non-standardized assessment be phased-in during the 2005 school year. To accomplish this, in 2005 only, the grading standards for the non-standardized assessment will be published as “interim standards,” which may not be as rigorous as the final standards. V. IMPLEMENTATION & REPORTING 1. Defendants shall take all necessary steps to implement the terms of this Agreement. The parties understand that implementation of this Agreement will require adoption of regulations by the Board, and that the Board will exercise its independent judgment in the best interests of the State when adopting regulations. The parties further understand that this Agreement does not purport to bind the Alaska State Legislature, and that a change in state or federal law may moot or otherwise obviate this Agreement. 2. The Department shall designate a State employee or official as the Facilitator responsible for collecting information concerning compliance with this Agreement, and producing the semi-annual reports referenced in Paragraph V.7 below. In addition to other duties, this or another qualified employee shall be assigned the duty to use independent judgment to monitor the defendants’ compliance with this Agreement. 3. The Department will provide notice and statewide trainings regarding the revisions to the HSGQE system under this Agreement for Districts. Specific notice of the terms of this Agreement will be sent to all Districts, with direction that the Districts provide notice to special education teachers, IEP and 504 Plan team members, special education directors, and parents of class members within 30 days of Final Approval that a copy of the Agreement is available for review or may be obtained upon request. 4. The Department shall develop appropriate forms for implementation of the terms of this Agreement. 5. The implementation of the terms of this Agreement shall proceed according to the following timeline: Issue Implementation Complete Accommodations Clarification/new edition of Participation Guidelines September 30, 2004 IEP/504 Plan team meetings to review accommodations/modifications for classes of 2005-06 for October 2004 administration. September 24, 2004, annually thereafter for subsequent classes IEP/504 Plan team meetings to review accommodations/modifications for class of 2007, and for class of 2006 if they have not already met in the current school year, for April 2005 administration January 1, 2005, annually thereafter for subsequent classes First wave of trainings for parents of students in ninth grade (Class of 2008) June 1, 2005 Review of accommodation validity research Ongoing Regulatory changes necessary to implement new accommodations procedure for October 2004 administration September 30, 2004 Non-Standardized Assessment Program Deadline for IEP/504 Plan teams to identify and certify students for non-standardized assessment program for March 2005 administration September 24, 2004, annually thereafter Development and availability of application and scoring guidelines for Non-standardized assessment program for assessing proficiency in HSGQE skills September 1, 2004 Appeals Process Appeals process established September 15, 2004 Other Implementation Designation of state implementation Facilitator Within 30 days of Final Approval Notice regarding terms of Settlement Agreement to all Districts. Within 30 days of Final Approval 6. This timeline assumes that Defendants are able to develop and implement the equitable provisions of this Agreement in a timely fashion. If any deadline involving implementation of the equitable provisions for the April 2005 testing date is not met before February 15, 2005, the Parties agree to meet and confer to determine (1) whether students will still have a fair opportunity to access the HSGQE in April 2005 and (2) whether this Agreement should be amended. 7. For a period of 30 months after Final Approval of this Agreement, the Department shall provide written reports on a semi-annual basis to Class Counsel regarding work performed to implement this Agreement. The reports shall detail (a) what steps the State has taken to comply with the Agreement since the last report, (b) whether the State has met the deadlines for implementation set forth in this Agreement, and if not, the extent to which such work has been completed and an explanation for any gaps, (c) what problems if any the State has encountered in complying with the Agreement, (d) what if anything the State plans to do to remedy these problems, and (e) any complaints and any responses to such complaints the State has received regarding the HSGQE with respect to students with disabilities. The first such report shall be due 180 days after the Final Approval of this Agreement. 8. Class Counsel shall receive the semi-annual reports required by this Agreement for purposes of monitoring the State’s compliance. Plaintiffs reserve the right to seek monitoring fees under any legal basis available under applicable law, and Defendants reserve the right to oppose Plaintiffs’ request for monitoring fees. To the extent that Defendants are liable for fees under this paragraph, those fees shall not exceed $10,000 per year. 9. In the event that Class Counsel concludes that there has been a significant pattern of violation of the terms of this Agreement, Class Counsel is not precluded from seeking fees and costs for increased monitoring by motion to the Court. 10. Monitoring of the implementation of this Agreement by Class Counsel shall continue for 30 months following the Final Approval. This Compliance Period may be extended by the Court only upon a showing of good cause. The Compliance Period may be either shortened or lengthened by agreement of the Parties or by order of the Court. VI. MEDIA The Parties agree to hold a joint press conference. VII. TERM OF THE AGREEMENT The term of this Agreement shall consist of the Compliance Period, as set forth in Paragraph I.E above. In addition, Defendants shall be required to submit a Final Report to Class Counsel within 60 days of completion of the 30 month Compliance Period. The complaint shall be dismissed with prejudice when all efforts referenced in Sections III, IV, and V are complete and the Final Report has been submitted. VIII. DISPUTE RESOLUTION 1. The Parties will attempt to resolve any claim of material violation of this Agreement through negotiation. An attempt at informal resolution, as described below, will be a prerequisite to any Party’s request for relief from the Court for an alleged violation of this Agreement. 2. The Court will retain jurisdiction solely for the purposes of enforcing compliance with this Agreement and adjudicating fees and costs if the Parties are unable to reach agreement. 3. Before relief is sought from the Court, the following process will be used by the Parties: Any Party claiming that a violation has occurred under this Agreement will give notice of the claim in writing to the other Parties and will propose a resolution of the issue to the other Parties. 4. The responding Parties will have twenty (20) days following receipt of the written claim to respond in writing, unless the period is enlarged by agreement of the Parties. 5. If the Party asserting the claim is dissatisfied with another Party’s response, or if no response is received, the Party asserting the violation may, after providing ten days written notice to the other Parties, submit the matter to mediation for a non-binding determination. If any Party is dissatisfied with the mediator’s determination, that Party may request relief from this Court. The mediator’s determination will be considered a recommendation to the Court. 6. In any dispute resolution procedure, attorneys’ fees and costs may be claimed under any legal basis available under applicable law. IX. RELEASES A. Releases By The Class In return for the consideration provided for in this Settlement Agreement, on the date of Final Approval, all Class Members, both individually and as a Class, shall release Defendants and their officers, directors, employees, attorneys, agents, and insurers (“Released Parties”) from any and all claims, liabilities, obligations, demands, and actions under the ADA, Section 504, IDEA, AS 14.03.075, AS 18.80.200 et seq., 4 AAC 06.775, or any other state or federal statutes or regulations, or the federal and Alaska constitutions, that were brought or could have been brought against the Released Parties for injunctive or declaratory relief relating to access to the HSGQE and implementation of AS 14.03.075 for students with disabilities. Notwithstanding any other term of this Agreement, this Release does not apply to (1) the validity of the HSGQE as a high stakes high school exit exam or (2) any and all issues of instructional validity, curricular validity, and opportunity to learn material tested by the HSGQE. Notwithstanding any other term of this Agreement, Plaintiffs do not release any claims related to the requirement, found in AS 14.03.075(c)(1), of failing the HSGQE once before accessing the Modified HSGQE and/or the non-standardized assessment. Plaintiffs reserve the right to challenge this requirement in judicial forums or though special education due process procedures available under federal law. B. Releases By Named Plaintiffs Named Plaintiffs Alexander Noon, Kendall Leibach, Douglas Mate, Tiana Lupie, Irene Takak, and Learning Disabilities Association of Alaska, in return for the consideration set forth in this Agreement, and except for the terms of this Agreement and subject to the exceptions in the foregoing paragraph, hereby release Released Parties from any and all claims, liabilities, obligations, demands, actions, and claims that were brought or could have been brought under the ADA, Section 504, IDEA, AS 14.03.075, AS 18.80.200, 4 AAC 06.775 or any other state or federal statutes or regulations, or the federal and Alaska constitutions against the Released Parties relating to access to the HSGQE and implementation of AS 14.03.075 for students with disabilities. X. ATTORNEYS’ FEES AND COSTS The Parties have not reached an agreement regarding attorneys’ fees and costs. Plaintiffs expressly retain the right to seek reasonable attorneys’ fees under any legal basis available under applicable law and will make an appropriate application to the Court within 45 days of Final Approval. Defendants reserve the right to object to all or any part of Plaintiffs’ request to recover attorneys’ fees and costs on any other basis, including, but not limited to, the reasonableness of rates and time spent. Failure of the Parties to resolve this issue does not invalidate any of the other provisions of the Settlement Agreement. XI. ORDERS AND DISMISSAL A. Continuing Jurisdiction The Court shall maintain jurisdiction over this lawsuit, including jurisdiction to enforce the terms of this Agreement for the duration of the Compliance Period and to resolve disputes over attorneys’ fees and costs. The Parties agree that the Court may delegate the determination of attorney’s fees and costs to a Magistrate Judge. B. Dismissal Within thirty business days after the submission of Defendants’ Final Report pursuant to Paragraph VII, Class Counsel shall provide to counsel for Defendants a signed form of Request for Dismissal with Prejudice. XII. MISCELLANEOUS A. Entire Agreement This Agreement contains the entire agreement between the Parties. No modifications or limits will be binding on the Parties unless expressly provided for in this Agreement or made by writing signed by all Parties. This Agreement expresses the complete and final understanding with respect to the subject matter of this Agreement. The Parties hereto understand and agree that the terms of this Agreement supersede any prior discussions, understandings, or agreements between them related to the subject matter hereof. B. Counterparts This Agreement may be executed in counterparts, each of which will be considered an original, but all of which, when taken together, will constitute one and the same instrument. C. Interpretation The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. The headings in this Agreement are solely for convenience and will not be considered in its interpretation. Where required by context, the plural includes the singular and the singular includes the plural. This Agreement is the product of negotiation and joint drafting so that any ambiguity shall not be construed against any Party. D. Additional Documents To the extent any documents are required to be executed by any of the Parties to effectuate this Agreement, each party hereto agrees to execute and deliver such and further documents as may be required to carry out the terms of this Agreement. E. Authority to Bind Roger Sampson, Commissioner of Education and Early Development, represents and warrants that he is authorized to sign on behalf of, and to bind, the State Defendants to this Settlement Agreement, which include himself, the Alaska State Board of Education and Early Development, and Richard Smiley, in his official capacity as an employee of the Alaska Department of Education & Early Development. Carol Comeau, the Superintendent of the Anchorage School District, represents and warrants that she is authorized to sign on behalf of, and to bind, the Anchorage School District to this Settlement Agreement. FOR PLAINTIFFS: Approved as to Form: DISABILITY RIGHTS ADVOCATES By:_____________________________________ Sid Wolinsky Attorneys for Plaintiffs DAVIS WRIGHT TREMAINE LLP By: ______________________________________ Joan Wilson Attorneys for Plaintiffs DISABILITY LAW CENTER OF ALASKA By: ______________________________________ David Fleurant Attorneys for Plaintiffs FOR DEFENDANTS: Approved as to Form: By: _______________________________ Roger Sampson Commissioner of Education and Early Development By: _______________________________ Carol Comeau Superintendent of the Anchorage School District ATTORNEY GENERAL FOR THE STATE OF ALASKA By: ______________________________ Gregg Renkes Attorneys for Defendants Noon v. Alaska State Bd. of Educ. & Early Dev., Case No. A04-0057 CV (JKS) Settlement Agreement i