MEMORANDUM

YVETTE KANE, Chief Judge.

The Court conducted a bench trial in the above captioned matter. The record is now closed, and the Court is prepared to render its judgment. This memorandum constitutes the Court's findings of fact and conclusions of law made pursuant to Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52(a)(1).

I. PROCEDURAL BACKGROUND

Plaintiffs commenced this action in this Court on August 4, 2006, naming the Commonwealth of Pennsylvania Department of Education and its Secretary, Gerald Zahorchak, as Defendants. (Doc. No. 1.) Plaintiffs filed an amended complaint on September 1, 2006 alleging violations of: (1) the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; (2) Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794; (3) Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; (4) the Equal Educational Opportunities Act of 1974 ("EEOA"), 20 U.S.C. § 1701 et seq.; and (5) the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV. (Doc. No. 4.) Defendants filed a motion to dismiss, which the Court denied on February 25, 2008, 547 F.Supp.2d 422 (M.D.Pa.2008). (Doc. No. 31.) On November 3, 2008, 2008 WL 4820474, the Court reconsidered the motion to dismiss and granted the motion as to Plaintiff G.J., concluding that Plaintiff G.J.'s claims must fail for lack of standing. (Doc. No. 55.) On September 29, 2009, 2009 WL 3182599, the Court certified two classes in this matter. (Doc. No. 133.) The first class consists of special-needs students attending Pennsylvania school districts that have a seventeen percent or higher enrolled population of special-needs students and a market/value personal income ("MV/PI") ratio of .65 or greater. The second class consists of Limited English Proficiency ("LEP") special-needs students attending schools with a ten percent or greater population of LEP students.1

On January 28, 2011, 2011 WL 318289, the Court granted in part and denied in part Defendants' motion for summary judgment and denied Plaintiffs' motion for summary judgment. (Doc. No. 190.) The Court held that insofar as Plaintiffs were pursuing relief against Defendant Zahorchak in his individual capacity, those claims were barred by the ADA and Section 504. In addition, the Court held that Plaintiffs' due process claim failed as a matter of law.

Trial in this matter was originally scheduled to commence on March 21, 2011. (Doc. No. 189.) However, during the pretrial conference, held on March 2, 2011, the Court continued trial and reopened discovery for the purpose of allowing Defendants to conduct depositions of some thirteen witnesses who were disclosed to Defendants for the first time in Plaintiffs' pretrial memorandum. (Doc. No. 206.) Following the close of the supplementary discovery period, the Court conducted a bench trial in the above captioned matter over the course of seven days between September 14, 2011, and September 23, 2011. The parties submitted amended proposed findings of law and conclusions of fact on January 23, 2012. (Doc. Nos. 276, 277.)

II. FINDINGS OF FACT

As was outlined briefly above, the instant matter is a class action suit challenging 24 P.S. § 25-2509.5, the Pennsylvania statute which apportions special education funding. Specifically, the classes of special education students allege that the funding formula results in an inequitable distribution of special education funds resulting in systemic violations of the IDEA, Section 504 of the Rehabilitation Act, the ADA, and EEOA. The following constitutes this Court's findings of fact.2

A. Challenged Funding Formula

1. Assumed Special Needs Population Component

2. MV/PI Component

C. Adequacy of Funding

1. Benchmarks

a. Augenblick Palaich Benchmark

b. Special Education Expenditures Project Benchmark

c. Ability to Meet Spending Benchmarks

2. Relative Funding Levels

3. Educational Outcomes

a. Pennsylvania System of School Assessment Scores

b. Alternate Placements

c. Graduation Rates

d. Highly Qualified Teachers

B. English Language Learners

D. School Districts

1. Reading School District

2. Lancaster School District

E. Named Plaintiffs

III. CONCLUSIONS OF LAW

Following summary judgment, four claims remain to be adjudicated by this Court: Plaintiffs' claims based on the IDEA, Section 504, the ADA, and the EEOA. The Court has made the necessary findings of fact. Accordingly, the Court will now apply the law to those facts and evaluate the merits of Plaintiffs' claims seriatim.

A. IDEA Claim14

In an effort "to ensure that all children with disabilities have available to them a free appropriate public education," 20 U.S.C. § 1400, the IDEA sets forth a federal grant program whereby states meeting certain requirements are eligible for federal funds to support special-education services. See 20 U.S.C. §§ 1411-1419. Such funding is contingent upon the state education authority establishing that it has policies and procedures in place to ensure, inter alia, that: (1) a free and appropriate public education is available to all children with disabilities in the state ("FAPE requirement"); (2) all children with disabilities in the state are identified, located, and evaluated ("child find requirement"); and (3) children with disabilities in the state, "to the maximum extent appropriate," are educated in the least restrictive environment, that is, with children who are not disabled and that children be placed in special classes, separate schooling, or removed to some other setting only when that child cannot be satisfactorily educated in a regular education class ("LRE requirement"). 20 U.S.C. § 1412(a).

In Plaintiffs' amended complaint, Plaintiffs allege that the Commonwealth of Pennsylvania's formula for allocating special-education funding to Pennsylvania's school districts, set forth at 24 P.S. § 25-2509.5, results in systemic deficiencies in the special-education programs in the class school districts. Specifically, Plaintiffs allege that the funding scheme results in violations of the IDEA's mandates regarding FAPE, child find,15 and LRE.16

1. Free Appropriate Public Education

The IDEA defines a FAPE as:

20 U.S.C. § 1401(9).

At the heart of the FAPE requirement is the mandate that an individualized education program ("IEP") must be developed for each disabled child. See, e.g., Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (describing the IEP as the "primary vehicle" for implementing a FAPE); Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 756 (3d Cir.1995) (describing the IEP as the "primary mechanism" for implementing a FAPE). "The IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential." Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir.2004). The IEP is developed by a team of specialists, in conjunction with the child's parents, and must include, inter alia, (1) a statement of the child's present level of educational performance; (2) a statement of measurable annual goals; (3) a description of how the child's progress will be measured; (4) a statement of special education and related services to be provided to the child; (5) an explanation regarding the extent to which the child will not participate with non-disabled children in regular educational programs; (6) a statement of testing modifications needed; and (7) projections regarding the initiation of services as well as their frequency, location, and anticipated duration. 20 U.S.C. § 1414(d); see also 22 Pa. Code § 14.131(a) (setting forth the Commonwealth of Pennsylvania's substantive IEP requirements).

In addition to requiring states to implement an IEP, the IDEA requires states to establish certain procedural safeguards for children with disabilities. Among these procedural safeguards is the requirement that the states provide an impartial due process hearing where parents may dispute changes to their child's IEP. 20 U.S.C. § 1415. At the due process hearing, parents must be given the "opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child." 20 U.S.C. § 1415(b)(6); see also 34 C.F.R. § 300.507(a)(1); 22 Pa. Code § 14.162. Moreover, any determination made at the due process hearing may be appealed to a second level of administrative review. 20 U.S.C. § 1415(i)(1).

The requirement that a school district provide a FAPE is not necessarily limited to the regular school year. Rather, in certain circumstances, a school district may be required to provide a child with an extended school year program. 34 C.F.R. § 300.106; 22 Pa. Code. § 14.132. Not all children with an IEP, however, are eligible for extended school year programs. Children are only eligible for an extended school year program if such a program is necessary to provide the child with a FAPE. 34 C.F.R. § 300.106(a)(2). Pennsylvania regulations require IEP teams to consider a number of factors in making this determination including: the extent to which the child regresses when not in school, the child's ability to recoup information following a regression, the child's ability to achieve IEP goals and objectives in the absence of such a program, the need to maintain an important skill or behavior that has been mastered at the time when the school year is scheduled to be interrupted, the importance of the skills learned, and the severity of the child's disability. See 22 Pa. Code. § 14.132(a)(2).

When considering an IDEA lawsuit based on the alleged denial of a FAPE, a court engages in a two-pronged inquiry. First, a court must consider whether the state has satisfied the IDEA's procedural requirements. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Second, the court must consider whether the child's IEP is reasonably calculated to enable the child to receive educational benefits. Id. In considering whether the substantive FAPE requirement has been met, the reviewing court must be cognizant of the fact that while the IDEA was designed to provide more than a de minimis educational benefit, the IDEA does not require that children with disabilities receive "the optimal level of services." Holmes ex rel. Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589-90 (3d Cir.2000) (quoting Carlisle Area Sch. v. Scott P. By and Through Bess P., 62 F.3d 520, 533-34 (3d Cir.1995)). Rather, the IDEA only requires that the IEP provide a "basic floor of opportunity." Id.; see also Rowley, 458 U.S. at 192, 102 S.Ct. 3034 (noting that "the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside"). The determination of an IEP's appropriateness must be made at the time the IEP is offered and not at some later date. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir.1993) ("Neither the statute nor reason countenance `Monday Morning Quarterbacking' in evaluating the appropriateness of a child's placement."). Of course, a court must also remember that the purpose of the IDEA is to ensure "that disabled students receive an appropriate education, not merely an appropriate IEP." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 250 (3d Cir.1999).

Plaintiffs allege that the Commonwealth of Pennsylvania's special education funding formula results in the systematic failure to provide FAPE in class school districts. (Doc. No. 4 ¶ 75.) Notably, Plaintiffs have not made any allegations that Pennsylvania's funding scheme has resulted in any procedural violations of the IDEA. As explained by Patricia Hozella, Defendants' expert on special education and special education monitoring and compliance, with regard to each Plaintiff the districts complied with the IDEA's procedural requirements, including notifying parents of their rights, having the parents participate in IEP meetings, inviting the parents to participate in IEP meetings, providing interpreters to parents who did not speak English as a first language, and revising IEPs as needed where children did not show improvement.17 Nor is there any evidence that the procedures provided for by the IDEA to challenge IEPs, such as due process hearings, are unavailable or inadequate — although the Court notes that none of the class Plaintiffs did avail themselves of these procedures. Plaintiffs have made some arguments regarding language barriers in the IEP process; however, there is no evidence of record to support such a finding. Indeed, all the evidence suggests that interpreters were available at each IEP meeting, that relevant documents were translated, that notices were provided in the parents' native language, and that all parents fully understood their procedural rights. Accordingly, Plaintiffs can only succeed on their claim of a systematic denial of FAPE if they are able to establish substantive denials of FAPE caused by funding shortfalls.

Upon a review of the evidence presented at trial, the Court must come to the conclusion that even assuming arguendo that Plaintiffs have established the denial of a FAPE for any single student, Plaintiffs have failed to establish that the funding formula was responsible for such denial of FAPE. Indeed, Plaintiffs failed to produce a single witness to testify that an IEP decision was ever based on a lack of available funding. On the contrary, individuals with personal knowledge of IEP meetings testified repeatedly that a determination of what service to provide was never made based on funding availability. For example, Linda Brown, director of special education for the York City School District, testified that when an IEP calls for a service, she does not deny the service and she does not consider money in making such determinations. (Tr. at 948:16-24.) Likewise, Carole Clancy, supervising coordinator for the special education for the Lancaster School District, testified that no person with fiscal responsibility has ever rejected a service at an IEP meeting and that funding changes have not impacted the services offered to students. (Tr. at 1024:14-18; 1030:6-12.) And Deborah Hartman, director of special education for the Allentown School District, testified that she did not consider funding when providing services, rather she stated that "we always went with the services first and then held our breath and looked at what the total was at the end of the day, because that's kind of how the law is about special education." (Tr. at 296:20-25.)

In the absence of any clear testimony or other evidence in the record that would support a finding that a child had been denied his or her right to a FAPE as a result of the Commonwealth of Pennsylvania's funding formula, the Court cannot conclude that the funding formula violates the IDEA by systematically denying students a FAPE. See, e.g., Quatroche v. E. Lyme Bd. of Educ., 604 F.Supp.2d 403, 412-13 (D.Conn.2009) (granting a motion to dismiss where plaintiffs failed to plead a causal connection between the alleged systemic violations and the challenged state action). To the extent the children in this action were denied a FAPE, and the Court has not reached this conclusion, the evidence presented could only support a finding that the denials of a FAPE were the result of problems with the components of individual programs rather than systemic violations and that in the specific cases presented to the Court, the problems either were, or could have been, remedied by taking advantage of the administrative procedures in place.18 See Doe v. Arizona Dep't of Educ., 111 F.3d 678, 681 (9th Cir.1997) (noting IDEA claims are not systemic where they involve only substantive complaints with programming components and if the administrative process is capable of correcting the problem); Beth V. by Yvonne V., 87 F.3d at 89 (noting that in cases where exhaustion is waived, plaintiffs must establish system-wide failures).

The Court does acknowledge the substantial evidence provided by Dr. Baker that certain educational outcomes for special education students in the class districts are worse than educational outcomes for special education students in non-class districts. The Court finds this information compelling, and indeed, the Court acknowledges that his findings would tend to support a hypothesis that children in schools with more available funding tend to achieve better results than students in schools with less available funding. The value of this evidence was limited, however, by Dr. Baker's inability to directly tie funding levels to a denial of FAPE. For example, while he was able to show that IEP students in class districts tended to do worse on PSSA tests than students in non-class districts, a student who fails to meet the state standards on a PSSA has not necessarily been denied a FAPE. Indeed, across Pennsylvania, an IEP student passing a PSSA is the exception rather than the rule, and the Court would be hard-pressed to contend that the majority of IEP students in the Commonwealth are denied a FAPE. The evidentiary value of Dr. Baker's findings is further undermined by the fact that, by his own calculation, for most of his findings, between 70 percent and 90 percent of the variation between students in the class districts and those outside the class districts is explained by factors other than funding levels.19

In sum, the Court recognizes that at least some educational disparities may be explained by funding levels. The Court has not, however, been tasked with determining whether Defendants have failed to equalize educational outcomes across the Commonwealth. Nor has the Court been tasked with resolving the more compelling issue of whether Defendants have failed to ensure that all IEP students across the Commonwealth have an equal likelihood of success. Within the IDEA, the Court is restrained to ask a more limited question, namely, whether Defendants' funding mechanism has caused Plaintiffs to be denied their statutory floor of opportunity, namely a FAPE. Plaintiffs have failed to provide evidence establishing systemic denials of FAPE and they have failed to provide evidence establishing the critical causal link between the Commonwealth's statutory funding scheme and the denial of FAPE. In the absence of such evidence, the Court cannot find that the Commonwealth's statutory funding scheme violates the IDEA's FAPE requirement.

2. Child Find

As a necessary corollary to the IDEA's requirements regarding the procedural and substantive rights of children with disabilities, the IDEA also imposes a child find requirement. The child find requirement mandates that states and local educational agency establish regulations and procedures to ensure that all children with disabilities are "identified, located, and evaluated" for eligibility for special education and related services. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; Anello v. Indian River Sch. Dist., 355 Fed.Appx. 594, 596 (3d Cir.2009); Richard S. v. Wissahickon Sch. Dist., 334 Fed. Appx. 508, 510-11 (3d Cir.2009). The child find requirement mandates that school districts identify and evaluate all students who are reasonably suspected of having an educational disability as understood by the IDEA. P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir.2009). To establish a procedural violation of the child find requirement, a plaintiff must establish that school officials overlooked signs of disability and were negligent in failing to order testing. Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir.2007). Even children who are only suspected of having a disability, although they are progressing from grade to grade, are protected by the child find requirement. 34 C.F.R. § 300.111(c). Pennsylvania codifies its "child find" duties at 22 Pa. Code §§ 14.121-14.125.

Plaintiffs' case regarding the child find requirement appears to be that the funding formula violates the IDEA because it creates a disincentive to identify students as eligible for special education. The trial record is utterly devoid of any evidence establishing systematic, or even isolated, violations of the IDEA's child find requirement.20 Nor did Plaintiffs make any effort to connect any such violation to the Commonwealth's special education funding formula. Plaintiffs can point to nothing beyond naked speculation about potential incentives. This cannot support a finding that the child find requirement was violated.

Contrary to Plaintiffs' bald speculation, Defendants have presented ample evidence to support a finding that the class districts are compliant with the child find requirement. For example, the uncontested testimony of Linda Brown, director of special education at the York City School District, established that the York City School District has in place practices designed to inform parents of students as well as the general public regarding services offered through the IDEA, the process for early identification of students, and the rights of parents under the IDEA. She also outlined procedures for identifying eligible students within the school as possibly being eligible for special education. Each of the other special education supervisors who testified similarly outlined extensive efforts those districts undertook to identify and evaluate special needs students. In the absence of any evidence that any school district committed a child find violation, or that any such violation was the result of the Commonwealth of Pennsylvania's special education funding formula, the Court cannot strike down the funding formula on this basis.

3. Least Restrictive Environment

The IDEA's LRE requirement mandates that:

20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.115 (requiring school districts to provide a continuum of alternate placements ranging from instruction in regular classes to instruction in hospitals as well as supplementary services to be provided in conjunction with regular class placement). In short, the LRE requirement creates a presumption in favor of integrating children with disabilities, "to the maximum extent appropriate," into regular education classes. See, e.g., A.G. v. Wissahickon Sch. Dist., 374 Fed.Appx. 330, 333 (3d Cir.2010); Cordero v. Pa. Dep't of Educ., 795 F.Supp. 1352, 1359 (M.D.Pa.1992).

Of course, while mainstreaming a child, that is, placing him in a regular education classroom, is a goal of the LRE requirement, it cannot be achieved uniformly, and indeed may in certain circumstances actually violate the IDEA. See, e.g., Capistrano Unified Sch. Dist. v. Wartenberg By & Through Wartenberg, 59 F.3d 884, 897 (9th Cir.1995) (holding that where separate teaching would produce superior results to mainstreaming, mainstreaming is neither appropriate nor satisfactory). To that end, the Third Circuit has crafted a two-part test to determine whether a school district is complying with the LRE requirement: (1) a court must determine whether education can be satisfactorily achieved in a regular education classroom with the aid of any accommodations; and (2) if it cannot, a court must determine whether the child has been mainstreamed to the maximum extent possible in his alternate placement. Wissahickon Sch. Dist., 374 Fed.Appx. at 333 (quoting Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 (3d Cir.1993)). Plaintiffs contend that Pennsylvania's special education funding scheme violates the IDEA by creating an incentive for class school districts to educate students in overly restrictive environments, thus resulting in the class school districts systematically violating the LRE requirement. (Doc. No. 4 ¶ 76.) In support of this claim Plaintiffs rely in part on anecdotal evidence from the class Plaintiffs and in part on a statistical survey conducted by their expert Dr. Bruce Baker.

Regarding the evidence proffered by Dr. Baker, the Court finds that it cannot support a finding of an IDEA violation based on the LRE requirement. Dr. Baker identified an approximately three percentage point difference between the percentage of students placed in restrictive settings in class districts as opposed to students placed in restrictive settings in non-class districts. The formula does not, however, establish that the placements of students in the class districts was inappropriate. As has been noted, restrictive placements in and of themselves do not establish that the LRE requirement has been violated. Wartenberg, 59 F.3d at 897. Dr. Baker has not provided any information regarding whether the class school districts have failed to provide "a continuum of alternative placements to meet the needs of handicapped children." See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir.2006) (quoting 34 C.F.R. § 300.551(a)) (reviewing the factors a court must consider in determining whether a school district has failed to meet the LRE requirement); Cordero, 795 F.Supp. at 1352 (concluding that Pennsylvania's "approved private school system" for educating special education students violated the IDEA by failing to make available a continuum of placement options). Nor has Dr. Baker compared the supplementary aids and services provided by the districts to determine whether the district has the support systems in place to mainstream children to the maximum extent possible. Id. (quoting Oberti, 995 F.2d at 1214). In sum, Dr. Baker's findings show that children with disabilities are slightly more likely to be placed in restrictive environments in class districts than non-class districts. The findings are silent, however, as to whether these placements are appropriate or whether the districts have the resources they need to comply with the LRE requirement.

Even if the data were an accurate measure of LRE compliance, however, the Court must note the limited value of Dr. Baker's data. Dr. Baker has found that on average 4.3 percent of special education students in class districts with more than 5,000 are placed in alternative education, while 1.4 percent of special education students in non-class districts with more than 5,000 students are placed in alternative education. (Pl. Ex. 31.) Although less than clear from the exhibit, there appear to be approximately twelve class districts represented on Dr. Baker's chart. All but two of those class districts fall somewhere between zero and five percent. The Reading School District appears to fall just barely above five percent, whereas the Harrisburg City School District falls above fifteen percent. Accordingly, if one were to disregard the Harrisburg City School District, which is a significant outlier district, all of the class and non-class districts fall between approximately zero and five percent, with most appearing to fall between what the Court estimates to be approximately the two-percent and three-percent mark on the vertical axis. Given that the non-class districts fall between zero and five percent, with most falling between zero and three percent, the Court would be hard pressed to conclude that there were significant differences between the non-class and class districts sampled in the exhibit.

In addition, the Court observes that of the 501 school districts in Pennsylvania, only a small sample are included in Plaintiffs' Exhibit 31. Plaintiffs do not argue that the data regarding districts with an enrollment exceeding 5,000 students is representative of all 501 school districts in the Commonwealth or that the data regarding the class districts included in the exhibit are representative of all class districts. Accordingly, even if the exhibit did show significant differences between the listed class and listed non-class districts, the data would not support a finding that the funding scheme violates the LRE requirement.

The remaining evidence provided by Plaintiffs in support of individual LRE violations is similarly unpersuasive. Although witnesses such as Dr. Richardson testified that students were denied placements, Plaintiffs did not support that testimony with evidence that those placements were denied because of funding shortfalls or that those placements were appropriate for the children in question. Further, as was noted in the previous sections, to the extent any children were not placed in the correct educational setting, Plaintiffs have not produced evidence linking the cause of any unlawful educational placement to the Commonwealth's special education funding formula.

Plaintiffs have produced evidence showing that the rates of restrictive placements in certain types of schools tend to be slightly higher in the class districts than the non-class districts. They have not, however, produced any evidence linking the Commonwealth's statutory funding formula to class school districts unlawfully placing students in more restrictive educational placements. In short, even if the Court were to give Plaintiffs the benefit of every doubt, at best Plaintiffs would only be able to establish that, in a subset of schools, there may be a correlation between restrictive placements and special education funding levels. However, in the absence of any evidence establishing that those placements violated the IDEA, that the alleged IDEA violations were systematic in the class districts, or that the funding formula was the cause of the systematic IDEA violations, the Court cannot invalidate the Commonwealth's statutory funding model. Accordingly, on this claim, the Court must find for Defendants.

B. Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act Claims

The same standards govern both the Section 504 and ADA claims, thus the Court will address Plaintiffs' claims raised pursuant to these statutes in tandem. Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir.2009); McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir.1995); Schorr v. Borough of Lemoyne, 243 F.Supp.2d 232, 235 n. 1 (M.D.Pa.2003). Section 504 provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance (4)27" 29 U.S.C. § 794(a). Likewise, the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. In order to establish a violation of Section 504 or the ADA, a plaintiff must prove that "(1) he is `disabled' as defined by the Act; (2) he is `otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school."21 Ridgewood, 172 F.3d at 253.

Section 504 and the ADA are closely related to the IDEA. P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir.2009). For example, the Rehabilitation Act's regulations adopt the IDEA's FAPE requirement providing that with respect to public education services, a qualified handicapped person is a person "to whom a state is required to provide a free appropriate public education under [the IDEA]." 34 C.F.R. § 104.3(l)(2). To that end, while the IDEA is couched in an affirmative duty to provide a FAPE, Section 504 and the ADA achieve, in essence, the same end by prohibiting entities from denying a FAPE to qualified individuals. Andrew M. v. Del. Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir.2007) (explaining that "violations of Part B of the IDEA are almost always violations of the [Rehabilitation Act]"); W.B. v. Matula, 67 F.3d 484, 492-93 (3d Cir.1995) ("There appear to be few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition.").

In the present action Plaintiffs have presented a moving target of allegations regarding their Section 504 and ADA claims.22 However, the gravamen of their Section 504 and ADA claims, namely that they have been denied access to educational opportunities, are based on the same allegations and theories that underlie their IDEA claims. Because Plaintiffs have failed to establish a violation of the IDEA, and because the Section 504 and ADA claims are inextricably linked to the IDEA claims, the Court cannot find that Plaintiffs have established a violation of Section 504 or the ADA. See, e.g., Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1246 (10th Cir.2009) (noting "that complying with the IDEA is sufficient to disprove educational discrimination"); Melissa S. v. Sch. Dist., 183 Fed.Appx. 184, 189 (3d Cir.2006) (concluding that summary judgment was warranted as to a Section 504 claim where the court had previously found summary judgment was warranted as to an IDEA claim based on the same underlying allegations); N.L. v. Knox County Schs., 315 F.3d 688, 696 (6th Cir. 2003) ("In sum, precedent has firmly established that Section 504 claims are dismissed when IDEA claims brought on the theory of a denial of free appropriate public education are also dismissed.").23 Accordingly, the Court must find for Defendants on these claims

C. Equal Educational Opportunities Act Claims

The EEOA prohibits the denial of "equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by ... the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." 20 U.S.C. § 1703(f); Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 2588, 174 L.Ed.2d 406 (2009). The EEOA defines "educational agency" as both a local educational agency and a "state educational agency" as that term is defined in the Elementary and Secondary Education Act of 1965. Id. 20 U.S.C. § 1720(a). The Elementary and Secondary Education Act of 1965, in turn defines "state educational agency" as "the agency primarily responsible for the State supervision of public elementary schools and secondary schools." 20 U.S.C. § 7801(41). In Pennsylvania, the Pennsylvania Department of Education has retained this responsibility. See, e.g., Hendricks v. Gilhool, 709 F.Supp. 1362, 1368 (E.D.Pa.1989).

Plaintiffs contend that because the Commonwealth's special education funding formula, codified at 24 P.S. § 25-2509.5, fails to take into account the needs of schools with high concentrations of non-native language speakers, the formula constitutes a failure on the part of the Commonwealth to take appropriate action to overcome language barriers. That is, Plaintiffs contend that the funding formula violates the EEOA because it fails to provide for the extra expense of providing services to students who are both LEP and special-education students. This Court previously adopted the standard articulated by the United States District Court for the Northern District of Illinois and held that to establish an EEOA violation, Plaintiffs must establish: "(1) language barriers; (2) defendant's failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students' equal participation in instructional programs." See Leslie v. Bd. of Educ., 379 F.Supp.2d 952, 960 (N.D.Ill. 2005).

The Court is satisfied that Plaintiffs have established the existence of language barriers. The relevant class of Plaintiffs is comprised of individuals whom the local educational agencies have already classified as LEP and Plaintiff has offered credible and compelling testimony regarding the challenges faced by certain of their class members. Where Plaintiffs' EEOA claim necessarily fails, however, is the second and third elements, namely, the failure to take appropriate action and resulting impediments to the students' equal participation in instructional programs.

Congress granted the states broad discretion in determining which programs and techniques should be implemented to satisfy the EEOA's requirement to take "appropriate action to overcome language barriers." Horne, 129 S.Ct. at 2589 (quoting Castaneda v. Pickard, 648 F.2d 989, 1009 (5th Cir.1981)). Pursuant to the rubric formulated by the Fifth Circuit in the leading EEOA case, Castaneda v. Pickard, when evaluating whether a particular language program constitutes an "appropriate action" under 20 U.S.C. § 1703(f), a reviewing court must determine whether: (1) "a school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy;" (2) "the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school;" and (3) the program, "after being employed for a period of time sufficient to give the plan a legitimate trial ... produce[s] results indicating that the language barriers confronting students are actually being overcome." 648 F.2d 989, 1009-10 (5th Cir.1981); see also Valeria G. v. Wilson, 12 F.Supp.2d 1007, 1017-18 (N.D.Cal.1998) (applying the Castaneda standard).

Plaintiffs in the present matter do not, however, actually challenge the appropriateness of any particular educational program. Rather, they allege that the special education funding formula's failure to account for LEP students is ipso facto a violation of the EEOA. Plaintiffs theory, however, is squarely foreclosed by the Supreme Court's holding in Horne v. Flores. In that case, the Supreme Court noted that although funding is necessary to implement "appropriate action" as required by the EEOA, "funding is simply a means, not the end." Horne, 129 S.Ct. at 2597. Accordingly, the Supreme Court held that "requiring [a state] to demonstrate `appropriate action' through a particular funding mechanism" is impermissible. Id. Plaintiffs have not identified any action taken by the Commonwealth other than implementing the special education funding formula which they allege ran afoul of the EEOA. Because the EEOA's "appropriate action" requirement neither "require[s] any particular level of funding" nor "require[s] that the money come from any particular source," id. at 2605-06, the Court cannot invalidate the special education funding formula on the grounds that it is not the source of funding for ESL programming.

Moreover, even if the Court were permitted to mandate that a state provide funding for ESL programming from specific sources, Plaintiffs have produced little evidence in support of their claim that the funding formula resulted in an impediment to LEP special education students' equal participation in instructional programming. While certain witnesses have expressed concerns regarding the availability of bilingual teachers and instructional material, Plaintiffs have not linked these shortages in the ESL programs to the Commonwealth's special education funding formula or to any deficiency in any Commonwealth program or practice. Further, at various points in this litigation Plaintiffs have made arguments regarding the ability of the local school districts to provide Spanish-language interpreters and psychologists to conduct evaluations. The evidence produced at trial, however, suggests these services are in fact being provided.

In sum, Plaintiffs' complaint alleges that the Commonwealth's special education funding formula violates the EEOA because it fails to account for LEP students. This alone does not support a finding that the EEOA was violated. Now, Plaintiffs ask this Court to direct the Commonwealth to mandate that funding for particular ESL services be provided by a particular funding source. The EEOA neither requires nor permits the Court to do so. Even if the EEOA did permit the Court to refashion a state special education budget, Plaintiffs have failed to produce evidence to support a finding that the formula prevents schools from hiring Spanish-speaking counselors and translators or providing ESL services to LEP students. Accordingly, the Court may not invalidate the funding formula on this basis, and Plaintiffs' EEOA claims must fail.

III. CONCLUSION

Plaintiffs have demonstrated that the special education programs available in the class districts fall far short of compensating for the serious disadvantages and barriers that impede the progress of thousands of the Commonwealth's children. If, as was observed by Horace Mann, "[e]ducation... beyond all other devices of human origin, is a great equalizer of the conditions of men," Horace Mann, Twelfth Annual Report to the Massachusetts State Board of Education (1848), by a number of different metrics, the special education system in Pennsylvania is failing to fulfill its promise and requires thoughtful examination and reevaluation. Plaintiffs' legal challenge, however, required them to not merely identify the obvious deficiencies in the quality of special education in the Commonwealth's low-income schools. Rather, they faced the heavier burden of establishing that these deficiencies rise to the level of systemic statutory violations and that such violations were the result of the Commonwealth's special education funding formula. Plaintiffs failed to satisfy their burden on both counts. Regarding their IDEA claims, Plaintiffs showed that certain outcomes were different, but they failed to show that those differing outcomes were IDEA violations or, to the extent IDEA violations did occur, that those violations were the result of the Commonwealth's funding formula. The Section 504, ADA, and EEOA claims failed for similar reasons. Ultimately, Plaintiffs have presented a compelling argument for effecting a change in policy. Under our system of government, however, it is the duty of the people and their elected representatives to effect such change. As was explained by Chief Justice John Roberts:

Nat'l Fed. of Indep. Bus. v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Plaintiffs have raised serious questions about the impact of the Commonwealth's special education funding formula on the quality of special education in Pennsylvania, yet they have been unable to establish that the formula violates any federal statute. Accordingly, the Court is compelled to enter judgment in favor of Defendants on all claims remaining in this action.

ORDER

NOW, on this 23rd day of August 2012, IT IS HEREBY ORDERED THAT the Court finds in favor of Defendants on all remaining claims. The Clerk of Court is directed to enter judgment in favor of Defendants and close the case.