Opinion
Civil Action No. 98-1333 Section "N"
June 11, 2001
ORDER AND REASONS
Before the Court is Plaintiff Ericka Barber's Appeal of IDEA Claims. For the following reasons, the State Level Review Panel's decision is AFFIRMED and Ericka's IDEA claims and appeal are DISMISSED.
I. BACKGROUND .
At all times giving rise to the instant appeal, Ericka Barber was a special education student at the Bogalusa City High School. Presently at issue are whether the Defendants, state and local educational agencies, complied with the procedural requirements established by the Individuals with Disabilities Education Act, or "IDEA", 20 U.S.C.A. § 1400 et. seq., in developing Ericka's May 19, 1997 Individualized Education Program, or "IEP", and whether that IEP was reasonably calculated to enable Ericka to receive educational benefits. An Independent Hearing Officer found that the school board had failed to comply with the IDEA, but a State Level Review Panel partially reversed that decision, and Ericka appeals to this Court.
Although not completely blind, Ericka has profoundly diminished vision. She can only see objects very close to her and even then requires tremendous assistance, such as a "reading machine" that magnifies text. Her May 19, 1997 IEP identifies Ericka's primary (and only) exceptionality as "Visually Impaired O[ccupational] T[herapy]."
The May 19, 1997 IEP was formulated following an IEP meeting held that day and attended by Ericka's mother, Edith Barber, Ericka's special education teacher for the 1996-97 school year, Janice Osby, and the Bogalusa City High School principal, James Rayborn. In formulating the IEP, its primary author, Ms. Osby, considered, among other things, the previous year's IEP and a March 9, 1995 Reevaluation Report, which classified Ericka as "Visually Impaired" and recommended three related services — occupational therapy, physical therapy and adaptive physical education.
Several other school personnel also signed off on the IEP, though it appears that they did not attend the IEP meeting.
The IEP states that Ericka should receive occupational and physical therapy but does not provide much detail as to what these therapies should entail. It identifies three curriculum need areas — language arts, self-help/academic and motor — and provides several short-term objectives for each, but does not identify math as a need area. It states that Ericka should receive numerous modifications in the regular classroom setting, including a tape recorder, auditory aides, and large print/braille (the record indicates that the school used large print rather than braille at the parents' request). It also provides that Ericka will be given an alternative educational placement in which she will pursue a "Certificate of Achievement" rather than a regular diploma or GED. Attached to the IEP is an Individual Transition Plan, or "ITP", which describes transition planning, or the inapplicability of such planning in light of her situation, in eleven areas.
Ericka's mother signed and approved both the IEP and IEP at the May IEP meeting. But on July 29, 1997, Ericka's mother, through an attorney, requested a due process hearing, claiming that Ericka had been denied an appropriate education. Although the letter contains a laundry list of state and federal laws allegedly being violated by the Bogalusa School Board, the vast majority of Ms. Barber's complaints relate to "the lack of handicap accessible facilities at Bogalusa High School." The due process hearing was conducted on October 7, 1997 by an Independent Hearing Officer, or "IHO." Ericka's attorneys made opening and closing statements and called ten witnesses. Much, and perhaps most, of their arguments and elicited testimony concerned the school's facilities, fire drill plans, the location of Ericka's classes, the presence (or absence) of an adult aide, and bus logistics. The school's attorney called two witnesses.
Indeed, one of Ericka's attorneys stated during the due process hearing, "this hearing revolves very much around handicapped accessibility." Tr. p. 376.
On November 2, 1997, the IHO rendered his decision. The IHO found that the IEP was deficient in several ways. Most importantly, he found the IEP inadequate for failing to provide occupational therapy, physical therapy and adaptive physical education "with particularity." The IHO faulted the IEP for not setting forth "the appropriate program for the child during each minute of the day" and suggested that an adult aide, a computer, and other measures could assist Ericka's education. The IHO ordered the school system to convene a new IEP meeting to "revise and/or amend [Ericka's] IEP consistent with those recommendations contained in prior Evaluation o[r] Reevaluation Reports" and in light of his own recommendations. As to the accessibility issues, the IHO noted that school personnel had begun the process of remedying the problems identified in the July 29, 1997 notice of due process letter and ordered them to continue doing so.
The Bogalusa School Board appealed the IHO's decision to the Louisiana State Level Review Panel, or "SLRP." The SLRP reviewed the evidence and concluded that the IHO "was incorrect in some of his conclusions." The SLRP found that "[t]here was some testimony as to the complaints of both physical therapy and occupational therapy but none of this testimony indicated the services provided were not adequate." Similarly, the "question of whether or not an adult full time aide was necessary is not indicated by the testimony presented." The SLRP determined that the IEP appeared calculated to provide some educational benefit to Ericka and that she was, indeed, making progress. Nonetheless, the SLRP agreed with the IHO that "an I.E.P. conference to address the suggested services", including the availability of a computer, "should be done immediately." The SLRP gave the parties 30 days from the receipt of its decision, dated January 14, 1998, to confect a new IEP. Evidence submitted by the Bogalusa City School Board indicates that a new IEP was, in fact, promulgated on February 13, 1998. Ericka does not appear to challenge the adequacy of this IEP.
On May 13, 1998, Ericka's parents, individually and on Ericka's behalf, filed the instant suit. Among several claims, Ericka appeals the SLRP's decision concerning her IDEA claims. Ericka argues that she has been denied a free appropriate public education under the IDEA because the May 19, 1997 IEP was not reasonably calculated to enable her to receive educational benefit, she has not received any such benefit, she was denied transition services, and the SLRP acted partially and failed to consider the entire record.
II. LAW AND ANALYSIS .
The IDEA provides for special education and related services to those children with disabilities who qualify for its protections. The IDEA defines the term "children with disabilities" with two prongs. "The first prong includes those suffering from a long list of handicaps and `other health impairments' such as asthma, 20 U.S.C. § 1401 (a)(1)(A)(i); see also 34 C.F.R. § 300.7 (b)(8), and, the second prong includes those, `who, by reason thereof, need special education and related services.' 20 U.S.C. § 1401 (a)(1)(A)(ii)." Babicz v. School Bd. of Broward County, 135 F.3d 1420, 1422, n. 10 (11th Cir.), cert. denied, 525 U.S. 816, 119 S.Ct. 53, 142 L.Ed.2d 41 (1998). Here, the parties do not dispute that Ericka is entitled to special education and related services; the dispute is whether she has received her entitlements.
The IDEA requires that a child with disabilities receive a free appropriate public education. A "free appropriate public education consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The free appropriate public education is tailored to the particular needs of the child by the creation of an individualized education program, or IEP. See Rowley, 458 U.S. at 181. The IEP is a written statement, prepared during a meeting between representatives of the school system, the parent or guardian, the child, and other professionals, which details the present level of the child's educational performance, future goals and objectives for the child, specific services the child is to receive, and a plan for measuring the child's annual progress toward achieving the desired goals. See id. at 182; 20 U.S.C. § 1414 (d).
See also 20 U.S.C. § 1401 (8):
The term "free appropriate public education" means special education and related services that —
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
The IDEA "establishes a comprehensive system of procedural safeguards" designed to ensure that local school systems provide disabled students with free appropriate public educations. Honig v. Doe, 484 U.S. 305, 308, 108 S.Ct. 592, 596, 98 L.Ed.2d 686 (1988); see also Rowley, 458 U.S. at 205 (noting "the elaborate and highly specific procedural safeguards embodied in § 1415" of the IDEA). Among these safeguards, the parents of the disabled child must be provided with "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child". 20 U.S.C. § 1415 (b)(6). "Whenever a complaint has been received under subsection (b)(6) . . . of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency." 20 U.S.C. § 1415 (f)(1). The IDEA permits an appeal of the findings and decision made at the due process hearing to the State educational agency, which must conduct an "impartial review of such decision" and "make an independent decision upon completion of such review." 20 U.S.C. § 1415 (g).
After exhausting state administrative remedies, an aggrieved party may bring a civil action in federal district court to contest the state level decisions. See 20 U.S.C. § 1415(i)(2)(A). "When a federal district court reviews a state hearing officer's decision in an impartial due process hearing under the IDEA, the court must receive the record of the administrative proceedings and is then required to take additional evidence at the request of any party. Although the district court must accord `due weight' to the hearing officer's findings, the court must ultimately reach an independent decision based on a preponderance of the evidence. Accordingly, the district court's `review' of a hearing officer's decision is virtually de novo." Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997), cert. denied, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998); see also 20 U.S.C. § 1415(e)(2).
The court's inquiry in suits brought under the IDEA is limited to two questions:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?Rowley, 458 U.S. at 206-207 (footnotes omitted). The "free appropriate public education . . . need not be the best possible one, nor one that will maximize the child's educational potential; rather, it need only be an education that is specifically designed to meet the child's unique needs, supported by services that will permit him to benefit from the instruction." Cypress-Fairbanks, 118 F.3d at 247 (citing Rowley 458 U.S. at 188-89).
The court "must be careful to avoid imposing [its] view of preferable educational methods upon the States." Rowley, 458 U.S. at 207. Indeed, the IDEA creates a presumption in favor of the local school district's educational plan for the child. See Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 132 (5th Cir. 1993). Parties challenging the plan bear "the burden of showing why the educational setting established by the IEP is not appropriate." Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1291 (5th Cir. 1991) (quoting Tatro v. Texas, 703 F.2d 823, 830 (5th Cir. 1983), aff'd, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984)).
A. Procedural Compliance .
Ericka alleges that Bogalusa school personnel committed numerous procedural violations in developing and reviewing her May 19, 1997 IEP.
1. Deficiencies in the May 19, 1997 IEP .
Ericka contends that the development of the May 19, 1997 IEP was procedurally deficient in a myriad of ways, all of which resulted in her being denied a free appropriate public education. The IHO appears to have agreed with Ericka on several points. Most notably, the IHO faulted the IEP for failing to provide occupational therapy, physical therapy and adaptive physical education "with particularity", and also found it deficient for failing to provide certain forms of assistive technology. The SLRP appears to have agreed that there were deficiencies in the way the IEP was written, but not in the actual services provided, and, therefore, disagreed that the deficiencies resulted in a denial of a free appropriate public education.
The Court agrees that neither the process of developing the IEP nor the written product were ideal. Nonetheless, as discussed below, the Court finds that the Defendants complied adequately, though not perfectly, with the IDEA's requirement and that any procedural madequacies that might have existed did not result in the loss of educational opportunity. See Buser v. Corpus Christi Indep. Sch., 51 F.3d 490, 493 (5th Cir. 1995) ("Adequate compliance with the procedures will, in most cases, assure the disabled child's substantive right to free appropriate public education has been met.") (citing Rowley, 458 U.S. at 206); W.G. v. Board of Trustees of Target Range, 960 F.2d 1479, 1484 (9th Cir. 1992) ("Procedural flaws do not automatically require a finding of a denial of a FAPE. However, procedural madequacies that result in the loss of educational opportunity, or seriously infringe the parents' opportunity to participate in the IEP formulation, clearly result in the denial of a FAPE.") (citations omitted); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990) (minor procedural faults did not amount to denial of free appropriate public education).
a. Failure to Provide Related Services .
Ericka first argues that she did not receive appropriate related services. Under the IDEA, the term "related services" means "transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as maybe required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children." 20 U.S.C. § 1401 (22). The IDEA requires that the IEP contain a written "statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child. . . ." 20 U.S.C. § 1414 (d)(1)(A)(iii). It further requires that the IEP include "the projected date for the beginning of the services . . . described in clause (iii), and the anticipated frequency, location, and duration of those services. . . ." 20 U.S.C. § 1414 (d)(1)(A)(vi).
The Court finds by a preponderance of the evidence that the school personnel adequately complied with these procedural requirements with respect to occupational therapy, physical therapy and adaptive physical education. Under a caption entitled "Related Services" on the first page, the May 19, 1997 IEP states that Ericka should receive both occupational and physical therapy for 30 minutes a day, 2-4 times per month, in individual and group settings, for the entire school year. In addition, the third page states that Ericka "receives adaptive P.E. alone [sic] with therapy (physical)", and the fourth page states that an "Adapted Physical Educator" would be among those responsible for implementing Ericka's motor skills goals. Moreover, the record shows that physical therapy and adaptive physical education were provided. Ms. Osby testified that Ericka's therapist filled out the "Related Services" section of the form, see Tr. p. 285, and Patricia Hoffman testified that she provided Ericka with physical therapy approximately once a week in April and May of 1997 with an emphasis on gross motor skills, including improving the use of her left hand and navigating the school's hallways and stairs. See Tr. pp. 305, 311 317.
The Court is unpersuaded by the IHO's finding that the IEP lacked sufficient "particularity" with respect to these services. Similarly, the testimony of two witnesses, Patricia Hoffirian and Theresa Westmoreland (Ericka's teacher for the 1997-98 school year), that the IEP would have been better if it contained additional sections for occupational and physical therapy does not demonstrate a procedural violation.
b. Improper Goals .
Ericka challenges the Defendants' compliance with the IDEA's goals requirement. The IDEA requires that an IEP include a written "statement of measurable annual goals, including benchmarks or short-term objectives, related to — (1) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and (II) meeting each of the child's other educational needs that result from the child's disability". 20 U.S.C. §
Ericka's argument that her May 19, 1997 IEP contains no goals to be achieved in her language arts curriculum need area is contradicted by page three of the IEP, which sets forth goals to be achieved in her language arts curriculum need area.
Her argument that the May 19, 1997 IEP improperly set forth goals she had already mastered instead of goals she was meant to achieve has some force because of Ms. Osby's rather confusing testimony about how she formulated Ericka's goals. Her argument is somewhat contradicted by the IEP itself, however, which lists a prospective May 1998 achievement date for the goals. In addition, Ericka is correct that the May 19, 1997 IEP failed to set forth goals in the math curriculum need area. However, the evidence overwhelmingly shows that Ericka was, in fact, receiving instruction in math, and Ms. Osby attributed the lack of a math goals section to the math teacher's failure to submit an IEP form to her. See Tr. pp. 292-93.
Even though math goals were omitted, and even assuming that the goals that were included were improperly formulated, it would appear that these problems have been remedied pursuant to the SLRP's order to develop a new IEP. The resulting IEP contains math goals, as well as much greater detail in all goal areas, and Ericka has not challenged their appropriateness. See Bogalusa App. Ex. C. Moreover, Ericka has not demonstrated any entitlement to any further relief in this area. See Target Range, 960 F.2d at 1484; Denton, 895 F.2d at 982; Evans v. District No. 17 of Douglas County. Neb., 841 F.2d 824, 831 (8th Cir. 1988) (noting that school districts may be required to perform a reevaluation or reimburse expenses incurred as a result of a violation).
c. Failure to Account for Every Minute of the Day .
Ericka argues, and the IHO found, that the May 19, 1997 is deficient because it fails to set forth the appropriate program for Ericka for each minute of the day. However, this does not appear to be a requirement of the IDEA, and the case cited by the IHO does not support this proposition. Indeed, it would seem neither possible nor desirable for the IEP to account for each minute of each day, as such a rigid accounting would deny Ericka's teachers the flexibility to meet her needs on a day-to-day basis. It is true that the IEP accounts for only 180 minutes of time per day for special classes, direct services, and related services, even though Ericka's total instructional day consists of 360 minutes. The IDEA, however, does not require that every minute of the school day be devoted to these endeavors; each IEP is individualized to the needs of each disabled child, some of whom might need more than 180 minutes of special education, some of whom might need less. Ericka has not shown that 180 minutes per day is inappropriate or that the failure to account for the remaining 180 minutes resulted in a loss of educational opportunity.
d. Failure to Provide Transition Services .
Ericka contends that she "never received transition services from the defendants." Pl. App. Br. p. 13. The IDEA requires that the IEP for children such as Ericka contain a statement of transition service needs that focuses on an appropriate course of study and includes a statement of any interagency responsibilities. See 20 U.S.C. § 1414 (d)(1)(A)(vii). The IDEA defines "transition services as "a coordinated set of activities for a student with a disability that — (A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (included supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based upon the individual student's needs, taking into account the student's preferences and interests; and (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation." 20 U.S.C. § 1401 (30).
The administrative record does not support Ericka's claim. The May 19, 1997 IEP contains an "Individual Transition Plan," and the record contains no evidence that the school planned to disregard it. In fact, the issue of transition services was largely ignored at the due process hearing, as reflected in the IHO and SLRP decisions. Despite identifying transition services as an issue presented, the IHO did not address the issue, and the SLRP merely noted that the parties should focus on transition services at the new IEP meeting without finding that such services had not been provided or that the current IEP was deficient. There was some evidence that Ericka would benefit from, but did not go on any, field trips during the 1996-97 school year, but this alone does not support Ericka's contention that she never received transition services, nor does it follow that a lack of field trips necessarily hampered all of her past and future transition goals.
The Court finds a similar lack of evidence with respect to Ericka's claims that she never received help from any outside agency and that no agencies were invited to her transition plan meetings. Ericka admits that the Bogalusa City School System's Special Education Department had an "Interagency Agreement" with Louisiana Rehabilitation Services ("LRS") to provide transitional services during the relevant time periods, see Pl. Ex. 8, and the record contains no evidence that these services were not going to be provided. Furthermore, Ms. Osby's uncontroverted testimony establishes that LRS was invited to but did not attend Ericka's May 19, 1997 IEP meeting. See Tr. p. 334.
Ms. Westmoreland testified that she did not believe that Ericka was receiving assistance from any outside agency, but that was because the needs being discussed at that point, such as adaptive physical education, were being met by "inside" personnel. See Tr. p. 441. Ericka has not presented any evidence that this "inside" assistance was insufficient or that she was not provided with any particular "outside" assistance that was needed.
Based on the record, the Court finds that the Defendants satisfied their procedural responsibilities with respect to transition services.
2. SLRP Improprieties .
Ericka contends that the SLRP failed to review the entire record from the due process hearing. Her argument is based on a statement in the SLRP decision that, although there was a history of Ericka's disability, "the record is void [sic] of and [sic] historypriorto 1991" and on some confusion regarding document production for the initial due process hearing. Ericka is correct that 34 C.F.R. § 300.510(b)(2)(i) requires the appeals officer to examine the "entire" hearing record, but the Court does not find that the evidence proves, or even strongly suggests, that the SLRP did not review the entire record. Assuming that pre-1991 documents were included in the record sent to the SLRP, the offending sentence could have been a simple oversight in drafting the report. Even if the SLRP did not review any pre-1991 records, the Court finds that this error was harmless. The SLRP's decision makes it quite clear that the SLRP reviewed crucial pieces of evidence — the May 19, 1997 IEP, the 1995 Reevaluation report, the testimony of the witnesses at the hearing, and the IHO's decision. As discussed at length during the due process hearing, not every piece of paper in Ericka's educational history, which would include pre-1991 records, is particularly relevant in evaluating the 1997 IEP.
Ericka also contends that the members of the SLRP were not impartial, in violation of 20 U.S.C. § 1415 (g). This argument is based on a statement in the SLRP decision referring to "unprofessional conduct on the part of" Ericka's attorneys. However, the record presents no evidence of any extrajudicial source of bias, and, despite his criticism, the author of the SLRP decision stated that he was able to suppress his distaste for Ericka's counsel and consider the merits of the case because "[t]he main point in this proceeding is the welfare of the child." SLRP Decision p. 4. See generally 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3542 (2d ed. 1984) (discussing disqualification of judges due to bias or prejudice and noting that criticism of a lawyer ordinarily does not compel disqualification). Moreover, another panel member wrote a concurring opinion stating that he disagreed with the reasons assigned by the majority but agreed with the result, based strictly on a consideration of the evidence.
The Court finds that the SLRP did not violate the IDEA's procedures in conducting its review.
B. Educational Benefit .
Ericka alleges that the May 19, 1997 IEP was not reasonably calculated to enable her to receive educational benefit and that she has not, in fact, received any such benefit. The Fifth Circuit has set forth four factors that must be considered in determining whether an IEP is reasonably calculated to provide a meaningful educational benefit to a child with special needs:
(1) Whether the program is individualized on the basis of the student's assessment and performance;
(2) Whether the program is administered in the least restrictive environment;
(3) Whether the services are provided in a coordinated and collaborative manner by the key "stakeholders"; and
(4) Whether positive academic and non-academic benefits are demonstrated.See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347-48 (5th Cir. 2000) (quoting Cypress-Fairbanks, 118 F.3d at 253).
The Court finds by a preponderance of the evidence that the May 19, 1997 IEP is individualized on the basis of Ericka's assessment and performance. In developing the IEP, Ms. Osby considered Ericka's parents' concerns (as evidenced by Mrs. Barber's presence at the IEP meeting, several notations in the IEP reflecting Mrs. Barber's opinions, and the testimony of several individuals that Mrs. Barber regularly expressed her concerns regarding Ericka's education to her teachers) and Ericka's most recent evaluation (the 1995 reevaluation) in compliance with 20 U.S.C. § 1414 (d)(3)(A). She also considered the previous year's IEP and her own classroom observations of Ericka's performance. For example, in recommending that Ericka use a "reading machine" and other visual aids instead of a computer, Ms. Osby considered Ericka's statement that she could not read items on a computer screen, see Tr. pp. 290-91, as well as Ericka's demonstrated difficulty in using a keyboard. See Tr. p. 362 (discussing Ericka's poor typing skills). Similarly, Ms. Osby's choice to use tape recorders instead of procuring additional large print books was based on in-class observations of Ericka's performance. These considerations are reflected in the "Modifications" section of the IEP. In addition, Ms. Westmoreland testified that, based on her observations while teaching Ericka, the alternative certificate of achievement placement is correct. See Tr. pp. 440-41 (testifying that she does not believe that Ericka can get a high school diploma or GED, and, therefore, that Ericka "is appropriately placed within the certificate of achievement placement").
As to this issue, Ms. Osby's testimony is again rather confusing. At first, she testified that she had read "most" of the reevaluation. Tr. p. 337. She then testified that she reviewed the reevaluation without qualifying her answer. Tr. p. 339. Considering the testimony as a whole, the Court believes that Ms. Osby sufficiently considered the reevaluation.
There is no compelling evidence to suggest that the IEP is not individualized. The Court rejects Ericka's argument that the IEP was deficient for failing to incorporate all of the information contained in the 1995 reevaluation into the 1997 IEP. The IDEA requires only that the evaluation be considered in developing the IEP, not that it be incorporated wholesale. The Court also rejects Ericka's argument that the IEP was deficient for failing to require the use of a computer. As noted above, Ms. Osby had legitimate reasons to believe that Ericka would not benefit from the use of a computer. Ms. Westmoreland, who believes that "a computer probably would be beneficial" to Ericka, Tr. 412, states that she wants to use the computer in a manner similar to a reading machine and observes that Ericka presently has to get much closer to the computer screen than to the reading machine to be able to read. Tr. 430. There is simply no basis for either the IHO's or the SLRP's statements that Erickaneeds a computer; the evidence shows that computers may be an inferior method of educating Ericka absent considerable customization and experimentation to get them to function like the reading machine she had already been provided. In fact, Ms. Westmoreland testified that the computer would not help Ericka "[a]s far as her sitting in front of it and utilizing it personally"; rather, Ms. Westmoreland wished to use the computer to "adapt lesson plans" for Ericka. Tr. p. 446. Moreover, regardless of the respective benefits of a computer as opposed to a reading machine, it appears that both Ericka and her mother have preferred audio to visual aides. See, e.g., Testimony of Ms. Westmoreland, Tr. pp. 439-40.
The IHO's finding that federal law required the school board to force braille upon Ericka over her parents' wishes is unsupported by fact or law. The IDEA provides that the IEP Team shall,
in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child. . . .20 U.S.C. § 1414 (d)(3)(B)(iii). Ericka's evaluators have consistently refused to recommend braille. See, e.g., Pl. App. Ex. 2 p. 6 (1998 evaluation stating that "braille instruction is not suggested at this time").
The Court finds that Ericka's IEP is administered in the least restrictive environment. The least restrictive environment means educating Ericka as much as possible with children who have no special needs. See 20 U.S.C. § 1412 (5)(A) ("To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and 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 of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.");Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 691 (5th Cir. 1996). Ericka's educational setting should be based on the needs identified in her IEP, in the school she would otherwise attend if she had no special needs, and according to the special services she requires without respect to removing her from the general student body because of needed modifications in the general curriculum. See 34 C.F.R. § 300.552 (3).
Ericka attends the school to which she would be assigned even absent her disability and is given ample opportunity to interact with non-special needs children, for example, by eating lunch in the regular cafeteria. She has been assigned to special education class for students with mild to moderate disabilities and attends several classes with other students. She also is placed in a self-contained class because of her vision and need to use a reading machine. Moreover, all of the evidence supports a finding that her physical needs are adequately met in her IEP placement. Despite the extended testimony regarding fire drills, bus service, class placement and cafeteria lines, no evidence was produced that Ericka is having difficulty with any of these areas. Quite the opposite, all of her teachers testified that Ericka got around the school and school grounds quite well and had made tremendous progress in those areas where she originally had difficulties. The evidence shows that an aide or other individual has always been available to help her when needed. In addition, the school has begun to make accommodations to the school, such as ramps, that will benefit both students in wheelchairs and Ericka. Accordingly, the Court finds that Ericka has received her education in the least restrictive environment appropriate with her educational and physical needs.
The Court finds that the key stakeholders provided services in a coordinated and collaborative manner. Ericka's teacher and principal attended the IEP meeting and her therapists were consulted and contributed to its development. Although no LRS representative attended the IEP meeting, Ms. Osby notified LRS about Ericka's needs.
The Court finds that Ericka has received considerable positive non-academic benefits from her education. As noted above, all of Ericka's teachers testified that she had made tremendous improvements in motivating the school and its grounds, clearly an immensely significant goal for a child with profoundly diminished vision. It also appears that she has befriended teachers and other students.
Determining whether Ericka has received academic benefit from her education is much more difficult. Ericka correctly notes that tests performed by the Louisiana School for the Visually Impaired ("LSVI") suggest that she has not progressed academically and, in certain areas, that she might have regressed. However, given Ericka's disability, it is difficult to know how to evaluate this information. For example, the 1991 LSVI report states that many of the tests were "visually administered" and that the scores given in the report "are those which Ericka would have earned if she had been given the test exactly as written, without the enlargement for her visual impairment." Pl. App. Ex. 7 p. 12. The 1998 LSVI report indicates how Ericka's vision deficits affect her testtaking: "When she reads she closes her right eye totally. She often loses her place and must use a finger to keep her place. She [tries to] read word for word [too] quickly and quickly gives up. She needs everything in print positioned more toward the left side of her face." Pl. App. Ex. 2 p. 12. Further complicating the picture, the 1998 LSVI assessment suggests that Ericka is a less than enthusiastic test-taker. See Pl. App. Ex. 2p. 11 ("Ericka entered the testing situation in a testy mood. She indicated that she hated math. She tended to be very negative about her abilities. She complained about everything; however, when it was explained to her that some things were necessary to get to the end, she cooperated."). Thus, strictly measuring Ericka's progress by "academic" test scores may not provide a full picture of Ericka's progress.
Ericka's teachers believe that she functions on a higher level in the classroom setting than her test scores indicate. See, e.g., Pl. App. Ex. 2 p. 11 (1998 LSVI assessment quoting Ms. Westmoreland as stating that "Ericka functions at about a third grade level as best as I can tell with classroom assessments done orally"); Testimony of Ms. Osby, Tr. p. 294 (opining that Ericka can read "at between a 3rd and 4th grade level"). Ms. Westmoreland and others believe that Ericka would benefit more from a functional skills class, see Tr. p. 443-44, but no one testified that Ericka was receiving no benefit from her current placement. The evidence shows that Ericka's parents have blocked the school's attempt to transfer Ericka from an academic class setting to a functional skills setting. See Testimony of Ms. Westmoreland, Tr. p. 444. Based on her teacher's comments and the apparent limitations of the tests in assessing Ericka's progress, the Court concludes that Ericka has received some academic benefit from her education.
In light of all these considerations, the Court concludes that the May 19, 1997 IEP, while perhaps not optimal, nevertheless "is specifically designed to meet [Ericka's] unique needs, supported by services that will permit [her] to benefit from the instruction." Cypress-Fairbanks, 118 F.3d at 247 (citing Rowley, 458 U.S. at 188-89).
III. CONCLUSION.
For the reasons set forth above, the Court finds by a preponderance of the evidence that the Defendants have complied adequately with the procedures set forth in the IDEA and that any violations that did occur did not result in the loss of educational opportunity and were remedied by the February 13, 1998 IEP. The Court also finds that the May 19, 1997 IEP was reasonably calculated to enable Ericka to receive educational benefits. Accordingly,
IT IS ORDERED that the State Level Review Panel's decision is AFFIRMED and Ericka Barber's IDEA claims and appeal are DISMISSED.