Summary
finding Hearing Officer erred in applying the first prong of Oberti by failing to require the school to have proposed specific supplementary aids and services
Summary of this case from Sch. Dist. of Phila. v. PostOpinion
CIVIL ACTION NO. 03-579
November 25, 2003
MEMORANDUM
I. Background
Gavin Blount ("Gavin") is a four-year-old child (d.o.b. April 13, 1999) who has been diagnosed with Down Syndrome. Gavin lives with his grandparents (Gavin and his grandparents are collectively referred to as "Plaintiff") in the area served by the Lancaster-Lebanon Intermediate Unit ("Defendant"). Plaintiff has received home-based services through the Lancaster County MH/MR early intervention program since September 2000.
Under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (2003), Gavin is entitled to special education services including a free appropriate public education ("FARE") in the least restrictive environment ("LRE"). In April and May of 2002, a team consisting of appropriate personnel representing Defendant and members of Plaintiff's family developed an Individualized Education Program ("IEP") for Gavin. The IEP contained "annual goals and short-term objectives in the areas of receptive communication, expressive language skills used in adult and peer interactions, oral motor skills, sound production, grouping and sorting objects, maintaining attention, taking turns, cooperating with adult requests, self-care, walking up and down stairs, walking on a balance beam, fine motor skills, and visual motor skills." (Hr'g Officer Decision at 3.) The IEP also listed twenty-one specially designed instructions and program modifications, including a recommendation for specialized instruction ten hours per week (2.5 hours per day, four days per week).
On May 13, 2002, Defendant issued a Notice of Recommended Educational Placement ("NOREP"), which recommended that Gavin be placed in a program in a "full time specialized classroom with some interaction with non-eligible children." Id. On May 25, 2002, Plaintiff rejected the recommendations and requested a pre-hearing conference. On July 24, 2002, believing that the placement was too restrictive and did not include a behavior management plan, Plaintiff requested a hearing and contended that the educational program should be provided in a regular classroom with supplemental aids and services. On the same date, Plaintiff let it be known that the preferred placement was at Learning Ladder, a private community preschool not far from Plaintiffs home.
Following three days of hearings, at which the only issue was the appropriate placement for Gavin, the Hearing Officer issued a decision on October 14, 2002 in which he concluded that Gavin must be educated in a full-time segregated setting. On January 30, 2003, Plaintiff filed this civil action for review of the decision of the Hearing Officer and charges that the "record in this case does not support the conclusion that Gavin cannot be satisfactorily educated in a regular preschool, with adequate support from [Defendant], and the Hearing Officer's conclusion to the contrary which was not supported by specific factual finding was an error of law. . . ." (Pl's Compl. at 2.)
On April 28, 2003, Plaintiff filed a Motion for Summary Judgment seeking, inter alia, reversal and placement at Learning Ladder Preschool. On April 29, 2003, Defendant filed its Motion for Summary Judgment seeking affirmance. Oral argument was held on October 2, 2003.
II. Background — IDEA
In its recent decision in S.H. v. State Operated School District of the City of Newark, 336 F.3d 260 (3d Cir. 2003), the Third Circuit reviewed the IDEA, both in terms of the statutory framework and the legal proceedings pursuant to an allegation of denial of rights. The IEP, the first step in the process, is a written statement developed for each child that must include a statement of the child's current level of performance, and how his disability affects performance, and must set measurable annual goals relating both to progress in the general curriculum and additional educational needs arising from the disability. The IEP must also detail those special education services and supplementary aids that the school will provide and explain how they will contribute toward meeting the annual goals, how they will allow the child to progress in both the general curriculum and extracurricular activities, and describe how the child will interact with disabled and non-disabled children. The IEP must explain whether standard student assessments will be used, and if not, must explain why not and how the school will assess the child. See 20 U.S.C. § 1414(d)(1)(a).
IDEA clearly sets out the requirements for an IEP, which, if done properly, will result in a very thorough and personalized evaluation of a child's needs. As dictated by IDEA, an IEP includes:
(I) a statement of the child's present levels of educational performance, including —
(I) how the child's disability affects the child's involvement and progress in the general curriculum; or
(II) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities;
(ii) a statement of measurable annual goals, including benchmarks or short-term objectives, related to —
(I) 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;
(iii) a 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, and a statement of the program modifications or supports for school personnel that will be provided for the child —
(I) to advance appropriately toward attaining the annual goals;
(II) to be involved and progress in the general curriculum in accordance with clause (I) and to participate in extracurricular and other nonacademic activities; and
(III) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph. . . .20 U.S.C.A. § 1414(d)(1)(A) (2003).
In the instant action, neither party disputes the completion of a successful IEP, and both parties and their representatives played a role in Gavin's IEP. The Plaintiff does not complain about an improper process in establishing the IEP, but rather disputes the substantive result, and asserts the Hearing Officer failed to follow the dictates of the Third Circuit in deciding on the adequacy of the IEP under IDEA.
In S.H., the Third Circuit also reviewed various regulations bearing on the preparation of the IEP. Most significantly for this case, the Court also noted:
In addition, the IDEA includes a mainstreaming component in its description of a free and appropriate education, requiring education in the least restrictive environment. See 20 U.S.C. § 1412 (a)(5)(A). We have interpreted this mainstreaming requirement as mandating education "in the least restrictive environment that will provide [her] with a meaningful educational benefit." T.R. v. Kingwood Township Bd. Educ., 205 F.3d 572, 578 (3d Cir. 2000). "The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).
FN1. The IDEA describes "least restrictive environment" as: In general. 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. 20 U.S.C. § 1412(a)(5)(A).336 F.3d at 265 n1.
In S.H., decided after the Hearing Officer's decision, the Third Circuit noted the following about the Oberti two-part test: "Before we reach this two-part test though, we note that the child must be educated in the LRE that will provide a meaningful education benefit". 336 F.3d at 272.
The legal issue for the Court is whether the IEP designed for Gavin would provide him a meaningful educational benefit.S.H.,passim.
III. Standard for Reviewing Hearing Officer's Decision
Any party aggrieved by the decision made by a Hearing Officer under IDEA has the right to bring a civil action in a district court of the United States, and the court "(I) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(I)(2) (2003). In this case, the parties have agreed to rely on the record before the Hearing Officer.
In IDEA cases, district courts are required to give "due weight" to the factual findings of the Hearing Officer. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("The fact that § 1415 requires that the reviewing court `receive the records of the [state] administrative proceedings' carries with it the implied requirement that due weight shall be given to these proceedings.").
In this context, "due weight" constitutes a standard of review recently described by the Third Circuit as "modified de novo review."S.H. v. State-Operated School District of the City of Newark,supra., held:
[A] federal district court reviewing the administrative fact finder in the first instance is similarly required to defer to the ALJ's factual findings unless it can point to contrary nontestimonial extrinsic evidence on the record.
. . .
[W]here the District Court does not hear additional evidence it must find support for any factual conclusions contrary to the ALJ's in the record before it. Moreover, the court must explain why it does not accept the ALJ's findings of fact to avoid the impression that it is substituting its own notions of sound educational policy for those of the agency it reviews.336 F.3d at 270 (citations omitted).
The S.H. case also instructs District Courts to fully explain reasons for departing from a state decision, and encourages a thorough review of the evidence. The development of a modified de novo standard, rather than simply adopting the more common de novo standard, is a further attempt to elucidate the statement inRowlev, in which the Supreme Court held that courts are required to consider the administrative findings in order to ensure that District Courts refrain from imposing their own notions of educational policy on the states:
Thus, the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance . . . would be frustrated if a court were permitted to simply set state decisions at nought.Rowlev, 458 U.S. at 206.
While, after considering the record, district courts are free to accept or reject the administrative findings, "if the district court chooses to depart from the agency's ruling, it should provide some explanation for its departure." Scott P., 62 F.3d at 527. However, aside from considering the factual findings of an administrative decision, courts also have a duty to enforce the statutory requirements of IDEA.
In this case, the parties do not challenge the Hearing Officer's seventeen (17) Findings of Fact. Plaintiff contends Gavin should have been placed in a regular school, with supplementary aids and services, in compliance with the congressional directive that there is a presumption that disabled students should be in "mainstreamed" education, and the Hearing Officer failed to recognize that the burden is on the state to show, by a preponderance of the evidence, that the disabled student will not benefit from mainstreaming and can be in segregated schooling.
IV. Review of the Decision by the Hearing Officer
The Hearing Officer, Gregory J. Smith, submitted a decision (the pages are unnumbered, but total eight) in which he made 17 separate findings of fact, and then discussed his concept of the legal requirements and analyzed the situation to reach the result which is currently before this Court. Plaintiffs attack is on the Hearing Officer's alleged failure to apply the correct legal standards, specifically the burden of proof, to the facts which he found. This contention is discussed below.
The Hearing Officer found that Gavin was, at the time, a three-year, five-month old eligible young child who has a diagnosis of Down Syndrome, and had been receiving home-based services. A meeting was held, as contemplated by the IDEA, to begin planning for Gavin's transition to the IU 13 Early Intervention Program. An evaluation indicated that Gavin has delays in the areas of cognitive, communication, motor and social skills. He has difficulty maintaining attention for more than four or five minutes, but has demonstrated the ability to learn through absorbing and imitating others. In a Sunday school classroom, Gavin's presence and participation has not been disruptive to other children.
The IEP developed for Gavin contained annual goals and short-term objectives in the appropriate areas. The IEP proposed specialized instruction, speech and language support, occupational therapy, some physical therapy and transportation. After a NOREP was issued, IU 13 recommended that Gavin's program be provided in a "full-time specialized classroom with some interaction with non-eligible children." Finding of Fact 12 gave further details on this proposal, which was rejected by Mrs. Blount and counsel for Plaintiff at a due process hearing, which was held by the Hearing Officer. Plaintiff requested that Gavin's program should be provided in a regular pre-school classroom with supplemental aids and services, specifically a placement at a educational institution called Learning Ladder, which holds a certificate of compliance from the Pennsylvania Department of Public Welfare to provide daycare services and a license from the Pennsylvania Department of Education to operate a three-year-old nursery and five-year-old kindergarten, and is close to Gavin's home.
The Hearing Officer characterized the single issue before him as resolving the question of what is an appropriate placement in which the IEP may be implemented. The Hearing Officer framed the issue before him as "what is the appropriate placement for Gavin Blount?" (Hr'g Officer Decision at 3.)
The Hearing Officer's discussion includes citation to three leading Third Circuit cases. He described the decision in T.R. v. Kingwood Township Board of Education, 205 F.3d 752 (3d Cir. 2000), as being particularly relevant in its conclusion that "not only must the program contained in a child's IEP confirm meaningful benefit, but the specific placement in which that IEP is implemented must also confer meaningful benefit." The Hearing Officer recognized that in determining what the appropriate placement for Gavin is, he must consider "the least restrictive placement in which his program can be adequately implemented" and then applied the two-step approach mandated by Oberti v. Board of Education of Borough of Clementon School District, 995 F.2d 1204 (3d Cir. 1993).1 The Hearing Officer's report states "the first question that must be answered is can Gavin gain meaningful benefit from a program delivered in a regular preschool classroom with supplemental aids and services." (Hr'g Officer Decision at 5.) He recognized that IU 13, although not attempting to include Gavin in a regular preschool classroom with supplemental aids and services, looked at Gavin's needs and determined that even with supplemental aids and services, he would not receive meaningful benefit from a placement in a regular preschool classroom. (Id.) He reviewed other matters that had taken place in connection with Gavin and wrote: "the IEP team concluded that Gavin's program could not be adequately provided in a regular preschool classroom." (Id.)
The Hearing Officer then evaluated this conclusion, and first considered Gavin's needs in the program that has been designed to meet those needs, and then he considered the testimony of witnesses relative to a placement in each setting. The Hearing Officer reviewed his Findings of Fact and indicated that "of importance . . . was the extent of Gavin's delay, the number of areas of delay exhibited, and the extensive nature of the IEP, including the specific provision of specialized instruction often hours per week." (Id.) The Hearing Officer then reviewed the testimony of various witnesses including experts, rejected the opinion of Plaintiff's expert, and found that Gavin's needs require more than can be delivered in a regular daycare/preschool classroom, even with supplemental aids and services." (Id.) Although the Hearing Officer felt that he did not have to consider whether Gavin would adversely impact on other children in the regular classroom, he concluded that if he did consider this factor, Gavin would not adversely impact the other children. (Id.)
After the Hearing Officer concluded that a regular daycare/preschool classroom was not appropriate for Gavin, he then wrote "the second question that must be answered [is] to determine what is an appropriate placement is the extent to which Gavin can be mainstreamed with other children." (Id. at 6-7.) Although concluding that Gavin would benefit from the maximum amount of mainstreaming that would still allow for the delivery of the special education program designed to meet his needs as detailed in his IEP, the Hearing Officer reviewed the Pennsylvania regulations detailing the implementation of the IDEA, and concluded that a regular preschool program with supplemental aids and services is not appropriate.
Continuing in descending order, the Hearing Officer found that a segregated setting that includes non-eligible peers is appropriate for Gavin, and directed IU 13 to find a placement in an early intervention program that complies with the Hearing Officer's order and 22 PA. CODE § 14.155(c)(3)(2003).
V. Discussion of the Merits
Plaintiffs principal contention in this Court is that the Hearing Officer did not recognize the strong Congressional preference for mainstreaming, and more specifically, that the Hearing Officer did not apply the appropriate burden of proof required under the Third Circuit'sOberti rule; and that upon applying the correct standard, the Hearing Officer's conclusion should be reversed.
Although Plaintiff would prefer that this Court enter an Order requiring placement of Gavin in a regular school with supplementary aides and services provided, this Court believes that if it finds that the Hearing Officer applied the wrong standard, it has discretion to remand to the Hearing Officer for consideration under the proper standard.Carlisle Area Sch. v. Scott P., 62 F.3d 520, 525-26 (3d Cir. 1995).
1. Application of the Oberti Standard to the Hearing Officer's Decision Oberti squarely holds that the school (here, the IU) has the burden of proof, by a preponderance of evidence, to prove that Gavin could not be educated satisfactorily in a regular classroom with supplementary aids and services.
In light of the statutory purpose of IDEA and these practical considerations, we believe that when IDEA's mainstreaming requirement is specifically at issue, it is appropriate to place the burden of proving compliance with IDEA on the school. Indeed, the Act's strong presumption in favor of mainstreaming, 20 U.S.C. § 1422(5)(B), would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom.
995. F.2d at 1219.
Nowhere in the Hearing Officer's decision is there any discussion of the burden of proof or recognition that the IU has the burden of proof by a preponderance of the evidence, as required by Oberti. Reading the Hearing Officer's opinion leads to the inescapable conclusion that although the Hearing Officer conscientiously found facts and balanced the different considerations, he failed to analyze the facts and the issues in connection with the IU having the burden of proof. The discussion below will analyze whether this requires reversal, and if so, whether this Court should reach its own conclusion about an appropriate IEP for Gavin, or remand to the Hearing Officer for further findings applying the correct legal standard.
In Oberti, the Third Circuit provided standards "for determining when a school's decision to remove a child with disabilities from the regular classroom and to place the child in a segregated environment violates the IDEA'S presumption in favor of mainstreaming." 995 F.2d at 1214. As Judge Gerry stated in his opinion inOberti, 789 F. Supp. 1322, 1329, "in mainstreaming cases we must determine whether the State has complied with the mainstreaming requirements set forth in the Act." Id. at 1329; see also Polk v. Cent. Susquehanna Intermediate Unit 16. 853 F.2d 171, 184 (3d Cir. 1988) ("[W]e do not read the Supreme Court's salutary warnings against interference with educational methodology as an invitation to abdicate our obligation to enforce the statutory provisions that ensure a free and appropriate education to [children with disabilities].").
With these standards in mind, the Third Circuit established a two-part test by which to measure a school's actions. Id. at 1214-18. The Hearing Officer correctly described and discussed the Oberti two-part test, as discussed above, but without reference to the burden of proof.
Plaintiff further argues that, in order to properly demonstrate that Gavin cannot be educated at Learning Ladder or another preschool, it was necessary that Defendant actually place and attempt to support Gavin in an integrated setting. (Pl.'s Mem. Supp. Mot. Summ. J. at 11, 12-13.) Plaintiff asserts that, by failing to actually place and support the child in an integrated setting, Defendant "jumped early and with little information to the conclusion that Gavin required a segregated placement, and . . . introduced only limited and conclusory evidence on this point."Id. at 11.
Defendant argues that the Hearing Officer's judgments were made on the basis of evidence that included an "uncontested evaluation and an uncontested IEP." (Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 4.) Defendant asserts that "some degree of prediction is inevitable," and that, in the instant action, the Hearing Officer was able to make a decision as to Gavin's predicted success on the evaluations and other evidence that were made available to him. Id. Further, Defendant challenges that "[t]here is no requirement that IEP teams abandon their judgment in order to test out, on each child, the general statutory preference for `mainstreaming,'" Id. at 3. Defendant further cites toVisco v. School District of Pittsburgh, 684 F. Supp. 1310, 1314 (W.D.Pa. 1988), in which the court held that "[n]owhere in the Act is a handicapped child required to sink or swim in an ordinary classroom."
1. Oberti Step One — Whether Gavin Can Be Educated in a Regular Classroom with Supplementary Aids and Services ?
In his decision, the Hearing Officer concedes that one way of readingOberti suggests that "the educational agency must first try an actual placement in a regular classroom and only after that placement has failed may a more restrictive placement be considered." (Hr'g Officer Decision at 5.) However, he continues that "[w]hat appears to be a more prudent approach with an eligible young child is to complete a thorough evaluation and to develop an appropriate program and then to determine whether or not that program may be implemented in a regular preschool program." Id. The Hearing Officer goes on to observe that this was "exactly what was done in the present matter," and, therefore, the steps Defendant took were adequate. Id.
It is clear from Oberti that, in reviewing a school's actions in relation to the steps that have been taken to try and include the child in a regular classroom, a school must consider a whole range of supplemental aids and services, and that there must be proof of serious consideration, as mere token gestures are insufficient. 995 F.2d at 1216. In addition, a school must not ignore the possibility of mainstreaming, regardless of the severity of the child's disabilities:
If the school has given no serious consideration to including the child in a regular class with such supplementary aids and services and to modifying the regular curriculum to accommodate the child, then it has most likely violated the Act's mainstreaming directive.995 F.2d at 1216.
Plaintiffs assert, and Defendants do not refute, that there was no attempt to place Gavin in a regular classroom and observe his progress in that setting. (Pl.'s Mem. Supp. Mot. Summ. J. at 11.) Plaintiffs further suggest that, because there was no such attempt made, there was no "serious consideration" on the part of Plaintiff. Id. However, there is no precedent in the Third Circuit that "serious consideration" necessitates an actual placement of a disabled child in an integrated setting, to test the child's performance, and this Court is unwilling to hold that such a placement had to take place in this case as a matter of law. Notwithstanding, the record is still clear that the Hearing Officer's conclusion on this point did not refer to the burden of proof or the quantum of evidence required.
The legislative history of the IDEA indicates Congress's preference for mainstreaming and inclusion of disabled children wherever appropriate. Regarding Congressional preferences and mainstreaming, a Senate Conference Report stated
[W]hile instruction may take place in such locations as classrooms, the child's home, or hospitals and institutions, the delivery of such instruction must take place in a manner consistent with the requirements of law which provide that to the maximum extent appropriate handicapped children must be educated with children who are not handicapped, and that handicapped children should be placed in special classes, separate schooling, or any other educational environment only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and supportive services cannot be achieved satisfactorily.
S. CONF. REP. No. 94-455, at 30 (1975), reprinted in 1975 U.S.C.C.A.N. 1483. See Daniel H. Melvin II, Comment, The Desegregation of Children with Disabilities, 44 DEPAUL L.REV. 599, 615-18 (1995) (thoroughly describing the act's legislative history); see also Jennifer A. Knox, Comment, The IDEA Amendments of 1997 and the Private Schools Provision: Seeking Improved Special Education. But Serving Only a Select Few, 49 CATH. U. L.REV. 201, 205 n. 28 (1999); Anne P. Dupre,Disability. Deference, and the Integrity of the Academic Enterprise, 32 GA. L.REV. 393, 395, 424-25.
"The IDEA's preference for mainstreaming `rises to the level of a rebuttable presumption.'" Warton v. New Fairfield Bd. of Educ., 217 F. Supp.2d 261, 273 (D. Conn. 2002) (quoting Bd. of Educ. v. Holland, 786 F. Supp. 874, 877 (E.D.Ca. 1992)). "[A] school that has failed to give consideration to inclusion of a child in a regular class with supplementary aids and modifications has most likely violated the Act's mainstreaming directive." Warton, 217 F. Supp.2d at 275 (citing Oberti, 995 F.2d at 1216).
Moreover, this Court notes the local preference for respecting parents' objections to their children's placement in special-education programs. On November 20, 2003, the Pennsylvania
State Board of Education approved a regulatory change that would grant parents the sole authority to choose whether their children will enroll in special-education programs. 22 PA. CODE § 14.162 (Proposed-Annex A 2003); see also Pa. Board OKs Rule Change on Special Ed, PHIL A. INQUIRER, Nov. 21, 2003, at B6. As this proposed regulation has yet to be reviewed by the appropriate legislative committees and other governmental bodies, this change, while reflective of parent-empowerment sentiment, remains many steps — and many months — removed from being effective, binding Pennsylvania law.
a. Failure to consider burden of proof
Even though there was no direct evaluation or observation of Gavin in a regular classroom setting, Defendant did indeed examine various opportunities for integration in light of Gavin's IEP. However, the Hearing Officer did not weigh the evidence under any burden of proof. The Court concludes the Hearing Officer reached his own opinion without having placed the burden of proof on the IU, and thus violatedOberti.
But, as we have discussed, placement in a regular classroom is required under the Act unless the School District can show by a preponderance of the evidence that the child cannot be educated satisfactorily in a regular class with supplementary aids and services. On the record before us here, the School District has not made such a showing.Oberti, 995 F.2d at 1224 n. 31.
The second factor that must be considered in the first prong is the comparison between educational benefits the child would receive in a regular classroom, with supplementary aids and services, and the benefits that the child would receive in a segregated, special education classroom. Oberti, 995 F.2d at 1216. In Oberti, the Third Circuit stated that, when considering this factor, courts should rely heavily on the testimony of educational experts, while paying considerable attention to the unique benefits of integration.Id. Further, because the Congressional intent behind IDEA's mainstreaming directive was based on the idea that the "right to public education for children is the right to associate with nondisabled peers,"Id. at 1216-17, the courts must pay "special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment," including the development of social skills that can most effectively be learned through interaction with nondisabled peers. Id. at 1216.
Regarding this factor, Plaintiff alleges that the Hearing Officer "did not make the proper comparison." (Pl.'s Mem. Supp. Mot. Summ. J. at 19.) Rather than considering a regular classroom for Gavin, supplemented with the necessary aids and services, Plaintiff asserts that the Hearing Officer relied on testimony that described the Learning Ladder program as it now exists, without any additional services that would enable Gavin to succeed. Id. Plaintiff points out that this ignores the key aspect necessary to accurately consider this factor, because, unsupplemented, it is uncontested that the regular classroom is certainly not a viable venue for Gavin's education. Id. at 19-20.
Although admitting at oral argument that the Hearing Officer did not explicitly refer to the IU as bearing the burden of proof, Defendant asserts that the Hearing Officer was faithful to the Oberti test. (Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 4.) Citing to various experts who examined Learning Ladder, "[w]ith Gavin and his IEP (and his parents' eventual preference) in mind," (Def.'s Mem. Supp. Mot. Summ. J. at 12), Defendant argues that the Hearing Officer considered the testimony presented from both sides, and came to the conclusion that Gavin would not make appropriate progress on his IEP if placed in a regular classroom, even with supplementary aids and services. Further, Defendant alleges that Plaintiff "disagrees not with the Hearing Officer's standards but only with his conclusions." (Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 7.)
b. Failure to consider specific supplementary aids or services
Although the Hearing Officer uses the phrase "supplementary aids and services" in several places, he never discusses any specific supplementary aids and services. A review of the record, summarized below, does not show that the IU proposed any specific supplementary aids and services, and thus, the Court cannot say that the IU satisfied its burden on this issue. Oberti, 995 F.2d at 1216. Accordingly, the Hearing Officer did not properly apply the second factor of the first prong of the Oberti test, because he did not require that the IU have considered specific supplementary aids and services in the context of the burden of proof.
The IU did not present any evidence as to what specific supplemental aids and services it considered. Its exhibits, labeled IU-1 through IU-16, make no reference either to those specific supplementary aids and services typically available to comparable children, or to any actually considered by the relevant decision-makers in the instant case. These exhibits mostly contain biographical information profiling Gavin and his guardians, general correspondence between the parties, and preliminary evaluations of Gavin which delineate his preferred learning style and particular educational needs. These preliminary evaluations do not mention any supplemental aids and services generally applicable or available to Gavin or to comparable students, nor do these evaluations refer specifically to any aids and services actually considered and rejected in the instant case.
c. Failure to credit or discredit contrary testimony
The Hearing Officer heard from several witnesses over three days of testimony. These witnesses had oftentimes divergent opinions regarding Gavin's educational placement; yet, despite these conflicts in opinion, the Hearing Officer made no express, qualitative determinations regarding the relative credibility and persuasiveness of the witnesses. Rather, this Court is left to wonder why certain testimony is discarded without comment while others are adopted without explanation. This Court would have preferred the Hearing Officer to evaluate the testimony as though he were a Social Security administrative law judge, who must "give some reason for discounting the evidence she rejects." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
Testifying on behalf of the IU, two witnesses opined that Gavin would not be educated satisfactorily at Learning Ladder, even with supplementary aids and services. Joanne Stuart's testimony comes closest to actual reference to and reasoned rejection of specific supplementary aids and services. Strangely though, the Hearing Officer failed either to adopt or to credit explicitly this testimony that heavily supported his eventual decision. Stuart, Special Education Consultant for IU-13, testified that she strongly doubted whether Gavin could make meaningful educational progress under his IEP, even if the IU provided itinerant aides. (Stuart Test, at 105-06.) However, Stuart herself has never observed Gavin in the classroom at Learning Ladder or any other typical classroom. (Id. at 116.) Moreover, despite her overarching conclusion that Gavin should not be mainstreamed, Stuart conceded that Gavin nonetheless still could indeed achieve several IEP goals and receive appropriate supplemental therapy if enrolled at Learning Ladder. (Id. at 139-40, 142.)
Danielle Houser, the Supervisor of IU-13's preschool early intervention program, testified that Gavin likely would benefit from mainstreaming in terms of socialization, but did not have confidence whether there would be meaningful progress in the areas where there are goals and objectives, from enrollment at Learning Ladder with supplementary aids and services. (Houser Test, at 334-35.) This Court notes that in drawing this conclusion, Ms. Houser did not consider any specific combination of supplementary aids and services; rather, her opinion presupposed merely "some set" of unspecified supplementary aids and services. (Id.) And, as Ms. Houser testified, the IU never conducted an assistive technology evaluation of Gavin. (Id. at 338.) Further, her opinion is entitled to little weight because, as she testified herself, she has "no recent experience" in including school-age children with disabilities in a regular classroom. (Id. at 328.) In fact, her relevant past experience dates back fifteen years. (Id.)
Plaintiffs witnesses, Ms. Dippery and Dr. Petroff, testified in support of Gavin's mainstreaming with supplementary aids and services. Ms. Dippery is General Manager for Learning Ladder; Dr. Petroff is a professor of special education. When asked whether she thought Gavin would benefit from enrolling at Learning Ladder with supplementary aids and services, Ms. Dippery responded, in no unclear terms, "Yes, I think that he could make progress." (Dippery Test, at 459.) Moreover, Ms. Dippery stated that she thought "Gavin and all the other children in the program" would benefit by his inclusion in the Learning Ladder program. (Id. at 459-60.) Yet despite her testimony that Learning Ladder could implement Gavin's prescribed IEP with no foreseen difficulty and that Learning Ladder would welcome and incorporate any advice provided by the IU, (Id. at 447-48, 452, 455-56), the Hearing Officer mentioned no reason that apparently compelled him to disregard Ms. Dippery's testimony. This unexplained failure to evaluate Ms. Dippery's testimony is particularly conspicuous considering that Ms. Dippery testified that Learning Ladder had had a prior beneficial, amicable relationship with the IU concerning the cooperative mainstreaming of another student diagnosed with Down Syndrome. (Id. at. 453-56.)
Dr. Petroff offered expert testimony comparable to Ms. Dippery's. When asked whether he believed that Gavin could be educated satisfactorily in a regular preschool classroom with supplemental aids and services, Dr. Petroff responded,
It is without a doubt to me that Gavin could be educated within a general preschool curriculum and setting. As a matter of fact, I think he almost mandates that. His ability to or his communication development at this point really does mandate that he have frequent and consistent interactions with peers that probably have more competent communication abilities than he does in order for us to really see progress in that area.
(Petroff Test, at 490.) Dr. Petroff testified that he believed that Gavin would make more progress within a general, mainstreamed educational setting created by providers such as Learning Ladder, than within any other specialized setting without a comparable emphasis on inclusion. (Id. at 491.) He identified the collaboration of a special educator as one type of supplemental aids and services of "joint planning, joint monitoring, and maybe an instruction by a special education teacher." (Id. at 492-93.) There is no specific rejection of Dr. Petroff s credibility or opinions — and indeed, the Hearing Officer seemed to embrace some of them. (Hr'g Officer Decision at 6.) When asked whether Gavin could be educated satisfactorily in a Learning Ladder-specific program with supplements, again Dr. Petroff replied in the affirmative with little exception. (Petroff Test, at 500, 506.)
Dr. Petroff noted that certain goals and objectives — e.g., tactile stimulation of the oral area — would more appropriately take place within a private therapy room. (Petroff Test, at 506.)
The Hearing Officer did identify certain witnesses whose testimony influenced his decision, but did not specify how any particular witness(es) contributed to his ultimate conclusion.
The testimony of IU 13 staff, Gavin's family members, and witnesses testifying on behalf of Gavin and his family, especially the testimony of Ms. Dippery, general manager for Learning Ladder, and Dr. Petroff, a professor of special education, convinced this hearing officer that a regular preschool classroom, even with supplemental aids, and services, is not appropriate for Gavin at the present time. While some of the activities that normally occur in a daycare/preschool classroom may parallel some of the goals and specially designed instruction found in Gavin's IEP, as Ms. Dippery testified, they are only addressed on an informal basis. . . . For a non-eligible child, that type of environment is fine, but for Gavin it is not appropriate. He needs more than the informal learning described by Ms. Dippery or the play and lack of direct instruction described by Dr. Petroff in order to gain meaningful benefit from his education.
(Hr'g Officer Decision at 6.) The above statement does not accurately reflect the Dippery and Petroff testimony. These witnesses had opinions which supported mainstreaming Gavin with supplementary aids and services. Yet there is no specific rejection of either witness. The above discussion shows how ignoring the burden of proof requirement, and not specifically making credibility determinations among the various witnesses and contrary expert opinions, requires this Court to conclude that the Hearing Officer's conclusion is entitled to little weight.
The third and final factor that is to be considered when applying the first prong of the Oberti II test is the possible negative effect that the disabled child's inclusion in a regular classroom may have on the education of other children in the classroom.
In his decision, the Hearing Officer states that this factor is not relevant in the instant action, because it has already been determined, as is reiterated above in consideration of the second factor of theOberti II test, that "Gavin would not gain meaningful benefit from inclusion in a regular classroom." (Hr'g Officer Decision at 6.) However, per the findings of fact, both parties acknowledge that Gavin has successfully participated in a Sunday School classroom, in which he is the only disabled child, without disruption to the other children.Id. at 2. Accordingly, the Hearing Officer concedes that if the third factor "were to be considered, it would have to be concluded that Gavin would not adversely impact on the other children in a regular classroom." Id. at 6. This conclusion is fully supported in the record.
2. Oberti Step Two Whether, If Gavin Cannot Be Educated in a Regular Classroom, the IU Is Mainstreaming Gavin to the Maximum Extent Possible ?
The second prong of the two-part Oberti II test reinforces the idea that the education of children with disabilities is not an all or nothing system. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1050 (5th Cir. 1989) (cited with approval in Oberti, 995 F.2d at 1218) ("[The regulations of IDEA] do not contemplate an all-or-nothing educational system in which handicapped children attend either regular or special education.") If it is found that removal from a regular, integrated classroom is justified, the court must consider whether the school has "included the child in school programs with nondisabled children to the maximum extent appropriate." Oberti II, 995 F.2d at 1218. In Daniel R.R., the Fifth Circuit stated that:
[T]he school must take intermediate steps wherever appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and, it may be hoped, from school year to school year as the child develops.874 F.2d at 1050.
Plaintiff contends that the Hearing Officer's decision fails the second prong of the Oberti test, because he did not "consider whether Gavin could be placed for at least some of the program day in a regular preschool class." (Pl.'s Mem. Supp. Mot. Summ. J. at 24.) Plaintiff adds that because Defendant "admitted that at least portions of Gavin's IEP could be implemented in a regular education setting," the Hearing Officer should have ordered that Gavin be mainstreamed for at least part of the time. Id. at 24, 25.
Defendant asserts that the options provided to Gavin included opportunities to spend parts of his days with nondisabled children. (Def.'s Br. Opp'n Pl.'s Mot. Summ. J. at 7.) Defendant goes on to note that the Hearing Officer considered the specific options presented to Gavin in light of the opportunities for integration, and decided that two of the three options were too restrictive, according to the LRE preference of Congress. Id. By undergoing this analysis, Defendant asserts that the Hearing Officer successfully applied the second part of the Oberti test. In addition, Defendant points out that, due to the fact that a preschool day is much shorter than that of a normal school day, the prospect of breaking up the day in the traditional sense is not a feasible one, and that, accordingly, the actions of the Hearing Officer were the best translation of the Oberti test for this particular situation. Id.
In his consideration of the second prong of the Oberti test, the Hearing Officer analyzed in detail each of the placements that Defendant recommended for Gavin in light of the "potential range of placements for eligible young children" as outlined in the Pennsylvania Regulations. 22 PA. CODE § 14.155 (2003). In descending order, the Hearing Officer considered each category in the range of placements in order to determine the least restrictive option that applied to Gavin's situation, in light of his decision that the child's needs could not be properly served in a regular classroom. (Hr'g Officer Decision at 8.) After concluding that the proper category was the third least restrictive as elucidated in the range of placements: a "segregated setting that includes noneligible peers," the Hearing Officer compared each of Defendant's suggested placements for Gavin to the chosen category.Id. at 8-9. The Hearing Officer determined that two of the suggested placements were too restrictive, and he held that, while the third placement sounded promising, he did not have enough information to make a final determination of its appropriateness. Id. at 9.
The Oberti test requires that there must be a consideration of whether the school has attempted to mainstream a child to the fullest extent possible, even after it is found that removal from a regular classroom is justified. Oberti II, 995 F.2d at 1218. It is clear from the establishment of the LRE that fit with Gavin's needs and the analysis of each of Defendant's suggested placements that the Hearing Officer was appropriately concerned with the mainstreaming requirement. However, as above, there is no analysis of the burden of proof by preponderance of the evidence. The fact that the Hearing Officer withheld judgment on the plausibility of any of the proposed placement options speaks loudly to the diligence with which the standard was applied, but without the correct legal standard, the Court cannot conclude that the Hearing Officer met the standard for the second prong of the Oberti test.
VI. Remedy
At oral argument, both counsel requested the Court to make a decision without remand to the hearing officer. However, in Carlisle Area School v. Scott P., supra, the court clearly held that there is no bar to a judicial remand to the hearing officer. 62 F.3d at 525-26. In this case, after careful review of the record, the Court determines that although the Hearing Officer conscientiously and diligently reviewed the factual record, because the Hearing Officer failed to consider the appropriate burden of proof and rule on specifically contrary witness testimony, these defects in the record require granting Plaintiffs Motion for Summary Judgment in part, and denying Defendant's Motion for Summary Judgment.
The Court concludes Gavin should be at least initially mainstreamed and will remand the case to the Hearing Officer. However, mindful of the wise precedent which cautions District Court Judges against substituting their own educational philosophies for those of the authorized state officials, this Court treads lightly at this time as to any specific final result However, based on the overall record, this Court concludes that the IU did not meet its burden of proof to demonstrate why it should disregard the Congressional preference for mainstreaming, see note 2, supra, particularly because it did not consider specific supplemental aids and services that could be provided to Gavin in addition to a regular school education. The Court believes that it would be most appropriate for the IU to mainstream Gavin, at least initially, with appropriate specific supplemental aids and services, to be determined by agreement or by the Hearing Officer on remand. The Court suggests that the Hearing Officer, in consultation with the IU and Plaintiff, determine an appropriate period of time during which Gavin would be mainstreamed at the Learning Tree with specific supplemental aids and services, following which an evaluation would determine whether the IU then contends and has proved that Gavin should not continue in that environment, and if so, what alternative environment should be implemented, all of which shall take place under the supervision of the Hearing Officer.
Nevertheless, this Court does note, for the Hearing Officer's consideration, that Danielle Houser, the Supervisor of IU-13's preschool early intervention program, testified that the parties once were willing to implement an eight-week trial period at Learning Ladder for Gavin, complete with itinerant aides. (Houser Test, at 332.) While the IU currently believes that this placement would be inappropriate if made permanent, according to Ms. Houser, such a temporary measure would be of significant evidentiary and evaluative benefit. (Id.)
Gavin's early age is one of the reasons this Court concludes that application of the appropriate legal standard requires mainstreaming. Although the hearing officer indicated that it was hoped that in the program he approved for Gavin, that Gavin would develop sufficiently so that he could be mainstreamed in the future, (Hr'g Officer Decision at 8), the Court finds that under the law Congress has stated a distinct preference for mainstreaming first, at the earliest possible time, rather than assigning a disabled child to special education with the hope that he will improve sufficiently to go into a mainstream educational setting.
In the latter regard, the hearing officer, together with the parties, must take into account the second prong of Oberti, and if it is determined, after this initial phase, that the IU proves that Gavin should be removed from a regular integrated classroom, then the hearing officer, after appropriate consultation with the parties, should determine what would be the appropriate placement for Gavin. UnderOberti, the hearing officer must consider whether the IU has met its burden of proof that it has attempted to mainstream Gavin to the fullest extent possible with
In this regard, the Court determines that the hearing officer should follow the Congressional dictates by giving Gavin a mainstreaming opportunity at this time, rather than hoping that a mainstreaming opportunity will become appropriate in the future. supplemental aids and services, before the hearing officer determines that it is necessary that Gavin be removed from mainstreaming with supplemental aids and services
An appropriate order follows.
ORDER
AND NOW, this 25th day of November, 2003, Plaintiffs Motion for Summary Judgment (Docket No. 10) is GRANTED IN PART, and Defendant's Motion for Summary Judgment (Docket No. 11) is DENIED. It is hereby ORDERED that the record is remanded to Gregory J. Smith, Hearing Officer, for further proceedings not inconsistent with this opinion. The Clerk is directed to mark this case closed for statistical purposes.