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Oberti by Oberti v. Board of Educ. of Borough of Clementon School Dist.

filed: May 28, 1993; As Corrected June 23, 1993. Second correction September 2, 1993.

RAFAEL OBERTI, BY HIS PARENTS AND NEXT FRIENDS, CARLOS AND JEANNE OBERTI; CARLOS OBERTI; JEANNE OBERTI, APPELLEES
v.
BOARD OF EDUCATION OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT; WILLIAM SHERMAN, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE SCHOOL DISTRICT OF THE BOROUGH OF CLEMENTON; JAMES P. DAILEY; SARA A. PARANZINO; ROBERT H. MORAN; JAMES D. MURRAY; IRENE J. BUCHALTER; HARRY F. GAHM; EARL F. HETTEL; ORA LEE WOOSTER, III; WILLIAM NORCROSS, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF EDUCATION OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT; STEVEN K. LEIBRAND BOARD OF EDUCATION OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT, WILLIAM SHERMAN, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE SCHOOL DISTRICT OF THE BOROUGH OF CLEMENTON, STEVEN K. LEIBRAND, EARL F. HETTEL, SARA A. PARANZINO, ROBERT H. MORAN, JAMES D. MURRAY, HARRY F. GAHM, IRENE J. BUCHALTER, ORA LEE WOOSTER, III, AND WILLIAM NORCROSS, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF EDUCATION OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT, APPELLANTS



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 91-2818).

Before: Becker, Greenberg, and Weis, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 (formerly the "Education for All Handicapped Children Act"), provides that states receiving funding under the Act must ensure that children with disabilities are educated in regular classrooms with nondisabled children "to the maximum extent appropriate." 20 U.S.C. § 1412(5)(B). Plaintiff-appellee Rafael Oberti is an eight year old child with Down's syndrome who was removed from the regular classroom by defendant-appellant Clementon School District Board of Education (the "School District") and placed in a segregated special education class. In this appeal, we are asked by the School District to review the district court's decision in favor of Rafael and his co-plaintiff parents Carlos and Jeanne Oberti concerning Rafael's right under IDEA to be educated in a regular classroom with nondisabled classmates. This court has not previously had occasion to interpret or apply the "mainstreaming" requirement of IDEA.*fn1

We construe IDEA's mainstreaming requirement to prohibit a school from placing a child with disabilities outside of a regular classroom if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. In addition, if placement outside of a regular classroom is necessary for the child to receive educational benefit, the school may still be violating IDEA if it has not made sufficient efforts to include the child in school programs with nondisabled children whenever possible. We also hold that the school bears the burden of proving compliance with the mainstreaming requirement of IDEA, regardless of which party (the child and parents or the school) brought the claim under IDEA before the district court.

Although our interpretation of IDEA's mainstreaming requirement differs somewhat from that of the district court, we will affirm the decision of the district court that the School District has failed to comply with IDEA. More precisely, we will affirm the district court's order that the School District design an appropriate education plan for Rafael Oberti in accordance with IDEA, and we will remand for further proceedings consistent with this opinion. We do not reach the question, decided by the district court in favor of Rafael and his parents Carlos and Jeanne Oberti, whether § 504 of the Rehabilitation Act also supports relief, since, in view of our decision under IDEA, resolution of that issue is not necessary to the result.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Rafael Oberti's educational history

Rafael is an eight year old child with Down's syndrome, a genetic defect that severely impairs his intellectual functioning and his ability to communicate. Now and throughout the period in question, Rafael and his parents have lived within the Clementon School District, in southern New Jersey. Prior to his entry into kindergarten, Rafael was evaluated in accordance with federal and state law by the School District's Child Study Team (the "Team"). See 20 U.S.C. § 1412(c); N.J.A.C. 6:28-3.1 - 6:28-3.4.*fn2 Based on its evaluation, the Team recommended to Rafael's parents that he be placed in a segregated special education class located in another school district for the 1989-90 school year. The Obertis visited a number of special classes recommended by the School District and found them all unacceptable. Thereafter the Obertis and the School District came to an agreement that Rafael would attend a "developmental" kindergarten class (for children not fully ready for kindergarten) at the Clementon Elementary School (Rafael's neighborhood school) in the mornings, and a special education class in another school district in the afternoons.

The Individualized Education Plan (IEP) developed by the School District for Rafael for the 1989-90 school year, see 20 U.S.C. §§ 1401(19), 1414(a)(5); N.J.A.C. 6:28-3.6; infra n.16, assigned all of Rafael's academic goals to the afternoon special education class. In contrast, the only goals for Rafael in the morning kindergarten class were to observe, model and socialize with nondisabled children.

While Rafael's progress reports for the developmental kindergarten class show that he made academic and social progress in that class during the year, Rafael experienced a number of serious behavioral problems there, including repeated toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting and spitting on other children. On several occasions Rafael struck at and hit the teacher and the teacher's aide.

These problems disrupted the class and frustrated the teacher, who consulted the school psychologist and other members of the Child Study Team to discuss possible approaches to managing Rafael's behavior problems. The teacher made some attempts to modify the curriculum for Rafael, but Rafael's IEP provided no plan for addressing Rafael's behavior problems. Neither did the IEP provide for special education consultation for the kindergarten teacher, or for communication between the kindergarten teacher and the special education teacher. In March of 1990, the School District finally obtained the assistance of an additional aide, which had been requested by the parents much earlier in the school year, but the presence of the extra aide in the kindergarten class did little to resolve the behavior problems. According to Rafael's progress reports for the afternoon special education class, and as the district court found, Rafael did not experience similar behavior problems in that class.

At the end of the 1989-90 school year, the Child Study Team proposed to place Rafael for the following year in a segregated special education class for children classified as "educable mentally retarded." Since no such special education class existed within the Clementon School District, Rafael would have to travel to a different district. The Team's decision was based both on the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class and on the Team's belief that Rafael's disabilities precluded him from benefiting from education in a regular classroom at that time.

The Obertis objected to a segregated placement and requested that Rafael be placed in the regular kindergarten class in the Clementon Elementary School. The School District refused, and the Obertis sought relief by filing a request for a due process hearing.*fn3 The parties then agreed to mediate their dispute, pursuant to New Jersey regulations, as an alternative to a due process hearing. See N.J.A.C. 6:28-2.6. Through mediation, the Obertis and the School District came to an agreement that for the 1990-91 school year Rafael would attend a special education class for students labeled "multiply handicapped" in a public elementary school in the Winslow Township School District ("Winslow"), approximately 45 minutes by bus from Rafael's home. As part of the agreement, the School District promised to explore mainstreaming possibilities at the Winslow school and to consider a future placement for Rafael in a regular classroom in the Clementon Elementary School.*fn4

The special education class in Winslow that Rafael attended during the 1990-91 school year was taught by an instructor and an instructional aide and included nine children. Although Rafael initially exhibited some of the same behavioral problems he had experienced in the Clementon kindergarten class, his behavior gradually improved: he became toilet trained and his disruptiveness abated. Rafael also made academic progress. However, by December of 1990, Rafael's parents found that the School District was making no plans to mainstream Rafael. The Obertis also learned that Rafael had no meaningful contact with nondisabled students at the Winslow school.*fn5

B. The due process hearing

In January of 1991, the Obertis brought another due process complaint, renewing their request under IDEA that Rafael be placed in a regular class in his neighborhood elementary school. A three-day due process hearing was held in February of 1991 before an Administrative Law Judge (ALJ) of the New Jersey Office of Administrative Law. See N.J.A.C. 6:28-2.7(e)4.iv; supra n.3. On March 15, 1991, the ALJ affirmed the School District's decision that the segregated special education class in Winslow was the "least restrictive environment" for Rafael.*fn6 Based on the testimony of Rafael's kindergarten teacher and other witnesses for the School District who described Rafael's disruptive behavior in the developmental kindergarten class, the ALJ found that Rafael's behavior problems in that class were extensive and that he had achieved no meaningful educational benefit in the class.*fn7 The ALJ concluded that Rafael was not ready for mainstreaming.*fn8

In reaching this Conclusion, the ALJ discounted the testimony of the Obertis' two expert witnesses. Dr. Gail McGregor, a professor of education at Temple University and an expert in the education of children with disabilities, testified that Rafael could be educated satisfactorily in a regular class at the Clementon Elementary School with supplementary aids and services, and that Rafael would learn important skills in a regular classroom that could not be learned in a segregated setting.*fn9 The ALJ disregarded Dr. McGregor's testimony because, unlike the School District's witnesses, she did not have daily experience with Rafael. Likewise, the ALJ discounted the testimony of the Obertis' other expert witness, Thomas Nolan, a teacher and special education specialist who had taught a child with Down's syndrome in a regular classroom, because he too had not had day-to-day experience with Rafael.*fn10 The ALJ thus concluded that the Winlsow placement was in compliance with IDEA.

C. The proceedings before the district court

Seeking independent review of the ALJ's decision pursuant to 20 U.S.C. § 1415(e)(2), the Obertis filed this civil action in the United Stated District Court for the District of New Jersey. In addition to the IDEA claim, the Obertis pleaded a claim of unlawful discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 729. Soon thereafter, the court denied both parties' motions for summary judgment, finding "genuine issues of material fact . . . about the feasibility of including Rafael in a regular classroom setting now." Oberti v. Board of Educ. of Clementon School Dist., 789 F. Supp. 1322, 1336 (D.N.J. 1992) (Oberti I).

In May of 1992, the district court held a three-day bench trial, receiving new evidence from both parties to supplement the state agency record. See 20 U.S.C. § 1415(e)(2).*fn11 The Obertis presented the testimony of two additional experts who had not testified in the administrative proceedings: Dr. Lou Brown, a professor of special education at the University of Wisconsin, and Amy Goldman, an expert in communication with children with developmental disabilities.

Dr. Brown, who over the past twenty years has been a consultant to hundreds of school districts throughout the country regarding the education of severely disabled children, interviewed and evaluated Rafael on two occasions, and reviewed Rafael's educational records, as well as a set of videotapes showing Rafael at age seven working with his mother, being taught by a language professional, and participating in a Sunday school class with nondisabled children. Dr. Brown testified that he saw no reason why Rafael could not be educated at that time in a regular classroom with appropriate supplementary aids and services. He told the court that if such aids and services were provided, he had no reason to believe that Rafael would be disruptive at that time (more than two years after the experience in the Clementon kindergarten class). He also stated that integrating Rafael in a regular class at his local school would enable Rafael to develop social relationships with nondisabled students and to learn by imitating appropriate role models, important benefits which could not be realized in a segregated, special education setting.

Dr. Brown outlined a number of commonly applied strategies which could be used, in combination, by the School District to integrate Rafael in a regular classroom, including: (1) modifying some of the curriculum to accommodate Rafael's different level of ability; (2) modifying only Rafael's program so that he would perform a similar activity or exercise to that performed by the whole class, but at a level appropriate to his ability; (3) "parallel instruction," i.e., having Rafael work separately within the classroom on an activity beneficial to him while the rest of the class worked on an activity that Rafael could not benefit from; and (4) removing Rafael from the classroom to receive some special instruction or services in a resource room, completely apart from the class. Dr. Brown explained that with proper training, a regular teacher would be able to apply these techniques and that, in spite of Rafael's severe intellectual disability, a regular teacher with proper training would be able to communicate effectively with Rafael. Dr. Brown also testified that many of the special educational techniques applied in the segregated Winslow class could be provided for Rafael within a regular classroom.

Based on her evaluation of Rafael and her expertise in developing communication skills for disabled children, Amy Goldman testified that the speech and language therapy Rafael needs could be most effectively provided within a regular classroom; otherwise, she explained, a child with Rafael's disabilities would have great difficulty importing the language skills taught in a separate speech therapy session into the regular class environment, where those skills are most needed. She testified that language and speech therapy could easily be provided by a therapist inside the regular class during ongoing instruction if the therapist were able to collaborate ahead of time with the instructor regarding the upcoming lesson plans.

In addition, Dr. McGregor reaffirmed her prior opinion in the administrative proceedings that placement in a regular classroom was not only feasible but preferable for Rafael, see supra n.9. Further, she testified that, given the resources and expertise available to public schools in New Jersey, the School District should be able to design an inclusive program for Rafael with ...


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