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GIRTY v. SCHOOL DISTRICT OF VALLEY GROVE

September 17, 2001

CHARLES "SPIKE" GIRTY, A MINOR, WHO SUES THROUGH HIS PARENTS, CHARLES AND VICKY GIRTY, ON THEIR OWN BEHALF, PLAINTIFFS,
v.
SCHOOL DISTRICT OF VALLEY GROVE, DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM OPINION

The School District of Valley Grove ("the District") has proposed changing the educational placement of Plaintiff Charles ("Spike") Girty, a mentally retarded student, from full-time regular education to part-time life skills support. If implemented, this placement would require Spike to attend life skills support classes for academic subjects and regular education for nonacademic subjects and to be moved to a school in another district. Pursuant to 20 U.S.C. § 1415(e), we are asked to review the determination by the Special Education Appeals Panel ("Appeals Panel") that the District's proposal complies with the "mainstreaming" requirement of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1412(5)(B).*fn1 Both parties have filed motions for summary judgment. For the reasons that follow, we will grant the Plaintiffs' motion [Doc. No. 7] and deny the Defendant's motion. [Doc. No. 9].

I. BACKGROUND

Spike Girty is a fourteen-year-old boy with mental retardation. Test scores indicate that his Stanford — Benet intelligence score composite (IQ) is approximately 36, which is in the severe to moderate range of mental retardation. Plaintiffs Brief in Support of Motion for Summary Judgment at 1; Hearing Officer Decision, Administrative Record ("AR") at 61. Tests also indicate that his achievement level in all areas is commensurate with his intelligence level. Defendant's Motion for Summary Judgment at 8. Due to his handicap, he has received special education services since kindergarten. In the 1997-1998 school year, while he was in fourth grade, Spike was placed in full-time regular education with a child-specific aide. Plaintiffs Brief at 2; Hearing Officer Decision, AR at 61. Spike has continued in this placement to the present. On December 2, 1999, while Spike was in sixth grade, the District proposed changing his placement from full-time regular education to part-time life skills support. Id. This change would require Spike to be removed from his current school and to attend a school in an outside district. Id.

Spike's parents objected to the recommendation and a hearing was held on May 8 and 9, 2000. The hearing officer received testimony from various school employees, including Martin Aylesworth, the school psychologist and coordinator of special education, Susan First and Linda Bixler, sixth grade teachers who had Spike in their classes, Jeffrey Clark, the school principal, and Marilyn Frank, Spike's child-specific aide. The officer also heard testimony from two employees of the Intermediate Unit, Timothy P. Tantlinger, a life skills support teacher, and Marilyn Snyder, an instructional advisor.*fn2 Finally, testimony was received from Spike's parents and Sally Kissick, a psychologist certified in school psychology.

A. The Testimony

Martin Aylesworth testified to Spike's educational history. Spike came to the District from an early intervention program and his parents were initially agreeable to life skills placement. Transcript of Due Process Hearing, AR at 129. The Girtys expressed concern in the fall of 1995, however, because Spike was in a fifth and sixth grade program that was not age appropriate for him. Spike was subsequently moved to Rocky Grove Elementary School where he remained in a life skills classroom for academic subjects. An aide accompanied him to his nonacademic subjects in regular education classrooms. While Spike was in third grade, his parents requested greater inclusion, and prior to a scheduled due process hearing, attorneys for both parties agreed to develop an appropriate Individualized Education Program ("IEP")*fn3 placing Spike in age-appropriate regular education. The following school year, Spike was placed in a regular education fourth grade classroom full-time. AR at 131.

In the spring of 1999, Aylesworth developed a new Comprehensive Evaluation Report ("CER") for Spike that summarized his test results to date. Aylesworth stated that Spike's test results had been consistent over time, and that his achievement was commensurate with his capabilities. Id. at 133. He indicated that Spike was at a pre-readiness level, and that he was able to identify some capital Letters, write three of the five letters in "Spike," and rote count from two to five. Spike was unable to match quantity with numerals or to understand sound/symbol relationships. Aylesworth indicated that since entering the District, Spike had made gradual progress. Id. at 134.

According to Aylesworth, Spike did not participate in the fifth grade curriculum, and was in the classroom for socialization purposes only. He stated that it was understood by the parents that the teachers would include Spike in activities, if applicable, but that Spike would not be expected to master the curriculum. Id. at 138. When Spike's parents expressed concern in the fall of 1999 that the sixth grade teachers were not sufficiently adapting the curriculum to meet their son's needs, Aylesworth convened an IEP meeting and found that none of the sixth grade teachers felt it possible to adapt the curriculum to Spike's level. Based on this meeting, he recommended part-time life skills placement and drafted the new IEP to this effect. This IEP has not been implemented. Id. at 140. Aylesworth stated that the life skills classroom would encourage Spike to develop greater independence and would provide him with more resources, such as a certified special education teacher. When asked what supplementary aids and services were available to Spike in regular education, Aylesworth replied that the District permits teachers to go to inservice programs on their own, that an inclusion specialist presented a program to the regular education teachers, and that the teachers can contact the Intermediate Unit ("IU") when they have questions. AR at 145. The sixth grade teachers were told to include Spike as much as possible, but understood that his aide would basically deliver his IEP. Id. Spike's behavior in the classroom was not a significant problem. Id. at 151. It was Aylesworth's opinion that the disparity between the sixth grade curriculum and Spike's prereadiness level was so significant that no level of adaptation would permit Spike to gain any benefit from the curriculum. Id. at 155.

Susan First was Spike's sixth grade remedial language teacher. She opined that the curriculum could not be adapted to Spike's level, and that it was her understanding that she was to include Spike in activities that he could participate in, but otherwise was to direct his aide to work with him. Id. at 177. She also stated that aside from conversations in the hall, she has never consulted with the IU life skills teacher or advisor about presenting the language program to Spike, and that no one from the IU has observed Spike in her class. Id. at 180. When asked whether Spike has made any progress in her class, she stated that he has started to write his last name when previously he could only write his first, and that he can read small books when he previously could not, although she believed he memorized the words rather than learned how to read. Spike was not a behavior problem in her class and that there was a group of children who tended to help him. Id. at 186.

Linda Bixler was Spike's sixth grade math teacher. She testified that Spike's IEP goals included learning to count to 20, telling time to the hour, and matching number to quantity. She believed that his parents wanted her to adapt the sixth grade curriculum to Spike's level and felt that this was an impossibility. AR at 200. Similar to First, she had not consulted with the IU life skills teacher or consultant and no one from the IU observed Spike in her classroom. Bixler used kindergarten materials with Spike because Mr. Tantlinger told her that he did not have materials that were appropriate for him. She seldom worked with Spike because she was working with other students on the curriculum that he could not comprehend. When asked whether Spike had made any progress in her class, she replied that he could match numbers above 20 when previously he could only match numbers up to 20. AR at 204. He sat in the back of her classroom and rarely engaged in classroom activities with the other students. AR at 206.

Jeffrey Clark is the principal of Rocky Grove Elementary School, and has participated in all of Spike's IEP meetings but one. AR at 213. According to the IEP current at the time of the hearing, Spike was to receive verbal discipline and, if necessary, a time-out in Clark's office for disruptive behavior. Spike received between 10 and 15 time-outs lasting approximately 10 minutes each in the 1999-2000 school year. He was generally compliant with Clark's directions and was not a significant behavioral concern. AR at 214-216.

Marilyn Frank is Spike's child-specific aide. She has a high school education and is a certified nurse's aide. She testified that she accompanied Spike to his classes except for his specials, such as gym, music, chorus and speech. She worked on his IEP goals with him and said that she received information, direction and recommended materials from the IU. According to Frank, the regular education teachers selected the materials actually used from the recommended materials. She felt that Spike did not function as well when she was not with him because he could not remain on task without prompting, and also felt that his dependence on her had increased over time. AR at 234. He had made gradual progress on his IEP goals. When asked how his progress was monitored, she replied that he was given a Brigance test once a year, and was given psychological tests.

Timothy P. Tantlinger is a life skills support teacher with the IU. He is not employed by the District. He had difficulty providing materials to Spike's aide because many of his materials were above Spike's level. AR at 259. It was his opinion that it would not have been possible to adapt the sixth grade curriculum to a level where Spike could benefit; he also felt that inclusion was less important for older disabled children than younger ones because the older children have fewer similarities to their non-disabled peers and are often left behind. AR at 263. He could not think of any supplemental aids or services that might further assist Spike. He felt that Spike could be more independent than he was, and that many things taught in life skills could not be taught by Spike's aide in a regular education classroom. Spike was functioning below the level of Tantlinger's life skills students, and would require individualization and an adapted curriculum if placed in it. AR at 272. Marilyn Snyder, an instructional advisor with the IU, said that she often worked directly with Spike during his fourth grade year because that was the first year he was fully included with an aide, and she worked with them on the transition. AR at 281. It was her opinion that life skills placement would best suit Spike's needs because he would be taught by ...


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