Assignment Instructions:
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4
5
Read over the other attachment uploaded which is Daniel R.R. v. Board of
Education case. Then, create a court case review form for the Daniel R.R. v. Board
of Education case which includes the following numbered elements:
. Issues: In this section, list the points of contention which the courts have
been asked to decide. That is, what are the basic issues dividing the
parties, for which they seek a resolution? You may find it best to phrase
this as a series of questions that the parties have raised.
. Testimony points: Describe the legal precedents which each side has
cited as relevant to their case, and which seem to be at the heart of the
issue. Revisit the facts of the case as relate to the legal
precedents raised. This will probably be one of the lengthier sections of
your analysis.
. Other cases cited: Separately for plaintiff and defendant, simply list the
names of other legal cases which each side has cited as supporting their
legal claim.
. Decision/Findings by the court or hearing officer. What was their ruling?
. What are the implications of this case for you in your current or future
position? What suggestion would you have for the class with regard to
the way in which this case should affect policy and procedure within their
school districts? This is the time to offer the most thoughtful part of the
analysis, in which you apply the court decision, and rationale behind it, to
your own practice as an administrator, school psychologist or other
decision-maker in a district. I read this part carefully, as there are clear
connections you should make: if you miss obvious applications, you’ll
lose points!
Assignment Instructions:
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4
5
6
Read over the other attachment uploaded which is Daniel R.R. v. Board of
Education case. Then, create a court case review form for the Daniel R.R. v. Board
of Education case which includes the following numbered elements:
. Issues: In this section, list the points of contention which the courts have
been asked to decide. That is, what are the basic issues dividing the
parties, for which they seek a resolution? You may find it best to phrase
this as a series of questions that the parties have raised.
. Testimony points: Describe the legal precedents which each side has
cited as relevant to their case, and which seem to be at the heart of the
issue. Revisit the facts of the case as relate to the legal
precedents raised. This will probably be one of the lengthier sections of
your analysis.
. Other cases cited: Separately for plaintiff and defendant, simply list the
names of other legal cases which each side has cited as supporting their
legal claim.
. Decision/Findings by the court or hearing officer. What was their ruling?
. What are the implications of this case for you in your current or future
position? What suggestion would you have for the class with regard to
the way in which this case should affect policy and procedure within their
school districts? This is the time to offer the most thoughtful part of the
analysis, in which you apply the court decision, and rationale behind it, to
your own practice as an administrator, school psychologist or other
decision-maker in a district. I read this part carefully, as there are clear
connections you should make: if you miss obvious applications, you’ll
lose points!
.
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2
A typical analysis will probably run you 3-4 pages, double-spaced.
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DANIEL R.R. v. STATE BD. OF EDUC., 874 F.2d 1036 (5th Cir. 1989)
DANIEL R.R., PLAINTIFF-APPELLANT, v. STATE BOARD OF EDUCATION, ET AL.,
DEFENDANTS, EL PASO INDEPENDENT SCHOOL DISTRICT, DEFENDANT-APPELLEE.
No. 88-1279.
United States Court of Appeals, Fifth Circuit.
June 12, 1989.
Reed Martin, Austin, Tex., for plaintiff-appellant.
Sam Sparks, El Paso, Tex., for defendants.
Steven L. Hughes, El Paso, Tex., for El Paso Independent School
Dist.
Appeal from the United States District Court for the Western
District of Texas.
Before THORNBERRY, GEE and POLITZ, Circuit Judges.
GEE, Circuit Judge:
[1] Plaintiffs in this action, a handicapped boy and his parents,
urge that a local school district failed to comply with the
Education of the Handicapped Act.[fn*] Specifically, they
maintain that a school district’s refusal to place the child in a
class with nonhandicapped students violates the Act. The district
court disagreed and, after a careful review of the record, we
affirm the district court.
[2]
I. Background
[3] A. General
[4] In 1975, on a finding that almost half of the handicapped
children in the United States were receiving an inadequate
education or none at all, Congress passed the Education of the
Handicapped Act (EHA or Act). See 20 U.S.C.A. § 1400(b) (West
1988 Supp.); S.Rep. No. 168, 94th Cong., 1st Sess. 8 (1975),
reprinted in 1975 U.S.Code Cong. & Admin.News 1425, 1432.
Before passage of the Act, as the Supreme Court has noted, many
handicapped children suffered under one of two equally
ineffective approaches to their educational needs: either they
were excluded entirely from public education or they were
deposited in regular education classrooms with no assistance,
left to fend for themselves in an environment inappropriate for
their needs. Hendrick Hudson District Board of Education v.
Rowley, 458 U.S. 176, 191, 102 S.Ct. 3034, 3043, 73 L.Ed.2d 690,
702 (1982) (citing H.R.Rep. No. 332, 94th Cong., 1st Sess. 2
(1975); S.Rep. No. 168, 94th Cong., 1st. Sess. 8 (1975) 1975
U.S.Code Cong. & Admin.News 1432). To entice state and local
school officials to improve upon these inadequate methods of
educating children with special needs, Congress created the EHA,
having as its purpose providing handicapped children access to
public education and requiring states to adopt procedures that
will result in individualized consideration of and instruction
for each handicapped child. Id. at 192, 102 S.Ct. at 3043, 73
L.Ed.2d at 703.
[5] The Act is largely procedural. It mandates a “free appropriate
public education” for each handicapped child and sets forth
procedures designed to ensure that each child’s education meets
that requirement. 20 U.S.C.A. §§ 1412(1) and 1415(a)-(e). School
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officials are required to determine the appropriate placement for
each child and must develop an Individualized Educational Plan
(IEP) that tailors the child’s education to his individual needs.
The child’s parents are involved at all stages of the process.
See generally § 1415(b). In addition, the Act requires that
handicapped children be educated in regular education classrooms,
with nonhandicapped students – as opposed to special education
classrooms with handicapped students only – to the greatest
extent appropriate. § 1412(5)(B). Educating a handicapped child
in a regular education classroom with nonhandicapped children is
familiarly known as “mainstreaming,” and the mainstreaming
requirement is the source of the controversy between the parties
before us today.
[6] B. Particular
[7] Daniel R. is a six year old boy who was enrolled, at the time
this case arose, in the El Paso Independent School District
(EPISD). A victim of Downs Syndrome, Daniel is mentally retarded
and speech impaired. By September 1987, Daniel’s developmental
age was between two and three years and his communication skills
were slightly less than those of a two year old.
[8] In 1985, Daniel’s parents, Mr. and Mrs. R., enrolled him in
EPISD’s Early Childhood Program, a half-day program devoted
entirely to special education. Daniel completed one academic year
in the Early Childhood Program. Before the 1986-87 school year
began, Mrs. R. requested a new placement that would provide
association with nonhandicapped children. Mrs. R. wanted EPISD to
place Daniel in Pre-kindergarten – a half-day, regular education
class. Mrs. R. conferred with Joan Norton, the Pre-kindergarten
instructor, proposing that Daniel attend the half-day
Pre-kindergarten class in addition to the half-day Early
Childhood class. As a result, EPISD’s Admission, Review and
Dismissal (ARD) Committee met and designated the combined regular
and special education program as Daniel’s placement.
[9] This soon proved unwise, and not long into the school year Mrs.
Norton began to have reservations about Daniel’s presence in her
class. Daniel did not participate without constant, individual
attention from the teacher or her aide, and failed to master any
of the skills Mrs. Norton was trying to teach her students.
Modifying the Pre-kindergarten curriculum and her teaching
methods sufficiently to reach Daniel would have required Mrs.
Norton to modify the curriculum almost beyond recognition. In
November 1986, the ARD Committee met again, concluded that
Pre-kindergarten was inappropriate for Daniel, and decided to
change Daniel’s placement. Under the new placement, Daniel would
attend only the special education, Early Childhood class; would
eat lunch in the school cafeteria, with nonhandicapped children,
three days a week if his mother was present to supervise him; and
would have contact with nonhandicapped students during recess.
Believing that the ARD had improperly shut the door to regular
education for Daniel, Mr. and Mrs. R. exercised their right to a
review of the ARD Committee’s decision.
[10] As the EHA requires, Mr. and Mrs. R. appealed to a hearing
officer who upheld the ARD Committee’s decision. See §
1415(b)(2). After a hearing which consumed five days of testimony
and produced over 2500 pages of transcript, the hearing officer
concluded that Daniel could not participate in the
Pre-kindergarten class without constant attention from the
instructor because the curriculum was beyond his abilities. In
addition, the hearing officer found, Daniel was receiving little
educational benefit from Pre-kindergarten and was disrupting the
class – not in the ordinary sense of the term, but in the sense
that his needs absorbed most of the teacher’s time and diverted
too much of her attention away from the rest of the class.
Finally, the instructor would have to downgrade 90 to 100 percent
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of the Pre-kindergarten curriculum to bring it to a level that
Daniel could master. Thus, the hearing officer concluded, the
regular education, Pre-kindergarten class was not the appropriate
placement for Daniel.
[11] Dissatisfied with the hearing officer’s decision, Mr. and Mrs.
R. proceeded to the next level of review by filing this action in
the district court. See § 1415(e). Although the EHA permits the
parties to supplement the administrative record, Daniel’s
representatives declined to do so; and the court conducted its de
novo review on the basis of the administrative record alone. The
district court decided the case on cross motions for summary
judgment. Relying primarily on Daniel’s inability to receive an
educational benefit in regular education, the district court
affirmed the hearing officer’s decision.
[12] Mr. and Mrs. R. again appeal, but before we turn to the merits
of the appeal we must pause to consider an issue that neither of
the parties raised but which we must consider on our own
initiative.
[13]
II. Mootness
[14] Two years passed while this case wound its way through the
course of administrative and judicial review procedures. Several
events that occurred during these two years might have rendered
the case moot. First, the placement and IEP at issue today set
forth Daniel’s educational plan for the 1986-87 school year, one
long past. Indeed, counsel informed us at oral argument that
EPISD had reevaluated Daniel in May 1988, formulating a new IEP
for the 1988-89 school year as a result. The placement and IEP
upon which Daniel bases his claim have been or will, at the close
of this litigation, be superseded. Second, we may hope that
Daniel’s development has not entirely stagnated while these
proceedings have been pending, although the record does not
contain the results of the May 1988 evaluation. We therefore
cannot know how much Daniel has developed over the past two
years, nor can we divine whether Daniel’s development has
rendered Pre-kindergarten any more or less appropriate for him
now than it was when EPISD reconsidered his placement. It may
well be that neither Pre-kindergarten, nor Early Childhood, nor
any mix of the two would be appropriate for Daniel at this time.
Third, EPISD informed us at oral argument that Daniel is no
longer enrolled in the Texas public school system. Dissatisfied
with EPISD’s 1988 evaluation and its 1988-89 IEP, Daniels’
parents chose to send Daniel to a private school, where he
remained as of the time of oral argument. Although neither of the
parties raised the issue, these events force us to pause
momentarily to consider whether the case continues to present a
live case or controversy.
[15] A case may circumvent the mootness doctrine if the conduct
about which the plaintiff originally complained is “capable of
repetition, yet evading review.” Honig v. Doe, 484 U.S. 305,
___, 108 S.Ct. 592, 600, 98 L.Ed.2d 686, 703 (1988) (quoting
Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71
L.Ed.2d 353 (1982)); Valley Construction Co. v. Marsh, 714 F.2d 26,
28 (5th Cir. 1983) (quoting Southern Pacific Terminal Co. v.
I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)).
Because there is a reasonable expectation that the conduct giving
rise to this suit will recur every school year, yet evade review
during the nine-month academic term, we conclude that the case is
not moot.
[16] Conduct is capable of repetition if there is a reasonable
expectation or a demonstrated probability that the same
controversy will recur. Honig, 484 U.S. at ___ & n. 7, 108
S.Ct. at 603 & n. 7, 98 L.Ed.2d at 704 & n. 7 (citations
omitted); Valley Construction Co., 714 F.2d at 28. The conduct
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about which Daniel originally complained is EPISD’s refusal to
“mainstream” him. EPISD is unwilling to mainstream a child who
cannot enjoy an academic benefit in regular education. Daniel’s
parents insist that EPISD must mainstream Daniel even if he
cannot thrive academically in regular education. According to Mr.
and Mrs. R. EPISD should mainstream Daniel solely to provide him
with the company of nonhandicapped students. Each side of this
controversy steadfastly adheres to its perception of the EHA’s
mainstreaming requirement. Given the parties’ irreconcilable
views on the issue, whether and to what extent to mainstream
Daniel will be an issue every time EPISD prepares a new placement
or IEP or proposes to change an existing one. The parties have a
reasonable expectation of confronting this controversy every year
that Daniel is eligible for public education.
[17] Neither the expiration of the 1986-87 IEP, nor Daniel’s
development over the past two years, nor the new IEP change our
conclusion. Certainly, the controversy whether the 1986-87
placement and IEP comply with the EHA’s mainstreaming requirement
is not likely to recur. The primary controversy, however, is the
extent of EPISD’s mainstreaming obligation, a controversy that is
reasonably likely to recur as Daniel develops and as EPISD
prepares placements and IEPs for each new school year. Nor does
Mr. and Mrs. R.’s recent decision to remove Daniel from the EPISD
system render the case moot. Although Daniel no longer attends
public school, he remains a citizen of the State of Texas and,
thus, remains entitled to a free appropriate public education in
the state. Given Daniel’s continued eligibility for public
educational services under the EHA, the mainstreaming controversy
remains capable of repetition. See Honig, 484 U.S. at ___ ___, 108 S.Ct. at 602-03, 98 L.Ed.2d at 703-04.
[18] This recurring controversy will evade review during the
effective period of each IEP. A placement and an IEP cover an
academic year, a nine month period. The Supreme Court has
observed that administrative and judicial review of an IEP is
“ponderous” and usually will not be complete until a year after
the IEP has expired. School Committee of the Town of Burlington
v. Department of Education of the Commonwealth of Massachusetts,
471 U.S. 359, 370, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385, 395
(1985); see Rowley, 458 U.S. at 186 n. 9, 102 S.Ct. at 3041 n.
9, 73 L.Ed.2d at 699 n. 9 (noting that judicial and
administrative review of an IEP “invariably” takes more than nine
months.). In Rowley, the Court held that the controversy was
capable of repetition yet evading review even though the IEP
should have expired two years before the case reached the court.
Rowley, 458 U.S. at 186 n. 9, 102 S.Ct. at 3041 n. 9, 73
L.Ed.2d at 699 n. 9. Here, Daniel exhausted his state
administrative remedies and, then, filed suit in the district
court. The ponderous administrative and judicial review did, as
the Court predicted, outlive Daniel’s placement and IEP, allowing
them to evade review. As the case presents a live controversy, we
turn to the merits of Daniel’s appeal.
[19]
III. Procedural Violations
[20] At the heart of the EHA lie detailed procedural provisions,
processes designed to guarantee that each handicapped student’s
education is tailored to his unique needs and abilities. The EHA,
and the regulations promulgated pursuant to it, contain
procedures for determining whether the appropriate placement is
regular or special education, for preparing an IEP once the child
is placed, for changing the placement or the IEP, and for
removing the child from regular education. 20 U.S.C.A. §§ 1412
and 1415; 34 C.F.R. §§ 300.300 – 300.576 (1986). The Act’s
procedural guarantees are not mere procedural hoops through which
Congress wanted state and local educational agencies to jump.
Rather, “the formality of the Act’s procedures is itself a
safeguard against arbitrary or erroneous decisionmaking.”
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Jackson v. Franklin County School Board, 806 F.2d 623, 630 (5th
Cir. 1986).[fn1] Indeed, a violation of the EHA’s procedural
guarantees may be a sufficient ground for holding that a school
system has failed to provide a free appropriate public education
and, thus, has violated the Act. Id. at 629; Hall v. Vance
County Board of Education, 774 F.2d 629, 635 (4th Cir. 1985).
Daniel raises five claims of procedural error, each without
merit.
[21] First, Daniel contends that EPISD failed to give proper notice
of a proposed change in his IEP, an assertion that misconstrues
the nature of EPISD’s proposed action. The regulations that
implement the EHA require school officials to give written notice
before “propos[ing] to … change the identification, evaluation
or educational placement of the child …” 34 C.F.R. §
300.504(a)(1) (1986). The regulations also prescribe the content
of the notice: it must include “a description of the action
proposed or refused by the agency, an explanation of why the
agency proposes or refuses to take the action, and a description
of any options the agency considered and the reasons why those
options were rejected.” Id. § 300.505(a)(1). Daniel complains
that EPISD did not provide notice that it proposed to change his
IEP and that the notice which EPISD did provide stated that it
would not change the IEP. Although Daniel’s description of the
notice is accurate, his conclusion that the notice does not
conform to the EHA’s regulations is incorrect.
[22] The notice that EPISD sent to Daniel’s parents apprised them of
the precise action which EPISD proposed to take: a change in
Daniel’s placement. Daniel’s placement was a mixed regular and
special education program, with time allocated approximately
equally between the two environments. Daniel’s IEP, in contrast,
outlined his needs and goals for the academic year; simply, it
was a list of what EPISD and Daniel’s parents hoped Daniel would
achieve. EPISD did not propose merely to alter Daniel’s IEP,
scaling back its expectations or altering its objectives for
Daniel’s progress. Instead, EPISD proposed the more drastic step
of removing Daniel from the regular education class, thus
changing his placement. The notice that EPISD provided accurately
informed Mr. and Mrs. R. of EPISD’s proposal. EPISD sent Mrs. R.
its form “Notice of Admission, Review and Dismissal (ARD)
Committee Meeting.” On the notice form, EPISD indicated that it
would review Daniel’s progress, that it would “consider the
appropriate educational placement,” and that the options it was
considering included a regular classroom and a self-contained
classroom.[fn2] Thus, EPISD’s notice adequately warned Mr. and
Mrs. R. that the appropriate placement for their son was at issue
and that EPISD was considering placing Daniel in a self-contained
classroom.
[23] EPISD did indicate, as Daniel contends, that it was not
considering a change in Daniel’s IEP. EPISD’s explanation of its
plans did not, however, mislead Mr. and Mrs. R. or fail to give
notice of EPISD’s proposal. EPISD did not propose to change
Daniel’s IEP. Indeed, an indication on the notice form that EPISD
proposed to alter the IEP could have been misleading. As the
notice form accurately notified Mr. and Mrs. R. of the proposed
change in placement, we find no procedural defect in EPISD’s
notice.
[24] Second, ignoring the events surrounding EPISD’s decision,
Daniel complains that EPISD did not evaluate him before removing
him from regular education. According to Daniel, school officials
must reevaluate a handicapped student before removing him from
regular education. See 34 C.F.R. § 104.35(a).[fn3] EPISD’s
failure to evaluate Daniel does not constitute a reason to
reverse this case. In the “Stipulations and Agreements” submitted
to the hearing officer, Daniel stated that he did not contest
EPISD’s current evaluation. Furthermore, Daniel’s parents refused
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to consent to a new evaluation because they felt it was not
necessary. When a student and his parents agree with the school’s
current evaluation and refuse a new evaluation, they can scarcely
be heard to complain of a procedural violation based upon the
school’s failure to conduct a new evaluation.
[25] Third, Daniel asserts that EPISD failed to provide a continuum
of educational services. The EHA’s regulations require school
officials to “insure that a continuum of alternative placements
is available to meet the needs of handicapped children for
special education and related services.” 34 C.F.R. § 300.551(a).
The continuum must include alternative placements and
supplementary services in conjunction with regular class
placement. Id. § 300.551(b). In its effort to find the
appropriate placement for Daniel, EPISD experimented with a
variety of alternative placements and supplementary services.
First, EPISD attempted a mixed placement that allocated Daniel’s
time equally between regular and special education. The regular
education instructor attempted to modify and supplement the
regular education curriculum to meet Daniel’s needs. When EPISD
concluded that Daniel was not thriving in this environment, it
proposed a different combination of educational experiences.
Under the new plan, Daniel would spend all of his academic time
in special education but would mix with nonhandicapped children
during lunch and recess. EPISD has provided a continuum of
alternative placements and has demonstrated an admirable
willingness to experiment with and to adjust Daniel’s placement
to arrive at the appropriate mix of educational environments.
[26] Fourth, Daniel maintains that EPISD removed him from the
regular classroom for disciplinary reasons but failed to follow
the EHA’s procedure for removals based on disciplinary problems.
Again, Daniel has misconstrued the events leading to this appeal.
The hearing officer found that
[w]hile there is no evidence that Daniel’s behavior
in Pre-kindergarten is disruptive in the ordinary
sense of the term, it is obvious that the amount of
attention he requires is, nevertheless, disruptive by
so absorbing the efforts and energy of the staff as
to impair the quality of the entire program for the
other children.
[27] This finding in no way reflects a disciplinary problem. Thus,
EPISD’s decision to remove Daniel from regular education did not
trigger the EHA’s disciplinary procedures.
[28] Finally, Daniel suggests that EPISD did not follow the EHA’s
procedure for removing a child from regular education. The EHA
provides that a child shall be removed from a regular classroom
only if education in the regular classroom, with the use of
supplementary aids and services, cannot be achieved
satisfactorily. § 1412(5)(B). According to Daniel, EPISD never
attempted to use any supplementary aids and services in
Pre-kindergarten and, thus, cannot demonstrate that education in
the regular classroom cannot be achieved satisfactorily. Daniel
misunderstands the nature of this issue; it relates to the
substantive question whether and to what extent Daniel should be
mainstreamed, not to the procedural requirements of the EHA.
Moreover, even if this were a procedural question, EPISD met the
requirement of providing supplementary aids and services. The
record indicates that the Pre-kindergarten teacher made genuine
efforts to modify and supplement her teaching program to reach
Daniel. Unfortunately, even with the teacher’s assistance, Daniel
could not thrive in regular education. As we find no merit to
Daniel’s claims of procedural error, we turn to his substantive
claims.
[29]
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[30] A. Mainstreaming Under the EHA
[31] The cornerstone of the EHA is the “free appropriate public
education.” As a condition of receiving federal funds, states
must have “in effect a policy that assures all handicapped
children the right to a free appropriate public education.” §
1412(1). The Act defines a free appropriate public education in
broad, general terms without dictating substantive educational
policy or mandating specific educational methods.[fn4] In
Rowley, the Supreme Court fleshed out the Act’s skeletal
definition of its principal term: “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.” Rowley, 458 U.S. at 188-89, 102 S.Ct. at
3042, 73 L.Ed.2d at 701. The Court’s interpretation of the Act’s
language does not, however, add substance to the Act’s vague
terms; instruction specially designed to meet each student’s
unique needs is as imprecise a directive as the language actually
found in the Act.
[32] The imprecise nature of the EHA’s mandate does not reflect
legislative omission. Rather, it reflects two deliberate
legislative decisions. Congress chose to leave the selection of
educational policy and methods where they traditionally have
resided – with state and local school officials. Rowley, 458
U.S. at 207, 102 S.Ct. at 3051, 73 L.Ed.2d at 712-13. In
addition, Congress’s goal was to bring handicapped children into
the public school system and to provide them with an education
tailored to meet their particular needs. Id. at 189, 102 S.Ct.
at 3042, 73 L.Ed.2d at 701. Such needs span the spectrum of
mental and physical handicaps, with no two children necessarily
suffering the same condition or requiring the same services or
education. Id. at 189, 102 S.Ct. at 3042, 73 L.Ed.2d at 701.
Schools must retain significant flexibility in educational
planning if they truly are to address each child’s needs. A
congressional mandate that dictates the substance of educational
programs, policies and methods would deprive school officials of
the flexibility so important to their tasks. Ultimately, the Act
mandates an education for each handicapped child that is
responsive to his needs, but leaves the substance and the details
of that education to state and local school officials.
[33] In contrast to the EHA’s vague mandate for a free appropriate
public education lies one very specific directive prescribing the
educational environment for handicapped children. Each state must
establish
procedures to assure that, to the maximum extent
appropriate, handicapped children … are educated
with children who are not handicapped, and that
special education, separate schooling or other
removal of handicapped children from the regular
educational environment occurs only when the nature
or severity of the handicap is such that education in
regular classes with the use of supplementary aids
and services cannot be achieved satisfactorily.
[34] § 1412(5)(B). With this provision, Congress created a strong
preference in favor of mainstreaming. Lachman v. Illinois State
Board of Education, 852 F.2d 290, 295 (7th Cir.), cert.
denied, ___ U.S. ___, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988);
A.W. v. Northwest R-1 School District, 813 F.2d 158, 162 (8th
Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 144, 98 L.Ed.2d
100 (1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.),
cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171
(1983).
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[35] By creating a statutory preference for mainstreaming, Congress
also created a tension between two provisions of the Act. School
districts must both seek to mainstream handicapped children and,
at the same time, must tailor each child’s educational placement
and program to his special needs. §§ 1412(1) and (5)(B). Regular
classes, however, will not provide an education that accounts for
each child’s particular needs in every case. The nature or
severity of some children’s handicaps is such that only special
education can address their needs. For these children,
mainstreaming does not provide an education designed to meet
their unique needs and, thus, does not provide a free appropriate
public education. As a result, we cannot evaluate in the abstract
whether a challenged placement meets the EHA’s mainstreaming
requirement. “Rather, that laudable policy objective must be
weighed in tandem with the Act’s principal goal of ensuring that
the public schools provide handicapped children with a free
appropriate public education.” Lachman, 852 F.2d at 299;
Wilson v. Marana Unified School District, 735 F.2d 1178, 1183
(9th Cir. 1984) (citations omitted).
[36] Although Congress preferred education in the regular education
environment, it also recognized that regular education is not a
suitable setting for educating many handicapped children.
Rowley, 458 U.S. at 181 n. 4, 102 S.Ct. at 3038 n. 4, 73
L.Ed.2d at 696 n. 4; Lachman, 852 F.2d at 295. Thus, the EHA
allows school officials to remove a handicapped child from
regular education or to provide special education if they cannot
educate the child satisfactorily in the regular classroom. §
1412(5)(B). Even when school officials can mainstream the child,
they need not provide for an exclusively mainstreamed
environment; the Act requires school officials to mainstream each
child only to the maximum extent appropriate. Id. In short, the
Act’s mandate for a free appropriate public education qualifies
and limits its mandate for education in the regular classroom.
Schools must provide a free appropriate public education and must
do so, to the maximum extent appropriate, in regular education
classrooms. But when education in a regular classroom cannot meet
the handicapped child’s unique needs, the presumption in favor of
mainstreaming is overcome and the school need not place the child
in regular education. See Lachman, 852 F.2d at 295; A.W., 813
F.2d at 163; Roncker, 700 F.2d at 1063. The Act does not,
however, provide any substantive standards for striking the
proper balance between its requirement for mainstreaming and its
mandate for a free appropriate public education.
[37] B. Determining Compliance With the Mainstreaming
Requirement
[38] Determining the contours of the mainstreaming requirement is a
question of first impression for us. In the seminal
interpretation of the EHA, the Supreme Court posited a two-part
test for determining whether a school has provided a free
appropriate public education: “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 206-07, 102 S.Ct. at
3051, 73 L.Ed.2d at 712 (footnotes omitted). Despite the
attractive ease of this two part inquiry, it is not the
appropriate tool for determining whether a school district has
met its mainstreaming obligations. In Rowley, the handicapped
student was placed in a regular education class; the EHA’s
mainstreaming requirement was not an issue presented for the
Court’s consideration. Indeed, the Court carefully limited its
decision to the facts before it, noting that it was not
establishing a single test that would determine “the adequacy of
educational benefits conferred upon all children covered by the
Act.” Id. at 202, 102 S.Ct. at 3049, 73 L.Ed.2d at 709. Faced
with the same issue we face today, both the Sixth and the Eighth
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Circuit concluded that the Rowley test was not intended to
decide mainstreaming issues. A.W., 813 F.2d at 163; Roncker,
700 F.2d at 1063. Moreover, both Circuits noted that the Rowley
Court’s analysis is ill suited for evaluating compliance with the
mainstreaming requirement. A.W., 813 F.2d at 163; Roncker,
700 F.2d at 1062. As the Eighth Circuit explained, the Rowley
test assumes that the state has met all of the requirements of
the Act, including the mainstreaming requirement. A.W., 813
F.2d at 163 n. 7 (citations omitted). The Rowley test thus
assumes the answer to the question presented in a mainstreaming
case. Given the Rowley Court’s express limitation on its own
opinion, we must agree with the Sixth and Eighth Circuits that
the Rowley test does not advance our inquiry when the question
presented is whether the Act’s mainstreaming requirement has been
met.
[39] Although we have not yet developed a standard for evaluating
mainstreaming questions, we decline to adopt the approach that
other circuits have taken. In Roncker, visiting the same
question which we address today, the Sixth Circuit devised its
own test to determine when and to what extent a handicapped child
must be mainstreamed. According to the Roncker court,
[t]he proper inquiry is whether a proposed placement
is appropriate under the Act…. In a case where the
segregated facility is considered superior, the court
should determine whether the services which make that
placement superior could be feasibly provided in a
non-segregated setting. If they can, the placement in
the segregated school would be inappropriate under
the Act.
[40] Roncker, 700 F.2d at 1063 (citation and footnote omitted);
accord, A.W., 813 F.2d at 163.[fn5] We respectfully decline to
follow the Sixth Circuit’s analysis. Certainly, the Roncker
test accounts for factors that are important in any mainstreaming
case. We believe, however, that the test necessitates too
intrusive an inquiry into the educational policy choices that
Congress deliberately left to state and local school officials.
Whether a particular service feasibly can be provided in a
regular or special education setting is an administrative
determination that state and local school officials are far
better qualified and situated than are we to make. Moreover, the
test makes little reference to the language of the EHA. Yet, as
we shall see, we believe that the language of the Act itself
provides a workable test for determining whether a state has
complied with the Act’s mainstreaming requirement.
[41] Nor do we find the district court’s approach to the issue the
proper tool for analyzing the mainstreaming obligation. Relying
primarily on whether Daniel could receive an educational benefit
from regular education, the district court held that the special
education class was the appropriate placement for Daniel.
According to the court, “some children, even aided by
supplemental aids and services in a regular education classroom,
will never receive an educational benefit that approximates the
level of skill and comprehension acquisition of nonhandicapped
children.” In these cases, regular education does not provide the
child an appropriate education and the presumption in favor of
mainstreaming is overcome. As no aspect of the Pre-kindergarten
curriculum was within Daniel’s reach, EPISD was not required to
mainstream him.[fn6] Given the nature and severity of Daniel’s
handicap at the time EPISD placed him, we agree with the district
court’s conclusion that EPISD was not required to mainstream
Daniel. We disagree, however, with the court’s analysis of the
mainstreaming issue, finding it troublesome for two reasons:
first, as a prerequisite to mainstreaming, the court would
require handicapped children to learn at approximately the same
level as their nonhandicapped classmates. Second, the court
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places too much emphasis on the handicapped student’s ability to
achieve an educational benefit.
[42] First, requiring as a prerequisite to mainstreaming that the
handicapped child be able to learn at approximately the same
level as his nonhandicapped classmates fails to take into account
the principles that the Supreme Court announced in Rowley. Our
public school system tolerates a wide range of differing learning
abilities; at the same time, it provides educational
opportunities that do not necessarily account for all of those
different capacities to learn. As the Rowley Court noted,
“[t]he educational opportunities provided by our public school
systems undoubtedly differ from student to student, depending
upon a myriad of factors that might affect a particular student’s
ability to assimilate information presented in the classroom.”
Rowley, 458 U.S. at 198, 102 S.Ct. at 3047, 73 L.Ed.2d at 707.
[43] With the EHA, Congress extended the states’ tolerance of
educational differences to include tolerance of many handicapped
children. States must accept in their public schools children
whose abilities and needs differ from those of the average
student. Moreover, some of those students’ abilities are vastly
different from those of their nonhandicapped peers:
[t]he Act requires participating states to educate a
wide spectrum of handicapped children, from the
marginally hearing impaired to the profoundly
retarded and palsied. It is clear that the benefits
obtainable by children at one end of the spectrum
will differ dramatically from those obtainable by
children at the other end, with infinite variations
in between. One child may have little difficulty
competing successfully with nonhandicapped children
while another child may encounter great difficulty in
acquiring even the most basic of self maintenance
skills.
[44] Rowley, 458 U.S. at 202, 102 S.Ct. at 3048, 73 L.Ed.2d at 709.
The Rowley court rejected the notion that the EHA requires
states to provide handicapped children with educational
opportunities that are equal to those provided to nonhandicapped
students. Id. at 189, 102 S.Ct. at 3042, 73 L.Ed.2d at 707.
Thus, the Court recognized that the Act draws handicapped
children into the regular education environment but, in the
nature of things, cannot always offer them the same educational
opportunities that regular education offers nonhandicapped
children. States must tolerate educational differences; they need
not perform the impossible: erase those differences by taking
steps to equalize educational opportunities. As a result, the Act
accepts the notion that handicapped students will participate in
regular education but that some of them will not benefit as much
as nonhandicapped students will. The Act requires states to
tolerate a wide range of educational abilities in their schools
and, specifically, in regular education – the EHA’s preferred
educational environment. Given the tolerance embodied in the EHA,
we cannot predicate access to regular education on a child’s
ability to perform on par with nonhandicapped children.[fn7]
[45] We recognize that some handicapped children may not be able to
master as much of the regular education curriculum as their
nonhandicapped classmates. This does not mean, however, that
those handicapped children are not receiving any benefit from
regular education. Nor does it mean that they are not receiving
all of the benefit that their handicapping condition will permit.
If the child’s individual needs make mainstreaming appropriate,
we cannot deny the child access to regular education simply
because his educational achievement lags behind that of his
classmates.
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[46] Second, the district court placed too much emphasis on
educational benefits.[fn8] Certainly, whether a child will
benefit educationally from regular education is relevant and
important to our analysis. Congress’s primary purpose in enacting
the EHA was to provide access to education for handicapped
children. Rowley, 458 U.S. at 192, 193 n. 15, 102 S.Ct. at
3043, 3044 n. 15, 73 L.Ed.2d at 703, 704 n. 15. Implicit in
Congress’s purpose to provide access is a purpose to provide
meaningful access, access that is sufficient to confer some
educational benefit on the child. Id. at 200, 102 S.Ct. at
3047, 73 L.Ed.2d at 708. Thus, the decision whether to mainstream
a child must include an inquiry into whether the student will
gain any educational benefit from regular education. Our analysis
cannot stop here, however, for educational benefits are not
mainstreaming’s only virtue. Rather, mainstreaming may have
benefits in and of itself. For example, the language and behavior
models available from nonhandicapped children may be essential or
helpful to the handicapped child’s development. In other words,
although a handicapped child may not be able to absorb all of the
regular education curriculum, he may benefit from nonacademic
experiences in the regular education environment. As the Sixth
Circuit explained “[i]n some cases, a placement which may be
considered better for academic reasons may not be appropriate
because of the failure to provide for mainstreaming.” Roncker,
700 F.2d at 1063. As we are not comfortable with the district
court or the Sixth Circuit’s approach to the mainstreaming
question, we return to the text of the EHA for guidance.
[47] Ultimately, our task is to balance competing requirements of
the EHA’s dual mandate: a free appropriate public education that
is provided, to the maximum extent appropriate, in the regular
education classroom. As we begin our task we must keep in mind
that Congress left the choice of educational policies and methods
where it properly belongs – in the hands of state and local
school officials. Our task is not to second-guess state and local
policy decisions; rather, it is the narrow one of determining
whether state and local school officials have complied with the
Act. Adhering to the language of the EHA, we discern a two part
test for determining compliance with the mainstreaming
requirement. First, we ask whether education in the regular
classroom, with the use of supplemental aids and services, can be
achieved satisfactorily for a given child. See § 1412(5)(B). If
it cannot and the school intends to provide special education or
to remove the child from regular education, we ask, second,
whether the school has mainstreamed the child to the maximum
extent appropriate. See id. A variety of factors will inform
each stage of our inquiry; the factors that we consider today do
not constitute an exhaustive list of factors relevant to the
mainstreaming issue. Moreover, no single factor is dispositive in
all cases. Rather, our analysis is an individualized,
fact-specific inquiry that requires us to examine carefully the
nature and severity of the child’s handicapping condition, his
needs and abilities, and the schools’ response to the child’s
needs.
[48] In this case, several factors assist the first stage of our
inquiry, whether EPISD can achieve education in the regular
classroom satisfactorily. At the outset, we must examine whether
the state has taken steps to accommodate the handicapped child in
regular education. The Act requires states to provide
supplementary aids and services and to modify the regular
education program when they mainstream handicapped children.
See § 1401(17), (18), § 1412(5)(B); Rowley, 458 U.S. at 189,
102 S.Ct. at 3042, 73 L.Ed.2d at 701; 34 C.F.R. Part 300, App. C
Question 48; see also Tex.Admin.Code Tit. 19 § 89.223(a)(4)(C).
If the state has made no effort to take such accommodating steps,
our inquiry ends, for the state is in violation of the Act’s
express mandate to supplement and modify regular education. If
the state is providing supplementary aids and services and is
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modifying its regular education program, we must examine whether
its efforts are sufficient. The Act does not permit states to
make mere token gestures to accommodate handicapped students; its
requirement for modifying and supplementing regular education is
broad. See 34 C.F.R. Part 300, App. C Question 48; see, e.g.,
Irving Independent School District v. Tatro, 468 U.S. 883, 104
S.Ct. 3371, 82 L.Ed.2d 664 (1984). Indeed, Texas expressly
requires its local school districts to modify their regular
education program when necessary to accommodate a handicapped
child. Tex.Admin.Code Tit. 19 § 89.223(a)(4)(C).
[49] Although broad, the requirement is not limitless. States need
not provide every conceivable supplementary aid or service to
assist the child. See generally Rowley, 458 U.S. 176, 102 S.Ct.
3034, 73 L.Ed.2d 690. Furthermore, the Act does not require
regular education instructors to devote all or most of their time
to one handicapped child or to modify the regular education
program beyond recognition. If a regular education instructor
must devote all of her time to one handicapped child, she will be
acting as a special education teacher in a regular education
classroom. Moreover, she will be focusing her attentions on one
child to the detriment of her entire class, including, perhaps,
other, equally deserving, handicapped children who also may
require extra attention. Likewise, mainstreaming would be
pointless if we forced instructors to modify the regular
education curriculum to the extent that the handicapped child is
not required to learn any of the skills normally taught in
regular education. The child would be receiving special education
instruction in the regular education classroom; the only
advantage to such an arrangement would be that the child is
sitting next to a nonhandicapped student.[fn9]
[50] Next, we examine whether the child will receive an educational
benefit from regular education. This inquiry necessarily will
focus on the student’s ability to grasp the essential elements of
the regular education curriculum. Thus, we must pay close
attention to the nature and severity of the child’s handicap as
well as to the curriculum and goals of the regular education
class. For example, if the goal of a particular program is
enhancing the child’s development, as opposed to teaching him
specific subjects such as reading or mathematics, our inquiry
must focus on the child’s ability to benefit from the
developmental lessons, not exclusively on his potential for
learning to read. We reiterate, however, that academic
achievement is not the only purpose of mainstreaming. Integrating
a handicapped child into a nonhandicapped environment may be
beneficial in and of itself. Thus, our inquiry must extend beyond
the educational benefits that the child may receive in regular
education.
[51] We also must examine the child’s overall educational experience
in the mainstreamed environment, balancing the benefits of
regular and special education for each individual child. For
example, a child may be able to absorb only a minimal amount of
the regular education program, but may benefit enormously from
the language models that his nonhandicapped peers provide for
him. In such a case, the benefit that the child receives from
mainstreaming may tip the balance in favor of mainstreaming, even
if the child cannot flourish academically. Roncker, 700 F.2d at
1063. On the other hand, placing a child in regular education may
be detrimental to the child. In such a case, mainstreaming would
not provide an education that is attuned to the child’s unique
needs and would not be required under the Act. Indeed,
mainstreaming a child who will suffer from the experience would
violate the Act’s mandate for a free appropriate public
education.
[52] Finally, we ask what effect the handicapped child’s presence
has on the regular classroom environment and, thus, on the
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education that the other students are receiving. A handicapped
child’s placement in regular education may prove troublesome for
two reasons. First, the handicapped child may, as a result of his
handicap, engage in disruptive behavior. “`[W]here a handicapped
child is so disruptive in a regular classroom that the education
of other students is significantly impaired, the needs of the
handicapped child cannot be met in that environment. Therefore
regular placement would not be appropriate to his or her needs.'”
34 C.F.R. § 300.552 Comment (quoting 34 CFR Part 104 – Appendix,
Paragraph 24) Second, the child may require so much of the
instructor’s attention that the instructor will have to ignore
the other student’s needs in order to tend to the handicapped
child. The Act and its regulations mandate that the school
provide supplementary aids and services in the regular education
classroom. A teaching assistant or an aide may minimize the
burden on the teacher. If, however, the handicapped child
requires so much of the teacher or the aide’s time that the rest
of the class suffers, then the balance will tip in favor of
placing the child in special education.
[53] If we determine that education in the regular classroom cannot
be achieved satisfactorily, we next ask whether the child has
been mainstreamed to the maximum extent appropriate. The EHA and
its regulations do not contemplate an all-or-nothing educational
system in which handicapped children attend either regular or
special education. Rather, the Act and its regulations require
schools to offer a continuum of services. 34 C.F.R. § 300.551;
Lachman, 852 F.2d at 296 n. 7 (citing Wilson v. Marana School
District No. 6 of Pima County, 735 F.2d 1178, 1183 (9th Cir.
1984)). Thus, the school must take intermediate steps where
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,[fn10] 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. If the school officials have provided the maximum
appropriate exposure to non-handicapped students, they have
fulfilled their obligation under the EHA.
[54] C. EPISD’s Compliance with the Mainstreaming Requirement
[55] After a careful review of the voluminous administrative record,
we must agree with the trial court that EPISD’s decision to
remove Daniel from regular education does not run afoul of the
EHA’s preference for mainstreaming. Accounting for all of the
factors we have identified today, we find that EPISD cannot
educate Daniel satisfactorily in the regular education classroom.
Furthermore, EPISD has taken creative steps to provide Daniel as
much access to nonhandicapped students as it can, while providing
him an education that is tailored to his unique needs. Thus,
EPISD has mainstreamed Daniel to the maximum extent appropriate.
[56] EPISD cannot educate Daniel satisfactorily in the regular
education classroom; each of the factors we identified today
counsels against placing Daniel in regular education. First,
EPISD took steps to modify the Pre-kindergarten program and to
provide supplementary aids and services for Daniel – all of which
constitute a sufficient effort. Daniel contends that EPISD took
no such steps and that, as a result, we can never know whether
Daniel could have been educated in a regular classroom. Daniel’s
assertion is not supported by the record. The Pre-kindergarten
teacher made genuine and creative efforts to reach Daniel,
devoting a substantial – indeed, a disproportionate – amount of
her time to him and modifying the class curriculum to meet his
abilities. Unfortunately, Daniel’s needs commanded most of the
Pre-kindergarten instructor’s time and diverted much of her
attention away from the rest of her students. Furthermore, the
instructor’s efforts to modify the Pre-kindergarten curriculum
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produced few benefits to Daniel. Indeed, she would have to alter
90 to 100 percent of the curriculum to tailor it to Daniel’s
abilities. Such an effort would modify the curriculum beyond
recognition, an effort which we will not require in the name of
mainstreaming.
[57] Second, Daniel receives little, if any, educational benefit in
Pre-kindergarten. Dr. Bonnie Fairall, EPISD’s Director of Special
Education, testified that the Pre-kindergarten curriculum is
“developmental in nature; communication skills, gross motor
[skills]” and the like. The curriculum in Kindergarten and other
grades is an academic program; the developmental skills taught in
Pre-kindergarten are essential to success in the academic
classes. Daniel’s handicap has slowed his development so that he
is not yet ready to learn the developmental skills offered in
Pre-kindergarten. Daniel does not participate in class
activities; he cannot master most or all of the lessons taught in
the class. Very simply, Pre-kindergarten offers Daniel nothing
but an opportunity to associate with nonhandicapped students.
[58] Third, Daniel’s overall educational experience has not been
entirely beneficial. As we explained, Daniel can grasp little of
the Pre-kindergarten curriculum; the only value of regular
education for Daniel is the interaction which he has with
nonhandicapped students. Daniel asserts that the opportunity for
interaction, alone, is a sufficient ground for mainstreaming him.
When we balance the benefits of regular education against those
of special education, we cannot agree that the opportunity for
Daniel to interact with nonhandicapped students is a sufficient
ground for mainstreaming him. Regular education not only offers
Daniel little in the way of academic or other benefits, it also
may be harming him. When Daniel was placed in Pre-kindergarten,
he attended school for a full day; both Pre-kindergarten and
Early Childhood were half-day classes. The experts who testified
before the hearing officer indicated that the full day program is
too strenuous for a child with Daniel’s condition. Simply put,
Daniel is exhausted and, as a result, he sometimes falls asleep
at school. Moreover, the record indicates that the stress of
regular education may be causing Daniel to develop a stutter.
Special education, on the other hand, is an educational
environment in which Daniel is making progress. Balancing the
benefits of a program that is only marginally beneficial and is
somewhat detrimental against the benefits of a program that is
clearly beneficial, we must agree that the beneficial program
provides the more appropriate placement.
[59] Finally, we agree that Daniel’s presence in regular
Pre-kindergarten is unfair to the rest of the class. When Daniel
is in the Pre-kindergarten classroom, the instructor must devote
all or most of her time to Daniel. Yet she has a classroom filled
with other, equally deserving students who need her attention.
Although regular education instructors must devote extra
attention to their handicapped students, we will not require them
to do so at the expense of their entire class.
[60] Alone, each of the factors that we have reviewed suggests that
EPISD cannot educate Daniel satisfactorily in the regular
education classroom. Together, they clearly tip the balance in
favor of placing Daniel in special education. Thus, we turn to
the next phase of our inquiry and conclude that EPISD has
mainstreamed Daniel to the maximum extent appropriate. Finding
that a placement that allocates Daniel’s time equally between
regular and special education is not appropriate, EPISD has taken
the intermediate step of mainstreaming Daniel for lunch and
recess. This opportunity for association with nonhandicapped
students is not as extensive as Daniel’s parents would like. It
is, however, an appropriate step that may help to prepare Daniel
for regular education in the future. As education in the regular
classroom, with the use of supplementary aids and services cannot
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be achieved satisfactorily, and as EPISD has placed Daniel with
nonhandicapped students to the maximum extent appropriate, we
affirm the district court.
[61]
V. EPISD’s Request for Sanctions
[62] EPISD requests that we sanction Daniel’s parents and his
counsel for bringing a frivolous appeal, a course we decline to
take. See Fed.R.App.P. 38. EPISD alleges that Mr. and Mrs. R.
brought this appeal and engaged in delay tactics for one purpose:
to keep Daniel in the Pre-kindergarten program for as long as
possible.[fn11] Furthermore, EPISD asserts, the record does not
contain any evidence that would support Mr. and Mrs. R.’s
position. We cannot agree that Mr. and Mrs. R., or their
attorney, deserve sanctions. The record does not indicate that
Mr. and Mrs. R. exercised their right to appellate review for
improper purposes. Absent any evidence, we refuse to attribute an
improper motive to a parent seeking to provide for his child.
Moreover, our circuit had not yet considered the issue presented
in this case when Mr. and Mrs. R. brought their appeal. Finally,
as the district court explained when it rejected EPISD’s request
for Rule 11 sanctions, Mr. and Mrs. R. and their counsel “were
strong advocates of a position they held in good faith arguing
for an extension of the presumption contained in the EHA for
mainstreaming handicapped youth[s] to the case at bar.” We
decline to sanction them.
[63]
VI. Conclusion
[64] When a parent is examining the educational opportunities
available for his handicapped child, he may be expected to focus
primarily on his own child’s best interest. Likewise, when state
and local school officials are examining the alternatives for
educating a handicapped child, the child’s needs are a principal
concern. But other concerns must enter into the school official’s
calculus. Public education of handicapped children occurs in the
public school system, a public institution entrusted with the
enormous task of serving a variety of often competing needs. In
the eyes of the school official, each need is equally important
and each child is equally deserving of his share of the school’s
limited resources. In this case, the trial court correctly
concluded that the needs of the handicapped child and the needs
of the nonhandicapped students in the Pre-kindergarten class tip
the balance in favor of placing Daniel in special education. We
thus
[65] AFFIRM.
[fn*] In accordance with Court policy, this opinion,
which initiates a conflict with the rule declared in
circuit, was circulated before release to the entire
rehearing en banc was not voted by a majority of the
active service.
being one
another
Court, and
judges in
[fn1] Contrasting the Act’s “elaborate and highly specific
procedural safeguards” with its “general and somewhat imprecise
substantive admonitions,” the Supreme Court found a “legislative
conviction that adequate compliance with the procedures
prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an IEP.”
Rowley, 458 U.S. at 205-06, 102 S.Ct. at 3050, 73 L.Ed.2d at
711-12.
[fn2] Generally, a class that is devoted entirely to special
education is a “self-contained” classroom.
[fn3] We note in passing that the regulation to which Daniel
refers us is one promulgated under the Rehabilitation Act of
1973. Given our disposition of this issue, we need not delve into
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the relationship between the Rehabilitation Act and the EHA or
the effect of a violation of one of the Rehabilitation Act’s
regulations.
[fn4] The EHA defines a free appropriate public education as
“special education and related services which (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(a)(5) of this
title.” § 1401(18).
[fn5] When the court conducts this inquiry, it may consider cost
and the handicapped child’s educational progress. Roncker, 700
F.2d at 163 (citation omitted). It appears that the court also
should compare the benefits the child would receive in special
education to the benefits he would receive in regular education.
Id.
[fn6] In addition, it was relevant to the court, but not
dispositive, that Daniel’s presence in the regular classroom was
disruptive in that he required too much of the teacher’s
attention.
[fn7] We emphasize, however, that school officials are not
obligated to mainstream every handicapped child without regard
for whether the regular classroom provides a free appropriate
public education.
[fn8] As we use the term “educational benefits” here, we, like
the hearing officer and the district court, refer to the academic
benefits available through education – as opposed to the overall
growth and development benefits gained from education.
[fn9] The Sixth Circuit has concluded that, in a limited fashion,
cost is a relevant factor in determining compliance with the
mainstreaming requirement. Roncker, 700 F.2d at 1063 (citing
Age v. Bullitt County Schools, 673 F.2d 141, 145 (6th
Cir. 1982)). As neither of the parties has raised cost as an
issue, we need not consider whether the cost of a supplementary
aid or service is a relevant factor.
[fn10] Nonacademic classes may include art, music or physical
education.
[fn11] When a parent challenges a placement under the EHA, the
child remains in the “status quo” during the pendency of the
appellate process. § 1415(e)(3). Thus, Daniel has remained in
Pre-kindergarten during the two years that this case has
meandered through the review process.
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