Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On June 15, 1999, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Ch.115 (1997-1998) and the Individuals with Disabilities Education Act (IDEA) from Attorney Ronald S. Stadler on behalf of [Father and Mother], the parents of [Student]. According to the request, the [Family] believed that [Student]’s placement was not the least restrictive environment. A telephone pre-conference was held on June 23, 1999. A due process hearing was held on July 22 and July 23, 1999 at the offices of the [Unnamed] School District. Attorney Ronald S. Stadler appeared on behalf of the parents and child; Attorney Gregory B. Ladewski appeared on behalf of the [Unnamed] School District.

1. [Student] (dob xxxxx) is a child with a disability, in need of special education and related services and resides in the [Unnamed] School District. [Student] has downs syndrome and suffered an inter-uterine stroke, which contribute to her diagnosed cognitive disability and speech and language impairment.
2. For the 1997-98 and 1998-99 school year, [Student] has been a student in the Early Childhood program, an inclusive program at Shepard Hills Schools in [City], Wisconsin. She had a licensed teacher in early childhood development dedicated to her and two or three classmates out of 26 kindergartners all day.
3. On March 25, 1999, May 4, 1999, and May 14, 1999, Individualized Education Program (IEP) team meetings were held. Subsequent to the May 14, 1999 meeting, a placement offer was made to the [Family].
4. The IEP team placement offered a partial placement for [Student] in Ms. Vicki Francolucci’s first grade class, one of two at Edgewood Elementary School. Edgewood is the [Family]’s neighborhood school.
5. Specifically, the placement offered would remove [Student] from her first grade class for an hour and a half to two hours, five days a week for language arts instruction; and for one hour to one hour and a half, five days a week for math instruction. [Student] would be with her peers for other instruction in music, art, physical education, and library, except when she would be removed from the regular classroom for occupational, physical or speech therapy.

The [Unnamed] School District failed to provide [Student] with a free and appropriate public education in the least restrictive environment contrary to the Individuals with Disabilities [Education] Act, 20 U.S.C. 1412(a)(5), 34 CFR 300.550 and sec. 115.79(3) and (4), Wis. stats.

The Individuals with Disabilities [Education] Act (IDEA) requires that school districts ensure students with disabilities be educated with their regular education peers to the maximum extent appropriate. 20 U.S.C. 1412(a)(5)(A) and 34 CFR 300.550(b)(1). In addition to a "maximum extent appropriate" standard, Congress has authorized that the removal of children with disabilities from regular classrooms occur "only if the severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 CFR 300.550(b)(2). Taken together, it is clear that Congress created a presumption that children with a disability should placed in regular classrooms and should be helped to stay. Lachman v. Illinois State Bd. Of Educ. 852 F.2d 290, at 295 (7 ^th Cir. 1988). This educational preference is called "inclusion" or "mainstreaming" and is pursued to accomplish the least restrictive environment for a child’s education. See also Monticello School Dist. No. 25 v. George L. 102 F.3d 895 (7^th Cir. 1996) (citations omitted).

It is at this legal vortex that [Student] seeks to be placed in a first grade classroom of her peers for the 1999-2000 school year. Her parents have brought a due process hearing request to decide whether this legal presumption has been honored in [Student]’s placement that was offered after the May 14, 1999 IEP meeting.

Just as there is not perfect learning instruction, there is no universally appropriate placement; each case must be decided on a case-by-case basis. Some federal courts have helped by sanctioning two different tests to determine whether a school district has placed a child with a disability in the least restrictive environment. The first test requires school districts to determine whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily. If it cannot, then a review of whether the school has mainstreamed the child to maximum extent appropriate is necessary. The second test requires a determination of whether the services that make a segregated facility placement superior academically could feasibly be provided in the non-segregated facility. Our seventh circuit has not directed us as to which test to use. Monticello School Dist. No. 25 v. George L. 102 F.3d 895 (7^th Cir. 1996).

Regardless of which test is used, however, it is clear that with the use of supplemental aids and services, [Student] can achieve education in a non-segregated facility.

The District disagrees and argues that by requiring a separate education within the regular classroom, instead of segregating [Student], she is isolated. She would become an island of instruction and personal attention inside a parallel universe of a first grade classroom. Presumably, Congress was aware of this isolation possibility when it constructed the requirement that mainstreaming is an educational presumption when educating children with a disability. The mere fact that there is an isolation hazard does not surmount the presumption that children with a disability should be educated with their regular education peers to the maximum extent appropriate. This separate attention is appropriate.

The District says it fears that having a single aide for [Student] will create a co-dependency with this person and undermine [Student]’s independence. Again, presumably Congress was aware of this possibility when it explicitly stated that supplementary aids were to be used to keep children with a disability in regular education classrooms. This possibility and the isolation potential can be minimized with sensitive tutoring. Again, these factors do not override the clear intent of Congress to have children with a disability in a regular classroom.

Ms. Vicki Francolucci, [Student]’s putative first grade teacher, noted that she had an aide come in and help with her emotionally disturbed students. She also testified that up to three children leave for various regular therapies. Clearly, the first grade classroom in the [Unnamed] School District is not some hermetically sealed environment. Children come and go. Adult aides come and go. Students adjust to this traffic. Isolation and co-dependency can be measured and altered against this environment. They are factors that need to be compensated for, not avoided altogether.

In addition, the District maintains that by removing [Student] and taking her down the hall to a special room for two to four hours a day it can maximize [Student]’s educational opportunity. This comes at some cost, however. By removing [Student], she is deprived of many socialization opportunities with her classmates. This is isolating as well. Moreover, [Student] models her behavior on those that she sees around her. [Student]’s mother testified that [Student] often would copy behavior of her three younger siblings. By removing her from her age peers and placing her in an early childhood classroom, as this placement does, [Student] is taken from exactly the right environment and put in exactly the wrong environment for her social skills to grow.

The IDEA requires that education be achieved "satisfactorily" for mainstreamed children with a disability. It does not distinguish between academic and other subjects. It does not mandate a superior method always be used. See Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, at 1047-1048 (5th Cir. 1989). These two factors together require a balancing of academic and non-academic learning to determine what is satisfactory.

It is important to recognize that although placement in a regular classroom with supplementary aids is appropriate here, it may not always be so. Today, [Student] is behind her peers academically – at around a two or three-year old level. [Student]’s mother admitted in testimony that the disparity between [Student] and her peers will increase as they get older. This means that [Student] will probably not be in a regular classroom for many years, making her early elementary school years even more important. It may be the only opportunity for her socialization with her peers and to reap the benefits of modeling.

[Student]'s early childhood instructor, Ms. Jenine Cramer, testified that [Student] has a time delay cognitive disability. It takes 10 to 15 seconds longer for information to register with [Student] than another regularly educated child. She is a slow processor. In addition, [Student] learns best with multi-modal strategies; she needs more than one sense – touching, hearing, and listening -- to learn well. It is in these areas that supplemental aids can be provided, just as Ms. Cramer provided them. [Student]'s parents are happy with [Student]’s progress in the early childhood program. She went from not speaking to knowing letters. It is this kind of progress and attention that the [Family]’s seek for their daughter. It is the exact kind of help that a committed teacher or aide could provide in a regular classroom.

Ms. Cramer testified that [Student] "was delightful" to work with and that she was funny. She noted that [Student] was "rarely a behavioral problem", and that when she was, she was easily corrected.

In summary, [Student] is exactly the type of student with a disability that the law intended to mainstream. [Student] will benefit from mainstreaming through her socialization and modeling instincts. At [Student]’s age of six, these benefits are more important than any incremental gain that is not realized by segregating her in an early childhood environment. [Student]’s needs are exactly the kind of needs for which supplementary aids are provided. And she is not disruptive. See Kari H. v. Franklin Special School District, 26 IDELR 569 (1997)(citation omitted).

What was not heard convincingly after a day and a half of testimony was that the nature and severity of [Student]’s disability, with supplementary aids, prevents her education from proceeding satisfactorily. It may be a different education, it may mean less academic progress, and it may create an isolation or dependency upon an aide; but there is nothing in the nature or severity of [Student]’s disability that requires her removal from a regular classroom as long as supplementary aid is provided.

What is equally prevalent however, is that the IEP team, although well intentioned, did both the [Family] and the process a disservice when it ruled out the Carrollton elementary school as an appropriate placement. According to several witnesses, Carrollton has more resources for cognitively disabled children such as [Student], than Edgewood, her neighborhood school. Carrollton has two teachers licensed in the cognitively disabled, five aides, an on-site speech and language therapist and most of the collateral needed to teach cognitively disabled children. Edgewood does not have the appropriate personnel or resources on site.

By ruling out Carrollton, the IEP team effectively gave the school district a bowl of soup and a fork to eat it. Putting [Student] with Early Childhood students is not appropriate, but that is the possibility at Edgewood. It is no wonder that the placement has proven unsatisfactory.

The law requires that a placement be "as close as possible to the child’s home." 34 CFR 300.552(b)(3). This is a preference. Nothing in the statute or regulations requires a school district to in every instance place a child in the neighborhood school that he/she would attend if not handicapped. See Hudson v. Bloomfield Hills, 910 F.Supp. 1304 (1996). Hudson v. Bloomfield Hills, 25 IDELR 607, (6th Cir. 1996), Affirmed.

There are several reasons why Carrollton Elementary would be a better placement. First, Carrollton has more personnel that are qualified to each [Student]. This could allow the District to use CD licensed teachers and aides for task appropriate teaching of [Student] in the classroom. Edgewood does not offer this flexibility. This factor may mitigate the co-dependence hazard noted by the District, allowing multiple aides to be used.

This decision is only germane for the 1999-2000 school year. But the future must be considered as a factor when considering current placement. At some point, the regular classroom will probably not be an appropriate educational venue for [Student]. This point may come later, rather than earlier if the resources are available. This flexibility may allow [Student] an additional year in a regular classroom or may allow for a more gradual removal from the classroom.

Finally, [Student] has spent the last two years at Shepard Hills Elementary. She is commencing instruction at a new school this fall. To [Student], both Carrollton and Edgewood are different with new classmates. It would accentuate the socialization benefits if [Student] were starting a new school and could develop friendships that would continue beyond the first grade. Carrollton better provides this opportunity at social continuity.

By not considering Carrollton, the IEP team sacrificed the appropriateness of [Student]'s education in order to fulfill the parent's wishes to have her located in a neighborhood school. This is not warranted and overrides the preference in 34 CFR 300.552(b)(3).

It is hereby ordered that the IEP team convene and issue a new IEP that will place [Student] in the first grade classroom for math and language arts with the use of supplemental aids. The IEP team is also directed to re-consider Carrollton Elementary School as a more appropriate placement site.

Dated at Madison, Wisconsin, this 28^th day of July, 1999.

NOTICE OF APPEAL

APPEAL TO COURT. Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under sec. 115.80 (7), Wis. Stats., or to federal district court pursuant to 20 U.S.C. § 1415 and 34 C.F.R. § 300.512.