DANIEL R.R. v. STATE BD. OF EDUC.,
874F.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
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 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 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." 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 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] IV. Substantive Violations
[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).
[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 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 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.
[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 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 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
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 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. [Footnote *]
In accordance with Court policy, this opinion, being one which initiates
a conflict with the rule declared in another circuit, was circulated
before release to the entire Court, and rehearing en banc was not voted
by a majority of the judges in active service.
[Footnote 1] 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.
[Footnote 2] Generally, a
class that is devoted entirely to special education is a
"self-contained" classroom.
[Footnote 3] 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 the relationship between the
Rehabilitation Act and the EHA or the effect of a violation of one of
the Rehabilitation Act's regulations.
[Footnote 4] 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).
[Footnote 5] 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.
[Footnote 6] 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.
[Footnote 7] 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.
[Footnote 8] 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.
[Footnote 9] 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.
[Footnote 10]
Nonacademic classes may include art, music or physical education.
[Footnote 11] 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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