|
 Denial
of Mainstreaming Rejected
by Shannon P. Duffy, The Legal Intelligencer, December 3,
2003
For more articles like this
visit
https://www.bridges4kids.org.
In a ruling
hailed as a victory for disabled children, a federal judge has
ruled that a 4-year-old child with Down syndrome must be
"mainstreamed" at the preschool level at least temporarily and
that, after an initial trial period, Pennsylvania education
officials must put the burden on the school district to prove
that a non-mainstream placement is more appropriate.
In his 28-page decision in Blount v. Lancaster-Lebanon
Intermediate Unit, U.S. District Judge Michael M. Baylson found
that the Pennsylvania hearing officer misapplied the federal
Individuals with Disabilities Education Act when he ordered a
segregated educational placement for Gavin Blount.
Under IDEA, Baylson said, the hearing officer "must consider
whether the IU has met its burden of proof that it has attempted
to mainstream Gavin to the fullest extent possible with
supplemental aids and services, before the hearing officer
determines that it is necessary that Gavin be removed from
mainstreaming."
Attorney Kelly Darr of the Education Law Center, who represents
the Blount family, said "this ruling is especially significant
because it supports the trend toward mainstreaming preschool
children with disabilities."
Darr said children with disabilities "have a much better chance
of doing well if they are mainstreamed, and school officials
should start with the presumption that most of these kids can be
included."
According to court papers, Gavin was born in April 1999 and has
been receiving "early intervention" services from the IU since
September 2000.
A dispute arose in May 2002 when IU officials recommended that
Gavin be placed in a "full time specialized classroom." Gavin's
grandparents, Marty and Theresa Blount, who are raising him,
objected to the placement and demanded a hearing.
The Blounts insisted that Gavin's educational program should be
provided in a regular classroom with supplemental aids and
services. They suggested a placement at Learning Ladder, a
private community preschool not far from their home.
But after three days of hearings, Hearing Officer Gregory J.
Smith sided with the IU and concluded that Gavin must be
educated in a full-time segregated setting.
The Blounts turned to the courts, filing suit in U.S. District
Court in January 2003 to challenge the hearing officer's
conclusions.
The evidence, the suit said, "does not support the conclusion
that Gavin cannot be satisfactorily educated in a regular
preschool."
In the suit, attorney Darr didn't challenge any of the factual
findings in Smith's decision, but argued that Smith had failed
to apply the correct legal standards, specifically the burden of
proof, to the facts which he found.
Smith found that Gavin has delays in the areas of cognitive,
communication, motor and social skills, and difficulty
maintaining attention for more than four or five minutes, but
that he has demonstrated the ability to learn through absorbing
and imitating others.
In a Sunday school classroom, Smith found, Gavin's presence and
participation has not been disruptive to other children.
The individualized education plan, or IEP, developed for Gavin
proposed specialized instruction, speech and language support,
occupational therapy and some physical therapy.
Baylson found that Smith properly recognized that, under the 3rd
Circuit's 1993 decision in Oberti v. Board of Education of
Borough of Clementon School District, the proper test for
determining the appropriate placement for Gavin was to consider
"the least restrictive placement in which his program can be
adequately implemented."
But Baylson found that Smith erred when he concluded that Gavin
would not receive meaningful benefit from a placement in a
regular preschool classroom.
Darr argued that Smith did not recognize the strong
congressional preference for mainstreaming, and did not apply
the appropriate burden of proof required under Oberti. Baylson
agreed, saying "Oberti squarely holds that the school (here, the
IU) has the burden of proof, by a preponderance of evidence, to
prove that Gavin could not be educated satisfactorily in a
regular classroom with supplementary aids and services."
In Oberti, the 3rd Circuit held that IDEA's "strong presumption
in favor of mainstreaming," would be "turned on its head if
parents had to prove that their child was worthy of being
included, rather than the school district having to justify a
decision to exclude the child from the regular classroom."
Baylson found that "nowhere in the hearing officer's decision is
there any discussion of the burden of proof or recognition that
the IU has the burden of proof by a preponderance of the
evidence, as required by Oberti."
Although Smith had "conscientiously found facts and balanced the
different considerations," Baylson said, "he failed to analyze
the facts and the issues in connection with the IU having the
burden of proof."
Darr argued that, in order to properly demonstrate that Gavin
cannot be educated at Learning Ladder or another preschool, it
was necessary that the IU actually place and attempt to support
Gavin in such an integrated setting.
But lawyers for the IU argued that there was no requirement in
the law that IEP teams "abandon their judgment in order to test
out, on each child, the general statutory preference for
'mainstreaming.'"
Baylson declined to go as far as Darr urged, saying "there is no
precedent in the 3rd Circuit that 'serious consideration'
necessitates an actual placement of a disabled child in an
integrated setting, to test the child's performance, and this
court is unwilling to hold that such a placement had to take
place in this case as a matter of law."
Nonetheless, Baylson found that since Smith had failed to put
the burden on the school district, his decision must be
reversed.
Baylson concluded Gavin "should be at least initially
mainstreamed" and ordered that the case be remanded to Smith.
"However, mindful of the wise precedent which cautions district
court judges against substituting their own educational
philosophies for those of the authorized state officials, this
court treads lightly at this time as to any specific final
result," Baylson wrote.
Baylson said he "believes that it would be most appropriate for
the IU to mainstream Gavin, at least initially, with appropriate
specific supplemental aids and services, to be determined by
agreement or by the hearing officer on remand."
On remand, Baylson said, Smith should "determine an appropriate
period of time during which Gavin would be mainstreamed at the
Learning Tree with specific supplemental aids and services,
following which an evaluation would determine whether the IU
then contends and has proved that Gavin should not continue in
that environment, and if so, what alternative environment should
be implemented, all of which shall take place under the
supervision of the hearing officer."
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