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August 20, 1985


The opinion of the court was delivered by: SAROKIN

 This matter is before the court on the parties' cross-appeals of decisions of the New Jersey Office of Administrative Law. Plaintiffs Richard and Barbara Bonadonna, suing on behalf of their hearing impaired eight-year-old daughter Alisa, challenge a February 22, 1984 decision of Administrative Law Judge Naomi Dower-LaBastille concluding that the appropriate educational placement for Alisa is in the Bergen County Hearing Impaired Program in Ridgewood, New Jersey, rather than in the regular first-grade class in plaintiffs' neighborhood school in Franklin Lakes, New Jersey. Defendant Board of Education of Franklin Lakes School District counterclaims, challenging the February 1, 1985 decision of the Administrative Law Judge George Perselay ordering the Board to "prepare a program and effect a resource room placement, utilizing the services of [Sharyn] Buonpane," a certified teacher of the deaf and hard of hearing and an employee of the Board since 1970. At issue are the rights of the parties under the Education of All Handicapped Children Act, 20 U.S.C. § 1401 et seq. ("EAHCA"); more fundamentally, however, the court is here called upon to determine the appropriate future education of a little girl.


 The basic facts underlying this action are stipulated to in the Final Pretrial Stipulation of the parties. Born May 22, 1977, Alisa Bonadonna has a bilateral sensori-neural hearing loss, profound in the left ear and severe in the right. She wears a hearing aid to improve residual hearing in the right ear and can detect the presence of speech and environmental noises. Her parents, Richard and Barbara Bonadonna, became concerned when Alisa lagged in speech development; unfortunately, the experts whom they consulted failed to diagnose Alisa's hearing loss until she was three years old. Shortly thereafter she was placed in the Bergen County Hearing Impaired preschool program (HIP). Alisa began to develop speech and language in that setting with the out-of-school support and assistance of her parents, especially her mother, and her grandmother who is also part of the family unit. Alisa spent about thirteen months in the Hearing Impaired Program in New Milford, New Jersey, during which period the family moved to Franklin Lakes.

 During her preschool training, Alisa learned to produce sixty-eight percent of the twenty-five consonant digraph sounds. However, in spontaneous speech, her sound production was less efficient. Alisa demonstrated excellent reasoning ability in nonlanguage tasks, but her ability to utilize language meaningfully was rudimentary. By June, 1982, she was responsive to visual cues, as she is now, and she excelled at visual tasks, as well as those which could be solved by manipulation of concrete objects including building, puzzle solving, map reading, sequencing objects, discriminating among shapes and letters and counting numbers up to ten. Her intellectual potential appeared to be in the superior range; indeed, testing placed her I.Q. between 110 and 120.

 Upon considering Alisa's kindergarten placement, the Franklin Lakes Child Study Team first recommended that Alisa continue in the Hearing Impaired Program, but when the parents objected to such placement the Child Study Team ("CST") sought and obtained the permission of the HIP administration to release Alisa an hour early every day, so that she could return to Franklin Lakes, and spend the rest of the day in her regular classroom. Alisa's parents appealed this CST placement recommendation to the superintendent of schools, who granted their request to keep Alisa in the regular kindergarten. Additionally, the Board agreed to provide one-to-one speech therapy with Rose Wolcott, a speech/language pathologist, and to transport Alisa to a hearing impaired resource room in Waldwick, New Jersey for one-to-one supplementary academic work with Marge Gorsky, a resource room teacher.

 In kindergarten, at Woodside School, Alisa had considerable success in social integration, but her communicative interaction was minimal. Her speech was not understandable, with the exception of about ten words, such as "hat," "outside," "home," and "bathroom." Alisa received the stimulation to communicate and tried to do so, but was seldom able to succeed verbally. She used gestures, mime or other visual communication. The other children tried to understand her and were quite patient when Alisa would utter long strings of unintelligible sounds. While she learned sounds from memory and could act out words, her comprehension of language was poor and she could not understand the teacher without visual cues. She did master all the alphabet letters and sounds and could recognize all the children's names. (R-1, R-2, P-31).

 By early April 1982, Superintendent John Manz received staff reports that Alisa's trial placement in kindergarten was not working out. Subsequent conferences, and plaintiff's visits to the alternative placement facilities did not elicit parental consent for out-of-district placement. As a consequence, on October 6, 1983, the CST prepared an "individualized educational program" ("IEP"), calling for her placement in the HI program. The parents refused to consent to such replacement and on November 9, 1983, the Board instituted a "due process" proceeding with the New Jersey Commissioner of Education, to permit the requested replacement.

 Such proceeding (hereinafter, "OAL-1") took place on January 17, 18, 19 and 20, 1984, and Judge LaBastille issued her Opinion on February 22, 1984. She held,

Based upon the facts, rather than on hope and speculation, I see no evidence that A.B. can benefit from mainstreaming at this time. If A.B. had already spent two years of total concentration on removing her language deficiency . . . the facts and conclusion here might well be different. At the present time, I CONCLUDE that the nature and severity of A.B.'s handicap is such that education in regular classes even with one-to-one teaching for all academic subjects cannot be achieved satisfactorily. 20 U.S.C. § 1412(5)(B).
I CONCLUDE that an appropriate free public education under EAHCA can only be provided to A.B. in a program for the Hearing Impaired at this time.

 OAL-1, at 27. In so ruling, Judge LaBastille relied upon the following evidence:

 (1) the report and testimony of Alisa's first grade teacher, P-2, to the effect that Alisa was falling behind the other children and, as a result, has become less interested and more demanding of the teacher's attention, thus interfering with classroom routine, OAL-1, at 13;

 (2) the report and testimony of Dr. Myrna Glick, a clinical and school psychologist, P-33, who stated that Alisa is becoming discouraged and impatient as a result of her handicap, and less happy in school, OAL-1, at 13-14;

 (3) the report of Dr. Beatrice Edelstein, a state consultant in hearing impairment, P-35, who stated that Alisa does not comprehend most of what she reads, that she is inattentive and "not an integral part of the class both academically and socially," OAL-1, at 14-15;

 (4) the testimony of Board witnesses regarding the Bergen County Hearing Impaired Program, which Judge LaBastille found, gives each child "an opportunity for success on his or her own level," while offering them "protection from rejection or the disinterest of non-handicapped children," OAL-1, at 20; and

 (5) her own observations of Alisa's instruction, as a result of which she "noted the level of sound and gesture which A.B.'s one-to-one teacher was required to use to achieve comprehension and communication with A.B. As the Board's experts pointed out, such teaching cannot be carried out in the regular classroom even on a one-to-one or small group basis since it would be disruptive of the learning environment of the other children in the class, especially at the first through third grade levels." OAL-1, at 18.

 Judge LaBastille reviewed the testimony of plaintiffs' experts, Dr. Howard Margolis, a special education consultant, and Nanc Fellerman, both of whom advocated a mainstreaming approach, but concluded that Alisa was "not the appropriate child" for such approach, and that "Dr. Margolis' instructional prescriptions are not workable and not fair to the other children in the class." OAL-1, at 15-17.

 On March 21, 1984, plaintiffs appealed Judge LaBastille's decision to this court. By stipulation filed September 5, 1984, defendant Saul Cooperman, Commissioner of the New Jersey Department of Education, was dismissed from this action, though he agreed to be bound by the result thereof.

 In the meantime, on May 25, 1984, plaintiffs filed a request with Commissioner Cooperman to accelerate the date by which the Board CST would commence preparation of Alisa's IEP for the following school year. This matter, OAL-2, was resolved by stipulation entered into on June 1, 1984, and by August 14, 1984, the IEP was completed.

 However, on June 15, 1984, plaintiffs filed a third petition with the Commissioner, requesting (1) non-discriminatory assessment and evaluation methods used in developing Alisa's IEP, and (2) an interim arrangement whereby Alisa would not be retained in the first grade, as the Board planned, but would instead be sent to the second grade for art, music, physical education, lunch and math. After a two-day hearing on July 24 and 25, 1984, the Board offered to stipulate to all of the relief requested by plaintiff, with the exception of placing Alisa in the second grade for math. Plaintiffs rejected this stipulation, but Judge Perselay concluded that the second request for relief made by plaintiffs had, in fact, been satisfied and so "that portion of the matter was considered settled." See Order Partially Concluding Special Education Case (Aug. 6, 1984) at 3-4.

 After initial settlement efforts failed, hearings were held on such IEP on October 15 and 16, 1984. Eventually, the parties reached agreement on the IEP, but, by Opinion dated February 1, 1985 (hereinafter, "OAL-3"), Judge Perselay disapproved the program arrived at. He found that such arrangement was unsatisfactory, in that it involved excessive time devoted to transportation back and forth between Woodside School and the hearing impaired resource room attended by Alisa in Waldwick. He thus ordered that the Board "prepare a program and effect a resource room placement" in the Woodside school, utilizing the services of Sharyn Buonpane, a certified teacher of the deaf and hard of hearing already employed, on a part-time basis, by the Board. He also found that the maximum time allowed in such room, two hours, was too little, and ordered such time restriction waived. See generally OAL-3, at 15-16. Such solution, Judge Perselay held, would remedy the fragmentation in Alisa's schedule, see id. at 7, and would result in the required nondiscriminatory evaluation of her. Id. at 16. He did, however, deny plaintiffs' request to observe Alisa in the classroom. Id. at 11.

 By Consent Order entered into on March 7, 1985, defendant was permitted to file a counterclaim in this action, challenging OAL-3. Both this counterclaim and plaintiffs' complaint are now before the court for determination. At issue is whether Alisa can receive an appropriate education in the regular educational environment, with the use of supplementary aids and services. 20 U.S.C. § 1412(5)(B). Plaintiffs argue that she can, and that she ought to remain in her Franklin Lakes classroom, as modified by certain scheduling accommodations and supplemented by a resource room. In particular, plaintiffs request that the following program be implemented:

1. [Alisa] remain a part of her normal class for homeroom, gym, art, music, lunch and free periods.
2. [Alisa] work with Sharon [Buonpane] (A certified teacher of the hearing impaired, and a certified speech therapist for the hearing impaired, who is already an employee of Franklin Lakes) in a one-to-one resource room setting while the other students are attending academic classes.
3. The same certified teacher could be present with [Alisa] when the regular class divides up into small group academics thereby providing an academic learning interaction with her peers, and a sense of belonging without hindering other class members.
4. [Alisa] would eventually be mainstreamed for an increasing percentage of each academic day.

 Final Pretrial Stipulation at 7 (Plaintiffs' Factual Contentions). Plaintiffs further argue that Alisa has been the victim of inadequate and discriminatory evaluation by the Board. Ibid. Defendant, however, argues that due to her impairment, Alisa must receive one-to-one instruction, that such instruction is a poor program, because it is "exhausting to both teacher and pupil," boring and lacking in variety, and would not expose Alisa to learning from her peers; it is also distracting to other children. Supplemental speech therapy and the resource room are argued to contain many of the same problems; they also tend "to fragment Alisa's school day" and to "focus attention of Alisa's classmates on her as 'different.'" The ...

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