IEP should be changed; moreover, one procedure seems to constitute the sole criterion for determining her program. This mode of evaluation is violative of the EAHCA and, as Dr. Bennett pointed out, does not approach compliance with its regulations, 34 C.F.R. § 300.532: there is no evidence, for example, that any validated tests were performed, to test Alisa's aptitude rather than her handicap; that all areas of her hearing impairment were assessed; or that anyone on the classification team was an expert in the education of the hearing impaired. Rather, the CST's April, 1983 assessment was based upon observation alone.
This is a pattern that repeated itself. Thus, the October 6, 1983 IEP review of Alisa, based upon which the CST continued to recommend that Alisa be placed in the Bergen County Hearing Impaired Program, concerned itself primarily with Alisa's first month of the first grade. No standardized psychological or education tests were administered; indeed, the entire substance of the report is described as "Alisa's performance in first grade, as reported by Mrs. Kellerman, her first grade teacher." Thus, but one procedure --teacher evaluation--was utilized. Such procedures lacked scientific validity, in that they were not systematic, were limited to a narrow range of behavior and were not confirmed by recent test data, and thus tended toward discriminatory evaluation, i.e., evaluation that is biased, in this case, against deaf children. See Tr. (7/25/84) at 5:8-12, 13:17-21, 19:24-20:4, 28:5-30:10. (testimony of Dr. Bennett). Moreover, such evaluation, documenting Alisa's language problems, and need for one-to-one instruction, was based upon but one month of observation. The court finds that this method of assessment does not meet the requirements of the EAHCA, or its regulations.
Finally, on June 7, 1984, the CST conducted an IEP Annual Review based upon which the CST recommended that Alisa remain in the first grade; as discussed, supra slip op. at 7, the parties ultimately agreed that, on an interim basis, she would attend second grade for homeroom, lunch, recess, art, physical education, library and music, and that her remaining subjects would be taught in the first grade, a resource room or a combination thereof, with speech and language instruction at the Woodside Avenue School. P38, at 12. The report at issue, however, does not indicate that it was based upon anything other than observations by Mrs. Kellerman, the first grade teacher (P25, P26, P27), as well as by Dr. Glick (P33), psychologist John Caliso (P32), and State Hearing Impairment Consultant Dr. Beatrice D. Edelstein (P35). The latter three, again, evaluated Alisa early in the course of first grade. And again, none utilized techniques other than simple observation. As a result, the CST report was quite imprecise: while it noted that Alisa was below first-grade level in reading comprehension, written expression and spelling, it did not say how far below grade level her performance was. P38, at 3. Oral comprehension was stated to be merely "below her classmates," clearly not an adequate measure. And, while Alisa was said to be performing at grade level in math, handwriting, art and in some aspects of physical education, other areas were not even evaluated. P38, at 3-4.
These types of reports constituted the basis for the IEP ultimately approved by Judge LaBastille. As such, the IEP did not fulfill the requirements of the EAHCA; nor has the Board justified its placement of Alisa in the Hearing Impaired Program by appropriate preplacement testing. In these senses, the procedural requirements of the EAHCA have been left unfulfilled; the IEP proposed by the Board may be rejected on this ground alone. See Rowley, supra, 458 U.S. at 206-07 n.27.
B. Sufficiency of the IEP
The court nonetheless moves on to examine the sufficiency of the IEP approved by Judge LaBastille. In so doing, it recognizes that, normally, it would be required to give "due weight" to her decision; here, however, such decision is, essentially, contradicted by the subsequent Opinion of Judge Perselay, in OAL-3. The latter has also been appealed to this court, on other grounds, and, technically, the court could affirm both decisions, by holding that the IEP proposed by the Board was appropriate, as was Judge Perselay's interim order.
However, the two rulings represent such different approaches to the same problem that the court cannot help but find their inconsistency to be an indication that the state is of two minds about the problem here presented. Deference is, in such situation, inappropriate.
Moreover, the court finds the fact that Judge Perselay arrived at a conclusion so at odds with that reached by Judge LaBastille probative, just as it found probative his findings regarding the inadequacy of the evaluations of Alisa performed prior to his August 6, 1984 Order. See supra slip op. at 13-14. Such findings are here indicative of the fact that Judge LaBastille's ruling was made at a time much earlier than the time at which Judge Perselay began to handle the case. And, the court believes, their findings so reflect; Judge Perselay had a more complete record before him, which record supported a partial mainstreaming approach. The evidence presented to Judge LaBastille, on the other hand, was tentative, premature and thus, inconclusive.
Thus, for example, just as Alisa ended up making enormous progress in kindergarten, notwithstanding the dire forecasts of the CST to the contrary, see supra slip op. at 15, first grade also proved to be a success in certain respects. Hence, Judge LaBastille found that Alisa was "less happy" in school than before, as a result of her "frustration in the classroom from an inability to understand what appears to be easy for other children to understand," and other "signs of deteriorating emotional adjustment." OAL-1, at 14. Such finding was based upon Dr. Glick's testimony, itself based upon observation "on several occasions" of Alisa during the first few months of the first grade (P33), at which point, it should be noted, certain telex equipment designed to help Alisa was not working. By the end of that year, the CST could write:
In addition to her intelligence and visual awareness, Alisa has many positive qualities which have contributed to her ability to adjust well socially and emotionally to her present placement. She is a friendly, sociable child who has made many friends in her present class. She plays after school with these children and is invited to birthday parties and other social events. At these functions, she reportedly relates very well to her peers. In school, Alisa's classmates have been extremely thoughtful of her as a person and of her special needs. Often, they are very protective and solicitous. She is an emotionally sturdy and adaptive child who appears to have coped well even though her program requires movement outside the school. Whereas at the beginning of the school year, she smiled infrequently and interacted minimally with her peers, she now smiles often and makes positive contacts with classmates via affectionate physical contact and gestures. Occasionally, she utters short phrases or sentences as well.