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OBERTI v. BOARD OF EDUC. OF CLEMENTON SCH. DIST.

April 24, 1992

RAFAEL OBERTI, by his parents and next friends Carlos and Jeanne Oberti, et al., Plaintiffs,
v.
BOARD OF EDUCATION OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT, et al., Defendants.



The opinion of the court was delivered by: JOHN F. GERRY

GERRY, Chief Judge

 Rafael Oberti is a seven year old boy. He has a disability that distinguishes him, in some ways, from other seven year olds. This lawsuit revolves around the obligation of his home school district in the Borough of Clementon, New Jersey, to provide for his education. Rafael's parents contend that Clementon's plan to educate Rafael in a segregated special education class outside of the school district instead of in a regular school class in Rafael's neighborhood school was adopted in violation of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-85 (the "IDEA"), and section 504 of the Rehabilitation Act, 29 U.S.C. § 729.

 The case is before the court following a state administrative ruling in favor of the defendant Board of Education of the Borough of Clementon School District (the "School District"). Currently before us are cross-motions for summary judgment. Additionally, plaintiffs have moved to strike the affidavit of one of defendants' experts, or, in the alternative, for leave to file a counter affidavit. As discussed below, we will deny both motions for summary judgment; deny plaintiffs' motion to strike; and grant plaintiffs leave to file their counter affidavit. Finally, we will set this matter down for a plenary hearing on an expedited basis.

 I. Background

 Rafael Oberti was born with Downs Syndrome, a genetic defect, and as a result he has a developmental disability including mental retardation. He also has a communication impairment: he has difficulty with expressive language.

 Rafael's parents are committed "to assure his free and appropriate education in the least restrictive environment . . . . [T]hey have left no stone unturned in seeking to have their child educated in a fashion which will prepare him for inclusion as an adult in the community at large. They are unquestionably determined . . . [for him to] be able to cope within a population which will naturally include the broad spectrum of human potential." Decision of Administrative Law Judge Lavery, March 8, 1991, at 15 (hereinafter "ALJ Decision").

 Rafael attended preschool special education classes until he reached kindergarten age. During the summer before he would have entered kindergarten, the School District's Child Study Team *fn1" evaluated him and recommended to his parents that he attend a segregated, self-contained special education class located in another school district. Rafael's parents visited a number of classes recommended by the district and found them unacceptable. Thereafter the parents and School District agreed that Rafael would attend the Clementon Elementary School developmental kindergarten, a class for kindergartners not fully ready for regular kindergarten, for half the day, and a special education class in another school district for the other half of the day. *fn2"

 At the end of the school year, the Child Study Team again proposed an out-of-district placement, this time in a segregated special education class for students classified as "educable mentally retarded." Rafael's parents objected to this and requested that he be placed in the Clementon Elementary School regular kindergarten. The School District rejected this request, and Rafael's parents instituted state administrative proceedings challenging the District's recommendation. See N.J.A.C. 6:28-2.7.

 Prior to the administrative hearing, the School District and Rafael's parents submitted their dispute to mediation. As a result, an agreement was reached whereby Rafael would attend a class for students classified as "multiply handicapped" at the Winslow Township School District. In December of 1990, however, Rafael's parents requested an administrative hearing because of their dissatisfaction with the Winslow placement. On February 4 and 5, 1991, a hearing was held before the Hon. Joseph Lavery, Administrative Law Judge, New Jersey Office of Administrative Law. On March 15, 1991, Judge Lavery affirmed the School District's decision that the appropriate and least restrictive placement for Rafael, closest to home, was within a segregated special education class located outside the school district. Rafael's parents filed this lawsuit challenging this placement decision. See 20 U.S.C. § 1415(e).

 II. The Individuals with Disabilities Education Act ("IDEA")

 This landmark legislation, enacted in 1975, represents a clear congressional commitment to end a period of our history characterized by the segregation and abandonment of children with disabilities. *fn3" The statute requires states receiving federal assistance to share that commitment by developing ways of including children with disabilities within the mainstream of the educational programs in their communities. *fn4"

 The IDEA and its implementing regulations set forth various substantive and procedural requirements designed to "assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected . . . ." 20 U.S.C. § 1400(c). The centerpiece of these requirements is the Individualized Education Program ("IEP"), in which the school district must identify the program it develops for meeting the unique needs of every child with a disability. *fn5" See Honig v. Doe, 484 U.S. 305, 311-12, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988).

 The IDEA also establishes a preference for mainstreaming. The Act states that schools must establish procedures:

 to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, 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. *fn6"

 20 U.S.C. § 1412(5)(B). Thus, "Congress created a statutory preference for educating handicapped children with nonhandicapped children." Greer by Greer v. Rome City School District, 950 F.2d 688, 695 (11th Cir. 1991), opinion withdrawn on other grounds, 956 F.2d 1025 (11th Cir. 1992). See also Board of Education, Sacramento City Unified School District v. Holland, No. 90-1171, 1992 WL 50075, at 3 (E.D. Cal. March 2, 1992) (the Act's preference for mainstreaming "rises to the level of a rebuttable presumption"). The IDEA thereby commands that "[t]o the maximum extent appropriate" children with disabilities be included in regular classroom settings, as close to home as possible. *fn7" See 34 C.F.R. § 300.552(a)(3); N.J.A.C. 6:28-2.10(a)(3) and (5).

 The IDEA imposes affirmative obligations on school districts to consider placing children with disabilities in regular classroom settings, "with the use of supplementary aids and services," before exploring other alternatives. *fn8" See Greer, 950 F.2d at 696 ("before the school district may conclude that a handicapped child should be educated outside the regular classroom, it must consider whether supplemental aids and services would permit satisfactory education in the regular classroom"); Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989) ("First we ask whether education in the regular classroom with the use of supplementary aids and services, can be achieved satisfactorily"). Accordingly, the Act incorporates a "least restrictive environment" requirement. *fn9" 34 C.F.R. § 300.552; N.J.A.C. 6:28-2.10. Although the substance of such considerations must be left to the expertise, discretion, and creativity of local school officials, see Daniel R.R., 874 F.2d at 1046, school districts carry the burden of justifying challenged placements. See Lascari v. Board of Education of the Ramano Indian Hills Regional High School District, 116 N.J. 30, 44, 560 A.2d 1180, 1188 (1989).

 School districts therefore must carefully examine the educational benefits, both academic and nonacademic, available to a child with a disability in a regular classroom. Among the factors to be considered are the advantages derived from modeling the behavior and language of children without disabilities; *fn10" the effects of such inclusion upon the other children in the class, both positive and negative; and the cost of necessary supplementary services. See Greer, 950 F.2d at 697; Barnett v. Fairfax County School Board, 927 F.2d 146, 153-54 (4th Cir.), cert. denied, 116 L. Ed. 2d 138, 112 S. Ct. 175 (1991); Daniel R.R., 874 F.2d at 1048-50. However, the preference or presumption in favor of inclusion will not be rebutted unless the school district shows either that the child's disabilities are so severe that he or she will receive little or no benefit from inclusion; *fn11" that he or she is "so disruptive as to significantly impair the education of other children" in the class; *fn12" or that the cost of providing an inclusive education "will significantly affect other children in the district." Holland, 1992 WL 50075, at 5.

 Neither the Supreme Court nor the Third Circuit has yet considered the mainstreaming requirements of the IDEA. We agree with the Sixth Circuit, which, in Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 196, 78 L. Ed. 2d 171 (1983), stated:

 Id. at 1063 (citation omitted).

 Thus, in collaboration with the family, a school district must make a threshold determination as to what special services a child with a disability needs and must then determine whether those needs can be met within the matrix of a regular classroom setting with the provision of supplementary aids and services. As noted by the Eleventh Circuit:

 [B]efore the school district may conclude that a handicapped child should be educated outside the regular classroom, it must consider whether supplemental aids and services would permit satisfactory education in the regular classroom. The school district must consider the whole range of supplemental aids and services, including resource rooms and itinerant instruction, for which it is obligated under the Act and the regulations promulgated thereunder to make provision. Only when the handicapped child's education may not be achieved satisfactorily, even with one or more of these supplemental aids and services, may the school board consider placing the child outside of the regular classroom.

 Greer, 950 F.2d at 696.

 Courts that oppose such an interpretation of the Act have held that the Roncker test "necessitates too intrusive an inquiry into the educational/policy choices that Congress deliberately left to state and local school officials." Daniel R.R., 874 F.2d at 1046. We see no other way, however, to enforce the IDEA's mainstreaming requirements. Moreover, although we agree with the Daniel R.R. court that "States need not provide every conceivable supplementary aid or service to assist the child," id. at 1048, we believe that the IDEA obligates school systems to provide a certain level of supplementary aids and services which will vary in every case. In each case, however, there will be a floor beneath which such provisions will be deemed inadequate. Id. ("the Act does not permit states to make mere token gestures to accommodate handicapped students").

 Thus, "Congress plainly required schools to hire various specially trained personnel to help handicapped children . . . ." Irving Independent School District v. Tatro, 468 U.S. 883, 893, 82 L. Ed. 2d 664, 104 S. Ct. 3371 (1984). This includes the services of physical, occupational, and speech therapists. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 176 (3d Cir. 1988), cert. denied sub nom. Central Columbia School District v. Polk, 488 U.S. 1030, 102 L. Ed. 2d 970, 109 S. Ct. 838 (1989); 20 U.S.C. § 1401(16). Additionally, a school district must assign a supplementary teacher's aide to a regular classroom, on a full or part-time basis, if necessary, to accommodate the special needs of included children with disabilities. See, e.g., Department of Education. State of Hawaii v. Katherine D., 727 F.2d 809, 813 (9th Cir. 1983) (aide ordered for child with cystic fibrosis), cert. denied, 471 U.S. 1117, 86 L. Ed. 2d 260, 105 S. Ct. 2360 (1985). In other words, the IDEA requires school districts to supplement their resources in order to meet the special needs of children with disabilities.

 In order to accomplish the IDEA's goals, schools must maximize mainstreaming opportunities. Thus, a school district must coordinate special services delivery to a child with a disability placed in a regular classroom setting. Moreover, teachers, aides, and other school personnel involved on the front lines will require varying degrees of support and training, depending upon the particular special needs involved. See, e.g., Polk, 853 F.2d at 173-74. All of this, of course, requires a substantial degree of consultation and communication between the special service forces of a school district, supplemented by consultation and assistance from outside sources if necessary, and teachers and other front line school personnel.

 In sum, the IDEA sets forth its preference for mainstreaming in terms of least restrictive environments. Participating school systems must provide a continuum of placements, ranging from full inclusion in regular settings, in which a child with a disability becomes a full member of the regular class, to completely segregated settings, see 34 C.F.R. § 300.551(a) and (b), and must consider the least restrictive option first. Moreover, children placed in segregated or partially segregated settings must be simultaneously included in mainstream components "to the maximum extent appropriate." Finally, in accordance with the purposes and policies expressed by Congress in the IDEA, the goal for every child should be directed toward moving up on the continuum in the direction of full inclusion.

 The IDEA incorporates a vision of our educational system in which, whenever possible, children with disabilities become fully integrated members of the educational community. The goal of the IDEA is realized when a child with a disability can become included, accepted, and respected as a full member of a regular class, and is no longer seen as an outsider.

 III. Discussion

 A. Standards of Review

 The IDEA provides that the court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). Although the Supreme Court has not reached the Act's mainstreaming requirements, it has defined the standard of review in other IDEA cases as follows:

 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? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

 Board of Education v. Rowley, 458 U.S. 176, 206-207, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982).

 Although the Court has cautioned that courts may not "substitute their own notions of sound educational policy for those of the school authorities which they review," id. at 206, in mainstreaming cases we must determine whether the State has complied with the mainstreaming requirements set forth in the Act. See Polk, 853 F.2d at 184 ("we do not read the Supreme Court's salutary warnings against interference with educational methodology as an invitation to abdicate our obligation to enforce the statutory provisions that ensure a free and appropriate education" to children with disabilities).

 Moreover, we note that a school district carries the burden of proof "not only when it seeks to change the IEP, but also when the parents seek the change." Lascari v. Board of Education of the Ramapo Indian Hills Regional High School District, 116 N.J. 30, 44, 560 A.2d 1180, 1188 (1989). Thus, when challenged, a school district must show that its ...


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