In sum, the School District and its experts argue that inclusion of Rafael is not feasible; that Rafael is too severely disabled and too unruly to be educated within the matrix of a regular education class; and therefore that he is in need of special education services that can only be provided in a small, self-contained special education class. In the School District's view, this is the only hope of developing even minimal readiness for mainstreaming in the future. Rafael's experts, on the other hand, attest that inclusion of children like Rafael has been and can be successfully accomplished.
D. Matter in Dispute
The Obertis having challenged the School District's current placement for Rafael, which calls for a most restrictive setting, the School District must justify its conclusion that it is not feasible to place Rafael within a regular class in his local school with supplementary aids and services. We believe that the parties have raised questions of fact material to this issue, and therefore the motions for summary judgment filed by both parties must be denied.
There is no dispute as to whether the school district considered less restrictive placements for Rafael in anticipation of the 1989-1990 school year. It did not. There is no dispute as to the level of supplementary aids and services the School District provided for Rafael during his year in the developmental kindergarten. As we have already indicated, the level of assistance provided was insufficient. Finally, although the School District allegedly considered less restrictive placements for Rafael for the 1990-1991 school year, there is no question that this placement decision was substantially and improperly influenced by the behavior problems Rafael manifested during the developmental kindergarten year.
Accordingly, we do not believe that any of the School District's placement decisions for Rafael can stand scrutiny under the standards of the IDEA. It does not appear that either the procedural or mainstreaming requirements of the Act were satisfied with respect to any of the IEPs promulgated for Rafael.
However, it does appear to us that genuine questions of material fact have been raised about the feasibility of including Rafael in a regular classroom setting now. Moreover, this is a particularly fact-sensitive issue, and one that requires expert evidence. Although there may not be a dispute as to the severity of Rafael's disability, obviously the experts disagree as to whether Rafael can be included in a regular classroom and as to what types of supplementary aids and services might be employed to facilitate such a placement.
Thus, the School District has failed to establish that there is no disputed question of material fact with respect to whether the current IEP is appropriate, and the Obertis have failed to establish that there is no disputed question of material fact with respect to whether it is feasible to offer Rafael an inclusive placement in his local school. A plenary hearing will therefore be required in order for the court to make these determinations.
IV. Section 504 of the Rehabilitation Act
The Obertis have also brought discrimination claims against the School District pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 729.
Although there are a number of distinct issues related to this claim, it appears to us that, like the IDEA, section 504 would require inclusion of Rafael within a regular class in his local school if feasible.
See Alexander v. Choate, 469 U.S. 287, 300, 83 L. Ed. 2d 661, 105 S. Ct. 712 n. 19 (1985) (provider must make "reasonable modifications in its programs" to accommodate individuals with disabilities); 34 C.F.R. § 104.34 (segregated school services permissible only if school district demonstrates "that the education of the person in the regular educational environment . . . with the use of supplementary aids and services cannot be achieved satisfactorily"); 34 C.F.R. § 104(b)(2) (requiring equal educational opportunity "in the most integrated setting appropriate to the person's needs").
As this is the precise issue we have reserved for trial with respect to the Obertis' IDEA claim, it too is unripe for summary judgment.
We have identified various ways in which the School District has, since 1989, violated the procedural and mainstreaming requirements of the IDEA with respect to Rafael's education. Still, the question remains as to what is the most appropriate placement for Rafael now. A new IEP must therefore be generated after the court determines whether it is feasible for the School District, in collaboration with the Obertis, to devise an IEP for Rafael which will provide integrated educational services and activities at his local elementary school, with nondisabled children, to the maximum extent appropriate, with the use of supplementary aids and services as necessary. According to the goals and requirements of the IDEA, we will first direct our attention to whether and to what extent Rafael can be included within the matrix of a regular class and to what supplementary aids and services would be necessary to accomplish this. Rafael's unhappy experience in Clementon's developmental kindergarten may no longer be used as a basis for justifying his exclusion from mainstream programming.
It is regretful that this matter has ended up in litigation where the parties are pitted against each other instead of working together. It is difficult to imagine a worse scenario from the point of view of Rafael.
Creating accommodations for children with disabilities within mainstream education programs is a challenge for all involved, and we are sure, if of nothing else, that in the process both parties need all the help they can get.
An appropriate order shall be entered, and this matter shall be set down for a plenary hearing on an expedited basis.
JOHN F. GERRY, CHIEF JUDGE
DATED: April 24, 1992
ORDER - April 24, 1992, Filed
This matter having come before the Court on cross-motions for summary judgment, and the Court having considered the submissions of the parties and heard oral argument, and for good cause shown;
It is, on this 24th day of April, 1992, hereby ORDERED that plaintiffs' motion for summary judgment is DENIED.
It is FURTHER ORDERED that defendants' motion for summary judgment is DENIED.
It is FURTHER ORDERED that plaintiffs' motion to strike the affidavit of Stanley J. Urban, Ph.D. is DENIED, and plaintiffs are granted leave to file the affidavit of Lou Brown, Ph.D.
JOHN F. GERRY, CHIEF JUDGE