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

August 17, 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

 This matter arises under the Individuals With Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400-85, and section 504 of the Rehabilitation Act, 29 U.S.C. § 729. We have jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415 (e)(4)(A).

 The history of this case is set out in our opinion of April 24, 1992, where we denied cross-motions for summary judgment, and we do not repeat it here. 789 F. Supp. 1322 (D.N.J. 1992). In short, Rafael Oberti is an eight year old child with a disability. Due to the nature of this disability, and based upon the allegation that his disruptive behavior precludes placement in a less restrictive setting, defendants (the "school District") have concluded that Rafael can only be educated in a self-contained special education class, in this case located outside of the school district. Rafael's parents seek an inclusive placement, wherein special education and related services will be provided to Rafael within the matrix of a regular classroom setting in his neighborhood school. On March IS, 1991, an administrative law judge ("ALJ") of the New Jersey Office of administrative Law held that the segregated placement chosen by the School District was the least restrictive environment, closest to home for Rafael at that time. This lawsuit followed.

 On May 26, 27, and 28, 1992, a bench trial was held in this court. See 20 U.S.C. § 1415 (e)(2)(c) ("In any action brought under this paragraph 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."). Having reviewed the entire administrative record, and having heard substantial additional evidence, we now present our findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a) and enter judgment in favor of plaintiffs and against defendants pursuant to Fed. R. Civ. P. 58.

 I. FINDINGS OF FACT

 1. Rafael Oberti is a child with a developmental disability associated with Downs Syndrome. As a result, his intellectual functioning and his ability to communicate verbally are severely impaired. *fn1"

 2. Prior to his entry into kindergarten, as required by state regulations, Rafael was evaluated and classified by the School District's Child Study Team, and his eligibility to receive special education and related services was established. *fn2"

 3. As a result of these evaluations, the child study Team recommended a number of segregated, self-contained special education programs outside of the school district for Rafael's 1989-90 kindergarten year. Although Rafael's parents requested consideration of a less restrictive placement for Rafael, the school District failed to give serious consideration to this possibility before making more restrictive recommendations.

 4. Rafael's parents visited a number of the special education programs recommended by the School District and rejected them. Subsequently, an agreement was reached between the parties whereby Rafael would attend a non-special education class each morning and a special education class each afternoon. *fn3" Accordingly, he was placed in the Clementon Elementary School developmental kindergarten for the morning session, a class for children not quite ready for kindergarten; and in the Pine Hill School District's special education class for children classified as "preschool handicapped" for the afternoon session. The School District was reluctant to assign Rafael to the developmental kindergarten, but, on a trial basis, acceded to the wishes of Rafael's parents, who advocated for the least restrictive and most normalized setting possible.

 5. The Individualized Education Plan ("IEP") developed by the School District for Rafael's 1989-90 kindergarten year provided that all academic objectives were assigned to the afternoon special education class. The experience in the developmental kindergarten was provided in order to give Rafael the opportunity to observe, model, and socialize with children without disabilities, although the teacher did make some efforts to modify the curriculum for him. *fn4" Rafael received speech therapy in the Clementon elementary School during the year. In November of the school year, Rafael's parents requested that an aide be added to the class to assist Rafael, and in March the School District added an aide.

 6. The IEP developed for the 1989-90 school year did not contain provisions for behavior management or toilet training in the developmental kindergarten, and it did not provide for communication between the developmental kindergarten teacher and the special education class teacher. Additionally, the IEP did not provide for, and the developmental kindergarten teacher did not receive, any structured special education consultation during the year.

 7. Rafael made progress, academically, socially, emotionally, and with respect to language development, in both the developmental kindergarten and in the special education class.

 8. Rafael exhibited certain inappropriate behaviors in the developmental kindergarten class, such as throwing temper tantrums and crawling under tables. Occasionally, the teacher required the assistance of an adult from outside the classroom to help remove Rafael from under a table. Additionally, Rafael presented toilet training problems in the class.

 9. While there is evidence to support the contention that on occasion Rafael acted aggressively during the year, we find that the record does not support the School District's assertion that Rafael represented a threat or danger to other people. Moreover, while Rafael clearly was difficult to manage at times, the record does not support the School District's assertion that his behavior disrupted the class to the point that the education of the other children in the class was significantly impaired.

 10. The School District made informal, ad hoc efforts to manage and contain Rafael's behavior problems and toilet training problems, and these efforts were inadequate either to diminish or contain those problems.

 11. Rafael did not present behavior problems in the afternoon special education class.

 12. Largely based upon Rafael's experience in the developmental kindergarten, the School District proposed to place Rafael in an out-of-district, self-contained special education class for children classified as "educable mentally retarded" for the 1990-91 year.

 13. The School District's consideration of less restrictive alternatives for the 1990-91 school year was perfunctory.

 14. Irrespective of Rafael's behavior problems, the School District concluded that Rafael needed to be educated in a self-contained special education class, and could not properly be educated within the matrix of a regular classroom setting, based solely upon the level of his intellectual functioning. *fn5"

 15. There was no self-contained special education class within Clementon that the School District considered appropriate for Rafael.

 16. Rafael's parents objected to the self-contained, out-of-district placement proposed by the School District for the 1990-91 school year, and requested that Rafael be placed in a regular kindergarten in his home elementary school. *fn6" The School District rejected this request, and Rafael's parents requested a state due process hearing. See 20 U.S.C. §§ 1415(b)(2) & (c); N.J.A.C. 6:28-2.7.

 17. As a result of mediation, Rafael's parents and the School District agreed that Rafael would enter a special education class for children classified as "multiply handicapped" in the Winslow Township School District ("Winslow"). *fn7" As part of this agreement, the School District promised to consider mainstreaming possibilities at Winslow as well as to explore a future more inclusive placement at Clementon. Accordingly, a mediation agreement was executed and the 1990-91 IEP was modified to reflect this placement.

 18. While at Winslow, no meaningful mainstreaming opportunities were made available and, for the most part, Rafael remained in the segregated, self-contained, special education class with other children with disabilities. Although there is evidence that Rafael also exhibited behavior problems in the Winslow program, at least in a diminished form, these were successfully contained by, among other things, a behavior management plan implemented there.

 19. The Winslow placement provided a "multi-sensory" educational approach and integrated Rafael's speech, physical, and occupational therapy into his classroom experience.

 20. Despite the School District's insistence to the contrary, plaintiffs' experts persuaded us that a similar multi-sensory approach, with integrated therapies, could be implemented successfully within the matrix of a regular classroom setting. *fn8"

 21. In December of 1990, as a result of their disappointment with the Winslow program, Rafael's parents requested a due process hearing, renewing their request for Rafael to be placed in a regular class in his neighborhood school. A two day hearing was held in February of 1991, and a decision favorable to the School District was rendered on March 15, 1991.

 22. In June of 1991, the School District unilaterally proposed to place Rafael for the 1991-92 school year in the Winslow school in a self-contained special education class for children classified as "neurologically impaired." *fn9"

 23. In the summer of 1991, Rafael's parents enrolled Rafael in Clementon's summer enrichment program, which is a non-special education program open to all Clementon elementary school age children. During this program, Rafael presented behavior problems similar to those exhibited in the developmental kindergarten.

 25. In October of 1991, Rafael's parents began to educate Rafael at home.

 26. For the 1992-93 school year, the School District proposed placing Rafael in a self-contained special education class outside of the school district for children classified either as "educable mentally retarded" or "multiply handicapped." *fn10"

 27. The record does not support the School District's contention that at this point in time Rafael would present behavior problems if included within a less restrictive school placement with appropriate supplementary aids and services. *fn11"

 28. Rafael's behavior problems in Clementon's developmental kindergarten were exacerbated and remained uncontained due the School District's failure to provide him with adequate supplementary aids and services and an appropriate SEP for that placement. The record clearly supports the fact, and the School District concedes, that when provided with such services, such as during the Winslow placement, Rafael's behavior problems diminish and become containable.

 29. There are professionally recognized methods and techniques by which educational experiences in regular classrooms can be modified so students like Rafael can benefit from participating in them, without interfering with the education of nondisabled students. Many universities around the country have been engaged in training regular and special education personnel to implement these methods and techniques. As a result, many school districts around the country, including many in New Jersey, use special and regular education teams, consultants, and itinerant teachers to serve students like Rafael in regular education settings. Technical assistance teams and consultants are available to assist communities in New Jersey to develop and implement such programs.

 30. Parallel instruction is one of a variety of techniques utilized when children with disabilities are appropriately included within regular classes. *fn12" The School District has remained closed-minded regarding the possibility of implementing a variety of other available inclusive techniques, and has overstated the degree of parallel instruction that must occur in order to provide Rafael with an inclusive placement.

 31. The State of New Jersey has encouraged school districts to "make available the option of regular class placement with supports for all pupils for whom it would be appropriate," and has provided those school districts with information and training on developing inclusive education programs. Plaintiff's Exhibit 14, Memorandum of Jeffrey V. Osowski, Director, Division of Special Education, February 6, 1992.

 32. Rafael and children like him may be harmed by being placed in segregated classes, away from friends and family, and surrounded by inappropriate role models.

 34. Rafael and all children with disabilities need access to integrated experiences where they can learn to function effectively. Correspondingly, nondisabled people need to learn to ...


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