source of rights for children with disabilities in addition to the IDEA. See 20 U.S.C. § 1415(f). The statute states, in relevant part:
No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C. § 794(a).
36. In order to make out a prima facie case under section 504, plaintiff must prove:
(1) that he is a "handicapped individual" under the Act (2) that he is "otherwise qualified" for the position sought, (3) that he was excluded from the position sought solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance.
Strathie v. Department of Transportation, 716 F.2d 227, 230 (3d Cir. 1983).
37. Rafael clearly is an "individual with handicaps" as defined by the Rehabilitation Act. See 29 U.S.C. § 706(8).
38. Because age is the only program requirement applicable to public elementary education, see 34 C.F.R. § 104.3(k)(2),
Rafael is an "otherwise qualified" handicapped individual within the meaning of section 504.
39. The School District admittedly is a recipient of federal funding.
40. The School District has stated that its placement recommendations for Rafael have been based upon his intellectual disability as well as his behavior problems, including toilet training difficulties. These are all manifestations of Rafael's disability. See 29 U.S.C. § 706(8); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 176, 182 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989); Battle v. Pennsylvania, 629 F.2d 269, 275 (3d Cir. 1980), cert. denied, 452 U.S. 968, 101 S. Ct. 3123, 69 L. Ed. 2d 981 (1981).
41. Based upon the nature of his disabilities, Rafael has been denied the benefits of education in his local school district, which has required him to attend a self-contained special education class out-of-district without any meaningful opportunity for mainstreaming.
42. Accordingly, plaintiffs have made out a prima facie case under section 504.
43. "Once the plaintiff has established a prima facie case that he has been discriminated against, the defendant must present evidence to rebut the inference of illegality." New York State Ass'n for Retarded Children, Inc. v. Carey, 612 F.2d 644, 649 (2d Cir. 1979). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
44. The School District must therefore show that placement of Rafael in a self-contained special education class, in this case out of his home school district, is educationally necessary.
See Board of Education v. Harris, 444 U.S. 130, 151, 62 L. Ed. 2d 275, 100 S. Ct. 363 (1979).
45. In order to establish 'educational necessity,' the regulations require that segregated special education placements must be "necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others." 34 C.F.R. § 104.4(b)(1)(iv). See also 34 C.F.R. § 104.4(b)(2) (schools must provide "equal opportunity to achieve the same result, to gain the same benefit"); Alexander v. Choate, 105 S. Ct. 712, 722, 83 L. Ed. 2d 661 (1985).
46. We believe that it makes sense to construe these regulations consistently with the IDEA,
and thus conclude that they preclude schools from implementing a segregated special education placement unless such a placement is necessary to confer "some educational benefit" upon a child with a disability. Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 3048, 73 L. Ed. 2d 690 (1982).
47. In order to exclude a child with a disability from regular education programming, the school district must "reasonably demonstrate that accommodating . . . [the] individual would require either a modification of the essential nature of the program, or impose an undue burden on the recipient of federal funds." Strathie, 716 F.2d at 231. Moreover, the regulations provide that such a showing is subject to a "least restrictive environment" requirement.
For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.
34 C.F.R. § 104.4(b)(2). See also New Mexico Ass'n for Retarded Citizens, Inc. v. New Mexico, 678 F.2d 847, 855 (10th Cir. 1982).
48. Given our holding under the IDEA that Rafael can be accommodated in a regular classroom setting with the provision of appropriate supplementary aids and services, we must necessarily hold that the School District has not offered Rafael the "least restrictive alternative" as required by section 504.
49. The School District has failed to demonstrate that it is necessary to educate Rafael in a self-contained special education class, in this case located out of the district. Moreover, the School District has failed to demonstrate that accommodating Rafael by designing an inclusive individual education program for him within the district would require a modification of the essential nature of the program or place an undue burden upon the School District.
50. As we held in the context of the IDEA, neither Rafael's need for assistance in self-help and toileting, his level of intellectual functioning, or his behavior problems, all manifestations of his disability, justify excluding him from mainstream educational programming.
51. Likewise it is clear that Rafael has benefitted and can continue to benefit from an inclusive education program and that the School District has deprived him of this opportunity solely by reason of his disability.
52. The School District violated section 504 by failing to properly investigate and failing to provide the reasonable accommodations necessary to enable Rafael to benefit from an inclusive education program in his home school district, and by excluding him from regular education programming solely on the basis of his disability.
Having found violations of both the IDEA and section 504 of the Rehabilitation Act, the School District's 1990-91 IEP, and its placement recommendations for the 1991-92 and 1992-93 school years, cannot stand. Accordingly, we reach a decision contrary to that reached by the ALJ and send the parties back to the drawing board to design an appropriate IEP for Rafael Oberti for the 1992-93 school year in accordance with this opinion. See Russell v. Jefferson School District, 609 F. Supp. 605, 608-609 (N.D. Cal. 1985). Additionally, we authorize an award of attorneys' fees to plaintiffs, who have prevailed in this matter. See 20 U.S.C. § 1415 (e)(4)(B) and 29 U.S.C. § 794a(b).
Although we leave decisions as to educational methodology in the hands of the School District, to be developed in cooperation with Rafael's parents, the School District is not free at this time to recommend a self-contained special education placement for Rafael. It is now time for the School District to reconsider its position on inclusion for Rafael, and to avail itself of the resources that have enabled school districts around the country and within New Jersey successfully to educate children with moderate to severe disabilities within the matrices of regular education classes.
Both the IDEA and section 504 of the Rehabilitation Act seek to address the problems created by the segregation of individuals with disabilities and compel the type of integration which we are enforcing in this case. While this surely requires readjustment and considerable effort on the part of educators, and on the part of the community in general, it is a small price to pay to increase the opportunity of individuals with disabilities to become fully-functioning, productive, and co-equal members of society, and of individuals without disabilities to learn to live in a world where individuals with disabilities are so included. Accordingly, this is the price which we require of the School District today.
An appropriate order shall be entered.
John F. Gerry, Chief Judge
August 17th, 1992
The court having heard evidence, considered the submissions of the parties, and reviewed the record of the administrative proceedings; and for good cause shown;
On this 17th day of August, 1992, JUDGMENT is hereby entered, pursuant to Fed. R. Civ. P. 58, in favor of plaintiffs and against Defendants.
Defendants are ORDERED to reinstate the Individual Education Program process for Rafael Oberti and, in cooperation with Rafael's parents, to develop an inclusive education plan for Rafael Oberti for the 1992-93 school year consistent with the requirements of the Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400-85, and section 504 of the Rehabilitation Act, 29 U.S.C. § 729, as outlined in the Court's Opinion filed on this date.
It is FURTHER ORDERED that, pursuant to 20 U.S.C. § 1415 (e)(4)(B) and 29 U.S.C. § 794a(b), and upon receipt of appropriate proofs, an award of reasonable attorneys fees' as part of the costs shall be granted to Plaintiffs.
It is FURTHER ORDERED that Defendants' motion to open the record, pursuant to Fed. R. Civ. P. 60(b)(1) and Local Rule 44, and to admit into evidence missing pages of trial exhibit D-6, is DENIED.
It is FURTHER ORDERED that Defendants' motion to open the record, pursuant to Fed. R. Civ. P. 59, to include a document dated June 18, 1992, is GRANTED.
John F. Gerry, Chief Judge