adequate special education support to the teacher.'" Id. at 1220 (quoting Oberti v. Board of Educ. of Clementon School Dist., ("Oberti II") 801 F. Supp. 1392, 1402 (D.N.J. 1992)) (other citation omitted). The following academic year the Court found that the child "was placed in a segregated class with 'no meaningful mainstreaming opportunities,' . . . , and that 'the School District's consideration of less restrictive alternatives for the 1990-91 school year was perfunctory.'" Id. at 1221 (quoting Oberti II, 801 F. Supp. at 1396 and 1397). What is more, the record in Oberti demonstrated that "the School District had access to information and expertise about specific methods and services to enable children with disabilities like Rafael to be included in a regular classroom, . . . , but that the School District did not provide such supplementary aids and services for Rafael in the kindergarten class." Id. (citation and footnote omitted).
With respect to the second factor analyzed by the Third Circuit - a comparison of the educational benefits of a segregated placement versus placement in a regular classroom - the Court deferred to the lower court's findings that not only would the child "benefit academically and socially from inclusion in a regular classroom," but that "'nondisabled children class will likewise benefit' from the inclusion of Rafael in a regular classroom." Id. at 1221-22 (quoting Oberti II, 801 F. Supp. at 1404) (other citation omitted). As to the third and final factor evaluated by the Oberti Court - the potentially disruptive effect of Rafael's presence on other children in the regular classroom - the Court held that the lower court's finding that "the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class 'were exacerbated and remained uncontained due to the inadequate level of services provided there,' that Rafael's behavioral problems were diminished in settings where an adequate level of supplementary aids and services were provided, and that both the School District and the ALJ 'improperly justified Rafael's exclusion from less restrictive placements in subsequent years based upon those behavior problems.'" Id. at 1222-23 (quoting Oberti II, 801 F. Supp. at 1403). Because the Circuit Court affirmed the lower court's determination that the school district had violated the IDEA's mainstreaming requirement, the Court did not go on to apply the second part of the Daniel R.R. test - that is whether the child had been included in programs with nondisabled children whenever possible. Id. at 1223.
Likewise, in Greer the Eleventh Circuit followed the Fifth Circuit's lead in Daniel R.R. and applied that two-part mainstreaming test to determine whether a ten year old child with Down's Syndrome was being educated in the "least restrictive environment." The district court found that she was not and on appeal the Circuit Court agreed. As in Oberti, applying the Daniel R.R. test the Court found that it need not reach the second part of that test because the school district failed to meet the first part of the test. In other words, the Greer Court found that the school district did not show whether education in a regular class could be satisfactorily achieved with the use of supplemental aids and services because, among other reasons, "prior to and during" the development of the child's IEP, it did not consider a full range of supplemental aids and services, such as "resource rooms and itinerant instruction, . . . ." Id. at 698. The Court also faulted the school district for not making any effort to modify the kindergarten curriculum to accommodate the child in a regular classroom. Id. Finally, the Court reasoned that, "the school district's determination that [the child] would receive more benefit from education in a self-contained special education classroom than in a regular classroom is due no deference because school officials failed to consider what benefit she would receive from education in a regular classroom with appropriate supplemental aids and services." Id. (emphasis in original).
As just discussed, Greer and Oberti are instructive from a substantive viewpoint, but they also provide guidance on two significant procedural issues here. The first is which party bears the burden of proof with respect to the IDEA's mainstreaming requirement.
As the Third Circuit accurately observed in Oberti, "neither Rowley nor the Act itself specifically addresses which party bears the burden of proof at the district court level, . . . ." 995 F.2d at 1218. Despite the lack of guidance from either of those two sources, the Oberti Court plainly held that when the IDEA's mainstreaming requirement is at issue, "it is appropriate to place the burden of proving compliance with IDEA on the school." Id. at 1219. In so holding, the Third Circuit soundly reasoned that: "the Act's strong presumption in favor of mainstreaming, 20 U.S.C. § 1422(5)(B), would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom." Id. at 1219. The Court also set forth a few "practical considerations" to support its finding that the school district should bear the burden of proof when mainstreaming is at issue:
Requiring parents to prove at the district court level that the school has failed to comply with the Act would undermine the Act's express purpose 'to assure that the rights of children with disabilities and their parents are protected,' 20 U.S.C. § 1400(c), and would diminish the effect of the provision that enables parents and guardians to obtain judicial enforcement of the Act's substantive and procedural requirements, . . . . In practical terms, the school has an advantage when a dispute arises under the Act.: the school has better access to the relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child's education), and greater overall educational expertise than the parents. . . .
Id. at 1219 (citations omitted).
This court fully agrees with the Third Circuit's analysis and conclusion in Oberti. Therefore, the burden of proving compliance with the IDEA's mainstreaming requirement here is on the District. The court is fully cognizant of the Second Circuit's comment in Briggs that "neither the court nor the Briggs pointed out anything in the administrative record to substantiate the claim that James' needs could be met in a less segregated setting." Briggs, 882 F.2d at 692. As did the Third Circuit, however, this court does not find Briggs to be persuasive authority on the issue of which party bears the burden of proof when the IDEA's mainstreaming requirement is at issue. Clearly that issue was not before the Court in Briggs. Rather, the primary focus of the Court's inquiry in Briggs was whether the district court gave sufficient deference to the agency experts and hearing officer; and the Court found that it did not. Id. at 693. As previously mentioned, the issue of which party bears the burden of proof on the mainstreaming issue at the district court level "is quite different from the district court's obligation to afford due weight to the administrative proceedings." Oberti, 995 F.2d at 1218. Consequently, in this case the burden is on the District to show that Emily's proposed placement, which would segregate her for subjects which are traditionally deemed to be more academic in nature (such as math, science and social studies), comports with the IDEA's statutory presumption in favor of mainstreaming.
The Eleventh Circuit's decision in Greer also has some relevance to this case from a procedural standpoint. In Greer the Court had occasion to address at what point in the process a school district must consider whether education in the regular classroom may be achieved satisfactorily with supplemental aids and services.
As previously mentioned, the Court unequivocally held that a school district must make that assessment "prior to and during the development of the IEP." 950 F.2d at 696 (emphasis in original). "It is not sufficient that school officials determine what they believe to be the appropriate placement for a handicapped child and then attempt to justify this placement only after the proposed IEP is challenged by the child's parents." Id. In more terse language, the Court later stated, "we will not consider after-the-fact justifications for a predetermined placement." Id. at 698. After carefully reviewing the record, the Court found that "the school district, during the development of the IEP, did not take steps to accommodate Christy in the regular classroom[,]" because, inter alia, they "failed to consider the full range of supplemental aids and services, including resource rooms and itinerant instruction, that could be provided to assist Christ in the regular classroom." Id. (emphasis added). Thus after Greer, in the present case it is incumbent upon the District to show that prior to and during the development of the challenged IEP, it considered the "full range of supplemental aids and services" that could be provided to assist Emily in a regular classroom. See id.
C. IDEA Compliance
1. Standard of Review
In analyzing the thorny issue of whether the CSE's recommended placement, which the plaintiffs are challenging, is in full compliance with the IDEA, the court is mindful of its fairly circumscribed role in this proceeding. The IDEA, as interpreted by the Supreme Court in Rowley, mandates that "due weight shall be given to these [administrative] proceedings." 458 U.S. at 206, 102 S. Ct. at 3051 (emphasis added). In this regard, as this Court has previously observed, "[a] number of other courts, including the Second Circuit, have held that the administrative findings in lawsuits brought under the [IDEA] should be accorded some degree of deference." Hiller v. Bd. of Ed. of Brunswick Cent. Sch. D., 743 F. Supp. 958, 968 (N.D.N.Y. 1990) (McCurn, C.J.) (emphasis added). However, exactly what constitutes "due weight" as envisioned by the Rowley Court remains an open issue in this Circuit,
as well as in others.
For example, fairly recently in Fuhrmann, Judge Hutchinson dissenting suggested that the Third Circuit follow the due weight standard articulated by the First Circuit in Town of Burlington. 993 F.2d at 1042. In Burlington the First Circuit "concluded that the weight due the administrative decision is best left to the discretion of the district court[.]" Id. As Judge Hutchinson pointed out, the First Circuit did offer some guidance to lower courts as to how that discretion should be exercised:
The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.
Id. (quoting Burlington, 736 F.2d at 792). Relying upon the foregoing, Judge Hutchinson "further defined this standard by saying 'if the evidence fairly and rationally supports the agency's findings, and those findings are not cast into doubt by other evidence the agency did not have before it, the district court is justified in deferring to the state education authorities' expertise in deciding what educational program is appropriate for an individual child.'" Delaware County, 831 F. Supp. at 1214 (quoting Fuhrmann, 993 F.2d at 1043) (other citations omitted). Although the majority in Fuhrmann did not comment upon Judge Hutchinson's proposed definition of "due weight," the district court in Delaware County applied that standard in the absence of any further guidance from the Third Circuit. Id.
So too will this court. As noted earlier, Second Circuit case law discussing the concept of due weight first enunciated in Rowley is not particularly enlightening. Thus, because both the First Circuit and the Third Circuit, the latter albeit in a dissent, provides some helpful guidance on this issue, and because the court finds their reasoning sound, it has reviewed the administrative record in this case with those concepts of due weight in mind.
2. Application of Daniel R.R. Test32
In the present case, the parties agree that the court should employ the Daniel R.R. two-part test for determining compliance with the IDEA's mainstreaming requirement. The parties offer widely differing views, however, as to the result application of that test yields. Under Daniel R.R., the court must first explore whether "in [a] regular classroom, with the use of supplemental aids and services," Emily can satisfactorily achieve an education. Essentially plaintiffs maintain that she can, but that she has not been give the opportunity to do so because she has not been provided with sufficient supplemental aids and services. On the other hand, the District maintains that the record clearly demonstrates that Emily cannot be satisfactorily educated in a regular classroom setting.
a. Standard of Progress
At the outset the court must decide what constitutes "satisfactory" educational progress for Emily. In so doing, the court in no way intends to supplant the experts' views as to Emily's potential for academic progress. However, it became apparent at oral argument and again in rereading the transcripts from the administrative hearing, as well as the parties several memoranda of law, that although the parties agree that Emily cannot make satisfactory educational progress with the regular curriculum,
they disagree as to the standard against which her educational progress should be measured. Plaintiffs contend that Emily's progress should not be measured in terms of a nondisabled child, which is the standard the District seems to suggest. Instead, plaintiffs believe that Emily's educational progress should be measured in terms of her own abilities; and this view finds support in both the case law and in the IDEA itself.
To illustrate, in Thornock, supra, in discussing the standard to be used when assessing educational benefits to a disabled student, the court stated:
Given the fact that the IEP process is designed in part to define satisfactory education for each child on an individual basis and that this process is part of the statutory scheme, we cannot conclude that Congress intended mainstreaming to be restricted to those who could progress from grade to grade in the normal academic program. Rather, the ability of the child to be mainstreamed successfully will depend on the goals of the IEP and the child's achievement of those goals.
Id. at 556:482. Indeed, the Thornock court went so far as to hold that "absent evidence that the child cannot meet the academic requirements of his [or her] IEP in a mainstreamed environment, any non-mainstreamed placement is legally insufficient and cannot possibly constitute a free appropriate public education." Id. (emphasis added).
As plaintiffs correctly point out, the New York State Education Department has taken a similar approach. In Board of Educ. Schalmont Central School Dist., No. 90-19 (Dec. 11, 1991), the State Review Officer expressly held that "in determining whether a pupil's education can be provided in a regular education setting, it is not necessary to demonstrate that a pupil with a handicapping condition will learn at approximately the same level as his or her non-handicapped peers. . . ." Id. (citation omitted). The Review Officer in Schalmont went on to explain, "the relevant inquiry is whether a pupil with a handicapping condition can achieve the goal of his or her IEP within a regular education program, with the assistance of appropriate supplementary aids and services, because the IEP determines what is an appropriate education program for the pupil." Id. (emphasis added).
These decisions are fully consistent with Daniel R.R. where the Fifth Circuit rejected the district court's view that as a prerequisite to mainstreaming, disabled children must learn at approximately the same level as their nondisabled classmates. See Daniel R.R., 874 F.2d at 1046. The Fifth Circuit declined to accept that premise because the lower court "failed to take into account the principles that the Supreme Court announced in Rowley[;]" in particular, the Court explained:
States must tolerate educational differences; they need not perform the impossible: erase those differences by taking steps to equalize educational opportunities. As a result, the Act accepts the notion that handicapped students will participate in regular education but that some of them will not benefit as much as nonhandicapped students will. The Act requires states to tolerate a wide range of educational abilities in their schools and, specifically, in regular education-the EHA's preferred educational environment. Given the tolerance embodied in the EHA, we cannot predicate access to regular education on a child's ability to perform on par with nonhandicapped children.