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Article of Interest - Inclusion

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Bridges4Kids LogoDenial of Mainstreaming Rejected
by Shannon P. Duffy, The Legal Intelligencer, December 3, 2003
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In a ruling hailed as a victory for disabled children, a federal judge has ruled that a 4-year-old child with Down syndrome must be "mainstreamed" at the preschool level at least temporarily and that, after an initial trial period, Pennsylvania education officials must put the burden on the school district to prove that a non-mainstream placement is more appropriate.

In his 28-page decision in Blount v. Lancaster-Lebanon Intermediate Unit, U.S. District Judge Michael M. Baylson found that the Pennsylvania hearing officer misapplied the federal Individuals with Disabilities Education Act when he ordered a segregated educational placement for Gavin Blount.

Under IDEA, Baylson said, the hearing officer "must consider whether the IU has met its burden of proof that it has attempted to mainstream Gavin to the fullest extent possible with supplemental aids and services, before the hearing officer determines that it is necessary that Gavin be removed from mainstreaming."

Attorney Kelly Darr of the Education Law Center, who represents the Blount family, said "this ruling is especially significant because it supports the trend toward mainstreaming preschool children with disabilities."

Darr said children with disabilities "have a much better chance of doing well if they are mainstreamed, and school officials should start with the presumption that most of these kids can be included."

According to court papers, Gavin was born in April 1999 and has been receiving "early intervention" services from the IU since September 2000.

A dispute arose in May 2002 when IU officials recommended that Gavin be placed in a "full time specialized classroom." Gavin's grandparents, Marty and Theresa Blount, who are raising him, objected to the placement and demanded a hearing.

The Blounts insisted that Gavin's educational program should be provided in a regular classroom with supplemental aids and services. They suggested a placement at Learning Ladder, a private community preschool not far from their home.

But after three days of hearings, Hearing Officer Gregory J. Smith sided with the IU and concluded that Gavin must be educated in a full-time segregated setting.

The Blounts turned to the courts, filing suit in U.S. District Court in January 2003 to challenge the hearing officer's conclusions.

The evidence, the suit said, "does not support the conclusion that Gavin cannot be satisfactorily educated in a regular preschool."

In the suit, attorney Darr didn't challenge any of the factual findings in Smith's decision, but argued that Smith had failed to apply the correct legal standards, specifically the burden of proof, to the facts which he found.

Smith found that Gavin has delays in the areas of cognitive, communication, motor and social skills, and difficulty maintaining attention for more than four or five minutes, but that he has demonstrated the ability to learn through absorbing and imitating others.

In a Sunday school classroom, Smith found, Gavin's presence and participation has not been disruptive to other children.

The individualized education plan, or IEP, developed for Gavin proposed specialized instruction, speech and language support, occupational therapy and some physical therapy.

Baylson found that Smith properly recognized that, under the 3rd Circuit's 1993 decision in Oberti v. Board of Education of Borough of Clementon School District, the proper test for determining the appropriate placement for Gavin was to consider "the least restrictive placement in which his program can be adequately implemented."

But Baylson found that Smith erred when he concluded that Gavin would not receive meaningful benefit from a placement in a regular preschool classroom.

Darr argued that Smith did not recognize the strong congressional preference for mainstreaming, and did not apply the appropriate burden of proof required under Oberti. Baylson agreed, saying "Oberti squarely holds that the school (here, the IU) has the burden of proof, by a preponderance of evidence, to prove that Gavin could not be educated satisfactorily in a regular classroom with supplementary aids and services."

In Oberti, the 3rd Circuit held that IDEA's "strong presumption in favor of mainstreaming," 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."

Baylson found that "nowhere in the hearing officer's decision is there any discussion of the burden of proof or recognition that the IU has the burden of proof by a preponderance of the evidence, as required by Oberti."

Although Smith had "conscientiously found facts and balanced the different considerations," Baylson said, "he failed to analyze the facts and the issues in connection with the IU having the burden of proof."

Darr argued that, in order to properly demonstrate that Gavin cannot be educated at Learning Ladder or another preschool, it was necessary that the IU actually place and attempt to support Gavin in such an integrated setting.

But lawyers for the IU argued that there was no requirement in the law that IEP teams "abandon their judgment in order to test out, on each child, the general statutory preference for 'mainstreaming.'"

Baylson declined to go as far as Darr urged, saying "there is no precedent in the 3rd Circuit that 'serious consideration' necessitates an actual placement of a disabled child in an integrated setting, to test the child's performance, and this court is unwilling to hold that such a placement had to take place in this case as a matter of law."

Nonetheless, Baylson found that since Smith had failed to put the burden on the school district, his decision must be reversed.

Baylson concluded Gavin "should be at least initially mainstreamed" and ordered that the case be remanded to Smith.

"However, mindful of the wise precedent which cautions district court judges against substituting their own educational philosophies for those of the authorized state officials, this court treads lightly at this time as to any specific final result," Baylson wrote.

Baylson said he "believes that it would be most appropriate for the IU to mainstream Gavin, at least initially, with appropriate specific supplemental aids and services, to be determined by agreement or by the hearing officer on remand."

On remand, Baylson said, Smith should "determine an appropriate period of time during which Gavin would be mainstreamed at the Learning Tree with specific supplemental aids and services, following which an evaluation would determine whether the IU then contends and has proved that Gavin should not continue in that environment, and if so, what alternative environment should be implemented, all of which shall take place under the supervision of the hearing officer."

    

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