# Roncker ex rel. Roncker v. Walter > Court of Appeals for the Sixth Circuit · February 23, 1983 · 700 F.2d 1058 URL: https://www.frixlaw.com/law-library/cases/8916483 ## Case - **Full name:** Mary Ann RONCKER On Behalf of Neill RONCKER, Individually and on behalf of all others similarly situated v. Franklin B. WALTER, James N. Jacobs, in his official capacity as Superintendent of the Cincinnati City School District and Cincinnati City School District Board of Education Robert Braddock, Herbert Brown, Virginia Griffin, Ann Patty, John Rue, David Schiering and Mary Schloss, in their official capacities as the members of the Cincinnati City School District Board of Education - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 23, 1983 - **Citations:** 700 F.2d 1058; 36 Fed. R. Serv. 2d 99 - **Precedential status:** Published - **Opinion:** Dissent by Kennedy - **Judges:** Contie, Kennedy - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8916483 ## Opinion text CORNELIA G. KENNEDY, Circuit Judge, dissenting. The District Court has already done in part what the panel asks it to do on remand. As required by Rowley, it found that the educational program in which Neill Roncker was to be placed was reasonably calculated to enable him to receive educational benefits. The District Court also found that Neill could not be appropriately educated by continuing him in the self-contained class of handicapped children which he was attending in the regular elementary school. In making these findings the District Court clearly recognized that placement with non-handicapped children should be a most important objective. The recipient of the federal funding, in this case the state and local Boards of Education, is required to provide an education for the handicapped individual and to “insure that handicapped persons participate with non-handicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question.” District Court Op. at 7. The whole record of the District Court is devoted to the question of whether Neill Roncker’s needs can be met in the self-contained handicapped classroom in the elementary school he has been attending or whether he needs to be taught with other children closer to his chronological age and learning level with the support services that can presently only be provided in the 169 program at a separate school. Appellant argues that the finding that Neill could not benefit from continued placement in his present classroom is clearly erroneous. The panel’s opinion does not so find and I would not so find. These findings of fact are independent of the District Court’s legal conclusions. Neill Roncker was not progressing in his present placement but was regressing. His ability to interact with the non-handicapped children was at best minimal. His opportunity to interact with non-handicapped children there was also very minimal. Yet, despite these findings, the panel’s decision requires the District Court to determine on remand whether it would be “feasible" to provide an equivalent of what is now provided in the 169 schools in classrooms located in regular elementary schools. The District Court has admittedly not made such a finding. I do not believe, however, that such an inquiry is authorized by section 1412(5) or the “mainstreaming” concept it embodies. Section 1412(5) requires that participating states establish, *1065 (B) procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily .... In this language Congress has expressed a clear preference for educating handicapped children in the regular classrooms of the public schools. Handicapped children should be removed from regular classes only when their education cannot be achieved satisfactorily with the use of supplementary aids and services. Despite this preference for “mainstreaming,” however, the statute clearly contemplates that there will be some separate schools and schooling. Rowley,-U.S.-,-n. 4, 102 S.Ct. 3034 , 3038 n. 4, 73 L.Ed.2d 690 (1982). Section 1412(5) does not require that classrooms for the severely mentally retarded, such as Neill Roncker, whose only interaction with non-handicapped children is to observe them, be located in the regular elementary school. Rather, this section is directed to the handicapped child who can spend some time in the regular classroom if given special aids or assistance. 1 Other than cost, the District Court in the present case has fully considered whether Neill Roncker could be educated in a self-contained handicapped classroom in a regular school. The severity of Neill’s handicap is such that even with supplementary aids and services, the District Court found that Neill cannot achieve a satisfactory education or indeed any education in a regular class. The appellant has nevertheless argued that if Neill must be educated in a 169 program, that program must be provided within the “regular school environment” even if the only benefit from such placement is to avoid the stigma of attending a special school. Because the 169 program requires children of chronological age with roughly the same developmental ability to be placed together, a classroom for each age could not be located at each regular school. However, the classrooms for one age could be at one school and those for another at a different school. The children could probably be bussed to assemblies. Special gym teachers, physical and occupational therapists and special remedial teachers could go from school to school. Appellant argues that this is required unless the children could learn “zero” in such environment. The appellant’s arguments essentially represent one of two competing educational theories presented by this case. The first is that a program with all of the components of the 169 program can only be fully implemented in a separate school. This program alone, it is argued, is appropriate for severely handicapped children such as Neill Roncker who cannot benefit from any regular classroom experience. The second theory is that all handicapped children (except those who can be in the regular classroom) must be placed in special classrooms located in regular elementary schools, unless a child would get zero benefit from a classroom so situated. Rowley held that Congress did not intend the courts to overturn a state’s educational policy once the statutory requirements have been met. We previously have cautioned that courts lack the “specialized knowledge and experience” necessary to resolve “persistent and difficult questions of educational policy.” San Antonio School District v. Rodriguez, 411 U.S. 1, 42 [ 93 S.Ct. 1278, 1301 , 36 L.Ed.2d 16 ] (1973). We think that Congress shared that view when it passed the Act. As already demonstrated, Congress’ intention was not that the Act displace the primacy of States in the field of education, but that *1066 States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States. Rowley,-U.S. at-, 102 S.Ct. at 3052 . When Congress imposes a requirement in legislation enacted pursuant to the spending power, it must do so unambiguously. Rowley — U.S. at -, 102 S.Ct. at 3049 -3050 n. 26; Pennhurst State School v. Halderman, 451 U.S. 1, 17 , 101 S.Ct. 1531, 1539 , 67 L.Ed.2d 694 (1981). Section 1412(5), far from unambiguously requiring that school, districts place severely handicapped children in the regular school environment even if they cannot be satisfactorily educated in that environment, requires only that handicapped children be “mainstreamed” to the maximum extent appropriate. For those more severely retarded children, such as Neill Roncker, who are unable to be satisfactorily educated in any respect in a regular classroom, the statute does not prohibit the school district from making the judgment as to where their classrooms should be located. 2 I do not read the panel’s decision as adopting the appellant’s zero benefit position. For example, to the extent that the panel directs the District Court to consider costs it reserves some discretion to that court. Presumably, the District Court is permitted to decide whether one program is excessively expensive in comparison to another. Further, depending upon which definition of the word “feasible” the panel intends, i.e., (1) capable of being done; (2) capable of being dealt with successfully, suitable; or, (3) reasonable, 3 the District Court may have yet more discretion. If the District Court may make these discretionary decisions in determining whether a placement is appropriate, I see no grounds on which the school district should be denied such discretion insofar as placement of handicapped children who cannot benefit from any regular classes are concerned. Finally, I am unable to agree that the District Court failed to give “due weight” to the state administrative proceedings. The disposition by the District Court was based upon Neill Roncker’s progress and lack of progress in a special classroom. The administrative hearing officers did not have this actual information concerning Neill’s progress but could only anticipate what his progress might be. 4 Further, the two administrative decisions cannot themselves be fully reconciled. The impartial hearing officer, in making the initial decision of August 1979, appears to have been uncertain whether Neill would be able to handle assignment to a regular first grade class, something it is now clear he could not do. There is doubt in the mind of the impartial hearing officer as to Neill’s ability to attend the regular first grade setting, however, I don’t believe that the complete answer is available to this question *1067 until he is assigned to the first grade and the attempt is made. Hearing Officer’s Op., App. at 195. The hearing officer nonetheless directed that Neill be placed in the special education class in the regular school setting. On appeal by the school district, the state board of education referee found that Cincinnati did not have to duplicate the 169 program in a regular elementary school as the hearing officer had mandated. She found, “Cincinnati has shown that the nature and severity of Neill’s handicap warrants his removal from the regular educational environment .... ” App. 210. She also found that placement in the 169 program at Dyer School was appropriate as long as Neill was provided an opportunity to interact with non-handicapped peers in a regular school setting in appropriate activities such as lunch, gym and transportation. How this was to be accomplished was not described, but it is suggested that an aide would transport him to the regular school for lunch and recess and perhaps some time in the future, art and music. Neither appellant nor appellees are satisfied with this split attendance solution. “[Cjounsel for both the Ronckers and the school district expressed their opposition to the referee’s proposed split attendance scheme as being inappropriate for Neil [sic] .... ” App. 15. More importantly, although a number of experts testified, no witness endorsed split placement. Under these circumstances, where no expert witness approved or endorsed split placement, I do not believe we should suggest it as an appropriate placement. I would affirm the judgment of the District Court that Neill Roncker’s placement satisfies the requirements of section 1412(5). . It is not necessary to decide whether the child who can attend a regular gym, or music class, falls within the statute’s mainstreaming requirement. . This does not mean that the District Court does not review a placement to determine whether a child is receiving an appropriate education as defined in 20 U.S.C. § 1401 (18). . Webster’s New International Dictionary (2d Ed.1961): 1. Capable of being done, executed, or effected; possible of realization. 2. Capable of being managed, utilized or dealt with successfully; suitable, 3. Likely; probable; reasonable. Random House College Dictionary (1st Ed. 1975); 1. capable of being done or accomplished. 2. suitable. 3. probable; likely. It is difficult in the context of this case to determine exactly which definition of “feasible” the panel intends. Since other school districts locate all handicapped classrooms in regular schools and Cincinnati previously did so, the record would require a finding that it is capable of being done. Therefore, I do not believe the panel intends this definition of feasible. In addition, the record discloses that these classes for the severely mentally retarded which had previously been dispersed among regular schools were not effective. Thus, the second definition of feasible seems equally inappropriate to remand in this case. . Since this case is to be remanded, it will be important that the District Court have current information with respect to Neill’s present development and abilities before making a final disposition, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8916483. Public record. Not legal advice.