Petition — Springdale School District No. 50 v. Grace

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82-1292 FLED

JAN 20 1983

ALEXANDER L. STEVAS,

CLERK

NO.

Supreme Court Of The United States

OCTOBER TERM, 1982

SPRINGDALE SCHOOL DISTRICT NO. 50

OF WASHINGTON COUNTY Petitioner

SHERRY GRACE, A MINOR, AND ALBERT GRACE AND

JOANN GRACE, INDIVIDUALLY AND AS PARENTS OF

SHERRY GRACE

ARKANSAS STATE DEPARTMENT OF EDUCATION

a/k/a DEPARTMENT OF EDUCATION; STATE BOARD

OF EDUCATION; WAYNE HARTSFIELD AS CHAIRMAN

OF THE STATE BOARD OF EDUCATION; MRS. JAMES

W. CHESTNUTT, JIM DUPREE, T. C. COGBILL, JR., MRS.

ALICE L. PRESTON, HARRY A. HAINES, DR. HARRY

P. McDONALD, ROBERT L. NEWTON AND WALTER

TURNBOW AS MEMBERS OF THE STATE BOARD OF

EDUCATION; DON R. ROBERTS, DIRECTOR OF THE

DEPARTMENT OF EDUCATION ____. Respondents

ON WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT COURT OF APPEALS

JAMES M. Roy, JR.

Cypert & Roy

P.O. Box 1400

Springdale, Arkansas 72764

(501) 751-5222

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

The principal questions presented for review are:

Since there was no allegation that any of the Act’s

procedures were violated in formulating the IEP, did

the court of appeals err in upholding the hearing offi-

cers’ and district court’s substitution of their opinions

for those of the experts who developed the IEP?

Did the court of appeals err in holding that to educate a

child in a one-on-one educational environment satisfies

the “mainstreaming” requirements of the Education for

Ali Handicapped Children Act and is an appropriate

placement?

Whether the court of appeals erred by not properly

applying the decision of this Court in Rowley insofar as

it mandates that a handicapped child reasonably benefit

from the instruction and services provided.

PARTIES TO THE PROCEEDINGS

The caption contains the names of all parties to this

proceeding before the court of appeals and the district

court.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................00005

PARTIES TO THE PROCEEDINGS ...............

TABLE OF AUTHORITIES ........ccccccccccccces

REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS BELOW ............

STATEMENT OF THE GROUNDS ON WHICH

JURISDICTION IS INVOKED ................

APPLICABLE STATUTORY AND REGULATORY

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APPENDIX A: Opinion of the Eighth Circuit

Court of Appeals of November 8,

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APPENDIX B: Opinion of the Eighth Circuit

Court of Appeals of August 7,

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APPENDIX C: Opinion of the Federal District

Court for the Western District of

Arkansas, Fayetteville Division ....

APPENDIX D: Opinion of State Appeals Officer ...

APPENDIX E: Opinion of Due Process Hearing

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APPENDIX F: Pertinent Federal Statutory

APPENDIX G: Pertinent Federal Regulatory

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TABLE OF AUTHORITIES

CASES: Page

Age v. Bullitt County Public Schools,

Dees RTO Gc ci oe Renee een aeeee tees 19, 20, 21

Board of Education of Hendrick Hudson

Central School District v. Rowley,

— US. —, 102 S.Ct. 3034, 73

L.Ed. 2d 600 (1962) ..........0000 6, 7, 9, 10, 11, 12, 14,

22, 23, 26, 27, 28

DeWalt v. Burkholder, 3 E.H.L.R. 551:505

CY OU DEE 3 coca cuwuae dea sate bbesdseeecavan 21

Epperson v. Arkansas, 393 U.S. 97, 104 S.Ct. 266,

— Be BF | eee errr rrr ore 28

STATUTES:

Education for All Handicapped Children Act

of 1975, 20 U.S.C. 1401 et seq.

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PERE Sv kcavescapacctccccesbrspdsevescete 14

DERE) occccceccccccccescssoccnscnsececevoose 14

MISCELLANEOUS:

“Special Problems of the Deaf under the

Education for All Handicapped Children

Act of 1975”, 58 Wash. U. L. Q. 213 (1980) ........... 26

Supreme Court Of The United States

OCTOBER TERM, 1982

SPRINGDALE SCHOOL DISTRICT NO. 50

OF WASHINGTON COUNTY ....... , Petitioner

Vv.

SHERRY GRACE, A MINOR, AND ALBERT GRACE AND

JOANN GRACE, INDIVIDUALLY AND AS PARENTS OF

SHERRY GRACE

ARKANSAS STATE DEPARTMENT OF EDUCATION

a/k/a DEPARTMENT OF EDUCATION; STATE BOARD

OF EDUCATION; WAYNE HARTSFIELD AS CHAIRMAN

OF THE STATE BOARD OF EDUCATION; MRS. JAMES

W. CHESTNUTT, JIM DUPREE, T. C. COGBILL, JR., MRS.

ALICE L. PRESTON, HARRY A. HAINES, DR. HARRY

P. McDONALD, ROBERT L. NEWTON AND WALTER

TURNBOW AS MEMBERS OF THE STATE BOARD OF

EDUCATION; DON R. ROBERTS, DIRECTOR OF THE

DEPARTMENT OF EDUCATION ........ _................. Respondents

ON WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT COURT OF APPEALS

OPINIONS BELOW

The opinion of the United States Eighth Circuit Court

of Appeals is reproduced in its entirety in Appendix “A”

and appears in the “Official Reporter” at F.2d

(November 8, 1982).

Also, the first opinion of the Court of Appeals which

was previously vacated by this court which was handed

down on August 7, 1981 is included as Appendix “B”, and

appears in the Official Reporter” at 656 F.2d 300.

The opinion of Hon. Paul X. Williams, U. S. District

Judge for the Western District of Arkansas, Fayetteville

Division, is included as Appendix “C”, and is included in

the “Official Reporter” at 494 F. Supp. 266.

The decisions of the hearing officer at the due process

hearing and the appeals officer on the administrative

appeal are included as Appendices “D” and “E”.

JURISDICTIONAL STATEMENT

The decision sought to be reviewed was entered by the

United States Court of Appeals for the Eighth Circuit on

November 8, 1982, and this petition for writ of certiorari is

filed within ninety (90) days of that day. Jurisdiction is

conferred on this Court pursuant to 28 U.S.C. 1254(1) and

pursuant to Rule 17 of the Rules of the Supreme Court

adopted April 14, 1980, effective June 30, 1980, with the

revisions of November 21, 1980 under Subsection “C”

which states:

“When a state court or a federal court of appeals

has decided an important question of federal law

which has not been, but should be, settled by this

Court...”

Jurisdiction was originally vested in the federal courts

to hear the issues involved in this cause pursuant to 20

U.S.C, 1415 (e) (2).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The issues involve the Education for All Handicapped

Children Act which is codified at 20 U.S.C. 1401 through

1461, but the pertinent sections involved are 20 U.S.C. 1401

(16), (17), (18) and (19); 1412; 1413; 1415; 1418.

The regulations involved are found in 45 C.F.R., Part

12la. The applicable sections are: 12la.4; 121a.14(a)1;

121a.120-12la.; 122; 121a.132; 121a.227; 121a.301; 121a.302;

121a.341-349; 121a.360-121a.361; 121a.370-121a.372; 121a.500-

121a.512; and 121a.551-121a.552.

Since the provisions involved are lengthy, their per-

tinent text is set forth in the Appendix in accordance with

Rule 21.1(f).

STATEMENT OF THE CASE

Sherry Grace was born on January 19, 1970, to Albert

and Joann Grace, and at the time of her birth, Sherry was

profoundly (totally) deaf. This means she has never heard

and will never be able to hear the spoken word. She cannot

be helped by amplification or hearing aids.

Even though Sherry was born deaf, her parents took

no courses in sign languages until the fall of 1979, and

Sherry received no formal education until she was four

years of age.

At that time she was placed in the Bates program

located in Fayetteville, which is an oral program. An oral

program is one which adheres to lip reading, speech and

some auditory aids.

After two years at Rates, Sherry had made little, if

any, academic progress, had poor socialization skills and

the Bates people determined she should be referred to the

Arkansas School for the Deaf where she would receive a

total communications program. A total communications

program is an approach of giving a child not only lip read-

ing, which is furnished in an oral program, but also sign

language, finger spelling and a very visual approach.

At the time Sherry left Bates to attend the Arkansas

School for the Deaf, she was six years of age but was

functioning as a child of two years and two months. She

attended the Arkansas School for the Deaf in Little Rock

for three years beginning at age six, and at the time she left,

she was functioning on a grade level of 2.5 in reading and

2.6 in arithmetic, and she had developed socialization skills

since she had other students with whom she could communi-

cate.

At the end of three years, her parents decided that they

did not like Little Rock and decided to return to Northwest

Arkansas. Prior to leaving Little Rock, the parents were

advised by the teachers and administrators that Sherry was

doing well in the school, was making excellent progress,

and if the parents were not happy with Little Rock, Sherry

should be left as a residential or dormitory student. In spite

of the fact that the Graces were happy with the progress

Sherry had made at the Arkansas School for the Deaf and

thought the School was wonderful and against the recom-

mendation of the administrators and teachers and without

any assurances of any other type of program being in

existence in Northwest Arkansas or, for that matter, any-

where else in the state, the parents removed Sherry from

the Arkansas School for the Deaf.

Sherry was placed in the regular classroom in the

fourth grade in the Springdale school system and according

to her teacher, who testified at the due process hearing,

made very slow if any progress in reading and language.

The teacher and her aide also testified that Sherry had very

little, if any, interrelationship or any interaction with the

other students since the other students could not sign and

Sherry had hardly any oral communication skills.

In fact, at the time of the true process hearing, Mrs.

Grace testified that the only words Sherry could say were

“Mama”, “Dada”, “Bye-bye”, “Nite-nite” and possibly a

few others. The expert who was called by the Graces to

testify at the due process hearing testified that Sherry had

no oral skills, very little verbal skills and no residual hear-

ing whatsoever and that she had regressed since being re-

moved from the Arkansas School for the Deaf and that in

his opinion as between a one-on-one situation or the Arkan-

sas School for the Deaf the Arkansas School for the Deaf

was the appropriate placement, and that a one-on-one

placement was not only inappropriate but might be dam-

aging to Sherry.

At the time of the trial in Federal District Court held

on May 8 and 9, the judge noted that Sherry had great diffi-

culty in attempting to testify, and that while attempting to

testify most of her communications were by gestures rather

than by signing.

All the experts on deaf education who testified at either

the due process hearing or the hearing in the Federal Dis-

trict Court testified that the appropriate placement for

Sherry was the Arkansas School for the Deaf in Little Rock

and that a one-on-one placement was not appropriate since

it deprived a child of interaction not only with nonhandi-

capped students but with handicapped students.

The lower courts both found that what Sherry needs

most is to be immersed into an environment that would help

her develop her communication skills. Both courts agreed

that this could only be accomplished at the Arkansas School

for the Deaf but that Sherry could otherwise be educated in

Springdale, and therefore Sherry should be placed in a

one-on-one environment with a certified trained teacher for

the deaf in a self-contained classroom. This decision was

made in light of the fact that there was no evidence that

Sherry has anyone with whom she can meaningfully com-

municate other than her mother nd a certified trained

teacher for the deaf, which she is now being furnished. The

Court of Appeals noted in its first opinion that there was no

definitive answer to the meaning of “free appropriate public

education under the Act” (Op. 6), and therefore adopted

the definition set down in the case of Rowley v. Board of

Education of Hendrick Hudson Central School District, 483,

F. Supp. 528 (So. D. N.Y. 1980) as affirmed by the Second

Circuit at 632 F.2d 945 (2d Cir. 1980).

Following that decision of the Eighth Circuit of August

7, 1981, this Court handed down its decision in Rowley on

June 28, 1982, US. , 102 S.Ct. 3034, 73 L.Ed. 2d 690

(1982), which rejected Judge Broderick’s and the Second

Circuit’s definition of “free appropriate public education”,

set forth the standard for free appropriated public education

when the child could be educated in the regular classroom,

i.e., “mainstreaming”, and further set forth the court’s

scope of review, i.e., that federal courts may not substitute

their opinions for those of the experts who developed the

IEP except in cases where there was some violation of the

due process procedures.

This Court then vacated the original decision of the

Eighth Circuit and remanded the case for further considera-

tion in light of the rejection by this Court of the Second

Circuit’s opinion in Rowley on which the Eighth Circuit had

relied.

Upon reconsideration of this case, the Court of Appeals

held in essence that neither the Rowley decision nor this

Court’s definition of “free appropriate education” nor the

requirement for the federal judge to limit his review and to

defer to the experts who developed the IEP program and

placement for the child affected its original decision. The

court went on to state that the one-on-one placement in the

self-contained classroom was proper since it satisfied the

mainstreaming requirement of the Act.

Since the experts who helped formulate the IEP and

those who testified at either the due process hearing or the

trial stated it was neither mainstreaming nor appropriate

to educate a child such as Sherry alone in a one-on-one

environment, it is therefore necessary for this Court to

determine if a hearing officer, untrained in deaf education

and having no expertise whatsoever in that area, may

substitute his opinion for that of the experts who developed

the plan and placement for the child when this Court has

clearly held in Rowley that a federal judge who is at least

trained in the law may not so substitute his opinion.

It is also necessary for this Court to determine if a

one-on-one placement such as ordered here by the district

court and affirmed by the Eighth Circuit is really “main-

streaming” within the letter and intent of the Act, and if it

is not mainstreaming, how far and how much must a local

school district provide or go to educate a child in isolation.

There are hundreds of thousands of handicapped chil-

dren whom this law affects, and there are thousands of

school districts and school boards that need guidance and

specificity on a nation-wide basis rather than a case-by-case

basis or a geographical basis as to what the requirements

are in deferring to the experts, i.e., who are the experts?

and secondly as to what the requirements are for the local

district in furnishing a one-on-one placement for each and

every child who cannot be educated in the regular class-

room, especially where as here a viable, excellent alterna-

tive exists, to-wit: the Arkansas School for the Deaf.

REASONS FOR GRANTING THE WRIT

SINCE THERE WAS NO ALLEGATION THAT ANY

OF THE ACT’S PROCEDURES WERE VIOLATED IN

FORMULATING THE IEP, DID THE COURT OF

APPEALS ERR IN UPHOLDING THE HEARING OFFI-

CERS’ AND DISTRICT COURT’S SUBSTITUTION OF

THEIR OPINIONS FOR THOSE OF THE EXPERTS WHO

DEVELOPED THE IEP?

The Education for All Handicapped Children Act, 20

U.S.C. 1401, et seq. (hereinafter the Act) targets the needs

of an individual handicapped by the use of an “individual-

ized education program” (IEP).’ §1401(18). The IEP is the

cornerstone of the congressional purpose that each child’s

needs are carefully evaluated and appropriately addressed.

The IEP is formulated in conjunction with the parents and

various experts, who do an educational evaluation of the

child.

One principle which emerges from this Court’s decision

in Board of Education of Hendrick Hudson Central School

District v. Rowley, —— U.S. ——-, 102 S.Ct. 3034, 73 L.Ed.

2d 690 (1982) (hereinafter Rowley), is the deference which

must be given to the expertise which exists on the state and

local level. In the case at bar, the only stage where such

1An IEP is a written statement which includes: (1) a statement of

present levels of educational performance of the child; (2) a state-

ment of the annual goals for the child, including short term instruc-

tional objectives; (3) statements of the specific educational services

to be provided to the child and the extent to which the child will be

able to participate in regular classroom programs; (4) the projected

date for initiation of services and the anticipated duration of services;

and (5) a statement of the appropriate objective criteria and evalua-

tion procedures and schedules for determining at least on an annual

basis whether instructional objectives are being achieved. See 20

U.S.C. §§1401(19), 1414(a) (1976).

expertise existed was at the IEP Conference committee.

This committee of experts stated unequivocally that the

appropriate placement for Sherry Grace was the Arkansas

School for the Deaf, It is that placement which the school

district maintains is appropriate and should be reinstated

by the court, and that neither the federal district judge, the

appeals court nor the state hearing officers should have

substituted their opinions for the opinions of those experts.

The Court, in Rowley, made repeated references to the

reliance which should be placed on the experts who de-

veloped the IEP program and placement based on the

child’s handicap and unique needs, This Court in Rowley

expressly rejected the conclusion of the district court and

the court of appeals that the Act does not define “appropri-

ate education” and leaves “to the court and hearing officers”

the responsibility of “giving content to the requirement of

an appropriate education”. 102 S.Ct. 3034, 3040,

This Court concluded that Congress did not intend

courts to substitute their opinions and overrule the

decision of the experts as to the educational method which

is appropriate to the child’s needs. Rowley teaches that the

provision of the Act directing a reviewing court to base its

“decision on the ‘preponderance of the evidence’ is by no

means an invitation to the courts to substitute their own

notions of sound educational policy for those of the school

authorities which they review.” Id, at 3051, (Emphasis

added.) This Court found nothing in the Act to suggest that

“reviewing courts” should have a free hand to impose

substantive standards of review which cannot be derived

from the Act itself.

I the instant case, the expertise lies in the formulation

of the IEP for Sherry Grace, Neither the hearing officer nor

the appeals officer had any training or background in the

education of deaf children, (T. 382 and T, 385-6)* LaDelle

Olion was the hearing officer. He is not trained in the edu-

cation of deaf children, He is not trained in the education

of handicapped children generally, nor does he have any

special training in the law. Larry Rogers was the appeals

officer. He has no expertise in deaf education or deaf educa-

tion administration, His B.A, degree was in history with a

Master’s in special education, and the only class he has

ever taught was a history class in the public schools. The

opinions handed down by the two hearing officers which

appear in the Appendix reflect not only the inability of

these men to formulate a plan of education for Sherry, but

a lack of understanding of the educational needs of deaf

children, and more importantly, a lack of understanding of

their duties as due process review officers under the Act.

Both thought, similar to Judge Broderick’s original deci-

sion in Rowley, that they should and could substitute their

opinions for those of the experts who had labored untold

hours in developing the IEP.

The Court must decide who the Act intended should

determine how our handicapped children will be educated,

The choice is between: (1) those trained in the area of

handicapped children generally and the specific handicap

involved, or (2) federal courts who are untrained in handi-

capped education but who are trained in the law, or (3)

hearing officers who are untrained in either handicapped

education or the law. This Court has already ruled out

Group No, 2 for the very sound reasons set forth in Rowley.

For the benefit of all handicapped children, this Court must

2T."" is the citation for the district court transcript, and “D."' is the

citation for the due process transcript.

now exclude Group 3 from making the final decision where

there is no procedural irregularity in the formulation of the

IEP, as is the case here.

This conclusion is inescapable when it is considered

that neither LaDelle Olion nor Larry Rogers ever: (1)

taught deaf children in a classroom setting or in any other

setting, (2) administered i. deaf education program, (3)

developed a curriculum for deaf students, (4) recruited,

interviewed or hired teachers for the deaf. Yet these two

men substituted their opinions for those of the experts who

developed the IEP. To make matters worse, the district

court allowed these substituted opinions to stand, even in

light of the fact that every expert who testified at the trial

and the due process hearing stated that a one-on-one place-

ment was not appropriate.®

Since Rowley tells us that federal judges trained in the

law may not substitute their own opinions for those of the

educational experts since courts lack the necessary educa-

tional expertise, it seems to logically follow that hearing

officers or administrative appeals officers, who are not

trained in educational placement for handicapped children

nor in the law, should not be allowed to substitute their

opinions, Therefore, the level of expertise which Rowley

mandates should be followed existed only in the formula-

tion of the IEP in the case at bar, The IEP was formulated

only after Sherry was interviewed, tested and evaluated in

accordance with the Act and the regulations and after

consultation with her parents,

Since no allegation was made at any time that the pro-

cedures used in adopting the IEP were faulty, the IEP as

*For further elaboration on the testimony of the experts, please see

Point 2 of this brief.

originally formulated with the placement of Sherry Grace

at the Arkansas School for the Deaf should be reinstated.

This Court stated the procedural limitation on the

review to be made by federal judges and surely this same

limitation applies to hearing officers who only hear a few

hours of testimony and are reviewing numerous hours and

testing procedures by experts. In Rowley the Court stated:

“But although we find that this grant of authority is

broader than claimed by petitioners, we think the fact

that it is found in §1415 of the Act, which is entitled

‘Procedural Safeguards’, is not without significance.

When the elaborate and highly specific procedural

safeguards embodied in §1415 are contrasted with the

general and somewhat imprecise substantive admoni-

tions contained in the Act, we think that the impor-

tance Congress attached to these procedural safeguards

cannot be gainsaid. It seems to us no exaggeration to

say that Congress placed every bit as much emphasis

upon compliance with procedures giving parents and

guardians a large measure of participation at every

stage of the administrative process, e.g. §1415(a)-(d),

as it did upon the measurement of the resulting IEP

against a substantive standard. We think that the

Congressional emphasis upon full participation of

concerned parties throughout the development of the

IEP, as well as the requirements that state and local

plans be submitted to the Commissioner for approval,

demonstrate the legislative conviction that adequate

compliance with the procedures prescribed would in

most cases assure much if not all of what Congress

wished in the way of substantive content in an IEP.”

102 S.Ct. 3034, 3050.

While it is true that the parents objected to the place-

ment at the Arkansas School for the Deaf, and while it is

also true that Rowley emphasizes parental involvement in

the formulation of the IEP, the fact remains that neither

Rowley nor the Act nor regulations mandate that the de-

sires of the parents be implemented. In Rowley, this Court

characterized the testimony from Amy’s parents as “expert

evidence”; it should be noted that both of Amy’s parents

are deaf and are able to use sign language proficiently. In

the instant case, neither of Sherry’s parents are deaf and

neither one signs proficiently and in fact Mr. Grace did not

sign at all at the time of the trial even tnough his daughter

was born deaf. This Court has recognized the necessary

limitations on the impact of parental influence on the final

decision, especially where as here it runs so contrary to the

recommendations of the experts and prior experience.

Further support can be found in the language of the

statute. Section 1415 of the Act is entitled “procedural safe-

guards.” Subsection 1415(b) (2) provides for an “impartial

due process hearing.” This subsection allows the hearing

officer to examine the procedures followed in creating the

IEP. It does not authorize a hearing officer to insert his

opinion as to the appropriate placement of the child.

Similarly, subsection 1415(c) allows for an “appeal to

the State educational agency which shall conduct an im-

partial review of such hearing.” It does not authorize the

appeals officer to substitute his educational theory as to

where the child should be placed.

The statutory provisions concerning the hearing and

appeal regarding the IEP necessarily limit their scope to

due process considerations. The statute does not invite nor

does it authorize a de novo ruling on the question of the

child’s placement.

The expertise in this case existed and was properly

exercised at the IEP Committee conferences without any

violation of the procedural steps required by either law or

the regulations. Therefore, especially in light of all of the

testimony in the trial in the district court which stated that

a one-on-one placement was inappropriate, the appellant

urges this Court to reinstate the original IEP as proposed

and reject the modification made by the hearing officers

and the district and appellate courts which substituted

their opinions for those of the experts.

This action would insure that reasonableness is applied

in the implementation of the Act; that Sherry Grace re-

ceives educational benefits as prescribed by the Act; and

further and more importantly would insure that the exper-

tise concerning not only the education of the deaf but in-

volving all handicapped children is properly employed and

utilized and not set aside by untrained individuals where

there is no procedural error.

DID THE COURT OF APPEALS ERR IN HOLDING

THAT TO EDUCATE A CHILD IN A ONE-ON-ONE

EDUCATIONAL ENVIRONMENT SATISFIES THE

“MAINSTREAMING” REQUIREMENTS OF THE EDU-

CATION FOR ALL HANDICAPPED CHILDREN ACT

AND IS AN APPROPRIATE PLACEMENT?

The decision made by the District Court and the Eighth

Circuit holds that Sherry shall be educated by a certified

trained teacher of the deaf in a resource room for the entire

day with the exception of lunch, recess and P.E. All of the

other activities, including all academic activities, are to be

conducted in the one-on-one environment.

Every expert who testified at either the due process

hearing or the trial in the District Court stated that a

one-on-one situation was inappropriate for Sherry. Gary

Blake, a professor at the University of Arkansas with

responsibilities in teacher training in the area of deafness,

was called as an expert by the Graces. Dr. Blake testified

that he participated in both the evaluation referral con-

ferences and also the pre-hearing conferences with Sherry

and her parents and that he felt as of the time of the due

process hearing considering the existing facilities the most

appropriate referral for Sherry was the Arkansas School

for the Deaf and that he certainly concurred with the

Springdale School System in that referral in consideration

of existing facilities and programs. He went on to state:

“I think in consideration of existing programs, yes, it

would be least restrictive, I think in the setting she is

in, uh, she is extremely restricted in ever acquiring

linguistic skills. I don’t think in the current setting she

will develop academically at all and I don’t think there

is any hope for her developing linguistic skills we would

want her to have in the current situation.” (D. 201)

Dr. Blake further testified that even if the current

setting were modified by including a certified trained

teacher for the deaf it would be inappropriate to educate

Sherry in the Springdale Schools since:

“If she were to be served there (Springdale Schools),

she needs a tutoring type of situation with a trained

teacher of the deaf, because she needs to develop

speech, reading skills, develop her listening skills, de-

velop language which would require some specialized

techniques, and ideally some different communication

modes that are used in the field of deafness. I don’t per-

sonally support that.” (Emphasis added) (T. 329-330)

Dr. Blake stated that the reason that he would not

support such an arrangement was (1) Sherry would be

alone in a room with one person for the great majority of

the day; (2) every parent who was ill-advised as to what

was best for their child would want such a situation rather

than to allow their child to go to residential school; (3) it

would create an unfair and unrealistic burden on the

school system and (4) “I’m not so sure that it wouldn’t be

detrimental to the child’s best interests”; (5) he stated he

would hate to see a situation “where every school district

in Arkansas who has a deaf child is going to have to be

required to hire a teacher for that one child.” (T. 331-332)

Dr. Blake testified that a residential school has several

advantages, to-wit, the comradery among ihe students,

many teachers rather than one teacher year after year, the

opportunity for social activities and interaction among

similar handicapped students. (T. 319-320)

More importantly, Dr. Blake stated that Sherry needs

a trained teacher of the deaf, a modified curriculum and

different, to-wit, slower pacing. (D. 203) For the great

majority of the day, Sherry would be alone in the resource

room, not only would she not have the benefit of being

with other deaf or hearing impaired students, she would

not even be with hearing students. The one-on-one situa-

tion is certainly the worst of both worlds, and not only is

it contrary to the act, but it is contrary to common sense.

A child needs meaningful interaction with others, not

merely to have them in her presence.

Both the district court and the court of appeals relied

heavily on the “mainstreaming” requirement of the Act.

Sherry’s one-on-one environment certainly is not “main-

streaming”, since she is alone for the great majority of the

day. Proximity, having a child in the same building, does

not equal integration, a true intermingling of ideas and

relationships. As was brought out in the legislative history

of the 1975 House hearings:

“Everybody is interested in something called ‘main-

streaming’ today, and a lot of the assumption is that we

are going to take all of the handicapped children who

are in handicap programs and we are going to dump

them into the programs that did not work.

This is not mainstreaming, and that is not appropriate

education. What is appropriate is dealing with children

in the environments in which they need an education.”

(Emphasis added)

Tom Hicks, the Superintendent of the Arkansas School

for the Deaf, testified that a one-on-one environment would

simply not work and neither constituted mainstreaming nor

the least restrictive environment. He stated:

“I think to consider the term ‘least restrictive environ-

ment’ you have to consider modifications or intrusions

into the child’s educational program. Uh — and by this

I mean, if a child were in our program this child would

not have one teacher all day long. This child would have

a homeroom teacher as such. But he also might have

a second or third teacher in academic subjects. He

would be exposed to a certified art teacher, certified

P.E. teacher and all of these other ones which certainly

would give him a broader range of experiences, which

would not be such a limited exposure to the educational

process. When you start talking about one teacher/one

child, that child is soon going to outgrow that teacher.

A teacher simply can’t have that much to offer year

after year, day after day, and you are going to find that

that in itself is going to be limiting to the child, and I

think the broader the exposure you give a child the

broader the environment is going to become (T. 104)

..- I can’t see but what it would be restrictive in fact

that his expressive and receptive language, they are

both going to be restricted at that point. He’s going to

be restricted in what he can communicate and what

he’s going to receive.” (T. 104) (Emphasis added)

Other courts have considered this question and have

held that a one-on-one environment or at least a situation

where the child did not have interaction during academic

activities was not an appropriate education.

The Court, in Age v. Bullitt, 3 E.H.L.R. 551:505, recog-

nized that the program proposed for Michael Age was

inadequate because it denied him the interaction necessary

for an appropriate education. The Court stated that it was

not only necessary for a child to have peer group inter-

action during such times as lunch, library, P.E. and recess

but that it is critical that a child have meaningful contacts

during academic studies:

“While plaintiff would have some peer group exposure

during certain times and classes, i.e., physical education

or at a library period and lunch, the experts agree that

it is critical that the plaintiff have peer group contact

during academic studies themselves.” (3 E.H.L.R.

551:505 at 505-506)

This is exactly what the experts stated in regard to

Sherry Grace.

In fact, how could Sherry be immersed in a communi-

cations program or a communications environment when

she is to be educated alone? The answer is simple. She

cannot. In fact, in Age, Michael was not to be educated

alone but he was to be educated with two other children,

both of whom were to be instructed by the total communi-

cations method. Only Michael was to receive oral training.

The Court there held that since he would have no basis for

communication with the children, to-wit, they were total

communications, i.e., signing, and Michael could not sign but

only communicate orally he would be, in effect, isolated.

The same situation exists here, Sherry can only com-

municate by means of total communication, but she is to be

placed on an occasional basis among children who can

communicate orally and who cannot sign. The Age Court

stated:

“The linchpin of this controversy is whether the Bullitt

County plan is ‘appropriate’.’”*

While an argument could have been made that the

Bullitt plan was appropriate in that the so-called one-on-

one relationship between the plaintiff and the teacher along

with exposure to children in the same age group at certain

periods of the day might be acceptable, the Court stated

that the testimony of all the experts was persuasive of the

proposition that this was not an effective method for edu-

cating children.

43 E.H.LR. 551: at 506.

Another decision consistent with Age and inconsistent

with Grace is DeWalt v. Burkholder, 3 E.H.L.R. 551:550

(March 13, 1980). In DeWalt a profoundly deaf child’s

primary problem was delayed language development, and

the Court found that the quicker her language and com-

munication skills could be developed the faster her

academic progress and educational goals could be achieved.

The DeWalt Court recognized that the “opportunity for a

child to interact in the community with her peers . . . is

crucial as a stimulus to learning.” The Court also recognized

that the DeWalt’s child’s language deficiencies would not

be resolved in a dayschool setting, even with the support

of her family and various community services, such as sign

language courses for her parents, and the Court further

found that Christine’s severe language problems could be

appropriately provided for only by the 24-hour “total

immersing” environment that the School for the Deaf could

furnish.

The trial court recognized Sherry’s severe language

limitation and recognized the fact that the only words that

Sherry could say at the time of the due process hearing

were “Mama”, “Dada”, “Bye-bye” and “Night-night”, and

further recognized that what Sherry needed was immersion

in a total communications program. (D.C. 9-10, Op. 6)°

Unfortunately, the lower courts and the hearing officers,

by their rulings, deprived Sherry of anyone with whom

she can consistentiy and continually communicate to im-

5Since both opinions of the court of appeals and the district court are

included in the Appendix, citations are given to the slip opinions as

they there appear for the convenience of the Court. ‘‘D.C.” is a

reference to the district court opinion; ‘‘Op.” is a reference to the

circuit court of appeals opinion of August 7, 1981; and “Op. 2" is a

reference to the court of appeals’ second opinion of November 8,

1982.

prove her signing skills and art of communication save for

one teacher.

The court of appeals justified the decisions of the

hearing officers by stating that Sherry’s placement com-

plies with the “mainstreaming” provisions of the Act and

the regulations. In truth, Sherry’s one-on-one isolation

reflects neither the letter nor the spirit of the Act, and is

certainly not “mainstreaming”.

The court of appeals’ failure to clearly address the

feasibility of “mainstreaming” Sherry, and the fact that she

is not being “mainstreamed” but is being educated in a self-

contained classroom, is a major defect in the opinion, not

only as it relates to Sherry but as it relates to handicapped

children in general who cannot be educated in a regular

classroom.

WHETHER THE COURT OF APPEALS ERRED BY NOT

PROPERLY APPLYING THE DECISION OF THIS

COURT IN ROWLEY INSOFAR AS IT MANDATES

THAT A HANDICAPPED CHILD REASONABLY BENE-

FIT FROM THE INSTRUCTION AND SERVICES

PROVIDED.

This Court in Rowley closely examined the content of

the phrase “free appropriate public education.” From the

definitions contained in the Act, a handicapped child is

receiving a free appropriate public education “if personal-

ized instruction is being provided with sufficient supportive

services to permit the child to benefit from the instruction,”

102 S.Ct. 3034, 3041 (Emphasis supplied). This point was

specifically made part of the Court's holding in Rowley. Id.

at 3049. The congressional purpose was not to spend millions

of dollars providing access only to have the handicapped

child fail to receive reasonable benefit from that education.

This Court expressly rejected the notion that the goal of

self-sufficiency was intended by Congress to be the sub-

stantive standard. The references to self-sufficiency in the

legislative history are “evidence of Congress’ intention that

the services provided handicapped children be educationally

beneficial, whatever the nature or severity of their handi-

cap.” Id. at 23. Rather than throwing money at the problem

as is sometimes Congress’ wont to do, this Court expressed

the belief that Congress intended that the individual child

derive benefit from the implementation of the provisions of

the Act.

This Court acknowledged the difficulty in determining

when handicapped children are receiving sufficient educa-

tional benefits to satisfy the requirements of the Act. Id. at

3048. Because the Rowley case did not establish any one

test for determining the adequacy of the benefits conferred

upon all children covered by the Act, each case is to be

decided on an individual basis. The testimony in this case

overwhelmingly reflects that the educational plan and

placement created by the hearing officers and the district

court is inadequate and inordinately expensive when com-

pared to the residential program offered at the Arkansas

School for the Deaf. This testimony was ignored by the

hearing officers, the district court and court of appeals both

initially and in its reconsideration of the matter.

The following chart graphically demonstrates the

disparity between the two programs:

ARKANSAS SCHOOL FOR

THE DEAF AT LITTLE

ROCK

AT SPRINGDALE

SCHOOL

I, Inthe Area of Academics:

(a) Many trained teachers

(b) Courses in art, P.E.,

science, social sciences,

health with different

teachers

er, principal, supervisors,

counselors and dorm

parents

(d) Fellow students who can

sign

(e) 5 to 8 ina class

(f) Class arranged to meet

needs of deaf children

and semi-circle seating

(g) All types of equipment

(a) 1 trained teacher year

after year

(b) Art, P.E., social

sciences, health (no

science and all classes

taught by one teacher)

teacher or interpreter

(regular classroom

teacher, principal and

counselor cannot sign

and would have to

discipline through an

interpreter)

(d) No students who can

sign

(e) 20 or more

(f)

“Normal” class

arrangement

(g) Limited equipment

(h) Accredited by North

Central Association and

by Deaf Certification

agency

(h) Accredited by North

Central

ARKANSAS SCHOOL FOR

THE DEAF AT LITTLE

ROCK

Il. Activities After Class:

AT SPRINGDALE

SCHOOL

(a) 115-120 students who

can sign

(b) Deaf adults as role

models

(2) Parties

(3) Games

(4) Student (dorm)

government

(d) Captioned movies

(e) TV de-coders and in-

terpreters for TV in

dorms

(f) Full time learning

(a) 0 students who can

sign

(b) No deaf adults

(ec) ?

(d) ?

(e) ?

(f) Day ends at 3:00

Despite the tremendous disparity in the services and

the benefit derived therefrom as well as the cost efficiency

between the two programs and the recommendation by all

the experts that Sherry be placed at the Arkansas School

for the Deaf, the hearing officers and the district court

substituted their opinion and the district court created a

one-on-one placement which both it and the court of

appeals termed “mainstreaming”, and stated that such

placement was required by the “mainstreaming” provisions

of the Act.

This Court recognized, as did Congress in drafting the

Act, that “mainstreaming” was not an absolute and that

the nature or severity of a handicap may result in a de-

termination that education in regu!ar classes with the use

of supplementary aids and services cannot be achieved

satisfactorily. 20 U.S.C, 1412(5), 1413(a)4, Rowley at NN.

4 and 21, This is especially true with regard to Sherry

Grace's situation.

The appellees, district court and the court of appeals

place heavy reliance upon the “mainstreaming” require-

ment in urging Sherry’s placement in Springdale. This

ignores the brutal fact of the situation that, while in

Springdale Schools, she is removed from the “regular edu-

cational environment” by placing her in a self-contained

classroom with one teacher and no other students for the

entire day with the exception of lunch, physical education

and recess. This is not “mainstreaming” but isolation.

Other lower courts have recognized and interpreted

the Act to require a certain quantity of contact by the

profoundly deaf child with non-handicapped children,

without regard to the quality of those contacts. Deafness

as profound as Sherry’s, unlike other handicaps, does not

lend itself to integration in regular classrooms. See Large,

“Special Problems of the Deaf under the Education for All

Handicapped Children Act of 1975”, 58 Wash. U. L. Q. 213

(1980).

This Court closely examined the use by Congress of

the word “appropriate” in the definition of “free appropri-

ate public education” and decided that “Congress used the

word as much to describe the settings in which handicapped

children should be educated as to prescribe the substantive

content or supportive services of their education.” (Rowley

at N. 21). The use of the word “appropriate” reflects

“Congress’ recognition that some settings simply are not

suitable environments for the participation of some handi-

capped children.” Id. (Emphasis added) The nature of the

handicap of deafness mandates that the deaf child be placed

in a total communication setting wherein she can interact

with other children and adults who practice those skills on

a regular basis. For Sherry Grace, this is only available at

the Arkansas School for the Deaf.

The Act requires that when removal from regular class-

rooms is necessitated by the severity of the handicap, the

State has established and followed certain procedures in

reaching that conclusion. This Court in Rowley said:

“We think that the Congressional emphasis upon full

participation of concerned parties throughout the

development of the IEP . . . demonstrates the legisla-

tive conviction that adequate compliance with the

procedures prescribed would in most cases assure

much if not all of what Congress wished in the way of

substantive content in a IEP.” (P. 29)

In this particular case, no argument has been made that

the procedures followed violated the Act. The purpose of

the procedures is to insure that “benefit” be derived from

the implementation of the provisions of the Act. The pro-

cedures in this case established an IEP which placed

Sherry Grace in the Arkansas School for the Deaf, but the

courts have ignored the findings of the IEP and ordered her

placement in Springdale. This is contrary to the Act and

holding of Rowley.

Pursuant to this Court’s ruling in Rowley, a State

satisfies the requirement of the Act to provide a child with

a free appropriate public education “by providing per-

sonalized instruction with sufficient support services to

permit the child to benefit educationally from that instruc-

tion.” Id, at 3048. (Emphasis added) In addition to requir-

ing that the instruction and services (1) be provided at

public expense, (2) meet the State’s educational standards,

and (3) approximate the grade levels used in the State’s

regular education, this Court held that they must comport

with the child’s IEP. Id.

The IEP serves as the benchmark of the child’s pro-

gress. It is designed to insure that each child is placed in a

program which will provide her benefit. This standard of

“benefit” is for the protection of both the child and the

local school district; the child is protected because the pro-

cedures insure that some progress will be made in his or

her education; and the State, including local and federal

agencies, is protected because the procedures are intended

to insure that the resources applied to the problem are put

to the most effective use.

This Court has recognized that public education has

traditionally been committed to the control of local authori-

ties. See Epperson v. Arkansas, 393 U.S. 97, 104 S.Ct. 266,

270, 21 L.Ed. 2d 228 (1968). While the Act intrudes some-

what into the local schools’ traditional decision-making

role in the education of handicapped children, it was not

intended to supplant totally its prerogative in allocating its

financial resources. It cannot be disputed that educational

funding is limited. Accordingly, it necessarily follows that

competing interests must be balanced to reach a reasonable

and fair accommodation. On the one hand are the personal

and unique needs of the individual and handicapped child;

on the other hand are the realities of limited funding and

the necessity of assisting in the education of all handicapped

children.

These competing interests must be considered by the

Court in its analysis of what is a “free appropriate public

education”. Indeed, failure to consider these sometime

conflicting interests would ultimately work to circumvent

Congress’ intent to educate all handicapped children to an

appropriate degree. Excessive expenditures made to meet

the needs of one handicapped child may reduce the

resources that can be spent to meet the needs of the other

handicapped children.

This School District maintains it should not be required

to go to the tremendous expense of establishing a program,

albeit an ineffective one, for one child when there already

exists an excellent facility at the Arkansas School for the

Deaf.

It is duplicative and wasteful to place Sherry Grace in

isolation in Springdale when there exists a more thorough

and cost effective program already in place. Moreover, the

benefit she derives is not what was envisioned by her IEP.

More fundamentally, it is contrary to the Congressional

intent that all handicapped children be educated.

The ruling of the court of appeals mandates in effect

that every local school board establish a separate program

for each handicapped child under the rationale that this

is “mainstreaming” despite the fact that the child cannot

be educated in a regular classroom and that there are other

viable programs which are created in a central school or

perhaps even in neighboring school districts. Since each

handicap creates the need for different instruction and

services, it would be difficult to imagine a handicap that

under the lower court’s rationale cannot be dealt with in

the local district by hiring a special teacher and creating a

self-contained school for each child. This is neither in the

interest of the child nor handicapped education, nor is it a

reasonable use of our limited resources.

CONCLUSION

Since the court of appeals, upon reconsideration of this

matter, after this Court vacated that court’s initial decision

herein, failed not only to give deference to the IEP develop-

ed by the experts who spent untold hours in developing that

plan and placement, but also allowed the hearing officers

and district court to substitute their opinions for those of

those experts based on the rationale that the one-on-one

placement created by the district court constituted “main-

streaming” and was reasonable under the Act, this Court

should grant the writ requested.

Respectfully submitted,

JAMES M. Roy, Jr.

Cypert & Roy

P.O. Box 1400

Springdale, Arkansas 72764

(501) 751-5222

Counsel for Petitioner

A-l

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

FILED: NOVEMBER 8, 1982

No. 80-1777

Springdale School District

No. 50 of Washington

County, Appellant,

Vv.

Sherry Grace, a Minor, and

Albert and JoAnn Grace,

Individually and as Parents

of Sherry Grace

Arkansas State Department

of Education; State Board

of Education; Wayne Harts-

field as Chairman of the

State Board of Education;

Mrs. James W. Chestnutt,

Jim Dupree, T. C. Cogbill,

Jr., Mrs. Alice L. Preston,

, Robert L.

Newton and Walter Turnbow

as Members of the State

Board of Education; Don R.

Roberts, Director of the De-

partment of Education, Appellees.

Appeal from the United

States District Court for the

Western District of Arkansas.

Submitted: November 2, 1982

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit

Judge, and NICHOL,* Senior District Judge.

*The Honorable Fred J. Nichol, Senior District Judge, District of

South Dakota, sitting by designation.

A-2

ORDER

This case originally came before us on an appeal by

Springdale School District No. 50 of Washington County

(Springdale School), challenging the judgment of the

district court’ in favor of Sherry Grace and her parents,

the Arkansas State Department of Education and its di-

rector, and the State Board of Education and its members.

The district court held that the Springdale School could

provide Sherry Grace, a profoundly and prelingually deaf

child, with a free and appropriate education pursuant to

the mandate of the Education for All Handicapped Children

Act of 1975, 20 U.S.C. §§$1401 et seq. (the Act), and ordered

the school to furnish Sherry with a certified teacher of the

deaf. In concluding that this relief satisfied the require-

ments of the Act, the district court specifically adopted the

standard for an “appropriate education” set forth in Rowley

v. Board of Education of the Hendrick Hudson Central

School District, 483 F. Supp. 528, 534 (S.D. N.Y.), aff’d, 632

F.2d 945 (2d Cir. 1980), rev’d, US. , 102 S.Ct. 3034,

73 L.Ed. 2d 690 (1982). The court rejected the school’s

argument that the Act required that Sherry be sent to the

Arkansas School for the Deaf.

We affirmed on the basis of the Rowley standard, 656

F.2d 300, 304-305 (8th Cir. 1981), and agreed with the dis-

trict court that although Sherry might learn more quickly

at the School for the Deaf, the Act did not require the state

to provide her with the best possible education. Id. at 304.

Moreover, we noted that Sherry’s attendance at the Spring-

dale School would be consistent with the Act’s main-

streaming goals. Id. at 305-306.

1The district court’s opinion is reported at 494 F. Supp. 266 (W.D. Ark.

1980) .

A-3

The case is before us for a second time upon the order

of the United States Supreme Court vacating our previous

opinion and remanding for further consideration in light

of that Court’s interpretation of a “free appropriate

education” in Board of Education of the Hendrick Hudson

Central School District v. Rowley, US. , 102 S.Ct.

3034, 73 L.Ed. 2d 690 (1982). Upon a careful review of the

Supreme Court’s Rowley opinion, we find no reason to

change the result reached in our original decision.

Section 1412(1) of the Education for All Handicapped

Children Act provides federal funds to any state that can

demonstrate that it “has in effect a policy that assures all

handicapped children the right to a free appropriate public

education.” 20 U.S.C. §1412(1). The state must effectuate

this policy through a comprehensive state plan and an

individualized educational program (IEP) for each handi-

capped child. Id. at §§1412, 1413. Both Rowley and the

present case involve challenges to the plans developed for

individual handicapped children pursuant to the procedures

set forth in the Act.

Rowley arose in connection with the education of Amy

Rowley, a deaf student attending a public school in Peek-

skill, New York. An IEP was developed for Amy that did

not include a sign language interpreter. When Amy’s

parents challenged this determination administratively, the

hearing officer and state educational agency ruled that the

IEP as originally developed satisfied the provisions of the

Act. The Rowleys then brought suit in district court, claim-

ing that the lack of a sign language interpreter denied Amy

the “free appropriate public education” guaranteed by the

Act. The district court agreed, finding that an “appropriate”

education meant that each handicapped child must be given

A-4

an opportunity to achieve his or her full potential com-

mensurate with the opportunity provided to other children.

483 F. Supp. at 534.

The Supreme Court reversed, holding that a state satis-

fies the requirement of a “ ‘free appropriate public educa-

tion’ * * * by providing personalized instruction with

sufficient support services to permit the child to benefit

educationally from that instruction.” 73 L.Ed. 2d at 710.

Because Amy was receiving an adequate education and

was performing better than the average child in her class,

the Court found that her educational needs did not require

the provision of a sign-language interpreter, even though

she could only comprehend part of what was said in her

classroom without the interpreter.

Although the Court declined “to establish any one test

for determining the adequacy of educational benefits con-

ferred upon all children covered by the Act,” id. at 709, it

did suggest that our inquiry in suits brought under the Act

was twofold. “First, has the State complied with the pro-

cedures set forth in the Act? And second, is the individual-

ized educational program developed through the Act’s

procedures reasonably calculated to enable the child to

receive educational benefits?” Id. at 712 (footnotes omit-

ted).

In the present case, it is clear that the state has com-

plied with the procedures set forth in the Act. An IEP was

prepared for Sherry Grace by the Springdale School which

noted that Sherry should be taught by a certified teacher

of the deaf and which stated that the School for the Deaf

was the proper school to meet Sherry’s needs. As the Act

allows, Sherry’s parents challenged that portion of the IEP

that recommended placement in the School for the Deaf.

A-5

Section 1415 of the Act provides that complaints by parents

must be resolved at “an impartial due process hearing”

with a right to appeal the hearing officer’s decision to the

state educational agency. See 20 U.S.C. $§ 1415(b) (2) and

(c). In Sherry’s case, the hearing officer reversed the

Springdale School’s determination, and on appeal by the

school, the Coordinator of the Department of Education,

Special Education Section, affirmed the hearing officer’s

decision that Springdale School could offer Sherry an ap-

propriate education by providing her with a certified

teacher of the deaf. The Springdale School then initiated

this action in district court, challenging the amendment to

the IEP that was made through the state administrative

process.

Thus, the major issue presented on appeal to this Court

is whether the IEP developed through the above proceed-

ings is reasonably calculated to enable Sherry to receive

educational benefits. Springdale School has argued that

the IEP originally prepared for Sherry should be reinstated

because it is unreasonable for the school district to bear the

cost of establishing a program for Sherry when the School

for the Deaf already has one. Springdale also asserts that

its officials have the most expertise regarding the needs of

handicapped children, and these officials have decided that

the School for the Deaf is the proper placement for Sherry.

Springdale’s arguments ignore the primary directives

of the Supreme Court in the Rowley case. The Court in

Rowley emphasized that states “ ‘to the maximum extent

appropriate’ must educate handicapped children ‘with

children who are not handicapped.’” 73 L.Ed. 2d at 696

(citing 20 U.S.C. §1412(5)). This goal of mainstreaming is

served by Sherry’s education at the Springdale School

A-6

rather than at the School of the Deaf. At Springdale, Sherry

will be with nonhandicapped children for some of her

classes, while at the School for the Deaf she would have no

contact with such children.

Moreover, the Rowley Court stated that “questiuns of

methodology are for resolution by the States.” Id. at 713. In

this case, despite the judgment of Springdale officials that

Sherry’s educational needs would best be served by her

placement in the School for the Deaf, the state educational

agency has determined that she should be placed in the

Springdale School. The IEP approved by the Coordinator

of the Department of Education, Special Education Section,

provides that she receive personalized instruction through

a certified teacher of the deaf and through other support

services; this instruction will permit her to benefit from

the educational opportunity provided at Springdale.

Although the School for the Deaf may offer the best educa-

tional opportunities for Sherry, the Supreme Court has

made it clear that the Act does not require states to make

available the best possible option. Sherry will receive in-

struction at Springdale from a certified teacher of the deaf

in reading, arithmetic, spelling, telling of time, health,

social services, and art along with manual communication,

lip reading, writing, and speaking. The cost to the school

or the judgment of local authorities do not justify the inter-

vention of this Court to place Sherry elsewhere when the

mainstreaming provisions of the Act and the judgment of

the state’s administrative decision-makers support a finding

that the Springdale School can provide a “free appropriate

public education” consistent with the Act.

In conclusion, we believe our original decision affirm-

ing the district court is fully consistent with the Supreme

A-7

Court’s mandate in Rowley. The district court found that

Sherry can receive an appropriate education at Springdale

School, and we find no error in that determination under

the test enunciated by the Rowley Court.

Affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-8

APPENDIX “B’’

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

FILED: AUGUST 7, 1981

No. 80-1777

Springdale School District

No. 50 of Washington

County, Appellant,

Sherry Grace, a Minor, and

Albert and JoAnn Grace,

Individually and as Parents

of Sherry Grace

Arkansas State Department

of Education; State Board

of Education; Wayne Harts-

field as Chairman of the

State Board of Education;

Mrs. James W. Chestnutt,

Jim Dupree, T. C. Cogbill,

Jr., Mrs. Alice L. Preston,

Harry A. Haines, Dr. Harry

P. McDonald, Robert L.

Newton and Walter Turnbow

as Members of the State

Board of Education; Don R.

Roberts, Director of the De-

partment of Education, Appellees.

Appeal from the United

States District Court for the

Western District of Arkansas.

Submitted: June 17, 1981

Before HEANEY and HENLEY, Circuit Judges, and

NICHOL,* Senior District Judge.

*Fred J. Nichol, Senior District Judge, District of South Dakota,

sitting by designation.

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NICHOL, Senior District Judge.

This is an appeal by the plaintiff-appellant, Springdale

School District No. 50 of Washington County (Springdale

School), from the judgment of the district court’ in favor

of the defendant-appellees, Sherry Grace and her parents,

the Arkansas State Department of Education and its direc-

tor, and the State Board of Education and its members. The

district court found that under the provisions of the Educa-

tion for All Handicapped Children Act, 20 U.S.C. Sections

1401-1461 (1970) (Act), the Springdale School could pro-

vide Sherry Grace with a free appropriate education. Based

upon this finding the district court affirmed the decision

of the Arkansas Department of Education with respect to

the Individualized Education Program (IEP) developed

for the 1979-80 school year for Sherry Grace. We affirm.

The facts giving rise to the present controversy are well

set out by the district court opinion. Springdale School Dist.

v. Grace, 494 F. Supp. 266 (W.D. Ark. 1980). Sherry Grace

is an eleven year old girl who is profoundly and prelingual-

ly deaf, having either been born deaf or lost her hearing

before she developed speech. She has a 95% loss of hearing

which renders her completely deaf for all purposes.

Sherry received no formal education or training in

communication until, at the age of four, she was enrolled

in a special program for children with hearing impairments

at Bates Elementary School in Fayetteville, Arkansas.

Since the children in this program retain some hearing

they are orally instructed. A person like Sherry who is

profoundly deaf can only visually receive instructions. As

the district court found, “(I)f one is profoundly and pre-

1The Honorable Paul X. Williams, District Judge for the Western

District of Arkansas.

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lingually deaf, he lacks the concept of language and must

not only receive visual instruction, but also must be taught

the most rudimentary matters concerning language.”

Springdale School Dist. v. Grace, supra at 267. The Bates

program for hearing impaired children proved inadequate

to meet Sherry’s needs, and although in the program for two

years Sherry made little or no progress. When she left the

Bates program Sherry’s language level was that of a child

of two years and two months.

When Sherry was six years old her parents moved to

Little Rock, Arkansas, and there enrolled Sherry in the

Arkansas School for the Deaf as a day student. Sherry

attended the School for the Deaf for three years. The

school employs the total communication system.? While

there she progressed from having a language level of a two

year old to being able to read at the second grade level.

Since she was able to communicate with others and par-

ticipate in the life of the school, her confidence and social

ability also developed.

After three years in Little Rock, Sherry’s parents, over

the protests of Sherry’s teacher, took Sherry out of the

School for the Deaf and moved back to Springdale, Arkan-

sas. There they enrolled Sherry in the fourth grade at the

Springdale School.

After testing Sherry and consulting with her parents

the Springdale School formulated an IEP for Sherry, The

IEP noted that Sherry should be taught by a certified

teacher of the deaf who employs total communication.

Sherry’s lack of the skills of the average fourth grader in

®The total communication system is a method of visual communication

encompassing signing, fingerspelling, visual cues, touching and

mouthing.

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reading, spelling and arithmetic, and her below level

general knowledge prompted the Springdale School in the

IEP to state that the Arkansas School for the Deaf was the

proper school to meet Sherry’s unique needs.

Although the Graces otherwise agreed with the Spring-

dale School’s assessment of Sherry’s needs, they disagreed

with that portion of the IEP which stated that the School

for the Deaf was the proper school for Sherry. Under the

provisions of the Act a temporary IEP was formulated

allowing for Sherry to remain at the Springdale School

while her parents sought review of the disputed portion of

the IEP. See 20 U.S.C. Section 1415 for procedural safe-

guards. After proper notice and pre-hearing conferences a

due process hearing was held on November 7, 1979. The

hearing officer reversed the disputed portion of the IEP

holding that the Springdale School was wrong and that

Sherry could receive an appropriate education at the

Springdale School. The Springdale School appealed to the

Coordinator, Department of Education Special Education

Section, who affirmed the decision of the hearing officer.

Upon affirmance, in January, 1980, a full-time certified

teacher of the deaf was provided for Sherry.

In February, 1980, the Springdale School initiated this

action in district court pursuant to Section 1415(e) (2) of

the Act seeking review of the appeals officer’s decision that

Sherry be educated at the Springdale School and not sent

to the School for the Deaf. The district court initially found

that the Arkansas School for the Deaf could provide Sherry

with the best free education. Springdale School Dist. v.

Grace, supra at 271. The court, however, went on to hold

that the Act requires simply that the State, through its

local educational district, provide each handicapped child

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with a free, appropriate education. Id. at 272. The court

then held that, under the staidard set forth in the Act, a

preponderance of the evidence proved that the Springdale

School could provide Sherry with an appropriate educa-

tion. The court also found that the Springdale School

satisfies the requirements of mainstreaming found in the

Act. 20 U.S.C. Sections 1412(5)(B) and 1414(a) (1) (C)

(iv). Id. at 273. Finally, the district court granted the

Grace’s motion for an injunction forcing the Springdale

School to provide Sherry with a certified teacher of the

deaf for the 1980-81 term only. The court denied the Grace’s

request for attorney fees.

The Springdale School filed this timely appeal. Three

issues are raised for consideration by the Court:

1, Whether the district court’s ruling that Sherry

could be appropriately educated at the Springdale

School as opposed to the School for the Deaf is an

erroneous interpretation of the law and contrary to

the Act and/or Arkansas law?

2. Whether the district court’s finding that the

Springdale School could provide Sherry an ap-

propriate education is clearly erroneous?

3. Whether the district court erred in holding that it

had no jurisdiction to consider the Arkansas law?

The Act requires that Sherry be provided with a free

appropriate education. 20 U.S.C. Section 1412.° In order to

8Section 1412 of the Act provides that “(I)n order to qualify for as-

sistance under this subchapter in any fiscal year, a State shall

demonstrate to the Commissioner that the following conditions are

met:

(1) The State has in effect a policy that assures all handi-

capped children the right to a free appropriate public education.

”

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determine what is appropriate to meet the handicapped

child’s needs the Act requires that an IEP be developed at

least annually for the child. 20 U.S.C. Section 1414(a) (5).*

It is the 1979-80 IEP that is at issue here.

It is evident from the well reasoned opinion of the

district court that the question of what educational facility

is appropriate for Sherry was carefully considered and

analyzed. The district court found that the School for the

.eaf would provide Sherry with the best education. In

reaching this conclusion the court noted that the most

important thing for Sherry at this stage of life was to learn

language skills and that the School for the Deaf is the best

place for that purpose. The School for the Deaf would also

provide Sherry with proper role models since many of the

people employed there are themselves profoundly deaf.

Further, Sherry would be able to practice total communi-

cation in school as well as in many extra-curricular activi-

ties such as Girl Scouts.

The district court, although convinced that the best

place for Sherry is the School for the Deaf, correctly follow-

ed the Act’s requirements when it determined that it was

not the State’s duty to provide the best education, but in-

stead states are required to provide an appropriate

education.

A definitive answer to what constitutes an appropriate

education is lacking in the Act and the regulations promul-

*Section 1414(a)(5) provides that local educational units make appli-

cation to the State educational agency. ‘‘Such application shall —

(5) provide assurances that the local educational agency

. . » will establish, or revise, whichever is appropriate, an indi-

vidualized education program for each handicapped child at

the beginning of each school year and will then review and, if

appropriate revise, its provisions periodically, but not less than

annually. ...”

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gated thereunder.’ Therefore, the courts, in reviewing

claims brought under the Act have attempted to establish

standards for determining what is an appropriate education.

The results are far short of uniform. They run a broad

spectrum. Kruelle v. Biggs, 489 F. Supp. 169 (D. Del. 1980)

(maximization of learning potential); Rowley v. Bd. of Ed.

of Hendrick Hudson Cent. S. D., 483 F. Supp. 528 (S.D. N.Y.

1980) (full potential commensurate with opportunity pro-

vided to nonhandicapped children)*; DeWalt v. Burkholder,

3 E.H.L.R. 551:550 (E.D. Va. 1980) (most appropriate) ;

Armstrong v. Kline, 476 F. Supp. 583 (E.D. Penn. 1979)

(sufficient to make handicapped person independent and

self-sufficient).

The district court adopted, and we affirm the standard

set forth in Rowley v. Bd. of Ed. of Hendrick Hudson Cent.

S. D., supra at 534:

An ‘appropriate education’ could mean an ‘ade-

quate’ education — that is, an education substan-

tial enough to facilitate a child’s progress from

one grade to another and to enable him or her to

earn a high school diploma. An ‘appropriate edu-

cation’ could also mean one which enables the

handicapped child to achieve his or her full

potential. Between those two extremes, however,

is a standard which I conclude is more in keeping

5See 45 C.F.R. Sections 121a.340-49, 121a.4, 121a.5, 121a.513, 121a.550-

551 (1979) for the regulations promulgated under the Act. The regu-

lations relevant to this case are cited in full in the district court's

opinion Springdale School Dist. v. Grace, 494 F. Supp. 266 (1980).

Affirmed by the Second Circuit in an unpublished opinion filed July

17, 1980. In its opinion the Court of Appeals holds that the district

court’s opinion was clearly supported by a preponderance of the

evidence. Further, the court notes that since the case was not a class

action its holding is limited to the facts of the case.

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with the regulations, with the Equal Protection

decisions which motivated the passage of the Act,

and with common sense. This standard would

require that each handicapped child be given the

opportunity to achieve his full potential com-

mensurate with the opportunity provided to other

children.

The Rowley standard provides the handicapped child with

the opportunity to achieve her full potential but takes into

account that such a task is equally fair and feasible only to

the extent that such opportunity must be commensurate

with the opportunity granted to nonhandicapped in the

same system. The district court noted, as did the court in

Rowley, supra at 534, and we are greatly swayed by it, that:

The school provides the nonhandicapped child an

opportunity to learn the basics and to learn them

well enough so that he might excel in his secondary

courses. But the Springdale School does not turn

every one of its students into academicians or pro-

fessionals, or even successful secondary students.

The home life of the child, his parents’ interests

and the child’s cultural and sociological environ-

ment often determine the child’s academic success

and attainment or lack of such.

Springdale School Dist. v. Grace, supra at 272. Sherry will

be receiving instruction in reading, arithmetic, spelling,

telling of time, health, social sciences and art by a certified

teacher of the deaf along with instruction in manual com-

munication, lip reading, writing and speaking. As the dis-

trict court observed, although it is likely that Sherry could

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learn more quickly at the School for the Deaf, both schools

would be teaching her through certified teachers of the

deaf. The fact that Sherry may not, like many nonhandi-

capped children, reach her full potential is not due to any

error in the district court’s interpretation of the Act or its

finding that the Springdale School could appropriately

educate Sherry, but instead may well result from forces

outside the school environment. The Act cannot remedy a

child’s cultural and sociological environment nor force

parents, by threatening to remove the child from the home,

to become partners with the state in insuring that a child

reach her full potential. We therefore agree with the district

court that Sherry will be offered, through the extra services

provided, an opportunity to achieve her full potential com-

mensurate with the opportunity offered to all the Spring-

dale School students and thus will receive an appropriate

education at the Springdale School.’

Our holding today is further supported by the main-

streaming requirements of the Act. Sections 1412(5) (B)

and 1414(a)(1)(C) (iv) of the Act require that “to the

maximum extent” possible, without sacrificing the child’s

right to an appropriate education, the handicapped must be

educated with the nonhandicapped. The regulations re-

quired that the handicapped child not only be educated as

close to home as possible, but also that when possible the

child should be educated in the school which he or she

TAs was noted by the district court Sherry’s parents have made very

little effort themselves to learn to communicate with Sherry.

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would attend if not handicapped.* At the Springdale School

Sherry would be with nonhandicapped children for physical

education, library, and possibly penmanship, science, health,

social studies, music and art. At the School for the Deaf,

however, Sherry would have virtually no contact with

nonhandicapped children. This goes against the backbone of

the Act which is to keep handicapped children out of insti-

tutions where often they are no more than prisoners

serving life terms. Although Sherry’s case does appear to

be one in which an institution would better serve her needs,

the Act’s requirements are clear. The district court properly

found that Sherry can receive an appropriate education at

the Springdale School which also allows her to be educated

with nonhandicapped students.

The Springdale School’s final allegation of error on the

part of the district court involves the district court’s refusal

845 C.F.R. Section 121a.513(b) provides that

Each public agency shall insure:

(1) That to the maximum extent appropriate, handicapped

children, ... are educated with children who are not handi-

capped. ...

45 C.F.R. Section 121a.551 provides assurance that

(a) Each handicapped child’s educational placement:

(1) Is determined at least annually;

(2) Is based on his or her individualized education program, and

(3) Is as close as possible to the child’s home;

gram requires some other arrangement, the child is educated in

the school which he or she would attend if not handicapped. ...

The only exception to the above requirements is ‘‘when the nature of

or severity of the handicap is such that education in regular classes

with the use of supplementary aids and services cannot be achieved

satisfactorily.” 20 U.S.C. Section 1412(5)(B); 45 C.F.R. Section 12la.

513(b)(2). Since we hold that Sherry can, with the use of supple-

mental services, receive an appropriate education at the Springdale

School the above exception would be inapplicable.

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to consider Arkansas law as it applies to this controversy.

We find this argument to be without merit. The complaint

filed by the Springdale School sought review, under Section

1415(e) of the Act, of the administrative proceeding pro-

vided for under the Act. The applicable law and standards

set forth thereunder are federal, and the district court was

not required to apply state law. If every state had a dif-

ferent standard for determining “appropriate”, the needs

of some handicapped children “may not be adequately met

if the local programs are measured against a statutory goal

which is permitted to vary with the happenstance of the

state in which the child lives.” Battle v. Com. of Pa., 629

F.2d 269, 284 (3d Cir. 1980) (Sloviter, Circuit Judge, dis-

senting). The district court was not incorrect in limiting

its review to the applicable federal law.

Affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

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APPENDIX "C”

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

(FILED JUL. 25, 1980)

SPRINGDALE SCHOOL DISTRICT ............ Plaintiff

v. Civil No, 80-5017

SHERRY GRACE, ETAL ..............00005: Defendant

AND

THE ARKANSAS DEPARTMENT

Ge MPESEROGD bo rescsveceoveesres syrerer Defendant

MEMORANDUM OPINION

In this case, the plaintiff, Springdale School District

Number 50 of Washington County, Arkansas seeks a hold-

ing that the appropriate education for Sherry Grace, a

handicapped child, is provided at the Arkansas School for

the Deaf instead of the Springdale Public School. The

defendants, Albert Grace, Joann Grace, individually and

as guardian ad litem for Sherry Grace, have counterclaimed

seeking an injunction requiring the plaintiff to hire a

special teacher qualified to teach Sherry Grace and to

institute a summer program to make up the educational

deficiencies they contend occurred during the 1979-1980

school term while their child attended the Springdale

Elementary School.

Subject matter jurisdiction exists under 2( U.S.C.

§1415(e) (2) and (4).

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Sherry Grace was born to Albert and Joann Grace on

January 19, 1970. The Graces lived in Washington County,

Arkansas, During Sherry’s early infancy, she suffered from

various ear infections and related problems. When she was

two years old, her parents discovered that she was pro-

foundly deaf, having either been born deaf or having lost

her hearing before she developed speech. Sherry has a 95%

loss of hearing which renders her completely deaf for all

intents and purposes.

Sherry received no formal education or training in

communication before the age of four. When she was four

years old, she was enrolled in the Bates Elementary School

in Fayetteville, Arkansas, which had a special program for

children with hearing impairment. She lived with her

parents in Springdale, Arkansas.

The Bates program for the hearing impaired was de-

signed for children who retain some hearing (hard of hear-

ing children) and not for the profoundly deaf. If a person

is merely hard of hearing, he can be orally instructed,

although amplification may be necessary. A hard of hearing

person may more easily be taught lip reading and other

skills which are designed to implement the hearing that

exists. A person who is profoundly deaf can only visually

receive information. If one is profoundly and prelingually

deaf, he lacks the concept of language and must not only

receive visual instruction, but also must be taught the most

rudimentary matters concerning language. Because Sherry

Grace is profoundly and prelingually deaf, the Bates pro-

gram, geared to hard of hearing children, was inadequate

and she made little or no progress after two years at the

Bates school. Her language level was that of a child of two

years and two months.

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Unlike other handicaps, profound prelingual deafness

renders the person extremely isolated. Hearing humans

rely almost exclusively on oral communication until they

learn to read and write, and if untrained in sign language,

can convey only the simplest ideas through gestures and

signals. A profoundly deaf child who has not learned to

read usually learns nothing other than those matters which

a normal prelingual child of one or two years would know.

A profoundly deaf person can effectively communicate with

no one when he leaves the presence of one trained in sign

language.

Even though Sherry Grace has an above normal intelli-

gence, by the age of six she had learned very little. Her

parents had not taken any training in sign language and

the Bates program did not provide the visual teaching

method required.

When Sherry was six years old, she and her parents

moved to Little Rock, Arkansas, so that Sherry could attend

the Arkansas School for the Deaf as a day student. The

Deaf School accepts only profoundly deaf students and its

programs are designed for those persons who can only

receive information visually. The School for the Deaf

teaches the total communication system, a method of visual

communication encompassing signing, fingerspelling, visual

cues, touching and mouthing. There were approximately

285 students attending the Arkansas School for the Deaf.

Sherry learned some total communication skills and for the

first time in her life could communicate with her teachers

and her fellow students. The School also urged parents of

their students to learn total communication so that they

could communicate with their children. Mrs. Joann Grave

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attended a few classes and learned some sign language; Mr.

Albert Grace did not.

Sherry Grace attended the School for the Deaf for

three years while living with her parents in Little Rock.

While there, she progressed from having a language level

of a two-year, two-month old child to being able to read at

the 2.5 grade level. Because she was able to communicate

with others and participate in the life of the school, Sherry’s

confidence and social ability also developed.

At the end of Sherry’s third school year at the Deaf

School, Mr. and Mrs. Grace decided they wanted to move

from Little Rock to Springdale, Arkansas. They found Little

Rock more expensive and a financial hardship even though

they were self-supporting. They also wanted to be near

their parents and wanted Sherry to be able to spend more

time with her grandparents. When the Graces told the

Deaf School of their plans to move to Springdale and to

enroll Sherry in the Springdale public school system,

Sherry’s teachers tried to explain the necessity of keeping

Sherry enrolled in the School for the Deaf, even if it in-

volved her becoming a residential student. The school urged

that removing Sherry from the Deaf School would not only

hinder Sherry’s academic progress, but also would isolate

her from meaningful social encounters.

The Graces moved to Springdale and enrolled Sherry

in the fourth grade at the Springdale Elementary School.

The school tested Sherry, and after consultation with her

parents, formulated an individual educational plan (IEP).

The IEP developed by the Springdale school noted

that Sherry should be taught by a certified teacher of the

deaf, one who employs total communication and who could

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teach it to Sherry. The IEP also reflected that Sherry lacked

the skills in reading, spelling and arithmetic of the average

fourth grader, and her general knowledge was below level.

The school’s IEP stated that the Arkansas School for the

Deaf in Little Rock was the proper school to meet Sherry’s

special needs.

The Graces disputed that Sherry should be sent to the

Arkansas School for the Deaf, but otherwise agreed with

the school’s assessment of Sherry’s needs. A temporary IEP

was developed which governed Sherry’s education at

Springdale. Under the temporary IEP, Sherry remained in

the class with nonhandicapped fourth graders, but would

go to the Resource Room for approximately two hours each

day to receive special instruction and speech therapy.

Because Mr. and Mrs. Grace disagreed with the original

IEP developed by the Springdale school, they sought

review. After proper notices and pre-hearing conferences,

a due process hearing was held on November 7, 1979. The

hearing officer held that the Springdale School District was

wrong and that the Arkansas School for the Deaf was not

the most appropriate placement for Sherry. The Springdale

School District appealed and the appeals officer affirmed,

holding that Sherry Grace should be educated within

northwest Arkansas so that she could live with her parents.

In January, 1980, the school began to provide a full-time

interpreter for the deaf who was present with Sherry in her

classroom, interpreting the teacher’s words and Sherry’s

responses.

In February, 1980, the Springdale school initiated this

action seeking review of the appeals officer’s decision that

Sherry not be sent to the Arkansas School for the Deaf.

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The case was advanced on the docket and evidence was

tendered to the Court on May 8 and 9, 1980. A transcript of

the due process hearing and other administrative matters

was filed in this cause.

The Education for All Handicapped Children Act, 20

U.S.C. §§1401-1461, establishes a program of financial

assistance to States who have demonstrated to the Com-

missioner of Education that they have a policy, a plan and

procedures guaranteeing each handicapped child within

the state a “free appropriate public education.” 20 U.S.C.

§1412. Arkansas has received grants under the Act and has

made a certain percentage available to the local school

districts as required by 20 U.S.C. §1411(b).

To assure that each school district provides a free

appropriate education for handicapped children, the state

must assure the local educational agency identifies and

evaluates each handicapped child within its jurisdiction,

formulates and implements an individualized education

program (hereafter IEP) designed to meet the needs of

the handicapped child. 20 U.S.C. §§1413 and 1414.

20 U.S.C. §1415 requires that parents of handicapped

children be allowed to examine and discuss their child’s

IEP and supporting documents with the school; that parents

may obtain review of IEP in an impartial due process

hearing before a representative from the state educational

agency; and that any party aggrieved by the findings or

decision made during the state administrative proceedings

can seek review in a United States District Court.

The Act requires the school to provide Sherry Grace

with a free appropriate education. The Act, 20 U.S.C.

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§1412(5), also requires that:

[T]o the maximum extent appropriate, handicap-

ped 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 sup-

plementary aids and services cannot be achieved

satisfactorily.

The Act, 20 U.S.C. §1401(18) defines “free appropriate

public education” as follows:

[S]pecial education and related services which

(A) have been provided at public expense, under

public supervision and direction, and without

charge, (B) meet the standards of the State edu-

cational agency, (C) include an appropriate pre-

school, elementary, or secondary school education

in the State involved, and (D) are provided in

conformity with the individualized education

program required under Section 614(a)(5) [20

USCS §1414(a) (5) ].

The Act also requires that an IEP be developed each

year for the child. 20 U.S.C. §1414(a) (5).

Arkansas has chosen to participate in the Education for

Handicapped Children Program. It and each local educa-

tional agency within Arkansas, including the Springdale

School District, is therefore bound to comply with its

provisions.

A-26

Arkansas has also enacted legislation guaranteeing

education for excepticiial children. Ark. Stat. Ann. §§80-

2102 — 2143. The Arkansas Act is not relevant to the case

before the Court, as our jurisdiction is limited by 20 U.S.C.

§1415 to review for compliance with the Education for All

Handicapped Children Act, 20 U.S.C. §§$1401-1461.

The regulations promulgated under the Education for

All Handicapped Children Act provide in part as follows:

As used in this part, the term “free appropriate

public education” means special education and

related services which:

(a) Are provided at public expense, under

public supervision and direction, and without

charge.

(b) Meet the standards of the State edu-

cational agency, including the requirements of

this part.

secondary school education in the State involved,

and

(d) Are provided in conformity with an

individualized education program which meets

the requirements under §$§121a.340-121a.349 of

Subpart C.

45 C.F.R. §121a.4 (1979).

(a) As used in this part, the term “handi-

capped children” means those children evaluated

in accordance with §§121a.530-121a.534 as being

mentally retarded, hard of hearing, deaf, speech

impaired, visually handicapped, seriously emo-

A-27

tionally disturbed, orthopedically impaired, other

health impaired, deaf-blind, multi-handicapped, or

as having specific learning disabilities, who because

of those impairments need special education and

related services.

(b) The terms used in this definition are

defined as follows:

(1) “Deaf” means a hearing impairment

which is so severe that the child is impaired in

processing linguistic information through hearing,

with or without amplification, which adversely

affects educational performance.

45 C.F.R. §121a.5 (1979).

The individualized education program for each

child must include:

(a) A statement of the child’s present levels

of educational performance;

(b) A statement of annual goals, including

short term instructional objectives;

education and related services to be provided to

the child, and the extent to which the child will

be able to participate in regular educational

programs,

(d) The projected dates for initiation of

services and the anticipated duration of the

services; and

(e) Appropriate objective criteria and

evaluation procedures and schedules for deter-

A-28

mining, un at least an annual basis, whether the

short term instructional objectives are being

achieved.

45 C.F.R. §121a.346 (1979).

(a) During the pendency of any administra-

tive or judicial proceeding regarding a complaint,

unless the public agency and the parents of the

child agree otherwise, the child involved in the

complaint must remain in his or her present

educational placement.

(b) If the complaint involves an application

for initial admission to public school, the child,

with the consent of the parents, must be placed in

the public school program until the completion of

all the proceedings.

45 C.F.R. §121a.513.

(a) Each State educational agency shall

insure that each public agency establishes and

implements procedures which meet the require-

ments of §§121a.550-121a.556.

(b) Each public agency shall insure:

(1) That to the maximum extent appropri-

ate, handicapped children, including children in

public or private institutions or other care facili-

ties, are educated with children who are not

handicapped, and

(2) 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

A-29

such that education in regular classes with the

use of supplementary aids and services cannot be

achieved satisfactorily.

45 C.F.R. §121a.550.

(a) Each public agency shall insure that a

continuum of alternative placements is available

to meet the needs of handicapped children for

special education and related services.

(b) The continuum required under para-

graph (a) of this section must:

(1) Include the alternative placements listed

in the definition of special education under $121a.13

of Subpart A (instruction in regular classes,

special classes, special schools, home instruction,

and instruction in hospitals and institutions), and

(2) Make provision for supplementary

services (such as resource room or itinerant in-

struction) to be provided in conjunction with

regular class placement.

45 C.F.R. §121a.551.

Each public agency shall insure that:

(a) Each handicapped child’s educational

placement:

(1) Is determined at least annually;

(2) Is based on his or her individualized

education program, and

(3) Is as close as possible to the child’s

home;

A-30

(b) The various alternative placements in-

cluded under §121a.551 are available to the extent

necessary to implement the individualized educa-

tion program for each handicapped child;

ualized education program requires some other

arrangement, the child is educated in the school

which he or she would attend if not handicapped;

and

(d) In selecting the least restrictive environ-

ment, consideration is given to any potential

harmful effect on the child or on the quality of

services which he or she needs.

Our standard for review is set out in the Act, 20 U.S.C.

§1415(e), which provides as follows:

(1) A decision made in a hearing conducted

pursuant to paragraph (2) of subsection (b) shall

be final, except that any party involved in such

hearing may appeal such decision under the pro-

visions of subsection (c) and paragraph (2) of

this subsection. A decision made under subsection

an action under paragraph (2) of this subsection.

(2) Any party aggrieved by the findings and

decision made under subsection (b) who does not

have the right to an appeal under subsection (c),

and any party aggrieved by the findings and

decision under subsection (c), shall have the right

to bring a civil action with respect to the complaint

presented pursuant to this section, which action

may be brought in any State court of competent

A-31

jurisdiction or in a district court of the United

States without regard to the amount in contro-

versy. In any action brought under this paragraph

the court shall receive the records of the adminis-

trative 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.

We find that the Springdale School District proved by

a preponderance of the evidence that the Arkansas School

for the Deaf would provide the best free education for

Sherry Grace.

At this stage of Sherry’s life, the most important thing

which she can learn is a language, a means to obtain

knowledge. The Court observed several profoundly deaf

persons who testified or attended the hearing. The Court

noted the skill of the interpreters when translating for the

extremely articulate Dr. Garretson and when translating

for the less articulate. The Court observed the difficulty

Sherry Grace had in comprehending the most simple of

questions translated to her and her almost total reliance on

gesture in lieu of language in answering.

The IEP developed by the Springdale school recites

that Sherry’s reading level is that of second grade, as are her

skills in arithmetic. It is crucial that she learn a language

so that she may be taught how to read and all the other

basic skills.

The Arkansas School for the Deaf employs only those

teachers who are skilled in Total Communication. Their

cumulative experience and expertise would exceed that of

the single certified teacher employed by the Springdale

school system. The presence of many teachers would give

A-32

Sherry the benefit of each teacher’s explanation and ap-

proach, where as she would receive instruction from only

one certified teacher of the deaf at Springdale. It is fore-

seeable that the certified teacher employed by Springdale

to teach Sherry would teach her for more than one year,

whereas at the Deaf School, Sherry would have many

teachers skilled in Total Communication each year and new

ones each year.

The Arkansas School for the Deaf would also provide

Sherry with role models, as the evidence established that

many of the teachers, grounds keepers, cooks and aides are

themselves profoundly deaf, whereas there are no pro-

foundly deaf persons associated with the Springdale

school. Both Springdale and the Arkansas School for the

Deaf would attempt to have profoundly deaf persons make

special appearances at school, but the visits would be more

frequent at the School for the Deaf.

The Arkansas School for the Deaf would also provide

Sherry the opportunity to have conversations with adults

as all teachers, dormitory housemothers, and most other

employees have Total Communication training. If Sherry

were to remain at the Springdale school, her certified

teacher for the deaf would be the only adult skilled in

signing or Total Communication with whom she would

have regular contact. The contact with signing adults is

important not only to increase her “vocabulary” of signs,

but also to increase her general knowledge, an area in

which she is particularly deficient as shown by the IEP.

The Arkansas School for the Deaf would surround

Sherry with adults and children who sign to each other,

whereas Sherry and her certified teacher would be the only

ones who knew the “language” at the Springdale school.

A-33

The omnipresence of signing at the Deaf School cannot be

underrated in determining the speed and skill with which

Sherry could learn to effectively comprehend others and

express herself.

The Arkansas School for the Deaf also has much better

facilities for teaching the profoundly deaf. All television

sets and movies are equipped with decoders which display

the words being spoken. Such tools would greatly help

Sherry’s reading skills.

The Arkansas School for the Deaf also would provide

Sherry a set of friends with whom she could communicate

and thereby practice her signing skills during and after

school hours. In contrast, the Springdale school contains no

children other than Sherry who have signing or Total

Comrnunication skills. There likewise are no deaf children

in the Springdale, Washington County, area near Sherry’s

age. (Profound deafness is a low-incidence handicap.)

There are no adults skilled in signing or Total Communica-

tion who regularly visit the Grace home.

At the Deaf School, Sherry could fully participate in

after-school activities such as the Girl Scouts. At Spring-

dale, her attendance at Girl Scouts would hardly constitute

participation since there would be no one to interpret for

her and at this stage, it is doubtful if she would understand

the signs used by an interpreter. The same is true with

respect to birtaday parties, or other children’s activities.

The Education for All Handicapped Children Act does

not require a State, through its local educational district, to

provide each handicapped child with the best education for

him; it requires a free, appropriate education. P.L. 94-142

§3(c), 20 U.S.C. §1401 note.

A-34

In Rowley v. Board of Ed. of Hendrick Hudson Central

School Dist., 483 F. Supp. 528 (S.D. N.Y. 1980), the Court

addressed the meaning of “appropriate education” as fol-

lows:

An “appropriate education” could mean an

“adequate” education — that is, an education

substantial enough to facilitate a child’s progress

from one grade to another and to enable him or her

to earn a high school diploma. An “appropriate

education” could also mean one which enables the

handicapped child to achieve his or her full poten-

tial. Between those two extremes, however, is a

standard which I conclude is more in keeping with

the regulations, with the Equal Protection deci-

sions which motivated the passage of the Act. anu

with common sense. This standard would require

that each handicapped child be given an oppor-

tunity to achieve his full potential commensurate

with the opportunity provided to other children.

We follow the definition contained in Rowley and examine

whether the IEP as modified after the administrative hear-

ing which calls for Sherry to be placed in the Springdale

school would provide Sherry Grace with an opportunity to

achieve her full potential commensurate with the oppor-

tunity provided to nonhandicapped children.

The nonhandicapped child in the Springdale school

elementary system is provided the opportunity to learn

language skills, reading, writing, arithmetic, social studies

and science. The school provides the nonhandicapped child

an opportunity to learn the basics and to learn them well

enough that he might excel in his secondary school courses.

But the Springdale school does not turn every one of its

A-35

students into academicians or professionals, or even

successful secondary school students. The home life of the

child, his parents’ interests and the child’s cultural and

sociological environment often determine the child's

academic success and attainment or lack of such.

When we compare what Springdale School delivers to

its nonhandicapped students with what it must provide to

Sherry Grace under the terms of the IEP, we find, by a

preponderance of the evidence, that Sherry Grace can

receive an “appropriate” education while enrolled at the

Springdale school.

The IEP developed for the 1979-80 school term calls

for Sherry ree ing instruction from a certified teacher for

the deaf in: .nual communication, lipreading, writing and

speaking. Sherry will also receive instruction in reading,

arithmetic, spelling, the telling of time, handwriting, health,

social sciences and art by the certified teacher. Although it

is likely that Sherry could learn much more quickly at the

Arkansas School for the Deaf, we note that both the Arkan-

sas School for the Deaf and the Springdale School would

be teaching the same subjects to her through certified

teachers for the deaf.

The defendants introduced the testimony of teachers

of the deaf who have taught students similar to Sherry in

other schools in a single-teacher, single-student environ-

ment. Their testimony reveals that it is possible to teach

the profoundly deaf under such circumstances and have

them perform at levels comparable to the nonhandicapped.

The plaintiff has not evinced one fact about Sherry which

indicates that she cannot receive an appropriate education

at the Springdale School, although plaintiff thoroughly

A-36

proved that the Arkansas School for the Deaf was

preferable.

The plaintiff proved that Sherry had made little

progress during the 1979-80 term while enrolled in Spring-

dale, During the 1979-80 term, Sherry did not have the

benefits of a certified teacher of the deaf who instructed

her for the great part of the school day in Total Communi-

cation and the substantive academic subjects, Only for the

second semester did Sherry have the benefit of the interpre-

ter in class with her, Her lack of progress during the

1979-80 term is not indicative of whether Sherry can

receive an appropriate education at the Springdale School

in accord with her individual requirements as set out in

the IEP.

Having determined that Sherry can receive an ap-

propriate free education at both the Springdale School and

the Arkansas School for the Deaf, we address the issue of

“mainstreaming.” 20 U.S.C, §1412(5) (B) requires that “to

the maximum extent” possible, without sacrificing the

child's right to an appropriate education, the handicapped

must be educated with the nonhandicapped, Plaintiff urges

that at Springdale Sherry would be separated for the great

part of each school day not only from nonhandicapped

children, but also from all other children, as she will be

required to spend so much time alone with the certified

teacher of the deaf, Plaintiff urges that this is more

“restrictive,” as that term is used in 45 C.F.R, §121a,550,

than placing Sherry at the School for the Deaf,

The statute is clear. It calls for a child to be educated

with nonhandicapped children to the extent consistent

with the child’s receiving an appropriate education. At the

Springdale School, Sherry would be at recess with non-

A-37

handicapped children and would be with them for physical

education, library and possibly for penmanship, science,

health, social studies, music or art, At the School for the

Deaf, her contacts with nonhandicapped students would

not be in the regular course of the school day. Since the

Springdale School can provide her an appropriate educa-

tion and also meets the mainstreaming requirements of 20

U.S.C. §§1412(5) (B) and 1414(a) (1) (C) (iv), we hold that

the Arkansas Department of Education's modification of

the IEP was correct,

The defendants, Albert Grace, Joann Grace and Sherry

Grace, have counterclaimed against the Springdale School

seeking a preliminary injunction requiring the Springdale

School to hire a certified teacher of the deaf, otherwise to

implement the IEP developed for Sherry and to provide a

summer program to remedy the deficiencies incurred

during the 1979-80 school term, In their answer, the Graces

also claim attorneys’ fees under 31 U.S.C, §1244(e), which

provides as follows:

(e) In any action under this section to enforce

Section 1242(a) of this title, the court, in its dis-

cretion, may allow to the prevailing party, other

than the United States, reasonable attorney fees,

and the United States shall be liable for fees and

costs the same as a private person.

20 U.S.C, §1242(a) provides as follows:

(a)(1) In general, — No person in the United

States shall, on the ground of race, color, national

origin, or sex, be excluded from participation in,

be denied the benefits of, or be subjected to dis-

crimination under any program or activity of a

State government or unit of local government,

A-38

which government or unit receives funds made

available under subchapter I of this chapter. Any

prohibition against discrimination on the basis of

age under the Age Discrimination Act of 1975 or

with respect to an otherwise qualified handicapped

individual as provided in Section 794 of Title 29

shall also apply to any such program or activity.

Any prohibition against discrimination on the basis

of religion, or any exemption from such prohibition,

as provided in the Civil Rights Act of 1964 or title

VIII of the Act of April 11, 1968, hereafter referred

to as Civil Rights Act of 1968, shall also apply to

any such program or activity.

(2) Exceptions, —

(A) Funding. — The provisions of para-

graph (1) of this subsection shall not apply

where any State government or unit of local

government demonstrates, by clear and con-

vincing evidence, that the program or activity

with respect to which the allegation of dis-

crimination has been made is not funded in

whole or in part with funds made available

under subchapter I of this chapter.

(B) Construction projects in progress,—

The provisions of paragraph (1), relating to

discrimination on the basis of handicapped

status, shall not apply with respect to con-

struction projects commenced prior to January

1, 1977,

The counterclaim for attorneys’ fees must be denied as

there is no statutory basis for it, 31 U.S.C, §1244(e) being

inapplicable.

A-39

To the extent the counterclaim seeks an injunction

requiring the Springdale School to provide Sherry with the

certified teacher of the deaf and the other educational

needs outlined in the IEP, the injunction should issue, even

though it will apply to the 1980-81 school term only. Rowley

(Rowley II) v. Board of Education, 483 F. Supp. 536 (S.D.

N.Y. 1980).

The Graces also seek an injunction requiring the

Springdale School to provide a summer program to remedy

the educational deficiencies Sherry incurred during the

1979-80 school term.

The Court declines to issue an injunction requiring the

Springdale School to provide a summer school program for

Sherry Grace. It would take time for the Springdale School

to implement such a program and given the short time

remaining before the 1980-81 fall term begins, no injunction

should issue.

The Springdale School asked this Court to hold that

the Arkansas School for the Deaf is the most appropriate

placement for Sherry Grace. Since Sherry Grace is a minor

whose parents reside in Springdale, Arkansas, approxi-

mately 170 miles from the Arkansas School for the Deaf,

the Court raised the issue of its authority to take action

which would remove effectively the child from her parents’

home. Having decided that Sherry should remain at the

Springdale School for the 1980-81 school term, we need

not and do not address that issue.

We point out that after Sherry has attended the

Springdale School for one school year, she should be re-

evaluated and proper steps taken to comply with the

existing law.

A-40

We also note that, upon reflection, Sherry’s parents

may be more desirous that their child receive the best in-

stead of a mere “appropriate” scholastic exposure.

A separate judgment will be prepared in accord with

this opinion. Each party will bear his or its own costs.

This 23rd day of July, 1980.

/s/ Paul X. Williams,

United States District Judge

A-41

APPENDIX “D”

REVIEW DECISION

ARKANSAS DEPARTMENT OF EDUCATION

SPECIAL EDUCATION SECTION

APPELLANT:

REPRESENTED BY:

APPELLEE:

REPRESENTED BY:

REVIEW PERIOD:

REVIEW HEARING:

(APPEAL)

Springdale School District

Thurman Smith, Supt.

202 West Emma Avenue

Springdale, AR 72764

James M. Roy, Jr.,

Attorney at Law

P.O. Box 869

Springdale, AR 72764

Mr. and Mrs. Albert Grace

on behalf of Sherry Grace

1507-A White Road

Springdale, AR 72764

John M. Bilheimer,

Attorney at Law

955 Tower Building

Little Rock, AR 72201

December 27, 1979 —

February 4, 1980

January 24, 1980 —

3:10 PM - 4:16 PM

Transportation Commission

Hearing Room

Arkansas Justice Building

State Capitol Grounds

Little Rock, AR 72201

A-42

REVIEWING OFFICIAL: Larry L. Rogers, Coordinator

Arkansas Dept. of Education

Special Education Section

Instructional Division

Arch Ford Education Bldg.

Little Rock, AR 72201

RELEASE OF REPORT: _ February 4, 1980

BACKGROUND

A due process hearing was conducted on November 7

and 8, 1979, by Dr. LaDelle Olion, an impartial hearing

officer, appointed and trained in accordance with state and

federal laws and regulations. The hearing involved the

educational placement of a 10 year old profoundly hearing

impaired child who lives with her parents in the Springdale

School District. All parties had agreed on the remainder of

the content of the written Individual Education Plan (IEP).

The Petitioner (appellee in the appeal review) in the

due process hearing took the position that the “least re-

strictive environment”, as established in federal and state

law, should be interpreted to mean an educational program

for the child located in such proximity to the home as to

allow the child to live at home with her parents.

The Respondent (appellant in the appeal review)

contended that the appropriate educational program for the

child, as contained in the IEP, could only be provided at

the Arkansas School for the Deaf. The child had attended

the Arkansas School for the Deaf for the previous three

(3) years (76-77, 77-78, 78-79) after almost two years

(74-75, 75-76) in an oral based educational program located

in the Fayetteville Public Schools. The Respondent further

contended that the lack of progress for the child in the

local, oral based program and the satisfactory progress for

A-43

the child while at the Arkansas School for the Deaf was

strong evidence that the appropriate education in the “least

restrictive environment” could only be achieved at the

Arkansas School for the Deaf.

Dr. LaDelle Olion, Impartial Hearing Officer for the

case in question, in a Hearing Decision dated November 27,

1979, found essentially in favor of the Petitioner. In the

decision, the hearing officer wrote that ... “the Petitioner

has presented persuasive evidence that the child should

remain in the home and that a total communications pro-

gram can be provided for the child within the Springdale

Public Schools.” Later in the decision, the hearing officer

wrote, ... “based upon relevant evidence and testimony

presented, it is the Hearing Officer’s Decision that the child

not be placed in the Arkansas School for the Deaf.” The

hearing officer further cited Sections 121la.1 and 121.a 55C

of the regulations under P.L. 94-142, Although the decision

clearly favored the position of the Petitioner, action re-

quired by the Hearing Decision was not clear.

The Respondent ap -aled the decision of the Impartial

Hearing Officer in a certified letter dated December 26,

1979, and received by the appropriate official on December

27, 1979.

REVIEW ACTIVITIES

Review activities conducted by the reviewing official

between December 27, 1979, and February 4, 1980, were as

follows:

1. Reviewed transcript of the due process hearing

including all exhibits.

2. Reviewed decision of hearing officer.

A-44

3. Made inquiries of officials of the Arkansas School

for the Deaf and reviewed facilities and program

pertinent to the case.

4. Reviewed records for litigation and due process

activities in other states on similar issues.

5. Made telephone inquiries in two other states,

Nebraska and Virginia, where publications sug-

gested that similar issues had arisen.

6. Visited and reviewed an education program for

hearing impaired operated by the Hot Springs

School District.

7. Conducted appeal review hearing to allow parties

to offer oral argument and additional evidence.

Appeal Review Hearing: The Appellant contended that the

Hearing Officer’s Decision was in error because it was not

supported by the greater portion of the evidence offered at

the hearing. Appellant alleged that local programming for

the child would be detrimental because of social isolation

and a lack of communication with others in the school,

home, and community. Appellant cited evidence from the

hearing that supported the position that acceptable educa-

tional and social development for the child could only be

achieved at the School for the Deaf.

Appellee restated the original position that the require-

ment for an appropriate education in the “least restrictive

environment” should be interpreted to require that an ap-

propriate educational program is provided in reasonable

proximity to the child’s natural home. Appellee cited state

education agency and local education agency responsibili-

ties under P.L. 94-142 to assure appropriate education in

the “Least Restrictive Environment.”

A-45

REVIEW DECISION

Based on evidence reviewed on this appeal, the finding

of this reviewer is that the “free and appropriate public

education” in the “least restrictive environment” is to be

provided in reasonable proximity to the child’s natural

home.' If the education program is located somewhere other

than in the Springdale School District, transportation is to

be provided at no cost to the parents. The teacher(s) for

the child are to be appropriately qualified.

This decision does not preclude subsequent educational

program modifications, consistent with state and federal

regulations, if appropriate education in the lesser restrictive

environment proves unsatisfactory in terms of educational

progress for the child.

In addition to the regulatory references listed in the

Hearing Decision, the legal and regulatory basis for this

decision are Section 4 of Act 102 as amended, C.F.R. V. 42,

No. 163, August 23, 1977, Sections 121a.551 paragraph (a),

(b), b(1) and 121a.552 a(3).

Section 4 of Act 102 as amended is as follows:

Section 4. “To the maximum extent practicable,

handicapped children shall be educated along with

children who do not have handicaps and shall at-

tend regular classes. Impediments of learning and

to the normal functioning of handicapped children

in the regular school environment shall be over-

come, when possible, by the provision of special

aids and services rather than by separate schooling

for the handicapped.

1*Reasonable proximity to the child’s home” is a distance not too

great for the child to be transported on a daily basis and live at home.

A-46

Separate schooling or other removal of handicap-

ped children from the regular educational environ-

ment, shall occur only when, and to the extent that

the nature or severity of the handicap is such that

education in regular classes, even with the use of

supplementary aids and services, cannot be accom-

plished satisfactorily.”

Section 121a.551, paragraphs (a), (b), and (bl) are as

follows:

121a.551 — Continuum of Alternative Placements

(a) “Each public agency shall insure that a con-

tinuum of alternative placements is available

to meet the needs of handicapped children for

special education and related services.

(b) The continuum required under paragraph

(a) of this section must:

(1) Include the alternative placements

listed in the definition of special educa-

tion under Section 121a.13 of Subpart A

(instruction in regular classes, special

classes, special schools, home instruc-

tion, and instruction in hospitals and

institutions), and

Section 121a.552, (a3) is as follows:

121a.552 — Placements

Each public agency shall insure that:

(a) Each handicapped child’s educational place-

ment:

A-47

(3) Is as close as possible to the child's

home.”

Evidence found in the transcript of the due process

hearing suggests that the continuum of alternative place-

ments was not considered in making the initial placement

decision early in the 79-80 school year. The absence of an

existing local education program using the child's mode of

communication is not sufficient justification to select

placement on the more restrictive end of the continuum

before providing appropriate education in a lesser restric-

tive environment. (“Continuum of alternative placements”

cited above.)

While the Appellant’s arguments against local educa-

tion for the child based on the potential social and com-

municative isolation are compelling, experience in other

locations suggests that a child with a profound hearing loss

can develop socially and can communicate sufficiently with

others if appropriate program and environmental modifi-

cations are made.

This decision represents the last step of administrative

appeal and is considered final unless relief is obtained

through civil action (CFR 45, Vol. 42, No. 163, Tueday,

August 23, 1977, paragraph 121a.511.) The Appellant, with

timely support and supervision from the State Education

Agency, is to proceed with due speed to provide an ap-

propriate education for the child in accordance with these

findings.

/s/ Larry L. Rogers,

Reviewing Official

A-48

APPENDIX “E”

HEARING DECISION

ARKANSAS DEPARTMENT OF EDUCATION

SPECIAL EDUCATION SECTION

PETITIONER

STUDENT:

PARENTS:

ADDRESS:

REPRESENTED BY:

RESPONDENT

SCHOOL DISTRICT:

SUPERINTENDENT:

ADDRESS:

REPRESENTED BY:

HEARING

DATE OF HEARING:

START OF HEARING:

CONCLUSION OF

HEARING:

Sherry Grace

Mr. and Mrs. Albert Grace, Jr.

1507-A White Road

Springdale, Arkansas 72764

Mr. Jim Hudson, Coordinator

Arkansas Developmental

Disabilities Advocacy System

State Capitol Suite 011

Little Rock, Arkansas 72201

Springdale School District

Mr. Thurman Smith

Springdale Public Schools

Springdale, Arkansas 72764

Mr. James M. Roy, Jr.

Attorney at Law

P.O. Box 869

Springdale, Arkansas 72764

November 7, 1979

November 7, 1979, 5:05 p.m.

November 8, 1979, 12:05 a.m.

A-49

PLACE OF HEARING: _ Springdale High School

Cafeteria

Springdale, Arkansas 72764

HEARING OFFICER: Dr. LaDelle Olion

Department of Special

Education and Psychology

University of Arkansas at

Pine Bluff

Pine Bluff, Arkansas 71601

DATE OF REPORT: November 27, 1979

HEARING DECISION

ARKANSAS DEPARTMENT OF EDUCATION

SPECIAL EDUCATION SECTION

HEARING DATES: November 7, 1979—5:05 p.m. (Started)

November 8, 1979—12:05 a.m.

(Completed)

ISSUE AND PURPOSE OF THE HEARING

The petitioner contends that the most appropriate

education for the student in the least restrictive environ-

ment is at home with her family. Additionally, the

petitioner contends that there are existing and potential

resources in the Springdale community which could

establish an appropriate program in the Springdale com-

munity for the student.

The respondent contends that the most appropriate

education for the student in the least restricted environment

is the Arkansas School for the Deaf.

The purpose of the hearing was to review the placement

recommended for a deaf student. The school district con-

tends the only placement available in a total communica-

A-50

tions program for the deaf student is at the Arkansas

School for the Deaf.

The following documents were entered as evidence:

Arkansas Children’s Hearing and Speech Clinic

(R. No, 1)

Case Report Springdale Public Schools (R. No, 2)

3. Letter from S.P. (R. No, 3)

11,

Educational Examiner's Report, Springdale (R.

No, 4)

Individual Educational Plan (R. No. 5)

Interpreter’s Oath (R. No, 6)

Interpreter’s Oath (R. No. 7)

Witnesses (R. No. 8)

Interpreter’s Oath (R. No. 9)

Parents Ex. (P. A-C)

Certificate (P, D)

During the course of the hearing, the following wit-

nesses appeared:

Special Education Supervisor, Springdale Public

Schools

Coordinator for the Regional Program for Hearing

Impaired

Principal of Lower School of Arkansas School for

the Deaf

Superintendent of the Arkansas School for the

Deaf

10,

11,

12.

13,

14,

15.

16,

17.

18,

19,

coe neg

A-51

Child in Question

Superintendent of Springdale Public Schools

Teacher

Teacher Aide

Supervisor of Special Education for Fayetteville

Public Schools

Coordinator State Department of Education

Case Worker

Professor, University of Arkansas, Area of

Deafness

Professor, University of Arkansas, Counselor

Education

Child’s Aunt

Former Resident of Institution

Parent Hard of Hearing Child

Parent of Three Handicapped Children

Father of Child

Mother of Child

The school system (respondent) was represented by an

attorney and the parents (petitioner) were represented by

the Coordinator of the Arkansas Developmental Disabilities

Advocacy System,

FINDINGS OF FACT

The Supervisor of Special Education for the respondent

contends that based upon her familiarity with the student

and the Spring ‘e School District that the only existing

A-52

program that the student could receive training in, as

spelled out in the IEP would be at the School for the Deaf

in Little Rock. She further contends that the IEP indicates

that a trained teacher of the deaf would be necessary to

work with the student in the areas of reading, mathematics,

spelling, handwriting, science, health, social studies, music

and art, The Supervisor of Special Education contends that

the student needs a total communication’s approach and

socialization opportunities with other hearing impaired

children, which do not currently exist in the Springdale

Public Schools,

The petitioner contends and was supported by the

Supervisor of Special Education that if there were a total

communications teacher in Springdale who worked with

the student and implemented the IEP in all areas that were

indicated that that would be a less restrictive setting. The

supervisor further contends that educational experiences

not only are learned at school, but also that the family plays

an important role in the total educational process; however,

she contends that just because the child is removed from

the home and attends a residential placement, that this does

not necessarily exclude the parents totally. She contends

that the parents could work as closely with teachers from

Little Rock as they could from Springdale, even if the

parents lived in Springdale. She further contends that

parents could reinforce what was done at the School for

the Deaf by letter, and telephone. The Supervisor of Special

Education also contended that as far as the existing pro-

grams go that the least restricted environment for the

student would be the Arkansas School for the Deaf.

The respondent clarified an earlier contention of the

Supervisor of Special Education. The respondent contends

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that a special education deaf teacher that would only work

with the student alone, would not constitute a less restric-

tive setting.

The petitioner contends that it is interesting that there

is one regional program for only oral children and that

there is no regional program for total communication

children.

The Coordinator for the Regional Program for Hearing

Impaired for the respondent contends that there is a need

for a hearing impaired program. She contends that the

student did not progress in the Bates program and that

there were places within the immediate vicinity that per-

sons could be served through a total communications

program. She contends that there are programs in Tulsa,

Missouri and Springfield that have been successful. She

further contends that an eclectic program cannot be design-

ed to fit the student’s needs and that if there was such a

great need for a total communications program that they

would have established such a program in the past.

The petitioner contends that the deaf student’s needs

can be met in the community, if the needs of oral children

can also be met in the community. The petitioner cited the

Bates program as an example of a program that was meet-

ing the needs of oral children within the community.

The Principal of the Lower School of the Arkansas

School for the Deaf for the respondent contends that the

student should be placed at the Arkansas School for the

Deaf because she was making progress at the School for the

Deaf. She contends that the student would survive beauti-

fully as a dormitory student. She further contends that the

Arkansas School for the Deaf is serving the student’s needs

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more appropriately at this time and that the School for the

Deaf was the least restrictive setting. The respondent also

contended that it would be ideal if an apprcuriate program

at home with mother and dad at night were available for

the child.

The petitioner contends that an appropriate placement

would be in the Springdale area.

The Superintendent of the School for the Deaf for the

respondent contends that children have a chance to develop

within themselves and that they can develop leadership at

the Arkansas School for the Deaf. He contends that the

student should be placed at the School for the Deaf to

obtain the appropriate services.

The petitioner contends that hearing impaired and deaf

children can be served on a regional basis. The Superinten-

dent of the Arkansas School for the Deaf agrees with the

regional concept if it is of sufficient size and scope; meaning

that there has to be enough peer competition and services

up and down the line. The petitioner contends that the

hearing impaired groups need to have more alternatives in

terms of placement. The Superintendent of the School for

the Deaf agrees that this is the key. That “if the numbers

were there, we may have other kinds of alternatives which

have not been tapped.”

The Superintendent of the Springdale Public Schools

for the respondent contends that based upon the advice of

persons who advise him that the services the student needs

are not in the area and the School for the Deaf would be

an appropriate setting for the student.

The petitioner contends that the school district should

look at possible funding mechanisms and initiate a program

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in Springdale instead of sending the student to the Arkansas

School for the Deaf.

Teacher, Springdale Public Schools for the petitioner,

contends that the student is making slow progress in read-

ing and language and some progress in spelling and

languages.

The respondent contends that the student’s progress is

very slow and that the teacher’s communication with the

student is very, very limited.

Aide, Springdale Public Schools for the petitioner, con-

tends that the student has friends in the classroom that she

plays with.

The respondent contends that putting the student in a

separate room with the teacher alone would be detrimental

to the student. The aide further contends that the Arkansas

School for the Deaf is the best and only place for the

student.

The Supervisor of Special Education for the Fayette-

ville Public Schools for the petitioner contends that the

program at Bates is meeting the needs of the students. He

further contends that total communication children, like

the child in question, should have the same opportunity as

any other child; however, he contends that they do not

have the facilities for such a child. The Supervisor contends

that a program could not be set up to meet the child in

question needs. He contends that the only placement for

the child at this time is at the Arkansas School for the

Deaf. The Supervisor further contends that the child in

question is a part of a low incidence group that cannot be

programmed for in the community.

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The Supervisor of Special Education for the respondent

contends that the program at the Arkansas School for the

Deaf is the most appropriate education for the child in

question and that it is in the least restrictive environment.

He contends that this is the case because the public schools

don’t have programs that can meet the child’s particular

needs at this time and the child has progressed down at the

School for the Deaf.

The Supervisor for the State Department of Education

Special Education Section for the petitioner contends that

there needs to be a maximum of five (5) deaf children in a

self-contained unit to be eligible for full funding. He stated

that the school district must have 50% of the maximum

(two and a half) to receive full funding.

Professor, University of Arkansas with responsibility

for teacher training in the area of deafness for the petition-

er, contends that in consideration of existing facilities, the

most appropriate referral for the student in question is the

Arkansas School for the Deaf. He contends that the student

is extremely restricted in the present setting in ever

acquiring linguistic skills. The Professor further contends

that the child could be programmed for in any school pro-

gram or facility in a number of ways. He stated that it is

possible for any school or any school district to serve a

student like this. He went on to state that a number of very

small school districts, such as Monett, Missouri, had a class

for deaf children in a rural area.

The Professor contends that there are other states and

communities where parents do have alternatives available

to them that we do not have at this point in time. He con-

tends that the student in question needs a trained teacher,

modified curriculum and a different pacing than she is

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currently receiving. The Professor contends that the most

ideal situation according to professional literature for

education of the deaf child, is to be in his home community

with a very specialized educational program, staff, facilities

and equipment; in other words, avoiding the residential

placement. He contends that it would be ideal for the child

to grow up in the home environment with the parents. The

Professor also contends that the child could be served

regionally, given the right resources because it is being

done in many other places in the United States.

The respondent contends that at the current time, and

he is supported by the Professor, that the best place for the

child in question is the Arkansas School for the Deaf.

The petitioner contends that according to how he under-

stands the law that potential programs as well as existing

programs must be taken into consideration in providing an

appropriate education in the least restricted setting.

Professor, University of Arkansas, Department of

Counselor Education for the petitioner contends that re-

moving the child from the family when the parents are able

to relate well to the child and they want the child to be at

home, that it has a negative effect on the child. She con-

tends that when this happens that they are not going to

have a maximum kind of experience. She further contends

that from the evidence that she has heard tonight that the

Arkansas School for the Deaf appears to be a very fine

facility; however, she would pursue every avenue possible

to keep the child in the home.

The respondent contends that the Professor has a

limited background as far as dealing with institutions and

hearing impairment.

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The Aunt of the child in question for the petitioner con-

tends that she would keep the child with the family if the

child in question was hers.

A former resident of an institution for the petitioner

contends that he would have had a much fuller life had he

been able to stay in a home setting.

A Parent from an organization of the deaf and hard of

hearing for the petitioner contends that total communica-

tion children should not be served in an oral program;

however, he contends that they should be educated on a

home level.

A Parent of a handicapped child from Little Rock for

the petitioner contends that from her observation of the

Arkansas School for the Deaf that there was not a great

deal of integration going on in terms of deaf children there

going out into the mainstream of society. She contends that

there are many activities at the School for the Deaf but

that they could do a lot more integration into the com-

munity. She contends that she would not send her child

to the School for the Deaf not with the laws today.

The Father of the child in question for the petitioner

contends that his daughter should not go to the Arkansas

School for the Deaf because she needs to be with her family

at home. He contends that a program can be started that

can take care of his child’s needs.

The respondent contends that the child in question

progressed more at the School for the Deaf as compared to

her present placement. The respondent contends that if the

child is placed in Springdale that she will be in isolation

and that there will be few children around that can sign

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as proficiently as children at the Arkansas School for the

Deaf in Little Rock.

The Mother of the child in question for the petitioner

contends that her daughter seems happy at the Springdale

School. She states that her daughter has friends she plays

with in the neighborhood. She states that she takes her

child roller skating, to the movies and camping. The Mother

contends that she has a right as a parent to a program of

total communication for the child, just as the parents have

had the right for an oral program for their children. The

Mother contends that a program for the deaf should be set

up in the Springdale area. The Mother also felt that the

School for the Deaf was a wonderful school.

DECISION AND RATIONALE

The evidence and testimony presented indicates that

the Arkansas School for the Deaf is not the most appropri-

ate placement for this child. The petitioner has presented

persuasive evidence that the child should remain in the

home and that a total communications program can be

provided for the child within the Springdale Public

Schools.

The testimony of the Supervisor of Special Education

of the Springdale Public Schools supports the above

decision; although the Supervisor feels that there should

be more than one child to one teacher ratio in the class.

The Principal of the lower school for the Arkansas

School for the Deaf’s testimony further substantiates the

decision in that her testimony indicates that it would be

ideal if an appropriate program at home with mother and

dad at night was available for the child.

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The Superintendent of the Arkansas School for the

Deaf testimony also substantiates the decision in that he

agrees with the regional concept of educating the child, if

it is of sufficient size and scope, and peer competition and

services up and down the line can be provided.

The testimony of the Professor at the University of

Arkansas with teacher training in the area of the deaf was

also very persuasive and supportive of the decision. He

stated that the child could be programmed in any school

program or facility in a number of ways. He stated that it

is possible for any school or school district to serve a child

like this. He even gave a number of examples of school

districts, large and small, that had classes for the deaf and

that had programmed for this type of child. The Professor

also stated that the ideal situation for the child was the

home and a very specialized educational program, staff,

facilities, and equipment. He further stated that residential

placement should be avoided. He went on to testify that it

would be ideal for the child to grow up in the home en-

vironment with the parents.

The respondent (school district) presented evidence

that the Arkansas School for the Deaf was the most

appropriate place for the child based upon the fact that it

was the only place that provided an appropriate education

(total communication approach) for the child at this time.

The school district was supported by testimony from the

Supervisor of Special Education for Springdale Public

Schools, Superintendent of the Arkansas School for the

Deaf, Superintendent of the Springdale Public Schools,

Teacher Aide, Supervisor of Special Education for the

Fayetteville Public Schools, Supervisor of Special Educa-

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tion of the Arkansas School for the Deaf, and the Professor,

University of Arkansas with responsibility of teacher

training in the area of deafness. The respondent also pre-

sented testimony that the School for the Deaf was the least

restrictive environment.

Nonetheless, the petitioner presented more persuasive

evidence. Additionally, the Hearing Officer’s decision was

based upon Public Law 94-142, Section 121a.550 which states

that:

(b) Each public agency shall insure:

(1) That to the maximum extent appropri-

ate, handicapped children, including children in

public or private institutions or other care facili-

ties, are educated with children who are not

handicapped, and

(2) That special classes, separate schooling

or removal of handicapped children from the

regular educational environment occurs only when

the nature and severity of the handicap is such

that education in regular classes with the use of

supplementary aid and services cannot be achieved

satisfactorily.

It is the Hearing Officer’s interpretation that based

upon Public Law 94-142, Section 121a.550 and the testimony

presented that the child must be educated within the

regular educational environment, since the severity of the

handicap is not such that education in the public schools

cannot be provided satisfactorily with the use of supple-

mentary aids and services. The Hearing Officer feels that

the evidence supports the fact that the child can be educated

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more appropriately and that the public school is a less

restrictive environment for the child in question than would

be the Arkansas School for the Deaf. It should be noted the

respondent conten» that the Arkansas School for the Deaf

is the most appropriate and is the least restrictive environ-

ment for the child based upon currently existing facilities

and programs. The Hearing Officer’s interpretation of the

law differs from the respondent in that the Hearing Officer's

interpretation is that currently available placement options

and programs do not dictate the placement decision for this

child.

Additionally, it should be noted that the decision of tne

Hearing Officer is also supported by Public Law 94-142,

Section 121a.1, in that the purpose of the law is:

(a) To insure that all handicapped children

have available to them a free appropriate public

education which includes special education and

related services to meet their unique needs.

It should also be noted for the record that the Hearing

Officer visited the Arkansas School for the Deaf in order to

gain additional background information before making a

decision in this case.

It should also be noted for the record that the Hearing

Officer received the official transcript of the case on

November 20, 1979; thus, this caused a delay in the process.

Nonetheless, based upon relevant evidence and testi-

mony presented, it is the Hearing Officer’s decision that

the child not be placed in the Arkansas Schvol for the Deaf.

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This decision can be appealed to the State Department

of Education upon written notice to:

Dr. Larry Rogers, Coordinator

Arkansas Department of Education

Special Education Section

Room 111 West — Arch Ford Education Bldg.

Little Rock, Arkansas 72201

Notice of appeal must be sent within thirty calendar

days from receipt of this report. Copies of all information

relative to this hearing have been retained in locked storage

by the State Department of Education in accordance with

the confidentiality policies and procedures prescribed by

the State Board of Education.

Respectfully submitted,

/s/ LaDelle Olion, Ph.D.

Impartial Hearing Officer

A-64

APPENDIX “F”’

SUBCHAPTER | — GENERAL PROVISIONS

§ 1401. Definitions

As used in this chapter —

(1) The term “handicapped children” means mentally

retarded, hard of hearing, deaf, speech impaired, visually

handicapped, seriously emotionally disturbed, orthopedi-

cally impaired, or other health impaired children, or

children with specific learning disabilities, who by reason

thereof require special education and related services.

(2) The term “Commissioner” means the Commis-

sioner of Education.

(3) The term “Advisory Committee” means the

National Advisory Committee on Handicapped Children.

(4) The term “construction”, except where otherwise

specified means (A) erection of new or expansion of exist-

ing structures, and the acquisition and installation of

equipment therefor; or (B) acquisition of existing struc-

tures not owned by any agency or institution making

application for assistance under this chapter; or (C)

remodeling or alteration (including the acquisition, instal-

lation, modernization, or replacement of equipment) of

existing structures; or (D) acquisition of land in connection.

with the activities in clauses (A), (B), and (C); or (E) a

combination of any two or more of the foregoing.

(5) The term “equipment” includes machinery,

utilities, and built-in equipment and any necessary en-

closures or structures to house them, and includes all other

items necessary for the functioning of a particular facility

A-65

as a facility for the provision of educational services, in-

cluding items such as instructional equipment and neces-

sary furniture, printed, published, and audio-visual

instructional materials, telecommunications, sensory, and

other technological aids and devices, and books, periodicals,

documents, and other related materials.

(6) The term “State” means each of the several

States, the District of Columbia, the Commonwealth of

Puerto Rico, Guam, American Samoa, the Virgin Islands

and the Trust Territory of the Pacific Islands.

(7) The term “State educational agency” means the

State board of education or other agency or officer pri-

marily responsible for the State supervision of public

elementary and secondary schools, or, if there is no such

officer or agency, an officer or agency designated by the

Governor or by State law.

(8) The term “local educational agency” means a

public board of education or other public authority legally

constituted within a State for either administrative control

or direction of, or to perform a service function for, public

elementary or secondary schools in a city, county, town-

ship, school district, or other political subdivision of a State,

or such combination of school districts or counties as are

recognized in a State as an administrative agency for its

public elementary or secondary schools. Such term also in-

cludes any other public institution or agency having

administrative control and direction of a public elementary

or secondary school.

(9) The term “elementary school” means a day or

residential school which provides elementary education, as

determined under State law.

A-66

(10) The term “secondary school” means a day or

residential school which provides secondary education, as

determined under State law, except that it does not include

any education provided beyond grade 12.

(11) The term “institution of higher education”

means an educational institution in any State which —

(A) admits as regular students only individuals

having a certificate of graduation from a high school,

or the recognized equivalent of such a certificate;

(B) is legally authorized within such State to

provide a program of education beyond high school;

it awards a bachelor’s degree, or provides not less than

a two-year program which is acceptable for full credit

toward such a degree, or offers a two-year program in

engineering, mathematics, or the physical or biological

sciences which is designed to prepare the student to

work as a technician and at a semiprotessional level in

engineering, scientific, or other technological fields

which require the understanding and application of

basic engineering, scientific, or mathematical princi-

ples or knowledge;

(D) isa public or other nonprofit institution; and

(E) is accredited by a nationally recognized

accrediting agency or association listed by the Com-

missioner pursuant to this paragraph or, if not so

accredited, is an institution whose credits are accepted,

on transfer, by not less than three institutions which

are so accredited, for credit on the same basis as if

transferred from an institution so accredited: Provided,

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however, That in the case of an institution offering a

two-year program in engineering, mathematics, or the

physical or biological sciences which is designed to

prepare the student to work as a technician and at a

semiprofessional level in engineering, scientific, or

technological fields which require the understanding

and application of basic engineering, scientific, or

mathematical principles or knowledge, if the Commis-

sioner determines that there is no nationally recognized

accrediting agency or association qualified to accredit

such institutions, he shall appoint an advisory commit-

tee, composed of persons specially qualified to evaluate

training provided by such institutions, which shall

prescribe the standards of content, scope, and quality

which must be met in order to qualify such institutions

to participate under this Act and shall also determine

whether particular institutions meet such standards.

For the purposes of this paragraph the Commissioner

shall publish a list of nationally recognized accrediting

agencies or associations which he determines to be

reliable authority as to the quality of education or

training offered.

(12) The term “nonprofit” as applied to a school,

agency, organization, or institution means a_ school,

agency, organization, or institution owned and operated by

one or more nonprofit corporations or associations no part

of the net earnings of which inures, or may lawfully inure,

to the benefit of any private shareholder or individual.

(13) The term “research and related purposes”

means research, research training (including the payment

of stipends and allowances), surveys, or demonstrations in

the field of education of handicapped children, or the

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dissemination of information derived therefrom, including

(but without limitation) experimental schools.

(14) The term “Secretary” means the Secretary of

Health, Education, and Welfare.

(15) The term “children with specific learning disa-

bilities” means those children who have a disorder in one

or more of the basic psychological processes involved in

understanding or in using language, spoken or written,

which disorder may manifest itself in imperfect ability to

listen, think, speak, read, write, spell, or do mathematical

calculations. Such disorders include such conditions as

perceptual handicaps, brain injury, minimal brain dysfunc-

tion, dyslexia, and developmental aphasia. Such term does

not include children who have learning problems which are

primarily the result of visual, hearing, or motor handicaps,

of mental retardation, of emotional disturbance, or of en-

vironmental, cultural, or economic disadvantage.

(16) The term “special education” means specially

designed instruction, at no cost to parents or guardians, to

meet the unique needs of a handicapped child, including

classroom instruction, instruction in physical education,

home instruction, and instruction in hospitals and institu-

tions.

(17) The term “related services” means transporta-

tion, and such developmental, corrective, and other

supportive services (including speech pathology and

audiology, psychological services, physical and occupational

therapy, recreation, and medical and counseling services,

except that such medical services shall be for diagnostic

and evaluation purposes only) as may be required to assist

a handicapped child to benefit from special education, and

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includes the early identification and assessment of handi-

capping conditions in children.

(18) The term “free appropriate public education”

means special education and related services which (A)

have been provided at public expense, under public super-

vision and direction, and without charge, (B) meet the

standards of the State educational agency, (C) include an

appropriate preschool, elementary, or secondary school

education in the State involved, and (D) are provided in

conformity with the individualized education program

required under section 1414(a) (5) of this title.

(19) The term “individualized education program”

means a written statement for each handicapped child

developed in any meeting by a representative of the local

educational agency or an intermediate educational unit

who shall be qualified to provide, or supervise the provision

of, specially designed instruction to meet the unique needs

of handicapped children, the teacher, the parents or

guardian of such child, and, whenever appropriate, such

child, which statement shall include (A) a statement of

the present levels of educational performance of such

child, (B) a statement of annual goals, including short-term

instructional objectives, (C) a statement of the specific

educational services to be provided to such child, and the

extent to which such child will be able to participate in

regular educational programs, (D) the projected date for

initiation and anticipated duration of such services, and

(E) appropriate objective criteria and evaluation pro-

cedures and schedules for determining, on at least an

annual basis, whether instructional objectives are being

achieved.

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(20) The term “excess costs” means those costs which

are in excess of the average annual per student expenditure

in a local educational agency during the preceding school

year for an elementary or secondary school student, as may

be appropriate, and which shall be computed after deduct-

ing (A) amounts received under this subchapter or under

title I or title VII of the Elementary and Secondary Educa-

tion Act of 1965, and (B) any State or local funds expended

for program which would qualify for assistance under this

subchapter or under such titles,

(21) The term “native language” has the meaning

given that term by section 703(a)(2) of the Bilingual

Education Act.

(22) The term “intermediate educational unit”

means any public authority, other than a local educational

agency, which is under the general supervision of a State

educational agency, which is established by State law for

the purpose of providing free public education on a regional

basis, and which provides special education and related

services to handicapped children within that State.

Pub.L. 91-230, Title VI, $602, Apr. 13, 1970, 84 Stat. 175;

Pub.L. 94-142, §4(a), Nov. 29, 1975, 89 Stat. 775.

§ 1402. Bureau for education and training of handicap-

ped; Deputy Commissioner: appointment and

compensation; Associate Deputy Commissioner

and other assistants to Deputy Commissioner

(a) There shall be, within the Office of Education, a

bureau for the education and training of the handicapped

which shall be the principal agency in the Office of Educa-

tion for administering and carrying out programs and

projects relating to the education and training of the

A-71

handicapped, including programs and projects for the

training of teachers of the handicapped and for research in

such education and training.

(b)(1) The Bureau established under subsection (a)

of this section shall be headed by a Deputy Commissioner

of Education who shall be appointed by the Commissioner,

who shall report directly to the Commissioner, be com-

pensated at the rate specified for, and placed in, grade 18

of the General Schedules set forth in section 5332 of Title 5.

(2) In addition to such Deputy Commissioner, there

shall be placed in such Bureau five positions for persons to

assist the Deputy Commissioner in carrying out his duties,

including the position of Associate Deputy Commissioner,

and such positions shall be placed in grade 16 of the General

Schedule set forth in section 5332 of Title 5.

Pub.L. 91-230, Title VI, $603, Apr. 13, 1970, 84 Stat. 177;

Pub.L, 93-380, Title VI, §612(a), Aug, 21, 1974, 88 Stat. 579.

§ 1403. National Advisory Committee on Handicapped

Children

Establishment; membership

(a) The Commissioner shall establish in the Office of

Education a National Advisory Committee on Handicapped

Children, consisting of fifteen members, appointed by the

Commissioner. At least eight of such members shall be

persons affiliated with educational, training or research

programs for the handicapped.

Functions of Committee; recommendations; report to

Congress; termination of Committee

(b) The Advisory Committee shall review the ad-

ministration and operation of the programs authorized by

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this chapter and other provisions of law administered by

the Commissioner with respect to handicapped children,

including their effect in improving the educational attain-

ment of such children, and make recommendations for the

improvement of such administration and operation with

respect to such children. Such recommendations shall take

into consideration experience gained under this and other

Federal programs for handicapped children and, to the

extent appropriate, experience gained under other public

and private programs for handicapped children. The Ad-

visory Committee shall from time to time make such

recommendations as it} may deem appropriate to the Com-

missioner and shall make an annual report of its findings

and recommendations to the Commissioner not later than

June 30 of each year. The Commissioner shall transmit each

such report to the Secretary together with his comments

and recommendations, and the Secretary shall transmit

such report, comments, and recommendations to the

Congress together with any comments or recommendations

he may have with respect thereto. The Advisory Committee

shall continue to exist until October 1, 1977.

§ 1404. Acquisition of equipment and construction of

necessary facilities

Authorization for use of funds

(a) In the case of any program authorized by this

chapter, if the Commissioner determines that such program

will be improved by permitting the funds authorized for

such program to be used for the acquisition of equipment

and the construction of necessary facilities, he may

authorize the use of such funds for such purposes.

A-73

Recovery of payments under certain conditions

(b) If within twenty years after the completion of

any construction (except minor remodeling or alteratio

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.