# Petition — Springdale School District No. 50 v. Grace > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0394%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 927 ## Text Office -Supreme Court, U.S. 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 V. 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: 1. 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 CSS breed sdbs eres eccccreces veces APPENDIX A: Opinion of the Eighth Circuit Court of Appeals of November 8, See EG Caw s Nb &06s be secede s0'v0 APPENDIX B: Opinion of the Eighth Circuit Court of Appeals of August 7, TT CCREGNC Gb beebbbesettecccecas 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 CTC eC ee ed eebnteredeness APPENDIX F: Pertinent Federal Statutory Ae APPENDIX G: Pertinent Federal Regulatory SD 504.40 C606 04 O00 000% bee iv 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. it | Perri TT rere frrrr rree rr erie rere 9 DERRGED ccc cvcvcdctccedvescustuestsesvevasecse 26 SEN CED scevcccstuccccsesncocesencvevessees 26 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. 4 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 7 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 1. 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). 10 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 ll 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. 12 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. 13 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. 14 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 15 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. 2. 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 16 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 17 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. 18 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 19 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 20 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. 21 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. 22 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. 3. 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. 24 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 (c) Discipline by each teach- 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) (c) Discipline only by 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 (c) (1) Brownies (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 26 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- 27 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 28 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 29 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 30 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, v. 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. A-9 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. A-10 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. A-ll 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 A-12 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. ” A-13 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. ...” A-14 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. A-15 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 A-16 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. A-17 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; (c) Unless a handicapped child’s individualized education pro- 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. A-18 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. A-19 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). A-20 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. A-21 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 A-22 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 A-23 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. A-24 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. A-25 §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. §§$1401-1461. The regulations promulgated under the Education for All Handicapped Children Act provide in part as follows: As used in this part, the term “free appropriate public education” means special education and related services which: (a) Are provided at public expense, under public supervision and direction, and without charge. (b) Meet the standards of the State edu- cational agency, including the requirements of this part. (c) Include preschool, elementary school, or secondary school education in the State involved, and (d) Are provided in conformity with an individualized education program which meets the requirements under §$§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; (c) A statement of the specific special 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; (c) Unless a handicapped child’s individ- 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 (c) shall be final, except that any party may bring 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- cation [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0394%3A1. Public record. Not legal advice.