Opposition Brief — Sacramento City Unified School District Board of Education v. Holland ex rel. Holland

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No. 93-1804 — Bupreme Court, U.S,

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In The MAY 2 4 1994

Supreme Court of the United,,States ,, ...

October Term, 1993

*

SACRAMENTO CITY UNIFIED SCHOOL DISTRICT,

BOARD OF EDUCATION,

Petitioner,

RACHEL HOLLAND, by and through her guardian ad

litem, ROBERT HOLLAND; WILLIAM HONIG,

CALIFORNIA STATE SUPERINTENDENT OF PUBLIC

INSTRUCTION; CALIFORNIA STATE DEPARTMENT OF

EDUCATION HEARING OFFICE, McGEORGE SCHOOL

OF LAW; and MARY COTE, HEARING OFFICER,

Respondents.

S

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

RESPONDENT RACHEL HOLLAND'S

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

*

ARLENE MAYERSON,*

DIANE LIPTON

Disasitity RiGHts EDUCATION AND

DEFENSE FuND, INc.

2212 Sixth Street

Berkeley, California 94710

Telephone: (510) 548-2004

KATHRYN E. Doset

2026 Delaware Street

Berkeley, California 94709

Telephone: (510) 548-2004

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831 /

QUESTION PRESENTED

Should this Court review the concurrent findings of

fact of the Court of Appeals, the District Court and the

California Department of Education that respondent

Rachel Holland receives substantial benefit from place-

ment in a regular education class?!

| The “Questions Presented” set forth in the Petition are not

in fact presented by this case.

TABLE OF CONTENTS

Page

Sentomnant GF Ge CGS so veccccvcesdccesevissuseesen 2

Summary of Argument .........csccccccsccessccees 8

Reasons for Denying the Writ ..................45. 15

I.

Certiorari Should be Denied Because Petitioner

Seeks Review of the Individualized Factual

Determinations of the California Department of

Education and the District Court Which Were

Affirmed by the Ninth Circuit that Rachel Hol-

land Benefits from Placement in a Regular Edu-

COMO CORED «oc ccecscccscdensaceusannuwaseseueet

A.

B.

‘@

Petitioner’s Assertion that the Ninth Circuit

Rejected Standardized Aptitude Tests is a

Misstatement of the Facts and Law in this

Case. The Courts Below Considered Infor-

mation From a Variety of Sources, as

Required by IDEA and Made a Specific Fac-

tual Determination That Rachel Holland

Benefits From Regular Education Class

ere ee eh ee eh A

The Petitioner Poses a Factual Issue -

Repeated Failure — Which is Not Present in

Sie ee gg onc cvebacdece bausdsakerene

Whether the Age Range in a Particular Class

is Appropriate for a Specific Child is a Fac-

WITT Tee ee

15

16

19

TABLE OF CONTENTS - Continued

Page

lf. The Ninth Circuit Opinion Does not Create a

Conflict with Other Circuit Courts. Rather, the

Ninth Circuit Applied the Factors Recognized by

all the Circuit Courts Which Have Addressed the

Issue to Determine Whether an Individual Child

with a Disability Can be “Satisfactorily Edu-

cated” In a Regular Education Class in Accor-

dance with 20 U.S.C. § 1412(5)(B) 22

oe

Conclusion . x0

Celle

iv

TABLE OF CITATIONS

Page

Cases

A.W. v. Northwest R-1, 813 F.2d 158 (8th Cir. 1987) .... 13

Berenyi v. District Director, Immigration and Natu-

ralization Service, 385 U.S. 630 (1967)............... )

Board of Education of the Hendrick Hudson Central

School District Board of Education v. Rowley, 458

Ch Se CHE oh akoc ber¥vsssiunvuiodewsetes 8, 17, 21

Branti v. Finkle, et al., 445 U.S. 507 (1980) ............ Yy

Daniel R.R. v. State Board of Education, 874 F.2d

ee Se Go Cs er sddendedbebteeees teeee passim

Department of Education v. Katherine D., 727 F.2d

809 (9th Cir. 1983), cert. denied, 471 U.S. 1117

ERD a 660s 0b s0saWe Ce bande eecededecusaeWonKenese. 13

Devries By DeBlaay v. Fairfax County School Board,

882 F.2d 876 (4th Cir. 1985)........... cece eee eeee 13

Goodman et al. v. Lukens Steel Co., et al., 482 U.S.

Se eric dcckderd crys codacecssstesvereceresases 9

Graver Tank & Mfg. Co., Inc. v. Linde Air Products

Ci ee Me A EON En ccbuceestudeudeosedosesoecs 9

Greer v. Rome City School District, 950 F.2d 688 |

Rie fis ts nea axexnoyors 13, 21, 23, 24

Honig, California Superintendent of Public Instruc-

tion, Doe et al., 484 U.S. 305 (1987)................ 17

Lachman v. Illinois State Board of Education, 852 F.2d

290 (7th Cir. 1988), cert. denied, 484 U.S. 847

EOP PEE TTT TE Teo TT TTT Tee TTT Ee 13

Norton School Comm. v. Massachusetts Department of

Education, 768 F.Supp. 900 (D. Mass. 1991)........ 29

er eer

TABLE OF CITATIONS - Continued

Page

Oberti v. Board of Education, 995 F.2d 1204 (3rd Cir.

1993) (as corrected June 23, 1993)......._.. 12, 23, 24

Rogers et al. v. Lodge, et al., 458 U.S. 613 a.) Se 4

Roland v. Concord School Comm, 910 F.2d 983 (1st

es ANP des G iden acu we ied a eee 29

Roncker v. Walter, 700 F.2d 1058 (6th Cir 1983), cert.

denied, 464 U.S. 864 (1983) ..... . 13, 21, 23, 24, 25, 29

STATUTES, ReGuLATIONS & OtHer AuTH RITIES

Individuals with Disabilities Education Act,

(IDEA), 20 U.S.C. §§ 1400, et seq. 7 ... passim

20 U.S.C. § 1401(20) .... - coo OD CI

20 U.S.C. § 1412(5)(B). .. ie | Merrett: passim

20 U.S.C. § 1412(5\(C) .......... ieee 0¢eeee Ei ee

20 U.S.C. § 1413(a)(11)... ' A Oks 4

20 U.S.C. § 1414(aX(S).............. wr ee Ce

20 U.S.C. § 1415(b)(1)(D)(E).... ver eee?”

34 C.F.R. § 300.500 eR has pce ee

a ee 17

nen | a ef eee A Sut hed yf) Se,

2 2b | | eres

No. 93-1804

+

In The

Supreme Court of the United States

October Term, 1993

+

SACRAMENTO CITY UNIFIED SCHOOL DISTRICT,

BOARD OF EDUCATION,

Petitioner,

RACHEL HOLLAND, by and through her guardian ad

litem, ROBERT HOLLAND; WILLIAM HONIG,

CALIFORNIA STATE SUPERINTENDENT OF PUBLIC

INSTRUCTION; CALIFORNIA STATE DEPARTMENT OF

EDUCATION HEARING OFFICE, McGEORGE SCHOOL

OF LAW; and MARY COTE, HEARING OFFICER,

Respondents

—-@ — ————————

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

* ——

RESPONDENT RACHEL HOLLAND’S

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

——— ee

Respondent Rachel Holland opposes the Petition for

Writ of Certiorari. Petitioner has not established any spe-

cial or important reason for this court to review the

decision below. Petitioner’s Questions Presented are all

predicated on a factual dispute that was resolved by the

California Department of Education, U.S. District Court.

and the U.S. Court of Appeals for the Ninth Circuit and

l

2

there is no conflict among the Circuit Courts raised by

this case.

STATEMENT OF THE CASE

Rachel Holland was 7 years old when this litigation

commenced in the Fall of 1989. She is “well behaved and

popular”, “enjoys school and is motivated to learn”. Dist.

Ct. Pet. App. G., p. 25a.? Rachel has moderate develop-

mental disabilities. Id. Rachel attended a regular day-care

program for non-disabled children in Sacramento, Cali-

fornia, until she was three and a half. For the following

three and a half years (until age seven), Rachel was

placed in special education classes by the petitioner

school district. Most of that time she had little or no

opportunity to participate in regular education classes

with non-disabled children.’ Pet. App. L, pp. 56a-58a.

While Rachel was in special education classes, her

parents repeatedly requested that she have opportunities

to participate in regular classes with non-disabled

children. After almost three years of requests, pursuant to

a mediated agreement, the school district agreed to

2 The opinion of the United States Court of Appeals for the

Ninth Circuit reported at 14 F.3d 1398 (January 24, 1994) is |

referred to herein at Ninth Cir. Pet. App. F; opinion of the

United States District Court for the Eastern District (Levi, D.J.)

is reported at 786 F. Supp 874 (March 2, 1992) is referred to

herein at Dist. Ct. Pet. App. G; opinion of the California State

Hearing Office is not reported. It is referred to herein at H.O.

Pet. App. L.

> For a complete account of Rachel's educational history

and the course of proceedings below, see California Department

of Education Hearing Officer's Order at H.O. Pet. App. L, pp.

56a-61a and federal district court Judge Levi's decision at Dist.

Ct. Pet. App G, pp. 25a-30a.

a

3

integrate Rachel into a regular kindergarten class for

about one hour per day. Dist. Ct. Pet. App. G., pp. 26a.

During the few months that this integration occurred, the

regular teacher received no consultation from a special

education teacher and no training or aide or other

support. H.O. Pet. App. I, p. 81a.

Unsatisfied with the district’s efforts to mainstream

Rachel, in September, 1989 Rachel's parents initiated an

administrative hearing to obtain placement in a regular

class with supplementary special education services.

They also enrolled Rachel in a regular kindergarten class

in a private school, Shalom School.4 The school district

maintained that Rachel should remain in a special educa-

tion class for a majority of the school day with some

integration into a regular class. Dist. Ct. Pet. App. G., pp.

26a-27a.

Following an extensive 14-day state administrative

hearing, with testimony from 20 witnesses, the California

Department of Education hearing officer ruled in favor of

the Hollands and ordered that Rachel be placed in a

regular first-grade class with supplementary support ser-

vices (a part-time aide and part-time consultation from a

special education teacher) for the following school year.

Dist. Ct. Pet. App. G., p. 28a.

In deciding in favor of a regular education class

placement, the hearing officer considered information

about Rachel from many sources, including Rachel's pre-

vious special education teacher, speech therapist, the

school district’s regular education teacher, assessors from

* Rachel has remained at Shalom School during the pen-

dency of the administrative and judicial proceedings. She is

currently in a fourth grade class. Ninth Cir. Pet. App. F, p.1la.

4

the Diagnostic Center who administered standardized

tests, Rachel’s regular kindergarten teacher at the private

school, the clinical psychologist and special education

integration teacher who conducted independent evalua-

tions for Rachel’s parents, Rachel’s day-camp director

and mother.®

Drawing from this information, the California

Department of Education, made a number of factual find-

ings: (1) The District’s past efforts to accommodate

Rachel’s needs in an integrated environment were not

sufficient, and were without the benefit of consultation

with special education personnel, support of an aide or

any training; (2) Rachel benefitted from her full-time

participation in the regular education placement at the

private school (she developed socially, her language

developed, communication skills improved and she made

academic growth); (3) Rachel made progress on the goals

and objectives in her IEP® and these goals and objectives

are consistent with the goals for the first-grade class; (4)

as a result of placement with regular peers, Rachel was

motivated and interested in learning and learns from

5 See “Discussion of Relevant Evidence” in California

Department of Education decision, H.O. Pet. App. I, p. 61a-68a.

6 For each disabled child eligible for special education,

IDEA requires that an Individualized Education Program (IEP)

be developed and reviewed at least annuaily by a multi-disci-

plinary team including the child’s parent and teacher. It

contains, among other things, a statement of the annual goals

and short-term instructional objectives for the individual child

and criteria for determining at least annually whether instruc-

tional objectives are being achieved. The IEP also must specify

the extent to which each child will be able to participate in

regular educational programs. 20 U.S.C. § 1401(20); § 1414(a)(5).

Also see § 1413(a)(11).

5

imitation and modeling as well as from repetition; (5) the

District’s proposed “pieced together” special and regular

education program is “a confusing and disjointed pro-

gram” involving moving Rachel in and out of regular

class at least six times during each school day; (6) the

regular first grade students would provide good models

for Rachel for the following year; (7) the nature and

quality of the integration time proposed by the District

was not an improvement over what was previously pro-

vided and lacked any supplemental support or services

for Rachel when the District would integrate her with

non-disabled children; and (8) Rachel’s participation in

regular education would be beneficial to the regular stu-

dents. Pet. H.O. Pet. App. I, pp. 81a-85a.

While the school district believed Rachel’s integra-

tion experiences in a regular kindergarten class were

unsuccessful, the hearing officer gave greater weight to

the testimony of Karen Newton, Rachel’s kindergarten

teacher at Shalom School who testified that Rachel made

progress over the course of the year in her class. H.O. Pet.

App. I, p. 83a.

The school district appealed the decision of the Cali-

fornia Department of Education to federal district court.

In December 1991, Judge David F. Levi held an additional

3-day evidentiary hearing for the purpose of hearing

evidence on Rachel's progress in her regular classes since

the administrative hearing (first grade and part of second

grade). Dist. Ct. Pet. App. G, p. 29a.

On March 2, 1992, Judge Levi affirmed the decision of

the hearing officer and ordered that Rachel be placed in

“a regular second grade classroom, with some supple-

mental services, as a full-time member of the class.” (Dist.

Ct. Pet. App. G., p. 48a) and made the following factual

6

findings: (1) Rachel receives “substantial academic bene-

fits” in regular education; (2) all of Rachel’s goals and

objectives in her IEP can be achieved in the regular class

with some curriculum modification and through supple-

mentary aids and services; (6) Rachel made “very little

progress” while in special education; (7) the school dis-

trict failed to establish that the educational opportunities

in the special education class were at least equal to or

superior to those in the regular classroom for Rachel; (3)

Rachel participated in all activities in the regular class; (4)

the areas of emphasis in Rachel’s IEP are the major areas

of emphasis for the second grade class as a whole; and (5)

there was no evidence presented that Rachel is a disci-

pline problem at school or distracts other children or is

too burdensome to the regular class teacher. Witnesses

from both sides reported that Rachel is an “agreeable

child who follows directions and is well-behaved”. Dist.

Ct. Pet. App. G, pp. 41a-44a.

In arriving at his findings, Judge Levi also considered

testimony from a variety of sources including the admin-

istrative hearing record as well as court testimony by the

Diagnostic Center assessors, school district administra-

tors, Rachel’s teachers, Rachel’s mother, special education

experts on the integration of children with disabilities

into regular classes, and a California Department of Edu-

cation special education consultant. In resolving conflict-

ing testimony regarding academic progress, Judge Levi

found the Holland and Department of Education’s wit-

nesses to be “more credible” based on their greater exper-

tise and experience in evaluating disabled children

placed in regular classrooms and their greater oppor-

tunity to observe Rachel over an extended period of time

in normal circumstances. Dist. Ct. Pet. App. G, 40a.

ee Lg 7

be

a

7

Because of the conflicting expert testimony, Judge

Levi found the testimony of Rachel’s second grade

teacher, Nina Crone, an “experienced, skillful

teacher . . . [with] no partisan involvement in the contro-

versy to be all the more important.” Dist. Ct. Pet. App. G,

pp. 40a-41a. Ms. Crone testified that Rachel made pro-

gress on her IEP goals; that Rachel is in many ways a

typical second-grader; her communication abilities and

sentence length are improving; that Rachel is eager to

participate in class and is very motivated. Dist. Ct. Pet.

App. G, p. 4la. Judge Levi also concluded that when

Rachel was in the district’s special education class she

was “shuttled into regular education class for informal

mainstreaming” and was “treated as an outsider” by the

other children in the class. Judge Levi found that the

school district's current proposal mirrored these past

Practices, and “would mark Rachel as an outsider,

depriving her of the primary benefit of mainstreaming”.

Dist. Ct. Pet. App. G, p. 42a. In contrast, he found that

Rachel is a “full member” of her regular class, is enthusi-

astic about school, and “relishes her new friendships” she

has developed in regular class. Dist. Ct. Pet. App. G, pp.

41a-44a.

The school district appealed Judge Levi's decision to

the Ninth Circuit Court of Appeals. On January 24, 1994,

the Ninth Circuit affirmed the district court decision. The

Ninth Circuit, in affirming, approved the factors the dis-

trict court used in evaluating whether a regular class was

appropriate for Rachel, reviewed the evidence Judge Levi

considered in arriving at his decision and his reasons for

finding the testimony of the Holland experts to be more

persuasive. The Ninth Circuit unanimously affirmed the

factual findings of the court below concluding that the

8

district court “conducted a full evidentiary hearing and

made a thorough analysis.” Ninth Cir. Pet. App. F, p. 22a.

The school district petitioned this Court for Writ of

Certiorari on April 22, 1994. Respondent Rachel Holland,

for the reasons set forth below, opposes the Petition.

SUMMARY OF ARGUMENT

In its petition for writ of certiorari, petitioner dis-

putes the specific factual findings of the California

Department of Education’ and the district court which

were affirmed by the Ninth Circuit and attempts to raise

a conflict in the Circuit Courts which does not exist. The

Ninth Circuit opinion is consistent with the sound rea-

soning of the other Circuits which have addressed the

individual fact specific application of the mainstreaming

requirements of the Individuals with Disabilities Educa-

tion Act (IDEA) 20 U.S.C. §§ 1400, et seq., and will not

result in the hyperbolic, unsubstantiated consequences

that the petitioner projects. The claim that the Ninth

Circuit decision requires a “school district to categorically

place its disabled children full-time in regular education,

even if all indications suggest that particular children

cannot progress in regular education,” Pet. at p. 9, could

not be more unsupported by the record and decisions in

this case. The district court and the Ninth Circuit explic-

itly rejected categorical placements in favor of the indi-

vidualized, fact specific determinations required by the

7 As this Court has noted, courts reviewing decisions of

state educational agencies should give “due weight” to the

administrative proceedings. Board of Education of the Hendrick

Hudson Central School District Board of Education v. Rowley, 458

U.S. 175, 206 (1982).

9

IDEA. Dist. Ct. Pet. App. G, 32a, Daniel R.R. v. State Board

of Education, 874 F.2d 1036, 1048 (Sth Cir. 1989).

Likewise, there is nothing in either decision which

would require “extended, painful and embarrassing fail-

ure” as the petitioner claims. Pet. at p. 9. Rather, the

lower court decisions require an examination of the bene-

fits of regular class placement. In this case, the State

Department of Education, the district court and the Ninth

Circuit found that Rachel Holland experienced substan-

tial benefits and success in regular education classes. It is

not possible to justify the leap that petitioners make that

failure is required or would be tolerated from the facts of

this case or the decisions below. Petitioner’s assertions

throughout the petition, in essence, amount to a continu-

ing dispute with the factual findings and the outcome of

this case. It is well established that this Court will not

“undertake to review concurrent findings of fact” by

lower courts.?

The IDEA explicitly provides that children with dis-

abilities be educated in regular classes unless “education

8 Judge Levi recognized that the regular class is appropri-

ate for Rachel as long as she benefits. “If Rachel does not flour-

ish under this placement, then adjustments should be made.”

Dist. Ct. Pet. App. G, p. 48a.

9 See Fed. R. Civ. P. 52. In Graver Tank & Mfg. Co., Inc. v.

Linde Air Products Co., 336 U.S. 271, 275 (1949), the U.S. Supreme

Court refused to reconsider questions of fact because this Court

“cannot undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and exceptional

showing of error.” See also Berenyi v. District Director, Immigra-

tion and Naturalization Service, 385 U.S. 630, 635 (1967); Rogers et

al. v. Lodge, et al., 458 U.S. 613, 623 (1982); Branti v. Finkle, et al.,

445 U.S. 507, 512 n.6 (1980); Goodman et al. v. Lukens Steel Co., et

al., 482 U.S. 656 (1986).

10

in regular classes with the use of supplementary aids and

services cannot be achieved satisfactorily.” 20 U.S.C.

§ 1412(5)(B). In determining whether Rachel Holland

could be satisfactorily educated in the regular education

environment, the State Department of Education and the

district court applied the facts of this case to the factors

which have been identified by all of the Circuit Courts

that have addressed the issue. These factors required an

individualized assessment of whether Rachel Holland can

receive academic and non-academic benefits in the regu-

lar education classroom, whether her presence is disrup-

tive to other children or the teacher, and the costs of such

placement. Ninth Cir. Pet. App. F, p. 12a.

After a fourteen day state administrative hearing

involving 20 witnesses and a full evidentiary hearing in

district court, both the California Department of Educa-

tion and Judge Levi specifically found that Rachel Hol-

land receives academic and non-academic benefit in the

regular education classroom, that her presence is not

disruptive to others in the class and that the district did

not demonstrate that the cost of regular education would

be significantly more expensive. Ninth Cir. Pet. App. F, p.

12a, 13a-16a and Dist. Ct. Pet. App. G, p. 38a-48a.!° The

school district “strenuously disagree[d]” with these find-

ings in the Ninth Circuit. Ninth Cir. Pet. App. F, pp.

21a-22a. However, the Ninth Circuit refused to “disturb

10 This case did not require speculation about how Rachel

might benefit from regular education placement. During the

pendency of this case Rachel has been attending a private school

fully integrated in regular education classes. Dist Ct. Pet. App.

G, p. 26a. By the time of the district court trial, Rachel had

completed kindergarten and first grade and was attending sec-

ond grade. Dist. Crt. Pet. App. G, p. 29a.

11

the findings of the district court” Id. which it found

“conducted a full evidentiary hearing and made a tho-

rough analysis.” Id.

Petitioner’s first and fourth questions presented

regarding the assessments by the petitioner’s experts are

simply another attempt to dispute these factual findings.

Contrary to the assertion of petitioner, the district court

did not disregard per se the tests conducted by the school

district’s experts, but rather after hearing from educa-

tional experts from both sides, as well as from Rachel's

second grade teacher, the district court found the Hol-

land’s evidence to be more persuasive. Ninth Cir. Pet.

App. F, pp. 13a-14a; Dist. Ct. Pet. App. G, p. 40a.

In its second question presented, the petitioner raises

an issue which is simply not present in the record of this

case. There is no evidence that Rachel was subjected to

repeated failure in the regular education classroom, nor

did the State Department of Education, the district court

or the Ninth Circuit in any way suggest such a standard.

All of petitioner’s assertions about failure stem from its

continuing dispute with the lower courts’ refusal to

accept the testimony of its witnesses that Rachel and all

children like her cannot benefit from regular education.!!

This unsubstantiated prediction of failure was defeated in

the face of Rachel’s repeated success in regular education

classes.'? There is nothing in the decisions of the lower

‘t The Ninth Circuit stated, “the district has consistently

taken the view that a child with Rachel’s I.Q. is too severely

disabled to benefit from full-time placement in a regular class.”

Ninth Cir. Pet. App. F, p. 18a.

'2 At the time of the State administrative hearing, Rachel

had completed kindergarten in regular education class. The

12

courts that requires that children with disabilities be sub-

jected to repeated failure in regular education classes.

The lower court decisions simply conform with current

practice which requires that information from a variety of

sources be considered to determine whether a child with

a disability can be “satisfactorily educated” with supple-

mental aids and services in a regular education class.

Finally, petitioner in its third Question Presented,

incorrectly characterizes the Ninth Circuit decision as

creating a “new test” to determine compliance with

IDEA’s mainstreaming provisions. Pet. p. ii. First, the

Ninth Circuit, in affirming the district court, did not

create a “new test,” but rather adopted the factors com-

mon to all the Circuit Court cases which have addressed

the issue. As is clear from the Ninth Circuit’s discussion

of these decisions, all of the Circuit Courts have looked to

the overall academic and non-academic benefits to the

disabled child and the impact on the education of other

children.!> The 11th and 6th Circuits also consider the

hearing officer concluded, based on all of the evidence includ-

ing testimony from her regular and special education teachers,

that Rachel made substantial progress in all areas and that her

experience was “successful.” H.O. Pet. App. I, p. 83a; Dist Ct.

Pet. App. G, p. 41a. By the time of the district court trial, Rachel

was in second grade. The Holland’s educational experts, as well

as Rachel’s regular education teacher for second grade also

testified to her progress and success in regular education

classes. Dist. Ct. Pet. App. G, pp. 38a-41a.

The only “failure” in the record of this case is in the special

education class offered by the district. The district court found

that the program proposed by the district “mirrors in part the

deficiencies of the previous program” Dist. Ct. Pet. App. G, pp.

41a-42a.

13 Ninth Cir. Pet. App. F, p. 20a, footnote 5 citing Daniel R.R.

v. State Board of Education, 874 F.2d 1036, 1048-49, Oberti v. Board

13

costs of regular education placement, a factor which was

adopted by the district court and Ninth Circuit in this

case.'4 There is absolutely no conflict posed in the Ninth

Circuit decision.'®

The “balancing” of factors to which petitioner objects

is required by all of the Circuit Courts in decisions under

20 U.S.C. § 1412 (5)(B), as in all other decisions about

| services and placements under the IDEA. In essence,

petitioner objects to the individualized inquiry required

to implement the statutory presumption in favor of main-

streaming which is recognized in all the Circuits inter-

preting the IDEA.'®

Second, it is indisputable that according to the factual

findings adopted by the district court and the Ninth

Circuit, the result would be identical for Rachel Holland

in each of the Circuits that have addressed the issue. The

petitioner does not even proffer an argument for its claim

that, based on the factual findings in this case, Rachel’s

“mainstreaming rights” would depend on the Circuit in

of Education, 995 F.2d 1204, 1217-1218 (3rd Cir. 1993); Greer v.

Rome City School District, 950 F.2d 688, 696-97 (11th Cir. 1991);

Ninth Cir. Pet. App. F, p. 21a, footnote 6, citing Roncker v. Walter

700 F.2d 1058, 1063 (6th Cir. 1983).

14 Greer, supra, at 697; Roncker, supra, at 1063; Dist. Ct. Pet.

App. G, p. 36a; Ninth Cir. Pet. App. F, pp. 20a, n.5; 21a.

'S The district court specifically adopted the factors of the

federal appellate courts. Dist. Ct. Pet. App. G, pp. 32a-37a.

16 Ninth Cir. Pet. App. F, p. 19a. See Daniel R.R. supra, at

1048; Oberti, supra, at 1213-1214; Greer, supra, at 695, Roncker,

supra, at 1063-1064; Department of Education v. Katherine D., 727

F.2d 809, 817 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985);

Lachman v. Illinois State Board of Education, 852 F.2d 290, 295 (7th

Cir. 1988), cert. denied, 484 U.S. 847 (1988); Devries By DeBlaay v.

Fairfax County School Board, 882 F.2d 876 (4th Cir. 1985); A.W. v.

Northwest R-1, 813 F.2d 158, 162 (8th Cir. 1987).

14

which she resides.'” Pet. p. 13. All of the fact finders in

this case found that Rachel receives substantial academic

benefit in regular education classes (as well as non-aca-

demic benefit). The courts below also specifically found

that Rachel could not receive greater or equal educational

benefits in special education classes. Dist. Ct. Pet. App. G,

p. 41a. Hence, even if there were some merit to peti-

tioner’s claim that the Circuit Courts do not all use the

same factors, certiorari should be denied because the

result would be the same in any of the Circuits to address

the issue.

Far from being “skewed too far in favor of categorical

full-time regular education placement to comply with

IDEA’s” mainstreaming “mandate”, as the petitioner sug-

gests (Pet. p. 22 ) the State Department of Education, the

district court and the Ninth Circuit simply rejected the

petitioner’s assertion in each forum that categories of

disabled children can be excluded from the regular edu-

cation classroom, in favor of the individual factual

inquiry required by IDEA. As the district court stated:

Thus, the decision as to whether any partic-

ular child should be educated in a regular class-

room setting, all of the time, part of the time, or

none of the time, is necessarily an inquiry into

17 Significantly, the U.S. Department of Justice, which filed

an amicus brief on behalf of the U.S. Department of Education in

the Ninth Circuit in this case and which has responsibility for

nation-wide enforcement of the IDEA, concluded that the dis-

trict court properly applied the factors identified by other

appellate courts in evaluating whether the mainstreaming

requirements of IDEA have been met. U.S. Department of Jus-

tice Amicus Brief pp. 18-23 for the U.S. Court of Appeals, Ninth

Circuit, Sacramento City Unified School District, Board of Education

v. Rachel Holland, No. 92-15608.

SS e

15

the needs and abilities of one child, and does

not extend to a group or category of hand-

icapped children, as the District suggests. See

Daniel R.R., 874 F.2d at 1048 (“our analysis is an

individualized, fact specific inquiry”).

Dist. Ct. Pet. App. G, p. 37a.

Applying the factors identified by every Circuit to

address the mainstreaming requirements of the IDEA, the

State Department of Education hearing officer, the district

court, and the Ninth Circuit, concluded that the appropri-

ate placement for Rachel Holland, under the IDEA, is a

regular education classroom, with supplemental aides

and services. The petitioner’s request for review by this

Court is simply another attempt to relitigate the facts of

this case and therefore should be denied.

REASONS FOR DENYING THE WRIT

I. CERTIORARI SHOULD BE DENIED BECAUSE

PETITIONER SEEKS REVIEW OF THE INDIVIDU-

ALIZED FACTUAL DETERMINATIONS OF THE

CALIFORNIA DEPARTMENT OF EDUCATION

AND THE DISTRICT COURT WHICH WERE

AFFIRMED BY THE NINTH CIRCUIT THAT

RACHEL HOLLAND BENEFITS FROM PLACE-

MENT IN A REGULAR EDUCATION CLASS

Petitioner’s first, second, fourth and fifth Questions

Presented are an attempt to relitigate the factual findings

of the California Department of Education and federal

district court which were affirmed by the Ninth Circuit.

In particular, the petitioner, as in the Ninth Circuit,

“strenuously disagrees with the district court’s findings

that Rachel was receiving academic and non-academic

benefits in a regular class” because the court's findings

16

were contrary to the evidence of the petitioner's wit-

nesses. Ninth Cir. Pet. App. F, pp. 2la-22a. Petitioner

acknowledges that the findings of fact by the State

Department of Education and the district court are not

subject to review by this Court. The hearing officer and

district court heard conflicting evidence and both con-

cluded that the Holland’s witnesses were more know!l-

edgeable, credible and experienced. As the Ninth Circuit

stated, “The district court conducted a full evidentiary

hearing and made a thorough analysis. . . . We will not

disturb the findings of the district court.” Ninth Cir. Pet.

App. F, 22a. It is well established that this court will not

disturb the findings of facts of the lower courts in a case

such as this, where there was an opportunity for two full

evidentiary hearings.'*

A. Petitioner’s Assertion that the Ninth Circuit

Rejected Standardized Aptitude Tests is a Mis-

statement of the Facts and Law in this Case.

The Courts Below Considered Information

From a Variety of Sources, as Required by

IDEA and Made a Specific Factual Determina-

tion That Rachel Holland Benefits From Regu-

lar Education Class Placement.

The petitioner’s assertion that placement decisions

must be “guided by standardized ‘aptitude and achieve-

ment’ tests” and that these tests were per se rejected “as a

method of evaluating placement appropriateness”, is a

18 See infra, p. 9 n.9.

eee

17

misstatement of the law and the facts in this case.!9 Pet.,

p. 14. The petitioner cites the IDEA implementing regula-

tions, 34 C.F.R. § 300.533(a)(1)(3) for the proposition that

standardized aptitude tests must guide placement deci-

sions. In fact, 34 C.F.R. § 300.533(a)(1) commands that

information be drawn from a “variety of sources”, and 34

C.F.R. § 300.532(a) admonishes that “no single procedure

is used as the sole criterion for determining an appropri-

ate educational program for a child”.2° The petitioner’s

attempt to substitute aptitude tests for the explicit multi-

disciplinary approach of the IDEA would be wholly

unworkable and contrary to well-established practice.?!

As required under the IDEA, the California Department

19 This argument appears to address Question Presented

No. 4. Question Presented No. 1 suggests either that school

districts can unilaterally make placement decisions or that there

was consensus among the “educational professionals”. Pet. p. i.

First, unilateral placement decisions by school officials are con-

trary to the requirements of the IDEA. Honig v. Doe, 484 U.S. 305,

321 (1987). The procedural safeguards of the IDEA assure that

parents can challenge all school district decisions regarding

evaluations and placement. 20 U.S.C. § 1415 (b)(1)(D)(E), Board

of Education of the Hendrick Central School District v. Rowley, 485

U.S. 175, 183. Second, as is evident by the record and decisions

in this case, the “educational professionals” disagreed about

whether Rachel achieves measurable academic progress. Dist.

Ct. Pet. App. G, pp. 38a-42a.

20 34 C.F.R. § 300.533 also requires that “the placement

decision is made in conformity with the least restrictive envi-

. ronment rules in C.F.R. § 300.500 - 300.554”; see also 20 U.S.C.

1412(5)(C).

21 Petitioner’s novel argument that the court erred by

rejecting standardized aptitude tests or that they were per se

rejected was not presented nor briefed in the courts below.

Moreover, whether or not the standardized test results indi-

cated progress was also a disputed factual issue. R.T. 465: 9-12.

Ne ~

18

of Education and federal district court considered infor-

mation from a variety of sources including testing, exten-

sive observations by many experts, and Rachel's teachers

and parents before concluding that Rachel benefitted

from her regular class placement. This is the usual pro-

cess for ascertaining the appropriateness of a particular

placement for an individual child. 34 C.F.R. § 300.533; 20

U.S.C. § 1401(20); § 1412(5)(C); § 1414(a)(5).

Furthermore, contrary to the assertion of the peti-

tioner, the district court did not reject the petitioner’s

experts’ testimony because their “standardized testing

techniques” were biased by their “educational philoso-

phy”. Pet. p.16. Both the State Department of Education

and the district court carefully evaluated the evidence

from both sides and concluded, based on the knowledge,

expertise, experience and credibility of the witnesses that

Rachel Holland benefitted significantly from regular edu-

cation class. The Ninth Circuit explained its reasons for

deferring to the factual findings of the district court:

. . the court found that the testimony of the

Hollands’ experts was more credible because

they had more background in evaluating chil-

dren with disabilities placed in the regular class-

room and they had a greater opportunity to

observe Rachel over an extended period of time

in normal circumstances. The district court also

gave great weight to the testimony of Rachel’s

current teacher, Nina Crone, who the court

found to be an experienced, skillful teacher.??

22 Because of the conflict between the experts as to Rachel's

academic progress, the district court found “the testimony of

her current teacher is all the more important. The District con-

cedes that Nina Crone, Rachel’s second grade teacher, is an

experienced, skillful teacher. She has no partisan involvement in

‘

:

:

:

:

ieee IRE ss

PNA NE NOL si. 6 eal

19

Pet. App. F, p. 13a. With respect to non-academic benefits,

the Ninth Circuit affirmed that “the testimony of Rachel’s

mother and her current teacher to be the most credible.”

Ninth Cir. Pet. App. F, p. 14a. Similarly, on the issue of

Rachel’s effect on the teacher and other children, the

court also found “the most germane evidente” from the

second-grade teacher, Nina Crone. Id. at 15a. Contrary to

petitioner s assertion, these reasons for affording greater

weight and credibility to the Holland witnesses have

nothing to do with educational philosophy. Dist. Ct. Pet.

App. G, p. 41a.

Petitioner’s attempt to characterize the district court

factual findings as “an explicit rejection” of all stan-

dardized testing is completely unsupported by the lower

court decisions. As the petitioner recognizes, the lower

court’s findings of fact based on full evidentiary hearings

are not subject to review by this court.

B. The Petitioner Poses a Factual Issue — Repeated

Failure - Which is Not Present in The Record.

In the second Question Presented, the school district

poses an issue not even presented in this case; that is,

whether a child must be subjected to “repeated failure”

before a school district can place the child in a special

education setting. Pet. p. 15. All of petitioner’s assertions

about the Ninth Circuit requiring “repeated failure” are

based on the premise that the petitioner’s witnesses were

this controversy. Crone testified that Rachel is a full member of

the second grade class.” Dist. Ct. Pet. App. G, p. 40a- 41a.

23 See infra, p. 9 n.9.

20

correct that Rachel and all other children with her disabil-

ity will fail in regular education.?4 This is precisely the

factual issue which was resolved in the lower courts in

favor of the Holland’s witnesses’ testimony about the

substantial success Rachel experienced in regular educa-

tion class. The only failure in the record is Rachel’s expe-

rience in the special education classes of the school

district.?°

To the extent that petitioner is arguing that a legal

standard of “repeated failure” is required by the Ninth

Circuit, it is a misstatement which cannot be substanti-

ated. There is nothing in any of the decisions below to

even suggest such a standard. Petitioner’s argument is

premised on the false notion that the courts reject stan-

dardized tests and therefore the school districts have no

choice but to place children in regular classes and wait

until they “repeatedly fail” before removal can be consid-

ered. Clearly, the Ninth Circuit was not adopting such an

ill-founded standard. As explained above, the Court did

not per se reject testing as a means of evaluating progress

or determining placement. Whether a disabled child has

progressed on the IEP goals and objectives and whether

the IEP can be implemented in a particular placement are

determinations made by the IEP team based on informa-

tion from a variety of sources, including tests, teacher

observations, adaptive behavior and social and cultural

factors.*© Prospective determinations are made every day

24 See infra, p. 11 n.11.

25 See infra, p. 11 n.12.

26 Assessments of progress and placement decisions must

be made by a multi-disciplinary team including the child's par-

ent and teacher through the statutory required Individualized

llr sn iat nd iain

21

for children with disabilities through the IEP process.

There is nothing in the Ninth Circuit decision which

would disrupt current practice. However, petitioner’:

suggestion that standardized test scores be the sole crite-

ria, would drastically change current practice and would

be wholly contrary to the explicit procedures of the

IDEA.

Consistent with decisions of all other appellate courts

addressing this issue, the Ninth Circuit applied the statu-

tory preference for mainstreaming in making placement

decisions. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983);

Daniel R.R. v. State Board of Education, 874 F.2d 1036 (5th

Cir. 1989); Greer v. Rome City School District, 950 F.2d 688

(11th Cir. 1991). In upholding the presumption in favor of

regular class placement, the court below did not preclude

the IEP team from making prospective placement deci-

sions. This is what the IEP team normally does based on

all the available information. The school district’s mis-

characterization that the Ninth Circuit automatically

requires placement in the regular class and “repeated

failure” there before removal to a special education set-

ting can be considered, reflects nothing more than the

district’s continuing assertion that certain categories of

children cannot benefit from regular class placement.

Dist. Ct. Pet. App. G, p. 32a. The Ninth Circuit decision

simply requires an indivi¢hualized determination of the

appropriate least restrictive: placement, consistent with

Education Program (IEP) process, and must include information

from a variety of sources. 20 U.S.C. § 1401(20); § 1412(5)(C);

§ 1414(a)(5); 34 C.F.R. § 300.533.

22

the IDEA. After conducting the fact specific inquiry, the

lower courts concluded that Rachel Holland experienced

repeated success, not failure, in regular education class.

This factual finding cannot be disturbed in this Court.

C. Whether the Age Range in a Particular Class is

Appropriate for a Specific Child is a Factual

Determination

In the fifth Question Presented, petitioner claims that

a two year age difference between Rachel and her class-

mates constitutes a per se violation of the federal main-

streaming requirement. The federal mainstreaming

requirement does not specify an exact age range permis-

sible in a regular classroom, nor does it rule out a partic-

ular age range as a per se violation of the law. Whether a

certain age range is appropriate for an individual child is

a factual determination. In this case Judge Levi found

that the age difference “is not so pronounced that

[Rachel] is learning inappropriate behavior or is not per-

ceived as part of the class.” Dist. Ct. Pet. App. G, p. 44a.

Il. THE NINTH CIRCUIT O*:NION DOES NOT &RY-

ATE A CONFLICT WITH OTHER C'PCUIT

COURTS. RATHER, THE NINTH CikCUIT

APPLIED THE FACTORS RECOGNIZED BY ALL

THE CIRCUIT COURTS WHICH HAVE

ADDRESSED THE ISSUE TO DETERMINE

WHETHER AN INDIVIDUAL CHILD WITH A

DISABILITY CAN BE “SATISFACTORILY EDU-

CATED” IN A REGULAR EDUCATION CLASS IN

ACCORDANCE WITH 20 U.S.C. § 1412(5)(B).

The petitioner’s assertion that the Ninth Circuit cre-

ated a “new test” to determine compliance with 20 U.S.C.

§ 1412(5)(B) is belied by a review of the Ninth Circuit

decision itself. The Ninth Circuit expressly adopted the

“ ers .

iid waited:

en ae rk ns? DO MAA OT

23

factors applied by all of the other Circuit Courts which

have addressed the issue, to determine whether Rachel

Holland could be satisfactorily educated in regular edu-

cation classes pursuant to 20 U.S.C. € 1412(5)(B). All of

the Circuit Courts have recognized that this highly “fact

specific inquiry”?” requires a balancing of factors to

determine whether a child can be satisfactorily educated

in regular education classes.

The Ninth Circuit, in adopting the favtors set forth in

the district court opinion, found no conflict with other

Circuits, but instead found that the district court had

adopted all of the factors found in the other Circuits.7*

The Ninth Circuit’s discussion of these cases makes it

clear that as a practical matter, the factors to be consid-

ered are consistent, calling upon courts to determine the

benefits (both academic and non-academic) of regular

class placement with supplementary aids and services

and the effect of the disabled child’s presence on the

teacher and other students.”?

27 See Ninth Cir. Pet. App. F, p. 17a; Daniel R.R., 874 F.2d at

1048; Roncker, 700 F.2d at 1064; Greer, 950 F.2d at 696; Oberti, 995

F.2d at 1223, n.28.

28 “Although the district court relied principally on Daniel

R.R. and Greer, it did not specifically adopt the Daniel R.R. tests

over the Roncker test. Rather, it employed factors found in both

line of cases.” Ninth Cir. Pet. App. F, p. 2la

29 The Ninth Circuit’s discussion of the other Circuit Court

decisions (Ninth Cir. Pet. App. F, p. 20a, footnote 5 and Ninth

Cir. Pet. App. F, p. 21a, footnote 6) demonstrates that the Ninth

Circuit incorporated all of the factors found in the other Cir-

cuits. While all courts look to the benefits of regular class place-

ment with supplementary aids and services and any possible

negative effect on the teacher or the ciass, the Ninth Circuit

noted that the 11th Circuit in Greer, 950 F.2d at 696-697 looked at

24

In fact, it is difficult to decipher where the purported

conflict lies.%

Likewise, the district court found no conflict in the

Circuits and explicitly relied on the decisions of the other

appellate courts interpreting 20 U.S.C. § 1412(5)(B) to

costs as well, and that the 3rd and 11th Circuits in Oberti, 995

F.2d at 1216 and Greer, 950 F.2d at 697, also look to the compara-

tive benefits of special and regular education placement. These

factors were explicitly adopted by the lower courts in this case

(Ninth Cir. Pet. App. F, p. 21a; Dist. Ct. Pet. App. G, pp.

32a-33a).

30 In Daniel R.R., the Fifth Circuit declined to follow the

formulation of the Sixth Circuit in Roncker, 700 F.2d at 1063,

which required a determination of whether the special educa-

tion services could be provided in regular education classes,

preferring to use the words of the statute, “supplementary aids

and services” Daniel R.R., 874 F.2d at 1046. As the district court

in this case recognized, the inquiry is the same.

The district court correctly viewed Greer (following Daniel

R.R.) and Roncker as requiring the school district to consider

whether supplemental aids and services would permit satisfac-

tory education in the regular classroom. (Dist. Ct. Pet. App. G.,

p. 34a). In Roncker the question before the court was placement

in a segregated facility versus placement in a special education

class on a regular school site. For this reason the Court spoke in

terms of special education services available at the segregated

site being made available in a special day class. Roncker, supra at

1063. For the purposes of determining whether regular class

placement is appropriate, the fact that the Roncker, court refers

to the services in reference to the services available in special

education and the Daniel R.R., 874 F. 2d at 1048, Greer, 950 F.2d at

696 and Oberti, 995 F. 2d at 1214 courts refer to the services in

reference to the statutory language of “supplementary aids and

services” is of no practical import. All the courts require consid-

eration of the aids and services which a child with a disability

may require to benefit from regular education placement. Ninth

Cir. Pet. App. F, p. 20a, footnote (5) Daniel R.R., supra, Greer,

supra, Oberti, supra.

FF a ee Le ee Se ee ee eee Se Se

~~

yt

25

“guide the court's analysis.” Dist. Ct. Pet. App. G, p. 32a.

The district court stated:

The federal appellate courts have recognized the

following factors as relevant to determining if a

placement is appropriate: (1) the educational

benefits available to the child in a regular class-

room, supplemented with appropriate aids and

services, as compared to the educational bene-

fits of a special education classroom; (2) the

non-academic benefits to the handicapped child

of interaction with nonhandicapped children; (3)

the effect of the presence of the handicapped

child on the teacher and other children in the

regular classroom; and (4) the costs of supple-

mentary aids and services necessary to main-

stream the handicapped child in a regular

classroom setting. Greer v. Rome City School Dis-

trict, 950 F.2d 688, 697 (11th Cir. 1991); Barnett v.

Fairfax County School Board, 927 F.2d 146, 153-54

(4th Cir.), cert. denied, 112 S. Ct. 175, 116 L. Ed.

2d 138 (1991); Daniel R.R., 874 F.2d at 1048-50;

Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert.

denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed. 2d

171 (1983).

Pet. App. G, pp. 32a-33a.

The district court cited both Daniel R.R. and Roncker

as authority in identifying the proper factors to be con-

sidered in applying § 1412(5)(B) to the facts of a particu-

lar case and relied on the analysis set forth in each of

these appellate court decisions in its discussion of these

factors. Dist. Ct. Pet. App. G, pp. 32a-38a. The district

court correctly found consistency, not conflict, in these

decisions.

The petitioner offers no support for its claim that the

Ninth Circuit’s test “differs significantly in its analytic

approach.” Pet. p. 12. As stated above, both the district

26

court and the Ninth Circuit relied on these other deci-

sions and adopted common factors, finding no conflict.

The petitioner cannot point to any of the standards

adopted by the Ninth Circuit that conflict with other

Circuits or would in any way affect the outcome of this

case. It is difficult to understand which standard peti-

tioner objects to. Clearly, the IDEA requires the court to

look at the benefits (academic & non-academic) of the

regular class placement. It appears unlikely that the peti-

tioner is objecting to the Court’s consideration of any

disruptive effect on the teacher or other children or the

costs of regular education placement. Each of these fac-

tors was carefully examined, and it was decided that

Rachel receives substantial benefit from regular class

placement, is not disruptive and that the cost is not

significant. The petitioner is attempting to create an artifi-

cial split in the Circuits because it does not approve of the

mainstreaming presumption employed by all the Cir-

cuits! and with the outcome of this case.

The contention that the other appellate decisions

offer limits to mainstreaming not found in the Ninth

Circuit has no basis.3? The only limit which petitioner

claims exists in other Circuits comes from a gross mis-

statement of the standards enunciated in those cases. The

petitioner wrongly claims that the Daniel R.R. test limits

regular education placement “if the child does not have

the cognitive ability to grasp the essential elements of the

31 20 U.S.C. § 1412(5)(B); See also infra, p. 11 n.12, p. 13 n.16.

32 If anything, the Ninth Circuit provides a limit not found

in other cases by allowing consideration of the costs of regular

education placement. See discussion, infra, pp. 23-24 n.29.

27

regular education curriculum.” Pet., p. 11. This character-

ization of Daniel R.R. is particularly astounding in that

the Fifth Circuit explicitly overturned the lower court in

that case because it “would require handicapped children

to learn at approximately the same level as their non-

handicapped classmates” and because the lower court

“places too much emphasis on the handicapped student’s

ability to achieve an educational [academic] benefit.”

Daniel R.R., 874 F.2d at 1046. Throughout its opinion, the

Fifth Circuit “reiterate[s] . . . that academic achievement

is not the only purpose of mainstreaming.”*? The Fifth

Circuit emphasized the need to look at the “overall edu-

cational experience in the mainstreamed environment,

balancing the benefits of regular and special education

for each handicapped child.”™

33 Id. The district court in this case quoted the Fifth Circuit

as follows:

(The language and behavior models available from

non-handicapped children may be essential or help-

ful to the handicaprped child’s development. In other

words, although a handicapped child may not be able

to absorb all of the regular education curriculum, he

may benefit from non-academic experiences in the

regular education environment) District Court, Pet.

App., G., p. 34a, citing Daniel R.R., 874 F.2d at 1049

34 874 F.2d at 1049. The petitioner claims that the district

court departed from Daniel R.R. because it did not consider

curriculum modification as a separate factor. In Daniel R.R., the

court was concerned about curriculum modification as it related

to the burden on the teacher and the benefits received by the

child with a disability, stating that mainstreaming would not be

appropriate if “the only advantage to such an arrangement

would be that the child is sitting next to a nonhandicapped

student” 874 F.2d at 1049. Similarly, the district court in this case

considered curriculum modification relevant for the same rea-

sons — the burden on the teacher and the disabled child’s “sense

of belonging in the class”. Dist. Ct. Pet. App. G, p. 37a.

28

The petitioner’s assertion that the Ninth Circuit's

purported “new test” subordinates academic progress to

mainstreaming is also without merit and flatly inconsis-

tent with the facts of this case. The courts below did not

adopt any general standards which create any conflict

between the requirements that children with disabilities

receive “appropriate” education and the mainstreaming

requirements in 20 U.S.C. § 1412(5)(B). The court below

held that regular education class is required only when

the child can receive an appropriate education there. The

district court defined as the “central question” whether,

“for Rachel, a full-time placement in regular education

class is the “appropriate” placement. Dist. Ct. Pet. App.

G, p. 25a. In determining whether Rachel could receive an

appropriate education in the regular education class, the

court did not elevate mainstreaming over educational

progress as petitioner claims (Pet. p. 19), but rather exam-

ined the specific goals and objectives in Rachel's Individ-

ual Education Plan (IEP) and found based on the

evidence, “that all of Rachel’s goals and objectives could

be achieved either in regular class with some curriculum

modification or through supplementary aids and ser-

vices.” Dist. Ct. Pet. App. G, pp. 27a, 40a-42a.

Moreover, the courts below made specific findings

that special education did not offer better or equal aca-

demic or non-academic benefits to Rachel.*5 Hence, the

petitioner’s hypothetical assertion that the Ninth Circuit

35 Ninth Cir. Pet. App. F, p. 13a; “(t]he district offered no

persuasive evidence that Rachel could receive educational bene-

fits in special education classes that are equal or greater than

those available in special [sic; regular] education classes.” Dist.

Ct. Pet. App. G, p. 41a.

29

elevated mainstreaming over academic benefit is simply

not presented in this case.

The Ninth Circuit opinion creates no conflict with the

other Circuits. Rather, the district court and the Ninth

Circuit explicitly relied on these opinions and adopted all

of the factors identified by the other Circuits to determine

compliance with 20 U.S.C. § 1412(5)(B). Moreover, it is

indisputable that given the factual findings in this case,

the result would be the same in the other Circuits. This is

not a close case. Every Circuit to consider the issue recog-

nized that if a child receives “substantial” educational

benefit, is a “full member” of the class and poses no

disruption to the teacher or other children, regular educa-

tion class placement is appropriate. Dist. Ct. Pet. App. G,

pp. 4la-42a, 44a-45a. There is no conflict or factual error

for this court to resolve.

%© Many courts have recognized as Judge Levi cited, that

“the Act’s requirement of integration, based on recognition of

the non-academic value of such integration, is not overcome oy

a showing that special education placement may be aca-

demically superior to placement in a regular classroom.” Dist.

Ct. Pet. App. G, p. 33a. Roland v. Concord School Comm., 910 F. 2d

983, 993 (1st Cir. 1990), Roncker, 700 F.2d at 1063; Norton School

Comm. v. Massachusetts Dept. of Education, 768 F. Supp. 900, 910

(D. Mass. 1991), Daniel R.R., 874 F.2d at 1048. Judge Levi's

statement emphasizes the need to balance various factors. It in

no way suggests that a child should be placed in a class where

he or she cannot receive an appropriate education.

Moreover, as these cases show, the issue of academic benefit

versus overall educational benefits is often resolved in favor of

school districts seeking to place children in the regular class-

room as opposed to “academically superior” private schools. It

is well established that school districts are not required to auto-

matically place children in the “academically superior” class or

school, disregarding other factors such as the benefits of main-

streaming. Id.

30

CONCLUSION

For the foregoing reasons, respondent respectfully

submits that the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

ARLENE MAYERSON

Counsel of Record

DIANE LIPTON

Disasitity RiGHts EDUCATION AND

DeFENSE FuNpD, INc.

2212 Sixth Street

Berkeley, California 94710

Telephone: (510) 644-2555

KATHRYN E. Doser

2026 Delaware Street

Berkeley, California 94709

Telephone: (510) 548-2004