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14 F.3d 1398
SACRAMENTO
CITY UNIFIED SCHOOL DISTRICT, BOARD OF EDUCATION,
PLAINTIFF-APPELLANT, v. RACHEL H., 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, DEFENDANTS-APPELLEES.
No. 92-15608.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 12, 1993.
Decided January 24, 1994.
Jane E. Slenkovich, Phoebe G. Graubard, Saratoga, CA, for
plaintiff-appellant.
Diane J. Lipton and Arlene B. Mayerson, Kathryn E. Dobel,
Disability Rights Education & Defense Fund, Inc., Berkeley, for
defendants-appellee Rachel Holland.
Joseph R. Symkowick, Barry A. Zolotar, Joyce O. Eackrem,
California Dept. of Educ., Sacramento, CA for defendants-appellees William
Honig, CA State Superintendent of Public Instruction, California State Dept. of
Educ. Hearing Office, McGeorge School of Law and Mary Cote, Hearing Officer.
Michael Jay Singer, Jeffrica Jenkins Lee, Attys., Appellate Staff,
Civ. Div., Dept. of Justice, Washington, DC, for amicus.
Appeal from the United States District Court for the Eastern
District of California.
Before: SNEED, POOLE, and TROTT, Circuit Judges.
SNEED, Circuit Judge:
The Sacramento Unified School District ("the District")
timely appeals the district court's judgment in favor of Rachel Holland
("Rachel") and the California State Department of Education. The
court found that the appropriate placement for Rachel under the Individuals
with Disabilities Act ("IDEA") was full-time in a regular second
grade classroom with some supplemental services. The District contends that the
appropriate placement for Rachel is half-time in special education classes and
half-time in a regular class. We affirm the judgment of the district court.
Rachel Holland is now 11 years old and is mentally retarded. She
was tested with an I.Q. of 44. She attended a variety of special education
programs in the District from 1985-89. Her parents sought to increase the time
Rachel spent in a regular classroom, and in the fall of 1989, they requested
that Rachel be placed full-time in a regular classroom for the 1989-90 school
year. The District rejected their request and proposed a placement that would
have divided Rachel's time between a special education class for academic
subjects and a regular class for non-academic activities such as art, music,
lunch, and recess. The district court found that this plan would have required
moving Rachel at least six times each day between the two classrooms. Holland,
786 F.Supp. at 876. The Hollands instead enrolled Rachel in a regular
kindergarten class at the Shalom School, a private school. Rachel remained at
the Shalom School in regular classes and at the time the district court
rendered its opinion was in the second grade.
The Hollands and the District were able to agree on an
Individualized Education Program ("IEP")2
for Rachel. Although the IEP is required to be reviewed annually, see 20 U.S.C.
1401a(20)(B), because of the dispute between the parties, Rachel's IEP has not
been reviewed since January 1990.3
The Hollands appealed the District's placement decision to a state
hearing officer pursuant to 20 U.S.C. 1415(b)(2). They maintained that Rachel
best learned social and academic skills in a regular classroom and would not
benefit from being in a special education class. The District contended Rachel
was too severely disabled to benefit from full-time placement in a regular
class. The hearing officer concluded that the District had failed to make an
adequate effort to educate Rachel in a regular class pursuant to the IDEA. The
officer found that (1) Rachel had benefitted from her regular kindergarten
class - that she was motivated to learn and learned by imitation and modeling;
(2) Rachel was not disruptive in a regular classroom; and (3) the District had
overstated the cost of putting Rachel in regular education - that the cost
would not be so great that it weighed against placing her in a regular
classroom. The hearing officer ordered the District to place Rachel in a
regular classroom with support services, including a special education
consultant and a part-time aide.
The District appealed this determination to the district court.
Pursuant to 20 U.S.C. 1415(e)(2), the parties presented additional evidence at
an evidentiary hearing. The court affirmed the decision of the hearing officer
that Rachel should be placed full-time in a regular classroom.
In considering whether the District proposed an appropriate
placement for Rachel, the district court examined the following factors: (1)
the educational benefits available to Rachel in a regular classroom,
supplemented with appropriate aids and services, as compared with the
educational benefits of a special education classroom; (2) the non-academic
benefits of interaction with children who were not disabled; (3) the effect of
Rachel's presence on the teacher and other children in the classroom; and (4)
the cost of mainstreaming Rachel in a regular classroom.
1. Educational Benefits
The district court found the first factor, educational benefits to
Rachel, weighed in favor of placing her in a regular classroom. Each side
presented expert testimony which is summarized in the margin.4
The court noted that the District's evidence focused on Rachel's limitations
but did not establish that the educational opportunities available through
special education were better or equal to those available in a regular
classroom. Moreover, the court found that the testimony of the Holland's
experts was more credible because they had more background in evaluating
children with disabilities placed in regular classrooms and that 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, whom the court found to be an experienced,
skillful teacher. Ms. Crone stated that Rachel was a full member of the class
and participated in all activities. Ms. Crone testified that Rachel was making
progress on her IEP goals: She was learning one-to-one correspondence in
counting, was able to recite the English and Hebrew alphabets, and was
improving her communication abilities and sentence lengths.
The district court found that Rachel received substantial benefits
in regular education and that all of her IEP goals could be implemented in a
regular classroom with some modification to the curriculum and with the
assistance of a part-time aide.
2. Non-academic Benefits
The district court next found that the second factor, non-academic
benefits to Rachel, also weighed in favor of placing her in a regular
classroom. The court noted that the Hollands' evidence indicated that Rachel
had developed her social and communications skills as well as her
self-confidence from placement in a regular class, while the District's
evidence tended to show that Rachel was not learning from exposure to other
children and that she was isolated from her classmates. The court concluded
that the differing evaluations in large part reflected the predisposition of
the evaluators. The court found the testimony of Rachel's mother and her
current teacher to be the most credible. These witnesses testified regarding
Rachel's excitement about school, learning, and her new friendships and
Rachel's improved self-confidence.
3. Effect on the Teacher and Children in the Regular Class
The district court next addressed the issue of whether Rachel had
a detrimental effect on others in her regular classroom. The court looked at
two aspects: (1) whether there was detriment because the child was disruptive,
distracting or unruly, and (2) whether the child would take up so much of the
teacher's time that the other students would suffer from lack of attention. The
witnesses of both parties agreed that Rachel followed directions and was
well-behaved and not a distraction in class. The court found the most germane
evidence on the second aspect came from Rachel's second grade teacher, Nina
Crone, who testified that Rachel did not interfere with her ability to teach
the other children and in the future would require only a part-time aide. Accordingly,
the district court determined that the third factor, the effect of Rachel's
presence on the teacher and other children in the classroom weighed in favor of
placing her in a regular classroom.
4. Cost
Finally, the district court found that the District had not
offered any persuasive or credible evidence to support its claim that educating
Rachel in a regular classroom with appropriate services would be significantly
more expensive than educating her in the District's proposed setting.
The District contended that it would cost $109,000 to educate
Rachel full-time in a regular classroom. This figure was based on the cost of
providing a full-time aide for Rachel plus an estimated $80,000 for schoolwide
sensitivity training. The court found that the District did not establish that
such training was necessary. Further, the court noted that even if such
training were necessary, there was evidence from the California Department of
Education that the training could be had at no cost. Moreover, the court found
it would be inappropriate to assign the total cost of the training to Rachel
when other children with disabilities would benefit. In addition, the court
concluded that the evidence did not suggest that Rachel required a full-time
aide.
In addition, the court found that the District should have
compared the cost of placing Rachel in a special class of approximately 12
students with a full-time special education teacher and two full-time aides and
the cost of placing her in a regular class with a part-time aide. The District
provided no evidence of this cost comparison.
The court also was not persuaded by the District's argument that
it would lose significant funding if Rachel did not spend at least 51% of her
time in a special education class. The court noted that a witness from the
California Department of Education testified that waivers were available if a
school district sought to adopt a program that did not fit neatly within the
funding guidelines. The District had not applied for a waiver.
By inflating the cost estimates and failing to address the true
comparison, the District did not meet its burden of proving that regular
placement would burden the District's funds or adversely affect services
available to other children. Therefore, the court found that the cost factor
did not weigh against mainstreaming Rachel.
The district court concluded that the appropriate placement for
Rachel was full-time in a regular second grade classroom with some supplemental
services and affirmed the decision of the hearing officer.
The district court had jurisdiction pursuant to 20 U.S.C.
1415(e)(2). We have jurisdiction pursuant to 28 U.S.C. 1291.
The appropriateness of a special education placement under the
IDEA is reviewed de novo. W.G. v. Board of Trustees, 960 F.2d 1479, 1483 (9th
Cir. 1992); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir.
1987). The district court's findings of fact are reviewed for clear error. Ash
v. Lake Oswego Sch. Dist., 980 F.2d 588 (9th Cir. 1992); W.G. v. Board, 960
F.2d at 1483. The clearly erroneous standard applies to the district court's
factual determinations regarding (1) whether Rachel was receiving academic and
non-academic benefits in the regular classroom; (2) whether her presence was a
detriment to others in the classroom; and (3) whether the District demonstrated
that the cost of placing her in a regular classroom would be significantly more
expensive. See Ash, 980 F.2d at 588 (district court's factual determination
that student was incapable of deriving educational benefit outside of
residential placement is reviewed for clear error); see also Daniel R.R. v.
State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989) (whether education in
the regular classroom, with supplemental aids and services, can be achieved
satisfactorily is an "individualized, fact specific inquiry").
It has been over a year since the district court rendered its
decision. The court concluded that the appropriate placement at that time was
full-time in a regular classroom. It noted that Rachel and the educational
demands on her may change and that the IDEA had foreseen such changes in
providing for an annual IEP review.
This court cannot determine what would be the appropriate
placement for Rachel at the present time. However, we conclude that this case
presents a live controversy, because the conduct giving rise to the suit
"is capable of repetition, yet evading review." Honig v. Doe, 484
U.S. 305, 318, 108 S.Ct. 592, 601 (1988); Daniel R.R., 874 F.2d at 1040. As the
district court noted, the District and the Hollands have conflicting
educational philosophies and perceptions of the District's mainstreaming
obligation. 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, while the Hollands maintain that Rachel learns both social and
academic skills in a regular class and would not benefit from being in a
special education class. This conflict is a continuing one and will arise
frequently. See Holland, 786 F.Supp. at 877 n. 4. Moreover, it is likely to
evade review since the nine-month school year will not provide enough time for
judicial review. See Board of Educ. v. Rowley, 458 U.S. 176, 186-87 n. 9, 102
S.Ct. 3034, 3040-41 n. 9, 73 L.Ed.2d 690 (1982); Daniel R.R., 874 F.2d at 1041.
1. The Statute
The IDEA provides that each state must establish:
[P]rocedures to assure that, to the maximum extent appropriate,
children with disabilities . . . are educated with children who are not
disabled, and that special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment occurs only
when the nature or severity of the disability is such that education in regular
classes with the use of supplementary aids and services cannot be achieved
satisfactorily. . . .
20 U.S.C. 1412(5)(B).
This provision sets forth Congress's preference for educating
children with disabilities in regular classrooms with their peers. Department
of Educ. v. Katherine D., 727 F.2d 809, 817 (9th Cir. 1983), cert. denied, 471
U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985); see also Oberti v. Board of
Educ., 995 F.2d 1204, 1213 (3d Cir. 1993) (as corrected, June 23, 1993); Greer
v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th Cir. 1991), withdrawn, 956
F.2d 1025 (1992), and reinstated, 967 F.2d 470 (1992); Daniel R.R., 874 F.2d at
1044.
2. Burden of Proof
There is a conflict regarding which party bears the burden of
proof. The Third Circuit has held that a school district has the initial burden
of justifying its educational placement at the administrative level and the
burden in the district court if the student is challenging the agency decision.
See Oberti, 995 F.2d at 1219. Other circuits have held that the burden of proof
in the district court rests with the party challenging the agency decision. See
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990), cert.
denied, 499 U.S. 912, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991); Kerkam v.
McKenzie, 862 F.2d 884, 887 (D.C.Cir. 1988). Under either approach, in this
case the District, which was challenging the agency decision, had the burden of
demonstrating in the district court that its proposed placement provided
mainstreaming to "the maximum extent appropriate."
3. Test for Determining Compliance with the IDEA's Mainstreaming
Requirement
We have not adopted or devised a standard for determining the presence
of compliance with 20 U.S.C. 1412(5)(B). The Third, Fifth and Eleventh Circuits
use what is known as the Daniel R.R. test. Oberti, 995 F.2d at 1215; Greer, 950
F.2d at 696; Daniel R.R., 874 F.2d at 1048.5
The Fourth, Sixth and Eighth Circuits apply the Roncker test. Devries v.
Fairfax County Sch. Bd., 882 F.2d 876, 879 (4th Cir. 1989); A.W. v. Northwest
R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir.), cert. denied, 484 U.S. 847, 108
S.Ct. 144, 98 L.Ed.2d 100 (1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th
Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983).6
Although the district court relied principally on Daniel R.R. and
Greer, it did not specifically adopt the Daniel R.R. test over the Roncker
test. Rather, it employed factors found in both lines of cases in its analysis.
The result was a four-factor balancing test in which the court considered (1)
the educational benefits of placement full-time in a regular class; (2) the
non-academic benefits of such placement; (3) the effect Rachel had on the
teacher and children in the regular class; and (4) the costs of mainstreaming
Rachel. This analysis directly addresses the issue of the appropriate placement
for a child with disabilities under the requirements of 20 U.S.C. 1412(5)(B).
Accordingly, we approve and adopt the test employed by the district court.
4. The District's Contentions on Appeal
The District strenuously disagrees with the district court's
findings that Rachel was receiving academic and non-academic benefits in a
regular class and did not have a detrimental effect on the teacher or other
students. It argues that the court's findings were contrary to the evidence of
the state Diagnostic Center and that the court should not have been persuaded
by the testimony of Rachel's teacher, particularly her testimony that Rachel
would need only a part-time aide in the future. The district court, however,
conducted a full evidentiary hearing and made a thorough analysis. The court
found the Hollands' evidence to be more persuasive. Moreover, the court asked
Rachel's teacher extensive questions regarding Rachel's need for a part-time
aide. We will not disturb the findings of the district court.
The District is also not persuasive on the issue of cost. The
District now claims that it will lose up to $190,764 in state special education
funding if Rachel is not enrolled in a special education class at least 51% of
the day. However, the District has not sought a waiver pursuant to California
Education Code 56101. This section provides that (1) any school district may
request a waiver of any provision of the Education Code if the waiver is
necessary or beneficial to the student's IEP, and (2) the Board may grant the
waiver when failure to do so would hinder compliance with federal mandates for
a free appropriate education for children with disabilities. Cal.Educ.Code
56101(a) & (b) (Deering 1992).
Finally, the District, citing Wilson v. Marana Unified Sch.
Dist.,735 F.2d 1178 (9th Cir. 1984), argues that Rachel must receive her
academic and functional curriculum in special education from a specially
credentialed teacher. Wilson does not stand for this proposition. Rather, the
court in Wilson stated:
The school district argues that under state law a child who
qualifies for special education must be taught by a teacher who is certificated
in that child's particular area of disability. We do not agree and do not reach
a decision on that broad assertion. We hold only, under our standard of review,
that the school district's decision was a reasonable one under the
circumstances of this case.
735 F.2d at 1180 (emphasis in original). More importantly, the
District's proposition that Rachel must be taught by a special education
teacher runs directly counter to the congressional preference that children
with disabilities be educated in regular classes with children who are not
disabled. See 20 U.S.C. 1412(5)(B).
We affirm the judgment of the district court. While we cannot
determine what the appropriate placement is for Rachel at the present time, we
hold that the determination of the present and future appropriate placement for
Rachel should be based on the principles set forth in this opinion and the
opinion of the district court.
[Footnote 1]
The district court's opinion is reported in Board of Educ. v. Holland, 786
F.Supp. 874 (E.D.Cal. 1992).
[Footnote 2] An IEP is prepared for each child eligible for
special education at a meeting between a representative from the school
district, the child's teacher, and the child's parents. Board of Educ. v.
Rowley, 458 U.S. 176, 182, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982). The
purpose of the IEP is to tailor the child's education to her individual needs.
Id. at 181, 102 S.Ct. at 3037.
[Footnote 3] The 1990 IEP objectives include: speaking in 4-or
5-word sentences; repeating instructions of complex tasks; initiating and
terminating conversations; stating her name, address and phone number;
participating in a safety program with classmates; developing a 24-word sight
vocabulary; counting to 25; printing her first and last names and the alphabet;
playing cooperatively; participating in lunch without supervision; and
identifying upper and lower case letters and the sounds associated with them.
[Footnote 4] The Hollands' experts testified Rachel had made
significant strides at the Shalom School and suggested that her motivation
stemmed from her regular classroom placement. They stated Rachel was learning
language and other skills from modeling the behavior of the other students. The
District's experts from the state Diagnostic Center, testified that Rachel had
made little progress toward her IEP goals and derived little benefit from
regular class placement. They also suggested supplementary aids would be
ineffective.
[Footnote 5] First, the court must determine "whether
education in the regular classroom, with the use of supplemental aids and
services, can be achieved satisfactorily. . . ." Daniel R.R., 874 F.2d at
1048. If the court finds that education cannot be achieved satisfactorily in
the regular classroom, then it must decide "whether the school has
mainstreamed the child to the maximum extent appropriate." Id.
Factors the courts consider in applying the first prong of this
test are (1) the steps the school district has taken to accommodate the child
in a regular classroom; (2) whether the child will receive an educational
benefit from regular education; (3) the child's overall educational experience
in regular education; and (4) the effect the disabled child's presence has on
the regular classroom. Daniel R.R., 874 F.2d at 1048-49; see also Oberti, 995
F.2d at 1215-1217; Greer, 950 F.2d at 696-97. In Greer the court added the
factor of cost, stating that "if the cost of educating a handicapped child
in a regular classroom is so great that it would significantly impact upon the
education of other children in the district, then education in a regular
classroom is not appropriate."950 F.2d at 697.
Regarding the second factor, the Oberti and Greer courts compared
the educational benefits received in a regular classroom with the benefits
received in a special education class. Oberti, 995 F.2d at 1216; Greer, 950
F.2d at 697.
[Footnote 6] According to the court in Roncker: "[W]here
the segregated facility is considered superior, the court should determine
whether the services which make that placement superior could be feasibly
provided in a non-segregated setting. If they can, the placement in the
segregated school would be inappropriate under the Act." 700 F.2d at 1063.
Courts are to (1) compare the benefits the child would receive in
special education with those she would receive in regular education; (2)
consider whether the child would be disruptive in the non-segregated setting;
and (3) consider the cost of mainstreaming. Id.