WHT Law

Oberti and Holland: A Rational View

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Oberti and Holland: A Rational View

Misconceptions Concerning the Oberti Case

For some time now, proponents of “inclusion” have praised the so-called groundbreaking decisions made by the U.S. Courts in Oberti v. Board of Education, 789 F.Supp. 1322 (D.N.J. 1992) and Sacramento City Unified School District v. Rachel H., 14 F.3d 1398 (1994).  Despite a great deal of language seemingly pointing a finger at the evils of “segregated” placements for disabled children, a closer reading reveals a very orthodox approach to determining the appropriateness of the placement at issue.  Analysis reveals that the two courts, in fact, follow in step with recent legal trends which have analyzed the least restrictive environment (“LRE”) component of IDEA.

FACTS

The central issue in this case concerns the appropriateness of an IEP which recommended placement of the child, Rafael Oberti, in a “segregated” program outside the child’s “home” district.  Rafael at the time was seven, with Downs Syndrome.  Following a year in which the boy spent half his time in a developmental kindergarten class at his “home” school and half his time in a special education class, the IEP team recommended placement in a full-time self-contained placement (“SCC”) for children who were “educably mentally retarded.”  This program was outside the child’s “home” district.  At a mediation in the middle of the school year, both sides agreed that Rafael would then attend an out-of-district program for “multiply handicapped” children.  Subsequent dissatisfaction with the program led the parents to file for due process.  The New Jersey administrative system affirmed the appropriateness of the multiply handicapped program.  The parents then appealed to Federal District Court, arguing that a “mainstreamed” program in Rafael’s home district was the appropriate placement.  The District Court’s decision was in response to cross-motions for summary judgment filed by the parents and the district.[1]

ANALYSIS

A.  Philosophical and Legal Premises

Within the first couple of pages, the trial judge set forth many of the assumptions which seemingly guide the opinion.  Foremost is the simple but improper choice of language which permeates the discussion.  By far the most striking is the trial judge’s choice of the word “segregation”.  At all points in the discussion, the trial judge uses the word “segregated” to describe placements which have all the attributes of “self-contained” programs, i.e., programs designed specifically to address a substantial disabling condition common to all students within the program.  For example, the court’s recitation of the facts refers to Rafael’s first placement as a “segregated, self-contained special education class.”  Oberti 789 F.Supp. at 1325.

The negative connotation of the term is developed by the judge’s further discussion of IDEA’s purpose.  In construing IDEA’s requirement for educating disabled children to “the maximum extent appropriate” with non-disabled peers, 20 U.S.C. ‘1412(5)(B), the court leaps to a discussion of IDEA’s “preference for inclusion.”  Id. at 1327.  The court at one point goes so far as to suggest that “segregation” in the context used here is no different from the principles guiding the Supreme Court in its historic decision in Brown v. Board of Education, 347 U.S. 483 (1954).[2]

As a matter of law, the court appears at one point to follow the decision of its sister court in California, which held that the “mainstreaming” requirement of IDEA rises to the level of a presumption.  See Board of Education v. Holland, 786 F.Supp. 874, 877 (E.D.Cal. 1992).  Yet the court, at the same time, never reaches the categorical conclusion that “segregated” placements are per se inappropriate.  Recognizing that IDEA mandates a continuum of placement options, the court concluded that the Act “obligates school systems to provide a certain level of supplementary aids and services which will vary in every case.”  Oberti, 789 F.Supp. at 1328 (emphasis added).  Specifically, the court affirms the idea that the aim of IDEA is to direct children toward “inclusion” (generically speaking) with non-disabled peers, while also providing “a continuum of placements” which include full-time regular education settings (termed by the court as “full inclusion”) to the most restrictive settings (termed “fully segregated”).

Thus, many of the attributes of Inclusion that Oberti seems to convey appear to be nothing more than a sloppy choice of words, given the nature of today’s philosophical debate about special education.  Unlike much of inclusion dogma, the court never goes so far as to invalidate the legal requirement of a continuum of appropriate placements.  By recognizing that certain children cannot be educated in a “full inclusion” setting, the court clearly does not keep in step with inclusion orthodoxy.  The misfortune of this decision, therefore, is not that it is based on faulty presumptions, but rather that the court chooses to play fast and loose with terms that have loaded and negative connotations.

B. The Decision

The court’s decision, in part, revolved on what the court found to be a “woefully inadequate” response on the part of the district to Rafael’s placement.  The court found that the district had fundamentally failed to develop any remedial methods or additional services to allow Rafael the chance to remain in any respect with non-disabled peers.  Id. at 1331-32.  In essence, the court’s findings were based, not upon the inherent inadequacy of “segregated” settings, but rather upon the failure of the district to try to educate Rafael to the “maximum extent appropriate” with non-disabled peers.  Finding support in decisions of other federal Circuits which have analyzed the issue of the “mainstreaming” component of the IDEA,[3] the court held that the district had failed to implement services which might avoid “unnecessary segregation” of Rafael.  Id. at 1333.

More importantly, the court refused to grant summary judgment to either side.  Its decision rested on the fact that the issue of Rafael’s ability to be mainstreamed at the present time was not resolved.  Based on the evidence of experts for both sides, the court concluded that it could not reasonably decide whether Rafael could be fully mainstreamed for the current school year.  Id. at 1336.  The court further noted that while mainstreaming was the goal, there were unanswered questions regarding the services that would have to be provided Rafael in a “non-segregated” setting, and whether it would be feasible to provide the needed services within a regular classroom at Rafael’s home school.  Id. at 1336.

Thus, rather than rule out any one setting as manifestly inappropriate, the court merely held that unresolved issues existed as to what Rafael’s appropriate placement would be.  At no point in the court’s analysis of the specific issues did it state that a “nonsegregated” placement must be implemented.  Nor did the court state that, as a matter of law, a “segregated” setting is per se inappropriate.  This court merely held that issues had to be resolved so that a decision could be reached within the full continuum of placement options. The decision is thus an exercise in rationally analyzing the Least Restrictive Environment component in the context of one child=s education.[4]

The federal government, in two letters of finding, has clearly said that inclusion, meaning “automatic” inclusion of the disabled, is contrary to the procedure mandated by IDEA, which requires placements to be made on the basis of individual needs and not on the basis of any “automatic” assumptions.  The U.S. Supreme Court in Rowley, and in virtually every case since Rowley, mandates individualization of the placement on a case-by-case basis, with an emphasis on whether the placement is appropriate.  In the Rowley case, two questions were asked: (a) has the school district followed the procedures of the IDEA, and (b) is the IEP reasonably calculated to render educational benefits?  “No one type of placement can possibly be responsive to the range of needs that any group of children may have, even within the same disability category.”  34 C.F.R. 300.551.

In Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1044 (5th Cir. 1989), the appellate court says:

The Seventh Circuit has recognized that mainstreaming must be weighed in tandem with the Act’s principal goal of ensuring that the public schools provide handicapped children with a free appropriate education.  Likewise the Fifth Circuit has noted that despite Congress’ strong preference in favor of mainstreaming, it cannot be separated from the obligation to create a tailor-made placement for each disabled child.

In June of 1993, on the appellate level, the judge toned down the lower court’s militant “inclusion” language and basically reaffirmed the IDEA analysis of the Daniel R.R. case, asking the questions:

1.  Can the child be fully accommodated in the regular class with the use of supplemental aids and services? and;

2. If not, is the child mainstreamed to the maximum extent appropriate?

The Daniel R.R. Case

The was a case involving a six year old Down’s Syndrome child with a two to three year old functional level.  He was 50% self-contained and 50% mainstreamed, as in Oberti, but failed to attain skills in the mainstream setting.  The district, also as in Oberti, therefore recommended full-time self-contained programming but he could eat lunch and have recess with non-disabled children.  A hearing officer held that regular education was beyond his abilities, and further that he received no educational benefit from such a setting.  Moreover, the hearing officer stated that the child’s needs absorbed too much of the teacher’s time, thus diverting her from the rest of the class.

This decision was upheld in court and on appeal with reference to the “tension” between the mainstreaming and the individualization requirements.  Yet the opinion observes that IDEA provides “little guidance” for striking a balance between the two.

The Court cited the 1982 Rowley case which in the body of the opinion, and in footnotes, clearly stated that some students are not suitable for education in the mainstream, and that “appropriate” is the controlling term when evaluating a placement made by a school district.

The two-part Rowley test was outlined by the Daniel R.R. court as follows:

1. Can the child be educated satisfactorily in the mainstream with supplemental aids and services?

2. If not, is the child being mainstreamed to the maximum extent appropriate?

THE OBERTI CASES – A CLOSER LOOK

Oberti One, 789 F.Supp 1322

This is a memorandum opinion adjudicating a motion to dismiss by the school district.  The terms “mainstreaming” and “inclusion” are used interchangeably (see pages 1326, 27) and the Court states:  The preference or presumption in favor of inclusion [see reference to mainstreaming on page 1326 in same context] will not be rebutted unless the district shows (1) disabilities of the child are so severe that little or no benefit will be derived from inclusion; or (2) the student is so disruptive as to significantly impair the education of others; or (3) the cost of inclusion will significantly impair the education of others in the district [citing Greer].

At page 1329, the Court stated that “School systems must provide a continuum of placements, ranging from full inclusion in regular settings, in which a child with a disability becomes a full member of the regular class [this is somewhat zealous language] to completely segregated settings [note here that there is no gratuitous positive language but the negative “segregated” term is used].”  Further on page 1329, “We must determine whether the state has complied with the mainstreaming requirements set forth in the Act.”  Here, the Court is asking the first Rowley question:  Has the school district complied with the procedures provided in IDEA?  As to the IEP, the Court observed that it did actually contain a goal of modification of the regular classroom, even though the district did not place the child in a regular classroom for 100% of the time (page 1331).

Oberti Two, 801 F.Supp. 1392 (same judge)

This was a memorandum opinion from the May 1992 bench trial. At 1396, the Court observed that the child’s behavior did not present a threat to others, nor did it impair significantly the education of other pupils in the regular classroom, and there were no problems in the self-contained program.  The trial court then asked the two Rowley questions and referenced the mainstreaming presumption of IDEA and the continuum of available placements, from private schools to regular classes.  These are all characterized as components in the required continuum but at the same time, this judge (the same one who wrote the first opinion) then inserts one-sided and somewhat religious language about inclusion.

As an illustration of how the terms of inclusion and mainstreaming are again used interchangeably, one only has to read the passage on page 1403:

The school district’s philosophical disagreement with the concept of inclusion does not entitle it to violate the mainstreaming requirements of IDEA.

The Court then went on to hold that Raphael Oberti could benefit from a mainstream setting and does not significantly impair the education of others, and further poses no danger to others.  There was a further but completely unnecessary observation that “inclusion is a right, not a privilege for a select few,” which zealous inclusionists repeat over and over in hearings and staffings.  It is clear from the opinion that when the judge used the term “inclusion” he was using it interchangeably with the term “mainstreaming.”  But it is equally clear that this last quoted phrase about inclusion was dicta.

Oberti Three – The Appellate Case [filed May 28, 1993, Third Circuit]

The court (different judge) goes out of his way in this opinion, on reviewing the trial judge, to decline the use of the term “inclusion” because that is not the term that the Individuals With Disabilities Education Act uses.  The Court  held that the district has the burden of proof regardless of who started the process, and further observes that there is, in fact, a “tension” between mainstreaming and individualization as discussed in the Daniel R.R. and Greer cases.  Citing Daniel R.R., the Court stated

We recognize that regular classes will not provide an education that accounts for each child’s particular needs in every case.

Citing Rowley, the court further states

We also recognize that in assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the states.

This last excerpt is a clear slap in the face to the trial judge who wrote the previous two opinions.  It was an admonishment of the trial judge not to impose his own values upon state procedures.

At LEXIS page 15 the Court adopts the two-part Daniel R.R. test:

1.  Is education in a regular classroom with the use of supplemental aids and services achievable satisfactorily, and if not,

2. Is the child given the maximum appropriate mainstreaming opportunities wherever possible?

The Appellate Court emphatically rejects the Roncker test adopted by the trial court, i.e., if services at the separate school are superior, can they be transferred to the public setting?

It was clearly held that districts must consider whether the child is appropriate for the regular classroom and compare the benefits of mainstreaming vs. separate classes.  Districts must further consider possible negative effects on other students (other than taking more teacher time).  It was held that the district did not follow these simple requirements, and the mere need for modification of the continuum is not enough to justify placement in a self-contained setting.

WHEN ARE DISTRICTS NOT REQUIRED TO MAINSTREAM STUDENTS?

First, remember that even though the Assistant Secretary of Education has indicated that her Department (OSERS) is going to adopt the Oberti, case, it can only be assumed that the case referred to is the appellate case and not the trial level case.  Consequently, the Education Department is adopting the traditional LRE analysis, as it always has.

Districts are generally not required to mainstream a student who:

1.  Substantially interferes with the learning of other even with supplemental services (see Greer);

2. Threatens the safety of other students, or of the disabled student;

3. Will require so much modification in the curriculum that the regular program has to be altered beyond recognition (Lachman).

However, districts must ask the question whether supplemental aids and services might be provided which will negate such effects.  There is an obligation to serve all students, even those who do not fit neatly into existing programs, as that is what the Rowley case was all about.

CONCLUSION

Proponents of Inclusion seem to look to the Oberti decision as the model decision favoring inclusion, but they always cite the pre-appellate opinions.  This interpretation can only be based upon a half-reading of the decisions.  It is true that many of the presumptions used by the court point out the alleged evils of segregating disabled children.  But this does not result in a ringing condemnation of the scheme established under IDEA.  Upon analyzing the IDEA and applying its mandates, the appellate court reaches a very orthodox conclusion: that the child=s appropriate placement is determined by a consideration of the entire continuum of placements available, including self-contained settings.  The court further stays in line with IDEA by reaching a conclusion that has been made time and again by other courts: that separate settings are to be considered only when the child cannot feasibly be educated in a mainstream setting.  Thus despite a poor choice of premises and semantics, the decision is, in short, a rather unremarkable analysis of the IDEA, instead of a polemic mandating immediate inclusion of all children in the regular education setting.

RAMIFICATIONS OF THE HOLLAND CASE

In recent years, the courts have taken an increasingly close look at the meaning of the Least Restrictive Environment (LRE) component of the Individuals With Disabilities Education Act (“IDEA”).  Some confusion has resulted, as the Federal circuits have yet to take a unified approach to the analysis of least restrictive environment, especially when examining the debates surrounding Inclusion.  Into the midst of this, perhaps even greater confusion has been added with the decision handed down by the U.S. Ninth Circuit Court of Appeals in Sacramento City Unified School District v Rachel H., 14 F3d 1398 (1994)), the so-called Holland case.  The decision made in Holland has added another type of analysis of the least restrictive environment component.

FACTS

The central issue in this case  concerned the appropriateness of an IEP, recommended by the district, which placed the child, Rachel Holland, half-time in a self-contained special education class and half-time in a mainstream class. Rachel was a seven-year-old Down’s Syndrome child at the time the initial due process request was filed in 1990.  The parents had requested the school district to place Rachel in a full-time regular education class with the addition of a part-time aide.  As the district believed that Rachel would require greater support due to her I.Q. of 44, the district recommended half-time in self-contained class and half-time in a mainstream placement.  The Hollands maintained their disagreement and filed for a due process hearing, after which they placed Rachel in a regular kindergarten class at a private school.

In the California equivalent of the Illinois Level I Due Process Hearing, the hearing officer decided that Rachel had benefited from her regular kindergarten class, especially due to the benefit she was receiving through “imitating and mimicking” her nondisabled peers.  Subsequently, the hearing officer ordered Rachel’s placement in a full-time mainstream setting.

The school district immediately appealed the determination to the Federal District Court.  The Federal District Court in its decision at 786 F.Supp. 874 (E.D. Cal 1992), upheld the decision of the hearing officer finding that Rachel would benefit educationally and would receive nonacademic benefits by being in the mainstream setting.  Additionally, the district court indicated that the total effect of Rachel’s presence in the classroom would not adversely affect her nonhandicapped peers, nor would the cost of implementing a placement with the required supports be prohibitively expensive.  In response, the school district appealed to the Ninth Circuit Court of Appeals which resulted in the present decision.

ANALYSIS

In its relatively brief opinion the Court of Appeals recapped the facts stated above, then turned its attention to an analysis of what the appropriate standard should be in determining the least restrictive environment component.  Noting that there has been a difference of opinion among the Federal circuits in using the tests stated in the Daniel R.R. case, and the Roncker case, the court examined the somewhat different analysis applied by the Federal District Court in the Holland case.  Noting that the District Court had observed similarities in both the Daniel R.R. and Roncker approach, the court adopted the District Court’s standard of review which balanced four factors:

(1)  The educational benefits of placement in a full time regular class;

(2)  The nonacademic benefits of such placement;

(3)  The effect the child has on the teacher and children in the regular class;

(4)  The cost of mainstreaming the child.

The court then examined each of these factors in order.

The court, with very little additional discussion, adopted wholesale the findings of the District Court.  Noting that the lower court had placed more credibility on the family’s experts and upon Rachel’s private school teacher, the Court of Appeals refused to disturb the findings of the District Court, which indicated that Rachel was benefiting from full-time placement in a mainstream class.  Furthermore, the court with very little discussion also adopted the District Court finding that the recommendation of Rachel’s teacher at the private school should be adopted, and that Rachel should receive the support of a part-time aide in the mainstream setting.

With almost no analysis of the facts relating to the effect Rachel had on her teacher and other children in the regular class, the court devoted its most extensive analysis to issues of cost.  But once again, the Court of Appeals seemed to sidestep the analysis it adopted by a discussion of the district’s failure to “follow up” on the paperwork that the district had to file in order to obtain a funding waiver from the California State Department of Education.  Rather than addressing the issue of whether the district was at risk of losing potentially upwards of $200,000 for the cost of Rachel’s placement, the court focused upon the district’s failure to file an appropriate funding waiver, and by implication indicated that cost of mainstreaming Rachel would not be prohibitive.  Thus with a very limited analysis the court appeared to adopt the lower court’s conclusions wholesale, and maintained Rachel’s placement in the mainstream setting.  However, the Court of Appeals did note that its decision was restricted to a determination of the appropriateness of Rachel’s placement at the time the due process request was filed in 1990, and reached no conclusion about the appropriateness of any placement for Rachel in 1994.

CONCLUSION

Proponents of inclusion seem to look to the Oberti and Holland decisions as model decisions favoring “inclusion,” but they always cite pre-appellate opinions or unbalanced language.  This interpretation can only be based upon a half-reading of the decisions.  It is true that many of the presumptions used by the Oberti court point out the alleged evils of segregating disabled children.  But this does not result in a ringing condemnation of the scheme established under IDEA.  Upon analyzing the IDEA and applying its mandates, the Oberti appellate court reaches a very orthodox conclusion:  that the child’s appropriate placement is determined by a consideration of the entire continuum of placements available, including self-contained settings.  The court further stays in line with IDEA by reaching a conclusion that has been made time and again by other courts:  that separate settings are to be considered only when the child cannot feasibly be educated in a mainstream setting.  Thus despite a poor choice of premises and semantics, the decision is, in short, a rather unremarkable analysis of the IDEA, instead of a polemic mandating immediate inclusion of all children in the regular education setting.  The same applies to Holland.

Proponents of inclusion have said that the Holland decision is a “groundbreaking” victory.  However, an examination of this extremely brief opinion tends to create even greater confusion as to how school districts should approach the issue.  Though many aspects of the Holland test reflect the more traditional approach espoused by the courts in Oberti, Daniel R.R., and Greer, 950 F.2d 688 (11th Cir. 1991), the court offers no guidance as to how the various factors play into the overall analysis of determining when a given placement complies with the LRE component of the IDEA.  Moreover, though the court seems to give some weight to cost factors involved with inclusion, it provides no criteria for determining when a placement becomes “too expensive.”  The court furthermore offers no guidance as to why a given placement becomes too expensive (i.e., is it the effect on the children, or is it a more philosophical analysis of what constitutes too much for one particular child to have in the public school system?).  The court’s analysis is particularly disturbing given its willingness to adopt a decision in which the lower court did not follow its own guidelines.  In its decision, the District Court seemed to primarily emphasize the gamut of nonacademic benefits which Rachel was receiving, while entirely bypassing any analysis of the specific academic benefits that Rachel was receiving from an IEP in her mainstream setting.  874 F.Supp. at 880-83.[i]

 


[1] Summary judgment is a determination by the court that no issue of fact exists in a given dispute, and that, based on the facts, judgment as a matter of law can be rendered in favor of the moving party. See Fed.R.Civ.P. 56.  In the present case, the court had to determine whether the facts allowed for judgment in favor of either party.

 

[2] A close analysis of Brown shows that the Oberti court’s comparison is inapposite.  Much of the Brown decision is devoted to debunking the myth of the “separate but equal” doctrine upheld in Plessy v Ferguson, 163 U.S. 537 (1896).  The Brown court underscored the absurdity of suggesting that racially segregated schools with pervasively poorer resources could possibly be equal to most all-white schools.  Here, the “segregated” facilities to which the court referred in 1992 were generally provided with far greater resources, not to mention specialized curricula and trained staff.  Though there is little doubt that the disabled are still subject to bigotry, the facilities to which the court referred are the manifestation of a good-faith effort to implement the IDEA scheme, not some evil conspiracy to closet the disabled.

[3] See e.g., Greer v Rome City School District, 950 F.2d 688 (11th Cir. 1991); Daniel R.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989)

[4] The court also noted, in a little less than half a page, that this analysis would control the Oberti’s claim under ‘504 of the Rehabilitation Act