Opinion
Civil No. 00-237-AS
October, 2000
OPINION
Vikki Bair ("Bair"), the mother of C.B., a "child with a disability" for the purposes of the Individuals with Disabilities Education Act ( 20 U.S.C. § 1401 et seq.) ("IDEA"), appeals the order issued by defendant Molalla River School District (the "District") changing C.B.'s school placement from the Tucker Maxon Oral School ("Tucker") to Molalla High School (the "High School") for the 1999-2000 academic year. Bair contends that the High School was not an appropriate educational placement for C.B. and that the District should reimburse her for the cost of sending C.B. to Tucker for the 1999-2000 academic year.
The caption of the action lists Irven Bair, C.B.'s father, as a co-plaintiff. However, in an affidavit presented by the District, Mr. Bair states that he is not a participant in this litigation and that he does not approve of his wife's decision to appeal this matter. He is currently of the opinion that neither Tucker or the High School is the best place for C.B. but feels that she should attend a local Christian high school: Clarkes Country Christian School.
BACKGROUND
This case comes to the court as a request for de novo review of the final order of Hearing Officer David Lackey finding that the District offered C.B. "an appropriate educational placement in the least restrictive environment for the 1999-2000 school year." Lackey prepared detailed Findings of Fact which neither party disputes to any great degree. Accordingly, the court adopts Lackey's factual findings as set forth below.
1. C.B. is a 14-year old girl who, due to a hearing impairment and mild cerebral palsy, has experienced significant delays in her development. Specifically, she has a profound bilateral sensory-neural hearing loss. She also has an orthopedic impairment, due to mild left hemiparesis cerebral palsy. C.B.'s cognitive ability is in the borderline range of intellectual functioning. As a result of these disabilities, C.B. has been identified and evaluated, since the age of six, as being a child who is eligible for special education and related services.
2. C.B. attends Tucker. She has been attending Tucker since she was 18 months old. Tucker is located near but outside the District. Tucker is a private school for hearing impaired and deaf students. It is dedicated to teaching deaf children to learn to speak and to maximize their oral communication skills. The student population is therefore primarily deaf or hearing impaired. Students range from infancy (18 months) through eighth grade, although Tucker is licensed to teach students to the age of 21. The student population therefore is below high school age with just a few exceptions, like C.B. Tucker does not have any transition services available internally, such as a vocational education program, nor does it have any transition services available through any linkages with other schools, or agencies. Furthermore, Tucker has only a limited mainstreaming capacity through a local parochial school. The District has been paying for C.B.'s placement at Tucker since the 1990-91 school year, when by reason of her age and disabilities, she would otherwise have been attending a public school in the District.
3. In her 1998-1999 school year at Tucker, C.B. was in a blended class which included seven children with hearing loss and three children with normal hearing, most of whom were younger than her. This school year (the 1999-2000 school year) at Tucker, she continues to be in a blended class of children which includes hearing and non-hearing children, most of whom are younger than her. She has classes in reading, writing, health, social studies, math, science, basic skills, and skill builders. In her speech and language class, there are 16 students most of who are much younger than her. In her reading class, there is only one other student who is also 14 years old. In her writing and health class, there are 8 students, one of whom is 14 years old and another 13 years old. In her social studies class, there are three other students, one who is 11 and the other who is 12. Her speech and language class is held in a large classroom and includes 16 other students. Her P.E. class includes 20 other students. She is assigned projects everyday, which she works on independently. However, after all her years at Tucker, she is only at the second to third grade level in essential basic skills such as reading and math. She is also well behind in her social skills, compared to her age-appropriate peers, disabled and non-disabled.
4. The District convened an individualized education program ("IEP") meeting on September 2, 1999, to review existing information about C.B., to review her existing IEP and placement, and to consider her transition needs as a child at age 14. Before this meeting, the District took steps to ensure that C.B.'s parents were afforded an opportunity to participate. The District notified the parents early enough so they could attend at a mutually agreed time and place. The District also provided the parents information that detailed the purpose, time, and location of the meeting and who would be in attendance.
5. The IEP meeting was attended by the parents of the child, accompanied by their attorney, and by the child's teacher at Tucker, George Fortier. They were members of the IEP team and participated in making decisions regarding the content of the IEP and in the child's educational placement.
6. The IEP meeting was also attended by District representatives including; Michael Fickless, the Principal of the High School; Patricia Jackson, the Director of Supported Education for the District; Phyllis Shaver, a Learning Specialist at the High School, Craig Casterline, a regular education teacher at the High School; and Larry Whitson, supervisor, Columbia Regional Program. The representatives were qualified to provide, or supervise the provision of specially designed instruction to meet the unique needs of children, like C.B., with disabilities; they were also knowledgeable about the general curriculum at the High School; and, they were knowledgeable about the resources available to disabled children, like C.B., through the District or its supporting agencies, as well as various placement options.
7. In reviewing C.B.'s IEP, the team considered the strengths of the child and her parents' concern for enhancing the education of their child. The team also considered the results of the child's most recent evaluations, including information provided from the parents and from their family therapist, Robert Loveland, PhD, a clinical psychologist. The team also considered the child's communication needs and her need for assistive technology devises and services, including information provided by Tucker's audiologist, Arlie Adam. Because the child is now almost 15 years old, the team also considered her transition services needs.
8. The IEP team determined that the content of the child's existing IEP should be revised slightly. This revised IEP, among other things, contained the following information: It identified her present level of educational performance in the area of language, reading, math, writing, and speech. It also established certain goals that the child was expected to achieve in the area of language, reading, math, writing, and speech. Furthermore, it detailed the special education services that the District would provide the child in the 1999-2000 school year, as well as supplementary aids and services to be provided to the child, or program modifications to be provided the child so that she could advance appropriately towards her annual goals. Mr. George Fortier, the child's regular education teacher at Tucker, actively participated in reviewing and revising the child's IEP. For the most part, this revised IEP was the same as the child's existing IEP, dated May 13, 1999, and, for this reason, the child's parents did not take umbrage at the goals, objectives, and criteria set forth in this revised IEP.
9. The IEP team also determined that the child's educational placement should be changed from Tucker to the High School for the 1999-2000 school year. In making this determination, the IEP team considered a number of placement options, which ranged from having C.B. remain in her existing out-of-District placement at Tucker in a self-contained classroom to having C.B. placed at the High School in a regular classroom with consultation services. The IEP team also considered supplementary services, such as a resource room and itinerant instruction.
10. The IEP team, in deciding among placement options, rejected the option of having C.B. placed at the High School in a regular classroom with consultation services. This placement option was rejected because the IEP team decided that this option would not provide C.B. the level of support she required to make adequate progress towards her education goals, nor the protected environment she required, due to her emotional fragility.
11. The IEP team also rejected the option of having C.B. remain in her existing out-of District placement at Tucker in a self-contained classroom. This placement option was rejected because the IEP team decided that; One, her continuing placement at Tucker did not provide C.B. an adequate opportunity to be educated with children her own age who are not disabled; (2) her continuing placement at Tucker did not provide her with an adequate curriculum to make reasonable progress toward her transition goals and career planning objectives; and, (3) her continuing placement at Tucker did not provide her adequate transition services.
12. The IEP team, in deciding among placement options, finally selected the option that placed C.B. at the High School in a regular education setting with provisions being added to address her unique educational and transitional needs, such as (1) a curriculum specifically tailored to C.B.'s individual educational needs; (2) supplementary services, including resource room instruction, with small group one-on-one instruction, and itinerant instruction from the Columbia Regional Program for the deaf and hearing impaired; and (3) transition services, including vocational training. The IEP team selected this placement option because it offered C.B. the least restrictive environment in which she could make adequate progress towards her IEP goals and because, at the same time, it kept her in a fairly protected environment consistent with the environment she was used to at Tucker.
13. The child's parents acknowledged that this revised IEP would provide C.B. educational benefit; however, they strongly disagreed with the IEP team's placement decision, requiring that their child be moved from Tucker to the High School. As a result of their disagreement, the parents requested a due process hearing to challenge the team's placement decision. They claim that their child's placement at the High School would have a harmful effect on her, and, on the quality of services she needs to make adequate progress towards her IEP goals. In particular, they claim that their child cannot cope in a high school environment, academically or emotionally, due to her disabilities.
14. The District, at the time of the hearing, sought to demonstrate that C.B.'s proposed placement in a regular educational setting at the High School, when supplemented with appropriate aids and services, was appropriate. [Its] representatives maintained that: (1) the educational benefits available to the child in such a setting were equivalent to or exceeded the benefits available to her at Tucker; (2) the non-academic benefits available to the child in such a setting were equivalent to or exceeded non-academic benefits available to her at Tucker; and (3) the transition services available to the child in such a setting were equivalent to or exceeded any services available to her at Tucker.
15. The District identified and posited the following educational benefits as being available to C.B. if placed in a regular educational setting at the High School with supplemental aids and services. First, if placed at the High School, she would be provided a curriculum specifically tailored to support her progress towards her IEP goals and objectives. Among other things, this curriculum would be specifically designed to teach her independent living skills, such as, instruction of skills essential to daily living and skills essential to work readiness and discipline. Second, if placed at the High School, she would be provided services specifically tailored to support her progress towards her IEP goals and objectives. She would be placed in a self-contained classroom — the school's resource room — where she would receive direct instruction in a small group or one-to-one setting targeted specifically towards her IEP goals. She would also be provided with an aide who would accompany her and assist her if she should choose to participate in any regular classroom settings by taking an elective. She would be taught by and counseled by educators who, by training and experience, are specialists in working with children, like C.B., who have multiple disabilities. She would also have access to services provided the District by the Columbia Regional Program and its staff, including but not limited to: (1) speech and language specialists who work with children with disabilities, including, like C.B., who are hearing impaired; and (2) school psychologists who, by training and experience, are specialists in working with children with disabilities and in transitioning children with disabilities, including hearing impaired children.
16. The District identified and posited the following non-academics benefits as being available to C.B. if placed in a regular educational setting at the High School with the use of supplemental aids and services. First, if placed at the High School, she would be in a setting where she would be with and around peers her own age, which would offer her the opportunity to develop age-appropriate social skills. Second, if placed at the High School, she would be in a setting where she would be with and around non-disabled peers, which would offer her the opportunity to develop social skills she needs as she transitions to adulthood. Third, if placed at the High School, she would be in a setting where there are a wide variety of electives and extracurricular activities, including community-based and activity-based classes and projects, which would offer her the opportunity to broaden her skills, expand her interests, and explore career opportunities, not otherwise available to her at Tucker.
17. The District identified and posited the following transition services as being available to C.B. if placed in a regular educational setting at the High School with the use of supplemental aids and services. First, if placed at the High School, she would be provided a curriculum specifically tailored towards her transition goals and career objectives. She would receive instruction in social skills and work readiness. This would prepare her to live independently by teaching her the skills of daily living, as well as the skills necessary to interact appropriately and communicate effectively with others. This would also prepare her to adapt to a work environment by teaching her about the necessity of attendance, schedules, completing tasks, and the necessity of interacting appropriately and communicating effectively with supervisors, peers, and customers. Second, if placed at the High School, she would be in a setting that would provide her with needed transition services. Among other things, she would have an opportunity to participate in vocational training, which would include work experience and job training at the High School, as well as work experience and job training through linkages in the local community, all of which is unavailable at Tucker.
18. The child's parents, at the time of the hearing, sought to demonstrate that their child's proposed placement at the High School is inappropriate because it would not provide her with the services she needs, due to her functional limitations. The child's cognitive ability is at only the 2nd or 3rd grade level. This would make if difficult for their child to adjust to a high school setting or follow what is going on in such a setting. The child is also emotionally delayed. This would make if difficult for the child to fit in and be comfortable around her age-appropriate peers who would not share her more pre-adolescent interests. Furthermore, the child, due to her deafness, has difficulty hearing in a regular classroom where there is background noise, or where there is more than one speaker, or where the conversation and information is presented in a more rapid fashion than she can absorb or process.
19. District representatives, however, reported that the IEP team had considered the child's functional limitations, as described at the hearing, and that the team's proposed placement not only addressed all her functional deficits, but provided her with the means, through supplemental aids and services, to make progress towards her educational and transitional goals and objectives, despite all her deficits. These supplemental aids and services were detailed as follows: she would be placed in a self-contained classroom — the school's resource room — where she would receive direct instruction in a small group or one-to-one setting targeted specifically towards her IEP goals. She would also be provided with an aide who would accompany her and assist her if she should choose to participate in any regular classroom settings by taking electives. She would be taught by and counseled by educators who, by training and experience, are specialists in working with children, like C.B., who have multiple disabilities. She would also have access to services provided the District by the Columbia Regional Program and its staff, including but not limited to: (1) speech and language specialists who work with children with disabilities, including children, like C.B., who are hearing impaired; and, (2) school psychologists who, by training and experience, are specialists in working with children with disabilities and in transitioning children with disabilities, including hearing impaired children.
20. The child's parents, at the time of the hearing, also sought to demonstrate that their child's proposed placement at the High School is inappropriate because it has the potential to have harmful effects on her, due to her emotional state. The child is very fragile emotionally, anxiety prone, and shy, all of which has been aggravated by a stressful family situation due to the break up of her parents' marriage. Accordingly, she needs a setting in which she is comfortable, and not subjected to stressful situations or circumstances. She is comfortable with her teachers at Tucker; she is comfortable around other hearing-impaired children who she knows; and, she is comfortable around children younger than herself. Furthermore, due to her emotional fragility, her sense of well being could be irreparably damaged if other students ignored her or made fun of her.
21. District representatives, however, reported that the IEP team had considered the child's emotional fragility, as described at the hearing, and that the team's proposed placement not only addressed her emotional fragility, but provided her with the means, through supplemental aids and services, to cope with her transition from Tucker to the High School. These supplemental aids and services were detailed as follows: She would have access to counselors and school psychologists who, by training and experience, are specialists in working with children with disabilities and adept at transitioning such children intro mainstreamed settings. She would be included in the High School's "Circle of Friends" program where peers her own age, who are particularly caring and social-minded, would be assigned to be-friend her, look-out for her, and introduce her to others, thereby insuring that she not be left socially isolated. Furthermore, district representatives reported that the High School has successfully transitioned other children into mainstream settings, and, as a result of such experiences, they expressed confidence that the teachers and students at the High School would welcome C.B. to the High School and treat her with the same courtesy and respect they have shown other disabled children.
22. The child's parents, at the time of the hearing, also sought to demonstrate that their child's proposed placement at the High School is inappropriate because it would be more, not less, restrictive than that at Tucker. With the exception of any electives, or vocational training, or extracurricular activities, their child would be placed in a self-contained classroom and receive instruction in classes such as: Essential Skills, Work Experience, Speech and Language, Learning Strategies. In her essential skills class, there would be only four other students, one who is 14, one who is 17, and two who are twenty. In her work experience class, there would only three other students, the same three to four students as in her essential skills class. In her speech and language class, she would be by herself with a speech and language instructor from Columbia Regional. In her learning strategies class, she would be with four other students, one who is 15 and reading at the fourth grade level, one who is 16 who is at the third grade level, one who is 17 and is almost at grade level. All of the children in this self-contained classroom are children with disabilities, having substantial learning deficits due to cognitive or communicative disabilities. For example, one of the students has an emotional disability, two students have cognitive disabilities, and one student is autistic.
23. District representatives, however, reported that the IEP team, in assessing the child's educational needs, had determined that she should continue to be in a self-contained classroom, as she had been at Tucker. However, the team also determined that she should have the opportunity to interact with and thereby establish relationships with age-appropriate and non-disabled peers, which is not now available to her at Tucker. The district representatives acknowledged that the child would not have any particular opportunity to interact and establish relationships with age-appropriate and non-disabled peers by being in a self-contained classroom at the High School. However, outside this self-contained classroom, the child would have ample opportunity to interact and establish relationships with age-appropriate and non-disabled peers during recess and lunch periods where she would be among the entire student body. Outside this self-contained classroom, the child would also have ample opportunity to interact and establish relationships with age-appropriate and non-disabled peers by her participation in electives where she would be in a regular class with students her own age who are non-disabled, as well as by her participation in extracurricular activities. Furthermore, the team's proposed placement included supplemental aids and services specifically designed to maximize her association with her age-appropriate non-disabled peers. These supplemental aids and services were detailed as follows: The District, among other things, would include her in the "Circle of Friends" program and, as part of this program, students her age and non-disabled would be assigned to be-friend her, look-out for her, and help her build a connection to the school, its staff, and its student body. The District would also provide here with a one-to-one aide who would be assigned to accompany her to her electives, as well as any of her extracurricular activities, to allow her to effectively participate in a regular classroom settings and to participate in extracurricular activities, with her age-appropriate and non-disabled peers.
24. The child's parents have developed close, personal ties with the staff and with teachers at Tucker, as well as the parents of other students attending Tucker. As mentioned earlier, their child has been attending Tucker since the age of 18 months. By reason of their long association with Tucker, the school has become a second home to them. The parents are closely bonded to the staff and to the parents of other students at Tucker with whom they have shared interests, if not a sense of community. By moving their child to the High School, the parents would suffer the loss of the long-standing relationship they have enjoyed with the staff and teachers at Tucker, as will as with the parents of other students attending Tucker. Thus, the opposition to their child's transfer to the High School, in part, reflects their own sense of loss at having to leave behind their community at Tucker.
The child's hearing is at 90 decibels. She is profoundly deaf, but, due to a cochlear implant, she is able to hear as well as understand and use language, though this is subject to some limitations.
At this time, the school lacks any formal transition services for its students age 14 and above, such as vocational schooling, vocational skills classes, or work experience programs, all of which are necessary for independent living and career development.
Other than through a local Catholic church, the school lacks any formal mainstreaming program that permits its students to associate with their regular education peers from publicly funded schools within the community or neighborhood.
The child's parents did not raise any claim about any procedural deficiencies in revising their child's IEP, nor did they raise any claims about any substantive deficiencies in their child's revised IEP, such as deficiencies in the IEP's goals and objectives, or deficiencies in the amount of services to be provided, or deficiencies in accommodations and modifications.
The Special Education Director for the District, Pat Jackson, evaluated C.B. as quite deficient in her daily living and in her work readiness skills, well below what could be expected of a child with C.B.'s disabilities. She attributed this deficiency to the child's having been kept in a private, small classroom setting and having, in this setting, only associated with younger, not age-appropriate children.
The Special Education Director for the District, Pat Jackson, acknowledged that C.B. should continue to receive her academic instruction in a self-contained classroom, with a small number of other students, as she does at Tucker. Nonetheless, she opined that the District could provide C.B. the same classroom environment in its resource room, and could provide her with instructors and counselors who, by training and experience, are as capable as the staff at Tucker in addressing C.B.'s educational needs.
The Special Education Director for the District, Pat Jackson, acknowledged that, due to her functional limitations, C.B. should continue to receive her academic instruction in a self-contained classroom, with a small number of other students, as she does at Tucker. Nonetheless, she opined that the District could provide C.B. the same classroom environment in its resource room, and could provide her with instructions and counselors who, by training and experience, would be as capable as the staff at Tucker in accommodating her deficits, emotionally and physically, and accordingly, would be as capable as the staff at Tucker in addressing her educational needs.
The essential skills class is designed to assist students in life skills, such as communication, problem-solving, social skills, and provides instruction on academics, such as reading, writing, and math.
The work experience class is designed to assist students in developing vocational skills and job-related tasks, such as time management, scheduling, work discipline, and self-advocacy.
The speech and language class is designed to assist students in oral communication, languages, and proper use of assistive technology devices, such as hearing aids and implants.
The learning strategies class is designed to assist students in developing organizational skills necessary to improve or make more effective their reading and writing skills.
LEGAL STANDARD
Under the IDEA, participating states must ensure that all eligible students receive a free and appropriate public education ("FAPE") which "emphasizes special education and related services designed to meet [the students'] unique needs." 20 U.S.C. § 1400(c) and 1412(1). To implement the mandates of the IDEA, the Oregon legislature enacted O.R.S. Chapter 343, and the State Board of Education promulgated Oregon Administrative Rules Chapter 581, Division 15 (Special Education). O.R.S. 343.221 requires local school districts to provide a FAPE to eligible district students.All disabled children residing in a participating state who are in need of special education and related services must be identified, located, and evaluated. 20 U.S.C. § 1412(2)(C). Thereafter, through a series of public meetings, the state is required to develop an IEP for each child and provide special education and related services in accordance with that child's IEP. 20 U.S.C. § 1401(a)(20) and 34 C.F.R. § 300.350. The first meeting to develop an IEP must be held within 30 days after it is determined that the child is in need of special education and related services. 34 C.F.R. § 300.343(c).
If a parent is dissatisfied with the determination of a school district concerning the identification, evaluation, or educational placement of a child, or claims that the district has denied the child a FAPE, the parent may request a due process hearing. 20 C.F.R. § 1415(b)(2) and (c) and O.R.S. 343.165(2). In Oregon, that hearing is before an independent hearing officer appointed by the Superintendent of Public Instruction. O.R.S. 343.165(5). Any party aggrieved by the hearing officer's decision may seek further review in state or federal court. 20 U.S.C. § 1415(e)(2) and O.R.S. 343.175(2).
This court is empowered to review state administrative decisions under the IDEA and grant such relief as it deems appropriate. 20 U.S.C. § 1415(e)(2) and O.R.S. 343.175(2). This court also has the discretion to award reasonable attorneys' fees to a parent who is a prevailing party. 20 U.S.C. § 1415(e)(4)(B). The court is required to receive the records of the administrative proceedings and hear additional evidence at the request of a party. 20 U.S.C. § 1415(e)(2).
The decision of this court must be based on a preponderance of the evidence. 20 U.S.C. § 1415(e)(2). However, this standard is "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review" and the court must give "due weight" to the state administrative proceedings. Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982).
Appeals under the IDEA are primarily concerned with whether the student was denied a FAPE. A student is denied an FAPE if the IEP is not reasonably calculated to confer educational benefit. Rowley, 458 U.S. at 207; W.G. v. Board of Trustees of Target Range Sch. Dist No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992). No mechanical checklist for determining whether an IEP is so calculated has been developed. However, the Supreme Court has held that a school district satisfies its obligation of providing a FAPE as follows:
by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
Rowley, 458 U.S. at 203-04.
In addition to providing "personalized instruction" and "sufficient support services," a school district is required to place the child in the least restrictive educational environment that the child's disability will allow:
Each public agency shall ensure —
(1) That to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled; and
(2) That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
34 C.F.R. § 300.550(b). The requirement that disabled children must be educated, to the maximum extent appropriate, with nondisabled children is referred to as mainstreaming. The statutes clearly demonstrate "a strong preference for `mainstreaming' which rises to the level of a rebuttable presumption." Daniel R.R. v. State Board of Education, 874 F.2d 1044-45 (5th Cir. 1989).
In reviewing the substantive adequacy of an IEP, "courts must be careful to avoid imposing their view of preferable educational methods upon the States [since that responsibility] was left by the [IDEA] to state and local educational agencies in cooperation with the parents or guardian of the child." Rowley, 458 U.S. at 207. In addition, the school district is by no means obligated to provide the child with the best possible education, but simply must provide the child with basic educational opportunity:
The "free and appropriate public education" to which a disabled child is entitled under the IDEA "does not mean the absolutely best or `potential maximizing' education." . . . Instead, "states are obliged to provide `a basic floor of opportunity' through a program `individually designed to provide educational benefit to the handicapped child.'"
Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 587 (9th Cir. 1992), quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987) and Rowley, 458 U.S. at 201.
DISCUSSION
The parties agree that the "Holland" test applies where, as in this instance, the issue before the court is whether a disabled child should be "mainstreamed" into a regular public school environment with supplemental services. The Holland test requires the consideration of four factors: (1) the educational benefits available to the disabled student in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom; (2) the nonacademic benefits of interaction with children who are not disabled; (3) the effect of the disabled student's presence on the teacher and other children in the classroom; and (4) the cost of mainstreaming the disabled student in a regular classroom. Sacramento City U.S.D. v. Rachel H. (Holland), 14 F.3d 1398, 1404 (9th Cir. 1994).
The Hearings Officer considered the unique facts surrounding C.B.'s situation and determined that she would receive educational benefit at the High School as a result of the curriculum specifically designed for her and implemented with the supplemental aids and services available to the High School; that C.B. would receive non-academic benefits at the High School based on the opportunity to socialize with peers her age and with non-disabled peers and her ability to participate in elective classes and extracurricular activities; and that, in light of the High School's history in successfully mainstreaming other disabled children into the High School, there would be little impact on the teachers or students at the High School. There is no dispute that the cost of the High School is the same as the cost of continuing C.B. at Tucker.
Bair argues that the District did not prove, by a preponderance of the evidence, that C.B. would receive substantial educational benefit by the proposed change in placement. In support of this argument, Bair relies on the testimony of C.B.'s Tucker teachers which she characterizes as evidence that C.B.'s language, communication, cognitive and emotional needs would not be met at the High School and that C.B. would regress if she were transferred.
The record establishes that all of C.B.'s teachers were concerned about her transition to the High School and testified that she would receive a better education at Tucker. However, that is not the standard by which the District's decision is judged. The District is required to provide C.B. with a placement that will allow her to make progress toward meeting her IEP goals in the least restrictive setting. Virtually all of the concerns voiced by the Tucker staff were addressed by the District in the form of a supplemental program or aid.
The one need that C.B.'s teachers testified to that would not be clearly met at the High School is a need for C.B. to be taught with other hearing-impaired children. However, Bair herself testified that she was aware of at least one hearing-impaired child in the resource room where C.B. would be spending most of her time. Additionally, the record establishes that the staff available to teach C.B. at the High School has a wealth of experience teaching hearing-impaired children and would likely be able to overcome the deficiencies in this area, including a school counselor that is a child of deaf parents who would be able to help C.B. with her unique cultural differences.
The resources available to C.B. at the High School are sufficient to support a finding that C.B. would receive educational benefit by attending the High School. She would receive more individualized attention in the resource room and would receive expert assistance necessary to teach her to use and benefit from the cochlear implants. Additionally, she would have the option of taking electives in the general classrooms and would be supplied with an aide to attend the classes with her and provide whatever assistance was needed. Finally, C.B. would receive vocational and life skills training that is not available at Tucker.
Bair also argues that the Hearings Officer failed to properly consider C.B.'s cognitive and emotional fragility and her ability to successfully transition into the High School. The court disagrees. The District acknowledged C.B.'s emotional problems and incorporated measures into her curriculum to help ease the transition. C.B. will attend the majority of her classes in the resource room with three or four other disabled students and will be taught primarily by one or two teachers. This classroom environment is less intimidating than that at Tucker, where she was in classes with up to 20 students and had at least three teachers that she dealt with on a daily basis. Fortier testified that at the beginning of each school year, C.B. was apprehensive of the new students and did not really settle down and feel comfortable for two or three months. While there is no denying that the transition to the High School will be difficult for C.B., the small number of individuals that she will interact closely with on a daily basis is sufficiently limited to allow her to adapt to the High School as she did each year to Tucker.
C.B. will have the opportunity to add class electives to her program as she feels comfortable with the school. Also, she will be afforded the opportunity to participate in after school activities. C.B. will not be forced to engage in these activities, which are not available at Tucker, until she feels that she is ready. When she does decide that the wants to participate, the High School will provide her with an aide to attend the class or activity with her and help her with anything that she needs.
Additionally, C.B. will have the opportunity to interact with non-disabled peers. She will become a member of a group of her peers who have volunteered and been selected to serve as a welcoming group to children such as C.B. While Bair and C.B.'s psychologist are concerned that C.B. will not fit in and will feel ostracized by the students, there is no evidence that such concerns are warranted. The evidence establishes that the High School has successfully mainstreamed a number of disabled children into the High School environment without troubles.
There is also concern that C.B.'s interests, which include Pokeman and Barbie dolls, will prevent her from establishing any meaningful relationships with her peers. Bair testified that she has tried to introduce C.B. to girls her own age but that the difference in interests have prevented the girls from bonding. C.B. is currently spending the majority of her time with disabled children who are younger than she is. Consequently, it is no surprise that C.B. is interested in the things that interest these younger children. Even acknowledging the cognitive difficulties that C.B. suffers from, there is no evidence that, given the chance to interact with girls her own age, C.B. will not find that she has something in common with these girls. It is precisely for this exposure that mainstreaming is preferred under the IDEA.
It is easy to understand why Bair wants C.B. to remain at Tucker. It is a known entity and is comfortable for Bair, and C.B. once she gets through her normal period of adjustment. Bair wants to protect her daughter as much as she can and knows that C.B. will be will taken care of at Tucker. However, the IDEA does not allow the District to accept Bair's choice of school for C.B. The IDEA requires the District to provide C.B. with a placement which will allow her to progress toward her IEP goals in the least restrictive environment that she can handle. The District has met that requirement in this instance and the Hearings Officer properly affirmed the District's decision to place C.B. at the High School with the designated supplemental programs and aids for the 1999-2000 school year.
CONCLUSION
The court hereby AFFIRMS the finding of the Hearings Officer and the District that the High School was the appropriate placement for C.B. for the 1999-2000 school year. Bair's request for an order continuing C.B.'s placement at Tucker for the 1999-2000 school year and for reasonable attorney fees, costs and disbursements is DENIED.