David D. v. Dartmouth School Committee

• Decision Date: 11 September 1984
• Docket Number: Civ. A. No. 83-1753-Z.
• Citation: 615 F. Supp. 639
• Court: U.S. District Court — District of Massachusetts
• Parties: DAVID D. v. DARTMOUTH SCHOOL COMMITTEE, et al.

615 F. Supp. 639

DAVID D. v. DARTMOUTH SCHOOL COMMITTEE, et al.

Civ. A. No. 83-1753-Z.

United States District Court, D. Massachusetts.

September 11, 1984.

Richard F. Howard, Developmental Disabilities Law Center, Boston, Mass., for plaintiff.

Kim E. Murdock, Ass't Atty. Gen., Government Bureau, Boston, Mass., for defendants.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

David D. is a 17-year old adolescent with Downs Syndrome who lives with his parents in Dartmouth, Massachusetts and has received special education services from the Dartmouth Public Schools. He commenced this seven-count action pursuant to the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-20 (EAHCA) following a decision by the defendant Massachusetts Department of Education's Bureau of Special Education Appeals ("BSEA") that the Individual Education Program ("IEP") offered by defendant Dartmouth School Committee ("Dartmouth") for the 1982-83 school year was appropriate for his special education needs, rejecting plaintiff's contention that those needs required a residential setting.¹ Plaintiff seeks judicial review of the BSEA decision and appropriate declaratory and injunctive relief, with costs and attorneys' fees.

20 U.S.C. § 1415(e)(2) directs that in reviewing an administrative decision under the EAHCA "the court shall receive the records of the administrative proceeding, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."

I. The Administrative Findings

The evidence presented at the BSEA hearing included the testimony of David's mother concerning his sexual and aggressive behavior directed at animals and persons in the community, which had led her to believe the nonresidential Dartmouth program to be inadequate to meet his needs. In addition, Mr. Bowman and Dr. Rogoff, a psychologist and psychiatrist who examined David at the Developmental Evaluation Clinic of Children's Hospital Medical Center opined that elimination of this behavior would require a 24-hour a day training program, and Mr. Asztalos, Program Director at the Learning Center for the Multiply Handicapped, described the resident program the Center offered David. On the other hand, David's teacher in the Dartmouth special education program testified to his satisfactory progress and lack of significant behavior problems during the school day, an account corroborated by David's physical education teacher.

The hearing officer, in a careful and thorough opinion, found that plaintiff had shown the ability to control his sexual and aggressive drives within the school setting, and was achieving effective educational progress toward the goals contained in the 1982-83 IEP. She concluded that his breaches of acceptable social behavior outside the structured school situation were isolated, and that he had demonstrated the capacity to generalize his ADL ("activities of daily living") skills at home and in the community. She noted that plaintiff's educational program should be directed towards maximizing his potential for eventual placement in a community-based program or private employment. Because she felt that plaintiff's sexual preoccupation could be a deterrent to his acceptance in such placements, she found that therapy to assist plaintiff in dealing with his sexual feelings was a necessary supportive service. She accepted Dartmouth's proposed amendment to the IEP providing for individual therapy for plaintiff and family counseling for his parents and sister with a licensed clinical social worker, and found that the IEP as amended was adequate and appropriate to meet plaintiff's special educational needs in the least restrictive prototype mandated by the governing statutes. Plaintiff filed this action on July 1, 1983.

II. Evidence Presented at Trial

In addition to the administrative hearing record, the parties offered several witnesses to supplement that record. In accordance with the First Circuit's directive that such evidence must not change the character of the hearing from one of review to a trial de novo, Town of Burlington v. Department of Education, 736 F.2d 773, 790-91 (1st Cir.1984) ("Burlington II") the additional evidence concerned only the time subsequent to the hearing or was offered by witnesses who did not appear at the hearing and was noncumulative.

Dr. Andrea Spencer is Director of Programs at the Doctor Franklin Perkins School ("FPS") in Lancaster, Massachusetts, which serves moderately and severely retarded children, most with behavioral problems. She initially observed plaintiff at Samoset House, a weekend respite placement, in May 1984, and further observed him when he visited FPS on May 23, 1984. His behavior during evaluations of his academic, pre-vocational and speech skills was adequate, but deteriorated during a tour of the school. He refused to follow directions, ran uncontrollably up and down a fire escape and into offices, and leapt repeatedly over a safe in the residential area. He also exhibited sexually provocative behavior, kissing a secretary and touching another staff member's buttocks. Dr. Spencer testified that his behavior was extreme even when compared with that of students with similar cognitive functioning. She stated that his refusal to follow directions and his sexual behavior, if continued, would significantly restrict his future options, since placement in a community residence or workshop requires some internal control.

In her opinion, the overall goal of any special education program is to assist the student to maximize his ability for independence as an adult. She stated that because plaintiff's behavior problems impede his progress toward that goal, even if they occur only outside the classroom, they constitute needs which a special education program must address. Such an educational program should address plaintiff's social and behavioral needs in a consistent way throughout his waking hours. She described the behavior modification technique FPS would use to eliminate plaintiff's unacceptable behavior, by systematically rewarding finite periods of good conduct. In order to be successful, such a program must be carried on every day and throughout the day by trained staff. At FPS plaintiff would receive training in functional academics, speech, art, and music therapy, and adaptive physical education, as well as prevocational training designed to enable him to meet the standards of a sheltered workshop, during the six-hour school day; and engage in activities structured by staff from the close of the school day until his bedtime.

Dr. Spencer opined that the Dartmouth IEP was not sufficient to overcome plaintiff's behavioral problems because it did not provide for a consistently administered program training plaintiff to generalize the social skills he learned in the classroom to situations encountered in all his waking hours. She believed that after a one to two year stay at FPS such an IEP might be adequate for plaintiff's needs, but that at this time those needs require residential placement at an institution such as FPS.

Richard Asztalos, a behavioral specialist at the Learning Center for the Multiply Handicapped ("LC") in Belmont, agreed with Dr. Spencer's assessment of plaintiff's need for a residential placement. At the BSEA hearing he had offered the LC as an appropriate residential program for plaintiff. He testified at the trial that the LC would now not be able to accept plaintiff, since LC's community setting made it impossible adequately to control plaintiff's behavior without devoting an unacceptably high amount of the LC's resources to him. In assessing plaintiff's behavior he relied on his observations of plaintiff during a three-hour evaluative visit to the LC on January 4, 1984. Although plaintiff responded fairly well during his academic evaluation, during later pre-vocational tasks and meetings with other students he refused to respond to directions, hugged several students and grabbed their genitals. While being driven to the residence area of the LC he jumped between the front and back seats of the car and similarly hugged and touched both Mr. Asztalos and the driver. His behavior caused Mr. Asztalos to cancel the rest of the evaluation.

Mr. Asztalos testified that plaintiff's behavior would bar him from acceptance in community programs. He further opined that the Dartmouth IEP was inadequate to enable plaintiff to generalize behavior learned in the classroom to unstructured settings, and that such generalization was a necessary element of any special education program for plaintiff.

Dr. John Paul, a staff psychiatrist at the Children's Hospital Developmental Evaluation Clinic ("DEC") and member of an evaluation team met plaintiff on December 2, 1983 and observed him during his day at the clinic. He testified that during his session with him plaintiff exhibited a continuous preoccupation with sexual themes. On the way to Dr. Paul's office, plaintiff hugged a girl on crutches; only Dr. Paul's prompt action kept her from falling. Plaintiff also made advances toward persons in the waiting room and touched females in an inappropriate manner.

The DEC team concluded that plaintiff needed further diagnostic evaluation and residence in a 24-hour highly structured facility because of his inability to conform to norms of social behavior even for those at his cognitive level. In Dr. Paul's opinion, the Dartmouth IEP would not be sufficient to address plaintiff's need for consistent continuous training, given the frequency and intensity of his unacceptable actions. Even accepting the hearing officer's finding that such incidents were isolated events, Dr. Paul believed that the nature and intensity of plaintiff's actions made residential placement necessary in order for him successfully to learn to control them.

Benjamin Handen, a clinical...