995 F.2d 1204 (3rd Cir. 1993), 92-5462, Oberti by Oberti v. Board of Educ. of Borough of Clementon School Dist.

Docket Nº:92-5462.
Citation:995 F.2d 1204
Party Name:Rafael OBERTI, by his parents and next friends, Carlos and Jeanne OBERTI; Carlos Oberti; Jeanne Oberti, Appellees, v. BOARD OF EDUCATION OF the BOROUGH OF CLEMENTON SCHOOL DISTRICT; William Sherman, individually and in his capacity as Superintendent of the School District of the Borough of Clementon; James P. Dailey; Sara A. Paranzino; Robert H. Mo
Case Date:May 28, 1993
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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995 F.2d 1204 (3rd Cir. 1993)

Rafael OBERTI, by his parents and next friends, Carlos and

Jeanne OBERTI; Carlos Oberti; Jeanne Oberti, Appellees,

v.

BOARD OF EDUCATION OF the BOROUGH OF CLEMENTON SCHOOL

DISTRICT; William Sherman, individually and in his capacity

as Superintendent of the School District of the Borough of

Clementon; James P. Dailey; Sara A. Paranzino; Robert H.

Moran; James D. Murray; Irene J. Buchalter; Harry F.

Gahm; Earl F. Hettel; Ora Lee Wooster, III; William

Norcross, individually and in their capacities as members of

the Board of Education of the Borough of Clementon School

District; Steven K. Leibrand,

Board of Education of the Borough of Clementon School

District, William Sherman, individually and in his capacity

as Superintendent of the School District of the Borough of

Clementon, Steven K. Leibrand, Earl F. Hettel, Sara A.

Paranzino, Robert H. Moran, James D. Murray, Harry F. Gahm,

Irene J. Buchalter, Ora Lee Wooster, III, and William

Norcross, individually and in their capacities as members of

the Board of Education of the Borough of Clementon School

District, Appellants.

No. 92-5462.

United States Court of Appeals, Third Circuit

May 28, 1993

Argued March 9, 1993.

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Frank L. Laski (argued), Penelope A. Boyd, Public Interest Law Center of Philadelphia, Philadelphia, PA, for appellees.

Thomas J. Murphy (argued), Marlton, NJ, for appellants.

Before: BECKER, GREENBERG, and WEIS, Circuit Judges.

OPINION

BECKER, Circuit Judge.

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 (formerly the "Education for All Handicapped Children Act"), provides that states receiving funding under the Act must ensure that children with disabilities are educated in regular classrooms with nondisabled children "to the maximum extent appropriate." 20 U.S.C. § 1412(5)(B). Plaintiff-appellee Rafael Oberti is an eight year old child with Down's syndrome who was removed from the regular classroom by defendant-appellant Clementon School District Board of Education (the "School District") and placed in a segregated special education class. In this appeal, we are asked by the School District to review the district court's decision in favor of Rafael and his co-plaintiff parents Carlos and

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Jeanne Oberti concerning Rafael's right under IDEA to be educated in a regular classroom with nondisabled classmates. This court has not previously had occasion to interpret or apply the "mainstreaming" requirement of IDEA. 1

We construe IDEA's mainstreaming requirement to prohibit a school from placing a child with disabilities outside of a regular classroom if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. In addition, if placement outside of a regular classroom is necessary for the child to receive educational benefit, the school may still be violating IDEA if it has not made sufficient efforts to include the child in school programs with nondisabled children whenever possible. We also hold that the school bears the burden of proving compliance with the mainstreaming requirement of IDEA, regardless of which party (the child and parents or the school) brought the claim under IDEA before the district court.

Although our interpretation of IDEA's mainstreaming requirement differs somewhat from that of the district court, we will affirm the decision of the district court that the School District has failed to comply with IDEA. More precisely, we will affirm the district court's order that the School District design an appropriate education plan for Rafael Oberti in accordance with IDEA, and we will remand for further proceedings consistent with this opinion. We do not reach the question, decided by the district court in favor of Rafael and his parents Carlos and Jeanne Oberti, whether § 504 of the Rehabilitation Act also supports relief, since, in view of our decision under IDEA, resolution of that issue is not necessary to the result.

I. FACTUAL AND PROCEDURAL BACKGROUND

  1. Rafael Oberti's educational history

    Rafael is an eight year old child with Down's syndrome, a genetic defect that severely impairs his intellectual functioning and his ability to communicate. Now and throughout the period in question, Rafael and his parents have lived within the Clementon School District, in southern New Jersey. Prior to his entry into kindergarten, Rafael was evaluated in accordance with federal and state law by the School District's Child Study Team (the "Team"). See 20 U.S.C. § 1412(2)(C); N.J.A.C. 6:28-3.1--6:28-3.4. 2 Based on its evaluation, the Team recommended to Rafael's parents that he be placed in a segregated special education class located in another school district for the 1989-90 school year. The Obertis visited a number of special classes recommended by the School District and found them all unacceptable. Thereafter the Obertis and the School District came to an agreement that Rafael would attend a "developmental" kindergarten class (for children not fully ready for kindergarten) at the Clementon Elementary School (Rafael's neighborhood school) in the mornings,

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    and a special education class in another school district in the afternoons.

    The Individualized Education Plan (IEP) developed by the School District for Rafael for the 1989-90 school year, see 20 U.S.C. §§ 1401(a)(20), 1414(a)(5); N.J.A.C. 6:28-3.6; infra n. 16, assigned all of Rafael's academic goals to the afternoon special education class. In contrast, the only goals for Rafael in the morning kindergarten class were to observe, model and socialize with nondisabled children.

    While Rafael's progress reports for the developmental kindergarten class show that he made academic and social progress in that class during the year, Rafael experienced a number of serious behavioral problems there, including repeated toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting and spitting on other children. On several occasions Rafael struck at and hit the teacher and the teacher's aide.

    These problems disrupted the class and frustrated the teacher, who consulted the school psychologist and other members of the Child Study Team to discuss possible approaches to managing Rafael's behavior problems. The teacher made some attempts to modify the curriculum for Rafael, but Rafael's IEP provided no plan for addressing Rafael's behavior problems. Neither did the IEP provide for special education consultation for the kindergarten teacher, or for communication between the kindergarten teacher and the special education teacher. In March of 1990, the School District finally obtained the assistance of an additional aide, which had been requested by the parents much earlier in the school year, but the presence of the extra aide in the kindergarten class did little to resolve the behavior problems. According to Rafael's progress reports for the afternoon special education class, and as the district court found, Rafael did not experience similar behavior problems in that class.

    At the end of the 1989-90 school year, the Child Study Team proposed to place Rafael for the following year in a segregated special education class for children classified as "educable mentally retarded." Since no such special education class existed within the Clementon School District, Rafael would have to travel to a different district. The Team's decision was based both on the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class and on the Team's belief that Rafael's disabilities precluded him from benefiting from education in a regular classroom at that time.

    The Obertis objected to a segregated placement and requested that Rafael be placed in the regular kindergarten class in the Clementon Elementary School. The School District refused, and the Obertis sought relief by filing a request for a due process hearing. 3 The parties then agreed to mediate their dispute, pursuant to New Jersey regulations, as an alternative to a due process hearing. See N.J.A.C. 6:28-2.6. Through mediation, the Obertis and the School District came to an agreement that for the 1990-91 school year Rafael would attend a special education class for students labeled "multiply handicapped" in a public elementary school in the Winslow Township School District ("Winslow"), approximately 45 minutes by bus from Rafael's home. As part of the agreement, the School District promised to explore mainstreaming possibilities at the Winslow school and to consider a future placement for Rafael in a regular classroom in the Clementon Elementary School. 4

    The special education class in Winslow that Rafael attended during the 1990-91 school year was taught by an instructor and an

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    instructional aide and included nine children. Although Rafael initially exhibited some of the same behavioral problems he had experienced in the Clementon kindergarten class, his behavior gradually improved: he became toilet trained and his disruptiveness abated. Rafael also made academic progress. However, by December of 1990, Rafael's parents found that the School District was making no plans to mainstream Rafael. The Obertis also learned that Rafael had no meaningful contact with nondisabled students at the Winslow school. 5

  2. The due process hearing

    In January of 1991, the Obertis brought another due process complaint, renewing their request under IDEA that Rafael be placed in a regular class in his neighborhood elementary school. A three-day due process hearing was held in February of 1991 before an Administrative...

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