BROUGHAM BY BROUGHAM v. Town of Yarmouth, Civ. No. 91-0322-P-C.

• Citation: 823 F. Supp. 9
• Decision Date: 28 May 1993
• Docket Number: Civ. No. 91-0322-P-C.
• Parties: Travis BROUGHAM, a minor, by Angela BROUGHAM, his parent and next friend, Plaintiff, v. TOWN OF YARMOUTH and State of Maine, Department of Education, Defendants.
• Court: United States District Courts. 1st Circuit. United States District Court (Maine)

823 F. Supp. 9

Travis BROUGHAM, a minor, by Angela BROUGHAM, his parent and next friend, Plaintiff, v. TOWN OF YARMOUTH and State of Maine, Department of Education, Defendants.

Civ. No. 91-0322-P-C.

United States District Court, D. of Maine.

May 28, 1993.

Richard O'Meara, Murray, Plumb & Murray, Portland, ME, for plaintiff.

F. Paul Frinsko, Bernstein, Shur, Sawyer & Nelson, Portland, ME, for Town of Yarmouth.

Peter Stewart, Asst. Atty. Gen., Augusta, ME, for State of ME.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, Chief Judge.

Plaintiff, Angela Brougham ("Ms. Brougham"), brings this action for her son, Travis Brougham, a thirteen year-old deaf child in the Yarmouth school system, under the Individuals with Disabilities Education Act (IDEA, formerly the Education for All Handicapped Children Act, the EAHCA, or the EHA), 20 U.S.C. §§ 1400 et seq., and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Specifically, in Count I, Plaintiff alleges that the individualized education plan (IEP¹), as initially proposed by the Town of Yarmouth ("the Town") and as modified by the hearing officer, fails to provide Travis with the free appropriate public education to which he is entitled under the IDEA. In Count II, Plaintiff alleges that the IEP, as originally proposed and as modified, is not designed to meet the individual needs of Travis as adequately as the needs of nonhandicapped persons are met and, therefore, fails to provide Travis with an appropriate education, pursuant to 29 U.S.C. section 794 and 34 C.F.R. section 104.33(b).

BACKGROUND

This case arrives in United States District Court subsequent to a state special education due process hearing. Pursuant to her rights under the statute, in the summer of 1991, Ms. Brougham withdrew her consent to the proposed Yarmouth IEP and applied for a special education due process hearing to review the appropriateness of the Yarmouth IEP. Such hearing was held on August 27 and 30, 1991, at the Town Meeting House in Yarmouth, Maine. Ten witnesses gave testimony and forty documents were entered in evidence before Hearing Officer Carol B. Lenna.

The hearing officer found the facts to be as follows:

1. Travis has been educated in the mainstream since first entering public school in 1984. He became a student in the Yarmouth school system in 1987. A review of his educational history shows slow but steady progress in programs which have included individual instruction and classroom instruction with a cued speech interpreter². Travis' expressive and receptive language development and vocabulary acquisition have been a concern throughout his educational history. It is estimated that there is currently a four to five year gap between Travis' language skills and those of his sixth grade hearing peers. (Testimony: Mazzola, Vandermast, Earl; Ex. 4, 7, 8)

2. Travis began wearing hearing aids in June 1981, and began speech therapy and cued speech in July 1981. Sound amplification and a cued speech interpreter have been part of his instructional program at least since 1987. (Ex. 3)

3. The use of sign language to augment Travis' language acquisition has been suggested since 1988. Observations at that time indicated a concern for Travis's ability to function in a classroom given his gaps in language, a concern that his language base was insufficient to use cued speech effectively, and that the amount of individual instruction required by Travis was isolating for him. Ms. Brougham has consistently rejected suggestions that sign language be introduced or that partial-day placement at Baxter School for the Deaf be considered. (Testimony: Vandermast; Ex. 6, 7, 8, 10, 12, 15, 16, 17, 25, 27)

4. In grades 4 and 5, gradual but consistent progress was noted in progress reports and teacher observations. No significant change in program is apparent, although the proficiency of the cued speech interpreter was noted by several observers. (Testimony: Carter, Vandermast, L. Smith; Ex. 22, 24, 26, 28, 29, 630)

5. In 1988, Travis is evaluated and found to "display a profile similar to that of a hearing impaired student with concurrent learning disability." In 1991, the Clarke School for the Deaf evaluation of Travis stated that "the results ... indicate that Travis ... does not exhibit any behaviors typical of a student with a learning disability." (Ex. 17, 34)

6. Observations and evaluations note that Travis is an inconsistent and sometimes inaccurate cuer but that his skills have improved. Travis' mother is described as a fluent cuer. His cued speech interpreter is described as highly proficient. (Testimony: Mazzola, Vandermast; Ex. 7, 17, 29, 33)

7. In May 1991, Travis was evaluated by the Clarke School for the Deaf. The evaluation was extensive, including an audiological assessment, speech assessment, psychological assessment, language assessment, and an academic assessment. The evaluation confirmed Travis' severe language deficit. The report noted that he does not have the language skills necessary for successful mainstreaming into the sixth grade with his hearing peers. It was also noted that Travis' understanding of language appears to increase when he is provided with interpreting through cued speech.

Among other things, the speech assessment noted that "the effectiveness of Travis' communication attempts ranged greatly depending on the amount of supplemental information available to the listener." "Since he exhibited significant speech production errors, it was essential to rely on other factors to understand his speech." The academic assessment places Travis well below grade level in reading, with reading comprehension at approximately a 2.6 grade level. Math computation was on grade level. The summary includes three pages of educational recommendations to address Travis' educational deficits.

The psychological examiner comments on feelings of anger and frustration which Travis "may possess." However, an objective behavior rating scale indicates that in the school setting, Travis presents himself with average to above average levels of social and emotional adjustment. She also notes that Travis "appears to gain a great deal of esteem and confidence form his participation in sports activities, and he appears to gain much security through his positive relationships with his mother, teachers, and peers."

The individual assessment summaries detail a number of specific interventions to address Travis' identified deficits. In the conclusion, the evaluation recommends that Travis should be placed in a full-time program for oral hearing impaired students. (Ex. 34)

Special Education Due Process Hearing Decision, pp. 3-4.

The hearing officer issued her decision on September 18, 1991, and ordered that:

1) the Yarmouth pupil evaluation team ("PET") meet within fifteen days of the decision "to modify the present IEP to review present evaluative material and include any additional goals and objectives deemed necessary to address Travis' need to increase language acquisition;" and

2) the IEP shall include "partial placement at the Baxter School for the Deaf for the English/Reading, and Science/Social Studies contents of Travis' program," with a cued speech interpreter in attendance at both locations.

Special Education Due Process Hearing Decision, pp. 5-6. In response to the hearing officer's order, Yarmouth modified Travis's IEP. The revised IEP, which is at issue in the case at bar, provides for Travis's school day to be divided between mainstream instruction at Yarmouth school and a total communication program at the Baxter School for the Deaf ("Baxter").³ A cued speech interpreter would be provided at each facility.

Pursuant to 20 U.S.C. section 1415(e)(2), Plaintiff seeks judicial review of these administrative findings. The stated purpose of the IDEA is to afford all children with disabilities a "free, appropriate public education which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(c). The parties disagree sharply over whether the revised IEP constitutes an "appropriate" education for Travis as required by statute.⁴ Plaintiff alleges that the revised IEP, which splits Travis's school hours between mainstream classes at Yarmouth public school and a total communication program at Baxter School for the Deaf, fails to provide an "appropriate" education for Travis because Travis is an oral child in need of intensive oral language training integrated throughout his curriculum, as well as exposure to other oral hearing impaired children, neither of which is adequately provided in the proposed IEP.⁵ Further, Plaintiff fears that instead of focusing on closing up the holes in his linguistic development, Travis will be immersed in a whole new mode of communication (sign language) which will distract him from the more immediately necessary language exercises.⁶ Plaintiff argues that, given his specific educational needs, the only appropriate educational placement for Travis is a full-time oral program for the hearing impaired, the closest of which is the Clarke School for the Deaf ("Clarke" or "the Clarke School") in Northampton, Massachusetts. Such a placement, and the intensive language development program it encompasses, would be necessary, they argue, only for a few years, after which Travis could return to a mainstream classroom.

The Town counters that the proposed IEP does provide Travis with an appropriate education as mandated by statute. The Town argues that dual placement in both Yarmouth public school and Baxter School for the Deaf ("Baxter") incorporates the statute's strong legislative preference for mainstreaming, places Travis in the least restrictive environment, and provides Travis with what is statutorily required—a reasonable opportunity to derive educational benefits. Further, the Town argues that this is really a case about educational methodology, and, under the IDEA, such questions are to be determined by...