VISCO BY VISCO v. School Dist. of Pittsburgh, Civ. A. No. 84-1377

• Decision Date: 28 April 1988
• Docket Number: Related No. 84-1378.,Civ. A. No. 84-1377
• Citation: 684 F. Supp. 1310
• Parties: Jennifer VISCO, a minor, by Rita Mae VISCO, parent and guardian, and Rita May Visco, in her own right, Plaintiffs, v. SCHOOL DISTRICT OF PITTSBURGH, et al., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

684 F. Supp. 1310

Jennifer VISCO, a minor, by Rita Mae VISCO, parent and guardian, and Rita May Visco, in her own right, Plaintiffs, v. SCHOOL DISTRICT OF PITTSBURGH, et al., Defendant.

Civ. A. No. 84-1377, Related No. 84-1378.

United States District Court, W.D. Pennsylvania.

April 28, 1988.

Ralph J. Sanders, Pittsburgh, Pa., for plaintiffs.

David Dille, Asst. Sol., Pittsburgh, Pa., for School Dist. Pittsburgh, Pittsburgh Intermediate Unit 2 Wm. W. Penn.

Thomas Halloran, Deputy Atty. Gen., Pittsburgh, Pa., for Dept. of Educ. and Robert C. Wilburn.

OPINION

ROSENBERG, District Judge.

I do not refer to this case as "this matter" because of the nature of the case and our fundamental concern for tender children. Additionally, I look at this case as symbolic of that which is a national deficiency. The President and United States Congress recognized this deficiency and created in 1986, the Commission on Education of the Deaf. The Commission's 144-page report, "Toward Equality: Education of the Deaf" was made to the President and Congress. COMMISSION OF EDUCATION OF THE DEAF, TOWARD EQUALITY: EDUCATION OF THE DEAF (1988). The Commission reports that there are a meaningful number of young deaf children who are not receiving a free appropriate education with the full benefits as Congress had intended they should have when it enacted The Education of the Handicapped Act of 1975.

This case is brought before me by Mrs. Rita Mae Visco on behalf of two of her minor children, Jennifer Visco, age 13, date of birth, August 20, 1974, and Rene Visco, age 11, born on September 15, 1976. Mrs. Visco, Jennifer and Rene are all hearing-impaired. Both children reside with their mother in the School District for the City of Pittsburgh.

Jennifer and Rene continue to attend DePaul Institute, a private school that specializes in educating the hearing-impaired. Only hearing-impaired students attend DePaul. Jennifer and Rene have both progressed from grade to grade at DePaul and both are good students.

In the fall of 1981, the School District evaluated Rene and Jennifer and produced an Individualized Educational Plan (IEP) for each student. Based on each child's IEP, the School District recommended that Jennifer should be placed in a special program for the hearing-impaired at the Liberty School and that Rene should be placed in a different program for the hearing-impaired at the Beechwood School. The Liberty School and the Beechwood School have programs for the hearing-impaired developed by the State, and these programs are held presumably put into effect in the defendant Pittsburgh Public School System.

Visco rejected both proposals and requested an administrative hearing regarding the placement of both children. A hearing was held for both children, where the hearing officer of the Department of Education agreed with the decision of the Pittsburgh School District to move Jennifer and Rene from DePaul to the Liberty and Beechwood Schools, respectively. The Hearing Officer's decision was then appealed by Visco and affirmed by the Secretary of Education of the Commonwealth of Pennsylvania. Mrs. Visco rejected the Secretary's decision and filed the instant action with this court.

Visco, as plaintiff, avers in her complaint that DePaul provides for the special needs of Jennifer and Rene. Furthermore, she objects to the removal of Jennifer and Rene from DePaul. Plaintiff claims that the city schools, Liberty and Beechwood, do not have teachers who possess the functional abilities and communications skills that her children specifically need as deaf children living in a deaf househould. The gravamen of plaintiff's complaint, however, is that the School District's programs for the hearing-impaired at the Liberty School and Beechwood School do not provide a "free appropriate education" for her children as guaranteed by the Education of the Handicapped Act of 1975. 20 U.S.C. Section 1401 et seq. (hereinafter referred to as the EHA or the Act). The plaintiff contends that because she and her children comprise a deaf household, there is little emphasis on speech and lip reading at home. This results in a particular need by her children to learn and practice speech, language and lip reading in the school setting so that her children can learn to function as ordinary adults in society. Plaintiff believes the oral-aural program at DePaul is "appropriate" for her children because it heavily stresses these skills in all classroom and recreational activities, as opposed to the programs offered at the Liberty and Beechwood Schools. The Beechwood and Liberty programs emphasize sign language instead of oral-aural communication for most classroom and recreational interaction. Oral-aural communication is emphasized only in the language class designed to teach these skills. Oral-aural communication is not used in Geography, Math, Gym or other "non-language" classes. In other words, plaintiff contends that since she is hearing-impaired and relies on sign language to communicate with her children at home, school is the only place where Jennifer and Rene can learn and practice oral language and lip reading—skills that are absolutely essential for a hearing-impaired individual to function in society.

This court has acquired a great deal of knowledge concerning education of the deaf, not only from the Commission Report, but from the hearing held where I heard from the two deaf children and the children's mother, as plaintiffs. I listened carefully and was impressed by the testimony of Roberta Konefal, the Supervisor for Special Education for the School District of Pittsburgh. She has set forth her qualifications in the area of education of the deaf and has shown an understanding of their educational dilemma. I heard her testimony on how the deaf are educated, particularly in two schools, the Liberty School and the Beechwood Elementary School, but I have also listened most carefully to the testimony of Sr. Philomena Mannion, the Director of the DePaul Institute for the Deaf. I am aware of the qualifications of this supervising teacher of the deaf at DePaul and I am now aware of the character and credentials of the teachers, as well as, the methods applied in the teaching process of these deaf children. I am also aware of the fact that this institution has been in existence for many years and has grown up with the problems of deaf children and has arrived physically and psychologically with many of the solutions that convince me it is on the road to eventually doing what the President's Congressional Committee will be recommending to resolve the problems which still exist in educating deaf children.

Education of the hearing-impaired has been plagued by debates since the eighteenth century concerning which method of teaching is best. Apparently, there are four basic schools of thought on educating the hearing-impaired: manual instruction, oral-aural instruction, total communication and cued speech. The oral-aural method and the total communication method are at odds here; DePaul Institute employs the oral-aural method, whereas, the Beechwood and Liberty Schools use the total communications method.

Oral-aural instruction emphasizes the development and use of residual hearing that almost all hearing-impaired children have (auralism) in combination with lip reading (oralism). The residual hearing is stimulated by electronic amplification. The oral-aural method, itself, is a hybrid method of instruction derived from the oralist school of thought, which primarily relies on lip reading. The oral-aural method de-emphasizes the use of lip reading and seeks to have students develop their residual hearing to the maximum extent possible. At times, the instructor will cover her mouth with her hand in order to force the students to rely more on their residual hearing (although the students are still receiving some cues from the instructor's facial expressions). Therefore, the oral-aural method of educating the hearing-impaired teaches lip reading in combination with development of the student's residual hearing. Sign language is not used at all in this method.

The total communication method combines the use of aural, oral and manual method of communication—the type of manual method used most often is Signing Exact English. Signing Exact English employs English syntax in conjunction with speech and finger-spelling. Therefore, the total communication method teaches lip reading and use of a hearing aid along with hand signals. Its appeal is that it offers something for everyone, oralists and manualists. See generally Large, Special Problems of the Deaf under the Education For All Handicapped Children Act of 1975, 58 WASH. U.L.Q. 213 (1980).

It should be mentioned at this point that it is not for this court to choose between two competing schools of thought in educating the hearing-impaired. Philosophical debates concerning the best method of educating the hearing-impaired are best left to educators who consider this problem their metier. "Courts must be careful to avoid imposing their view of preferable educational methods upon the States." Board of Education v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982).

On November 19, 1975, Congress passed the Education of the Handicapped Act. The Senate Report plainly states:

court action and State laws throughout the Nation have made clear that the right of education of handicapped children is a present right, one which is to be implemented immediately. The Committee believes that these State laws and court orders must be implemented and that the Congress of the United States has a responsibility to assure equal protection of the laws and thus to take action to assure that handicapped children throughout the United States have available to them appropriate educational services. S.Rep. No. 94-168, 94th Cong., 1st Sess. 17 (1975).

The Supreme Court has said of the EHA:

the Act represents an

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