J.A. v. Smith Cnty. Sch. Dist.
This text of 364 F. Supp. 3d 803 (J.A. v. Smith Cnty. Sch. Dist.) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
*807Pending before the Court is the Magistrate Judge's Report and Recommendation ("R & R") (Doc. No. 38), Smith County School District's ("Smith County") objections to the R & R (Doc. No. 43), and Plaintiffs' response in support of the R & R (Doc. No. 44). For the reasons stated below, Smith County's objections to the R & R will be overruled, and the Magistrate Judge's R & R will be approved and adopted.
I. Factual Background 1
This is an action under the Individuals with Disabilities Education Act ("IDEA"),
On October 25, 2017, the parties held a follow-up IEP meeting. (Id. at 5.) J.A.'s difficulties with his placement were discussed at this meeting. (Id. ) For example, it was reported that J.A. had difficulty with the overwhelming stimuli of the classroom, would roam the school, lick furniture and other students, and was generally unable to control his behavior. (Id. ) Smith County proposed moving J.A. to a comprehensive development class ("CDC"), a special education class comprised of both disabled and non-disabled students, located at Carthrage Elementary School ("Carthage"). (Id. ) B.P., J.A.'s mother, did not agree with the proposed change in placement and requested that J.A. be provided with a one-on-one aide in the New Middleton classroom so that his behavior could be monitored and improved. (Id. ) Smith County declined to offer J.A. a one-on-one aide in the regular classroom environment, determining that it would be too restrictive. (Id. at 6.)
J.A. continued his placement in the regular classroom at New Middleton, and another IEP meeting was held on November 20, 2017, during which Smith County again recommended J.A. be moved to the CDC class at Carthage. (Id. ) B.P. reiterated her objection to such a placement because New Middleton was closer and would offer an opportunity for J.A. to imitate the other, non-disabled students. (Id. ) B.P. again requested that Smith County provide a one-on-one aide, but Smith County resisted, contending that the aide would only help in preventing J.A.'s bad behaviors rather than facilitate his learning. (Id. ) At *808this meeting, Alecia Talbott, the parents' advocate, recommended that J.A. (1) receive a functional behavior assessment ("FBA"); and (2) the school implement a Behavior Intervention Plan ("BIP"), with reevaluation in February or March. (Id. at 7.)
Shortly thereafter, in early December 2017, B.P. viewed a Facebook video, showing J.A.'s classmates performing a dance routine while J.A., not being assisted by the teacher in participating, stood and watched. (Id. at 10.) As a result, B.P. withdrew J.A. from New Middleton. (Id. ) B.P then filed a due process complaint on J.A.'s behalf. (Id. at 8.) At the required resolution meeting, Smith County stated that they were willing to proceed with a FBA, BIP, and other training, but reiterated that: (1) the Carthage elementary staff was more highly trained and experienced; (2) J.A. would receive more attention at the Carthage CDC class; and (3) a one-on-one aide would be too restrictive. (Id. ) Smith County "drew a line" on placement and the request for a one-on-one aide. (Id. )
As a result, B.P. requested a due process hearing before an ALJ. (See generally Doc. No. 6.) At the conclusion of the hearing, the ALJ ruled in favor of Smith County, finding that the November IEP, recommending placement in the Carthage CDC, did not violate J.A.'s right to free and appropriate public education ("FAPE"). (Doc. No. 7-4 at 4-10.) The ALJ concluded that: (1) the one-to-one aide would help manage J.A.'s behavior but would not provide additional educational benefit or decrease the classroom stimuli; (2) placement at Carthage was a reasonable alternative; and (3) Smith County based its new placement on available information and was willing to conduct additional evaluations (the FBA) but was unable to because of J.A.'s withdrawal. (Id. at 10.) The ALJ also determined that, because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP was limited to completion of the FBA (agreed to by Smith County) so that a proper placement for J.A. could be determined for the upcoming school year. (Id. )
B.P., on behalf of J.A., appealed the ALJ's decision, and the Magistrate Judge held a supplemental hearing. (Doc. No. 38 at 17-23.) After the evidentiary hearing, the Magistrate Judge entered a 48-page R & R, recommending that J.A.'s previously filed Motion for a Preliminary Injunction (Doc. No. 7) be granted and that J.A. be placed in kindergarten at New Middleton with a paraprofessional properly trained in dealing with Down Syndrome children. The Magistrate Judge also recommended that Smith County be required to conduct a FBA and implement a BIP for J.A. (Doc. No. 38 at 1.)
Smith County has filed objections to the R & R, which are detailed below. (See Doc. No. 42.) Having considered the matter de novo as required by Rule 72 of the Federal Rules of Civil Procedure, including the record before this Court and the one developed during the administrative proceedings, the Court finds that the R & R appropriately resolves the issues presented and, as such, it will be adopted. Because the R & R will be adopted, the objections thereto (Doc. No. 42) will be overruled, and J.A.'s Motion for Preliminary Injunction (Doc. No. 7) will be granted. Before discussing the specific objections to the Magistrate Judge's recommended resolution, however, a little background on the IDEA helps place Smith County's arguments in perspective.
II. Background of the IDEA
The IDEA "offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education'...to all children with certain physical *809or intellectual disabilities." Fry v. Napoleon Cmty. Schs., --- U.S.
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WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
*807Pending before the Court is the Magistrate Judge's Report and Recommendation ("R & R") (Doc. No. 38), Smith County School District's ("Smith County") objections to the R & R (Doc. No. 43), and Plaintiffs' response in support of the R & R (Doc. No. 44). For the reasons stated below, Smith County's objections to the R & R will be overruled, and the Magistrate Judge's R & R will be approved and adopted.
I. Factual Background 1
This is an action under the Individuals with Disabilities Education Act ("IDEA"),
On October 25, 2017, the parties held a follow-up IEP meeting. (Id. at 5.) J.A.'s difficulties with his placement were discussed at this meeting. (Id. ) For example, it was reported that J.A. had difficulty with the overwhelming stimuli of the classroom, would roam the school, lick furniture and other students, and was generally unable to control his behavior. (Id. ) Smith County proposed moving J.A. to a comprehensive development class ("CDC"), a special education class comprised of both disabled and non-disabled students, located at Carthrage Elementary School ("Carthage"). (Id. ) B.P., J.A.'s mother, did not agree with the proposed change in placement and requested that J.A. be provided with a one-on-one aide in the New Middleton classroom so that his behavior could be monitored and improved. (Id. ) Smith County declined to offer J.A. a one-on-one aide in the regular classroom environment, determining that it would be too restrictive. (Id. at 6.)
J.A. continued his placement in the regular classroom at New Middleton, and another IEP meeting was held on November 20, 2017, during which Smith County again recommended J.A. be moved to the CDC class at Carthage. (Id. ) B.P. reiterated her objection to such a placement because New Middleton was closer and would offer an opportunity for J.A. to imitate the other, non-disabled students. (Id. ) B.P. again requested that Smith County provide a one-on-one aide, but Smith County resisted, contending that the aide would only help in preventing J.A.'s bad behaviors rather than facilitate his learning. (Id. ) At *808this meeting, Alecia Talbott, the parents' advocate, recommended that J.A. (1) receive a functional behavior assessment ("FBA"); and (2) the school implement a Behavior Intervention Plan ("BIP"), with reevaluation in February or March. (Id. at 7.)
Shortly thereafter, in early December 2017, B.P. viewed a Facebook video, showing J.A.'s classmates performing a dance routine while J.A., not being assisted by the teacher in participating, stood and watched. (Id. at 10.) As a result, B.P. withdrew J.A. from New Middleton. (Id. ) B.P then filed a due process complaint on J.A.'s behalf. (Id. at 8.) At the required resolution meeting, Smith County stated that they were willing to proceed with a FBA, BIP, and other training, but reiterated that: (1) the Carthage elementary staff was more highly trained and experienced; (2) J.A. would receive more attention at the Carthage CDC class; and (3) a one-on-one aide would be too restrictive. (Id. ) Smith County "drew a line" on placement and the request for a one-on-one aide. (Id. )
As a result, B.P. requested a due process hearing before an ALJ. (See generally Doc. No. 6.) At the conclusion of the hearing, the ALJ ruled in favor of Smith County, finding that the November IEP, recommending placement in the Carthage CDC, did not violate J.A.'s right to free and appropriate public education ("FAPE"). (Doc. No. 7-4 at 4-10.) The ALJ concluded that: (1) the one-to-one aide would help manage J.A.'s behavior but would not provide additional educational benefit or decrease the classroom stimuli; (2) placement at Carthage was a reasonable alternative; and (3) Smith County based its new placement on available information and was willing to conduct additional evaluations (the FBA) but was unable to because of J.A.'s withdrawal. (Id. at 10.) The ALJ also determined that, because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP was limited to completion of the FBA (agreed to by Smith County) so that a proper placement for J.A. could be determined for the upcoming school year. (Id. )
B.P., on behalf of J.A., appealed the ALJ's decision, and the Magistrate Judge held a supplemental hearing. (Doc. No. 38 at 17-23.) After the evidentiary hearing, the Magistrate Judge entered a 48-page R & R, recommending that J.A.'s previously filed Motion for a Preliminary Injunction (Doc. No. 7) be granted and that J.A. be placed in kindergarten at New Middleton with a paraprofessional properly trained in dealing with Down Syndrome children. The Magistrate Judge also recommended that Smith County be required to conduct a FBA and implement a BIP for J.A. (Doc. No. 38 at 1.)
Smith County has filed objections to the R & R, which are detailed below. (See Doc. No. 42.) Having considered the matter de novo as required by Rule 72 of the Federal Rules of Civil Procedure, including the record before this Court and the one developed during the administrative proceedings, the Court finds that the R & R appropriately resolves the issues presented and, as such, it will be adopted. Because the R & R will be adopted, the objections thereto (Doc. No. 42) will be overruled, and J.A.'s Motion for Preliminary Injunction (Doc. No. 7) will be granted. Before discussing the specific objections to the Magistrate Judge's recommended resolution, however, a little background on the IDEA helps place Smith County's arguments in perspective.
II. Background of the IDEA
The IDEA "offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education'...to all children with certain physical *809or intellectual disabilities." Fry v. Napoleon Cmty. Schs., --- U.S. ----,
The IEP is "[t]he linchpin of the IDEA." Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ.,
The requirement that an IEP be "reasonably calculated to enable the child to receive educational benefits," was addressed by the Supreme Court in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, --- U.S. ----,
The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. See §§ 1414(d)(1)(A)(i)(I)-(IV). This reflects the broad purpose of the IDEA, an "ambitious" piece of legislation enacted "in response to Congress' perception that a majority of handicapped children in the United States 'were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to drop out.' " Rowley,458 U.S. at 179 ,102 S.Ct. 3034 (quoting H.R. Rep. No. 94-332, p. 2 (1975) ). A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.
[F]or most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. Every IEP begins by describing a child's present level of achievement, including explaining 'how the child's disability affects the child's involvement and progress in the general education curriculum." § 1414(d)(1)(A)(i)(I)(aa). It then sets out "a statement of measurable annual goals...designed to...enable the child to be involved in and make progress in the general education curriculum," along with a description of specialized instruction and services that the child will receive. §§ 1414(d)(1)(A)(i)(II), (IV). The instruction and services must likewise be *810provided with an eye toward "progress in the general education curriculum." § 1414(d)(1)(A)(i)(IV)(bb).
Id. at 999, 1001. "[T]he process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome," and, therefore, the IEP's substantive "educational benefits" are best measured under the paradigm of "appropriate progress" based "on the unique circumstances of the child for whom it was created." Id.
The "least restrictive means" is a non-academic restriction or control on the IEP-separate and different from the measure of substantive educational benefits-that facilitates the IDEA's strong "preference for 'mainstreaming' handicapped children." Rowley,
Formulating the IEP's substantive educational benefits most often concerns methodology, such as deciding between alternative programs or methods for educating a disabled student-these types of decisions require the school district's educational expertise. McLaughlin v. Holt Publ. Sch. Bd. of Educ.,
III. Standard of Review
The district court applies a "modified de novo " standard of review, meaning that it must make an independent decision based on the preponderance of the evidence while also giving "due weight" to the determinations made by the State ALJ. Rowley,
IV. Smith County's Objections
It is difficult to determine the exact nature of Smith County's objections the R & R. Smith County identifies the "appropriateness" of the Magistrate Judge's placement determination as the basis for its objections. However, the gravamen of Smith County's objections is geared towards the Magistrate Judge's alleged lack of deference to "the opinions of professionals who have spent five days a week with J.A. for nine weeks, as opposed to a run-in, run-out observation and paid-for opinion." (Doc. No. 42 at 7.) Smith County argues that the Magistrate Judge concludes that "what is best for J.A. is to be determined by someone who has been hired to render an opinion for the parents, and that forty-five days of hand on experience with J.A. is not relevant." (Id. at 8.) Moreover, Smith County asserts that:
Magistrate Brown did not, in fact, give the local educators nor [ALJ] Summers' "greater deference" to the substantive aspects of the IEP proposed by [Smith County]. Judge Summers heard the witnesses who had worked with J.A., and who had discussed his program with his mother, showed her the classroom at Carthage Elementary heard J.A.'s parents testify, and she considered that same law and the same criteria for making the judgment as did Magistrate Brown. In the process the "greater deference" disappeared.
(Id. at 14.) The remainder of Smith County's filing challenges the Magistrate Judge's decision generally and argues that placement in the CDC class at Carthage would provide J.A. with "the best of both worlds." (Id. at 18-20.) Smith County requests that the Court: (1) reinstitute ALJ Summers' decision; (2) order that J.A. be returned to Smith County to complete the FBA and BIP; and (3) order the parties to reconvene to determine J.A.'s abilities so that appropriate personnel can determine an appropriate IEP. (Id. at 21.)
V. Analysis
As a preliminary matter, the Court again notes that Smith County's objections lack specificity. (Id. at 6.) Smith County's filing provides a "Background" heading, under which it summarizes the relevant factual information, and then an "Objections" heading. (Id. ) Smith County then provides 16 pages of argument, with no subheadings, and no definitive statements of its objections (i.e., Smith County's first objection is...).
When a party files objections to a magistrate judge's report and recommendation regarding a dispositive motion, the district court must review de novo any portion of the report and recommendation to which objections are "properly" lodged. Fed. R. Civ. P. 72(b)(3) ; see also
In this circuit, litigants must file specific and timely objections to a magistrate judge's report and recommendation under
A large portion of Smith County's alleged objection consists of general disagreement with the Magistrate Judge's suggested resolution, and, as such, is not an objection that is properly before this Court. See
As noted, the thrust of Smith County's objection is that the Magistrate Judge gave too much weight to J.A.'s expert, at the expense of: (1) the ALJ's written opinion; and (2) the testimony of Smith County's educators and officials. (Doc. No. 42 at 8-18.) Importantly, as in L.H., Smith County is not arguing that J.A.'s expert was unqualified, which could be framed as a legal challenge, rather, Smith County is arguing that her testimony was unpersuasive considering the other testimony, which is a challenge to the Magistrate Judge's weighing of the evidence and determination of the facts. See
At bottom, Smith Count argues that the Magistrate Judge should have deferred to the opinions of Smith County's teachers and staff because they had spent far more time with J.A. and were more familiar with his abilities, behaviors, and limitations, so they knew best how he should be educated. In L.H., the Sixth Circuit specifically confronted this issue and explained:
If the law were that a court must defer to the opinions of those who spend the most time with the student and presumably know him best, then there would be no place for experts. Moreover, parents could never prevail because the student's teachers will always spend more time with the student or know the student better than the parents' hired experts. On the other hand, the parents spend more time with the student and know the student better than any teacher. Taking [this] argument to this ultimate end, the district court would actually defer to the student's parents, who surely know the student the best, regardless of any expertise.
See
VI. Conclusion
On the basis of the foregoing and having fully considered the arguments raised by the parties, the R & R is APPROVED AND ADOPTED . The Court will issue a separate order setting out the preliminary injunction. Plaintiffs' complaint also requests several other forms of relief, including compensatory damages and reimbursement for expenses. (Doc. No. 1 at 24.) Consequently, this case is RETURNED to the Magistrate Judge for further case management, including disposition of these other claims for relief upon dispositive motion.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
JOE B. BROWN, United States Magistrate Judge
To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge
Pending before the Court is Plaintiffs' motion for preliminary injunction (Docket Entry No. 7). For the reasons stated below, the Magistrate Judge RECOMMENDS that Plaintiffs' motion be GRANTED and that J.A. be placed in kindergarten at New Middleton Elementary School with a paraprofessional properly trained in dealing with Down Syndrome children and for the District to conduct a Functional Behavior Assessment ("FBA") and implement a Behavior Intervention Plan ("BIP").
I. INTRODUCTION
Plaintiffs, J.A. and his parent and next friend, B.P., filed this action under the Individuals with Disabilities Education Act ("IDEA"),
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs filed for due process on December 4, 2017. (Docket Entry No. 7-2, Joint Stipulations, at ¶ 14). On December 12, 2017, J.A. withdrew from New Middleton Elementary School ("NMES").
A. ADMINISTRATIVE HEARING
1. Testimony of Wendy Cond
J.A. was born on August 17, 2012. (Docket Entry No. 7-2, at ¶ 2). J.A. was diagnosed with Down Syndrome and is eligible for special education with Smith County School District under the category of Developmental Delay.
Wendy Cond, who had eleven years of experience teaching pre-kindergarten ("pre-K"), taught the regular education pre-K class at NMES for the 2017-2018 school year. (Docket Entry No. 6-1, at pp. 23, 25). Cond had never taught special education, did not have special education training and had never taught a child with Down Syndrome.
The District provided J.A. thirty minutes each day of "pull out" special education academic services, 30 minutes each week of occupational therapy, 30 minutes each week of physical therapy, and 20 minutes twice per week of speech language therapy.
Cond testified that, after having a discussion with the principal, Shawn Frye, about J.A.'s reoccurring behavioral problems, she began keeping a running log of J.A.'s behavioral problems so that she would know how to address them.
Cond also informed J.A.'s mother about how J.A. was performing in school through the mid-nine week and nine week progress reports. (Docket Entry No. 6-1, at p. 61). J.A.'s first mid-nine week progress report reflected that "most of the time" J.A. "share[d] and t[ook] part in play activities," "t[ook] part in art activities," "ha[d] good cafeteria behavior," "[was] a good helper," and "ha[d] positive school behavior." (Docket Entry No. 7-5, at 1). "Some of the time" J.A. "particpate[d] in group activities," [sat] quietly during circle time," "work[ed] and play[ed] well with others," and "listen[ed] and follow[ed] directions."
On October 25, 2017, another IEP meeting was held. (Docket Entry No. 7-2, at ¶ 11). At this meeting, J.A.'s misbehaviors were discussed, but there was no discussion of conducting an FBA and creating a behavior plan. (Docket Entry No. 6-1, at pp. 74-75, 77). The items "FBA (If appropriate)" and "Behavior Plan (if appropriate)" labeled on J.A.'s IEP were stricken with a line through them by the District.
An additional IEP meeting was held on November 20, 2017.
J.A.'s November 20, 2017 IEP indicated that J.A.'s behaviors impeded his learning.
J.A.' s November IEP was to run from November 20, 2017, to May 19, 2018.
The parents' advocate, Alecia Talbott, was present at the November IEP meeting and recommended that J.A. receive a *817functional behavior assessment with real data and to try a new plan until February or March 2018 to see how J.A. performed in class.
On December 18, 2017, six days after J.A.'s mother withdrew him from NMES, a resolution meeting was held between the parties regarding Plaintiffs' December 4, 2017 due process complaint.
2. Testimony of Alecia Talbott
Alecia Talbott, the executive director for the Down Syndrome Association of Middle Tennessee, testified that the Down Syndrome Association ("DSA") provides education and support to families and caregivers who have children with Down Syndrome, employers, the community, business owners, and educators.
Based upon the discussion at the IEP meeting about J.A.'s misbehaviors, Talbott recommended that J.A. receive a functional behavior assessment, explaining that an FBA "analyzes the child's behavior across different settings, different times of the day, across a number of weeks," seeking to find out why the child is engaging in that behavior, or what's maintaining that behavior.
3. Testimony of J.A.'s Parents
At the administrative hearing, J.A.'s mother, B.P., denied that the community rivalry was the reason she did not want J.A. to be placed at CES, stating that she would not object to his placement at CES as long it provided the least restrictive environment in a regular education class with supports and services.
J.A.'s mother further testified that she visited CES with the director of schools, Barry Smith, to observe how the classroom worked.
J.A.'s father, B.A., testified that community rivalry did not play a role in where J.A. was educated and that if J.A. could be included with non-disabled peers in Carthage that would be acceptable. (Docket Entry No. 6-2, at pp. 265-67). J.A.'s father testified that he would be willing to enroll J.A. in another year of preschool if J.A. were provided an aide.
4. Eric Swann
Eric Swann, a school psychologist with Smith County, testified that he never heard anyone from the District offer the opportunity for J.A. to remain in the regular education classroom at New Middleton with a one-on-one aide or provide J.A. with a behavior intervention plan. (Docket Entry No. 6-1, at pp. 202, 215). Swann also testified that he had never worked with a Down Syndrome child who had a one-on-one aide in a regular education classroom.
Swann testified that although an IEP is typically written for a year long period, it can be revised based upon how the child is doing in class.
Swann testified that the school system would provide free transportation for J.A. to attend CES at no cost to the parents.
Q. But it's true, is it not, that y'all didn't stop the IEP process and say, let's do the FBA and see how he does in regular ed before we talk about placement in a different setting?
A. That was considered. I guess, at the point of the school year, we had -- we felt like we had this great placement at Carthage Elementary, and that JA would do just awesome there. We could have done a lot of things, but ultimately we felt like we had enough information to make that decision at that point. And rather than go through, you know, three or four more months in the general ed classroom trying those things, we felt like we had enough information to make that decision, and we just knew that he would do well over there.
Q. Okay. So you assumed that a functional behavior assessment would not lead to a different conclusion?
A. Correct.
Swann explained that J.A.'s behavioral issues did not improve very much and, because of the large number of children in his classroom, J.A. was very rarely on task without direct supervision from the staff to be successful in the regular education classroom.
5. Testimony of Lisa Hembree
Lisa Hembree, the special education coordinator with the board of education, testified that she had 32 years of experience teaching CDC resource at every spectrum of special education for seventh to twelfth grade. (Docket Entry No. 6-2, at pp. 272-273, 282). Over those years, Hembree, at times, was brought in to provide special education supports in general education classrooms, which is a part of inclusion.
In determining whether to assign a child an aide, Hembree testified that the District must look at each child on an individual basis and not just because the child has Down Syndrome.
Hembree also testified that the use of the term "CDC" in the documents regarding J.A.'s placement at CES was incorrect and was not what the District intended as the classroom at CES was not a CDC classroom.
6. Dr. Kathleen Whitbread
The State administrative law judge ("ALJ") determined that the testimony of Dr. Whitbread, Plaintiffs' expert witness, would not be "helpful" or "worthwhile," stating that "we're all certainly capable of stipulating that she's going to testify that JA should be in an integrated or general ed classroom with supports."
7. State Administrative Law Judge's Oral Decision
At the conclusion of the hearing, the ALJ issued an oral decision from the bench, stating, in part, as follows:
The issue that we are addressing is educating JA in the least restrictive environment with the most educational benefit.... And I don't think there's any real disagreement between the parties that the placement at NMS, without some sort of modification, was not working, so something needed to change....
The petitioners were essentially asking for the placement to remain the same, with the addition of a one-to-one aide. I mean, that accomplished leaving JA in a regular classroom with predominantly non-disabled children, would provide him help with his behaviors. The downside that I could see from that placement was the absence of a special ed teacher, a potentially chaotic environment that may have been contributing to some of his behaviors, and having an adult with him throughout the entire school day could potentially be a more restrictive placement than the alternative. And also, recognizing that a child with an adult caretaker doesn't really help him blend with his classmates.
The alternative that was offered by the school system was the integrated classroom at Carthage Elementary School, where admittedly, there was -- while some, as we have been referring to them, typical children, it was predominantly children with disabilities. But my understanding is that there was still a regular curriculum, more teachers for fewer children, so while JA would not be -- have a one-to-one aide, there would be more adults for fewer children, and JA would not be singled out in that classroom as the child that needed the specific adult caretaker. You have a special ed teacher with proven results, a more controlled environment. But also, possibly - well, certainly, a more restrictive environment than where he was at NMS....[C]ertainly the petitioners have suggested, and I know that their expert would testify, that the alternative with the one-to-one aide would be better and the least restrictive.
*821And in weighing all of this information, I cannot conclude that the school system's alternative, it violates the IDEA. I think it's a tossup, based upon the criteria that I just iterated. I don't think it's, again, in violation of the IDEA. I think it's a reasonable alternative to educating JA in the least restrictive environment available to Smith County.
....
And based upon the testimony that I have heard this morning, and the fact that the appeal was of this current IEP, which we are still in, although for a limited time, I am going to order the functional behavioral assessment, upon JA's return to the school system, obviously. I think that until he's actually enrolled in Smith County, I don't -- I wouldn't assume that there is any impediment to him being enrolled today. And whether or not there's a limitation on getting that done -- the functional behavioral assessment -- in the next 17 days, at least in sufficient time for decisions to be made about the next school year, which would include whether or not he is reenrolled in Pre-K or moves on to kindergarten. I'm not going to make that decision. I think that smarter people than me should be making that decision with the necessary additional information.
I'm also not going to order a one-to-one aide. I think until the functional behavioral assessment is completed and there's an opportunity to review those results and a determination is made -- I understood from Mr. Swann that, you know, behaviors could be related to the size of the classroom and the stimulation in that classroom, or there may be other issues that could be addressed with an aide. And until we have that information, I think it's premature to make a decision about where JA should be educated.
8. State Administrative Law Judge's Written Decision
The ALJ's written decision mainly reiterated the ALJ's oral decision. The ALJ found that the "integrated classroom at Carthage Elementary was inappropriately referred to as a Comprehensive Development Classroom (CDC) which typically includes only children with special needs." (Docket Entry No. 7-4, at 4, ¶ 7). The ALJ found that the District declined to provide a "one-to-aide," but "did agree to conduct a Functional Behavior Assessment (FBA), which was not completed because JA was disenrolled by his parents from the school system in mid-November."
8. Although the one-to-one aide would help manage JA's behaviors in the regular classroom, it would not provide any additional educational benefit, and the stimulation he receives in that environment could be exacerbating his behaviors.
9. Notwithstanding the objection from JA's parents, it cannot be concluded that the proposed placement at Carthage Elementary in the integrated classroom was not a reasonable alternative to the regular classroom at NMES with the requested one-to-one aide or in violation of the IDEA.
10. The school system based its proposed new placement on the information that it had available after only 3 months of schooling and was willing to undertake additional evaluation of JA's behaviors but was unable to do so when he was disenrolled.
11. JA may have remained at NMES during this additional evaluation, as the *822parents preferred, had JA remained enrolled and taken advantage of the "stay put" provisions of20 U.S.C. § 1415 (j).
12. Because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP is limited to completion of the FBA, agreed to be the school system, as soon as practicable so that a proper placement for JA can be determined for the upcoming school year.
(Docket Entry No. 7-4, at 10, ¶¶ 8-12). The ALJ also ordered the District to "participate in the training offered by the Down Syndrome Association."
B. SUPPLEMENTAL HEARING IN FEDERAL COURT
1. Testimony of Kellye Martin
Kellye Martin is a regular education teacher as well as a special education teacher and has twelve years of experience teaching pre-K at Carthage Elementary School. (Docket Entry No. 33, at pp. 10-11, 18-19, 154-55). There are two types of pre-K classes at CES, "voluntary pre-K" and "Special Needs Pre-K with Typical Peers."
Martin's class has eleven children on the roll whereas voluntary pre-K has twenty.
Martin never taught or observed J.A.
2. Testimony of Kathleen Whitbread
At the supplemental hearing before the Magistrate Judge, Dr. Kathleen Whitbread testified as an expert in educating children with Down Syndrome.
Dr. Whitbread testified that while every child is unique Down Syndrome children share a common learning profile, such as "memory working memory" issues, delayed speech, and being more successful with visual learning than auditory learning.
Because of his age, currently six years old, Dr. Whitbread believed that J.A. should go to kindergarten rather than repeat preschool based on research that shows that there is not a benefit to holding children with Down syndrome back, especially at the pre-K level.
As to the appropriate role of a paraprofessional in pre-K or kindergarten for a Down syndrome child, Dr. Whitbread testified that a typical role would be to reinforce learning.
With respect to creating a behavior intervention plan, Dr. Whitbread testified that behavior is communication and when a Down Syndrome child is exhibiting negative behavior a teacher must figure out what the child is trying to communicate by behaving in that manner.
As to Cond's list of J.A.'s behaviors, Dr. Whitbread testified that she could not determine what caused the behaviors by just looking at the document because the document only described the behavior without providing the "before data and after data."
As to the CES classroom, Dr. Whitbread opined that the composition of the classroom would not provide a typical school experience and therefore would not be beneficial, as the makeup of the classroom would not mimic the percentages of disabled and nondisabled children in the community.
Dr. Whitbread testified that one of the main goals of inclusion in general education classrooms is so that a disabled child, particularly one with Down Syndrome, can learn to socialize and conform behavior by observing nondisabled children.
Dr. Whitbread believed that if a paraprofessional were trained, the regular education teacher reviewed J.A.'s records, and a special education teacher provided support, such a structure could be in place within thirty days, whether it was in pre-K or kindergarten.
3. Barry Smith
Barry Smith, Smith County's director of schools, testified as to the intense community rivalry, described as "unhealthy," between Gordonsville High School, the community in which NMES is a part, and Smith County High School in Carthage.
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Smith testified that following the due process hearing, Talbott provided special education training to some of the District's teachers.
III. CONCLUSIONS OF LAW
A. INJUNCTIVE RELIEF
As stated previously, this action was originally referred to the Magistrate Judge on Plaintiffs' motion for preliminary injunction, but pursuant to Fed. R. Civ. P. 65(a)(2) the parties agreed to advance it to a final hearing on the merits and consolidate it with the hearing. (Docket Entry No. 27; Docket Entry No. 33, at pp. 5-6). In considering whether to grant a preliminary injunction, courts consider four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction. Ne. Ohio Coal. for Homeless v. Husted ,
B. IDEA
The Individuals with Disabilities Education Act ("IDEA"),
*826L.H. v. Hamilton Cty. Dep't of Educ. ,
"The IEP is 'the centerpiece of the [IDEA]'s education delivery system for disabled children.' "
"An IEP is not a form document. It is constructed only after careful consideration of the child's present levels of achievement, disability, and potential for growth." Id. "The IEP must state the student's educational status, the annual goals for the student's education, the special-educational services and aides to be provided to meet those goals, and the extent the student will be 'mainstreamed,' i.e., spend time in school environments with non-disabled students." L.H. ,
The "least restrictive environment" ("LRE") "is a non-academic restriction or control on the IEP--separate and different from the measure of substantive educational benefits--that facilitates the IDEA's strong 'preference for mainstreaming handicapped children.' " L.H. ,
To the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
As the Sixth Circuit has explained:
In practice, the IEP and LRE generate two different types of decisions. Formulating the IEP's substantive educational benefits most often concerns methodology, such as deciding between alternative programs or methods for educating a disabled student--these types of decisions require the school district's educational expertise. Establishing the LRE, however, concerns whether, or the extent to which, a disabled student can be mainstreamed rather than segregated and does not require any such educational expertise. Simply put, "[i]n some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming."
When disagreement arises between parents and educators concerning a student's IEP, "parents may turn to dispute resolution procedures established by the IDEA." Endrew F. , 137 S.Ct. at 994. "[A]ggrieved parents can begin a formal grievance process by submitting a 'complaint' to the *828school 'with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.' This triggers a formal meeting among the parents, school officials, and the IEP team." L.H. ,
If the preliminary meeting fails to resolve the dispute and if subsequent voluntary mediation either fails or is not tried, the parents may file a "due process complaint" and have a due process hearing before a the State or local educational agency. § 1415(b)(7)(A), (f), (g). In Tennessee, due process hearings are conducted by administrative law judges, employed by the secretary of state, who have received training in special education law and the IDEA, specifically.
On judicial review, a "district court applies a 'modified de novo' standard of review, meaning that it must make an independent decision based on the preponderance of the evidence while also giving 'due weight' to the determinations made by the State ALJ."
The court may not "simply adopt the state administrative findings without an independent re-examination of the evidence," but neither may it "substitute [its] own notions of sound educational policy for those of the school authorities which [it] review[s]." As with the deference to school officials on matters of substantive educational methodology, the weight due to the State ALJ's findings depends on whether the finding is based on educational expertise. "Less weight is due ... on matters for which educational expertise is not relevant because a federal court is just as well suited to evaluate the situation[;] [m]ore weight ... is due to ... determinations on matters for which educational expertise is relevant."
L.H. ,
In reviewing procedural and substantive violations, a court "must first determine whether the school complied with the IDEA's procedural requirements."
Upon review of an administrative decision under the IDEA, a court "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."
C. ANALYSIS
Plaintiffs assert that the May and November 2017 IEPs do not deliver FAPE because they lack the necessary academic goals and the necessary supports for success, and that without these, CES cannot be considered the least restrictive environment for J.A. (Docket Entry No. 36, at 44). Plaintiffs assert that although the ALJ found no IDEA violation, the ALJ actually awarded much of the relief the Plaintiffs' were seeking: (1) a functional behavior assessment "be completed as soon as practicable;" (2) and then "a proper placement be determined;" and (3) the school system to participate in the training offered by the Down Syndrome Association. (Docket Entry No. 1, at ¶ 59). Plaintiffs contend that the ALJ found that the behavioral supports were necessary and could have been delivered at NMES, but incorrectly found that this did not happen because the parents did not take advantage of "stay put" under
Thus, Plaintiffs assert two related claims under the IDEA: "(1) denial of a free appropriate public education (FAPE) for an inappropriate IEP; and (2) denial of least restrictive environment (LRE)." (Docket Entry No. 36, at 28). Plaintiffs categorize these claims under three subcategories: (1) procedural violations of the IDEA, (2) substantive FAPE violations, and (3) denial of LRE. With respect to the procedural violations, Plaintiffs contend that Defendant inappropriately (1) predetermined, without any data, that an aide would be overly restrictive in regular education, and (2) misled them about the nature of the placement.
In response, Defendant contends that, because J.A. is no longer enrolled at NMES and his IEP for school year 2017 to 2018 has since expired, this action is moot and no longer justiciable. (Docket Entry No. 37, at 20). Defendant further argues that it did not violate the IDEA and that the appropriate placement for J.A. under the law is at CES, which will give J.A. the opportunity to learn in a calm and quieter setting with typical peers from which he can model his behavior and allow him to "learn[ ] how to learn." (Docket Entry No. 33, at pp. 213-14). Defendant asserts that the ALJ's use of the words "reasonable alternative" was not used as establishing an illegal standard for special education cases, but rather the phrase was merely an explanation of what the law and cases already say; i.e., regular classroom settings are preferred to the "maximum extent appropriate." (Docket Entry No. 37, at 27).
1. Justiciability
"Under Article III of the Constitution [a court] may only adjudicate actual, ongoing controversies." Honig v. Doe ,
However, " 'if there is a reasonable likelihood that [plaintiffs] will again suffer the deprivation of ... rights that gave rise to this suit,' the court may exercise jurisdiction and resolve the issue." Woods v. Northport Pub. Sch. ,
"[T]he measure and adequacy of an IEP can only be determined as of the time it is offered to the student, and not at some later date." Fuhrmann on Behalf of Fuhrmann v. E. Hanover Bd. of Educ. ,
*831As the Sixth Circuit has noted, " '[a] placement and an IEP cover an academic year, a nine[-]month period. The Supreme Court has observed that administrative and judicial review of an IEP is ponderous and usually will not be complete until a year after the IEP has expired.' "
Here, the proper placement of J.A., a child with Down Syndrome, is a recurring issue. Defendant agreed to conduct a functional behavior assessment on J.A., but after his placement at CES. The record also reflects that Emmerson Stockton stated that Smith County does not provide a full day aide for any children and that Lisa Hembree and Eric Swann testified that they had never seen or had experience with a child with Down Syndrome included in the regular education classroom in Smith County for a majority of the day. Defendant never provided J.A. with a one-on-one aide. Defendant maintains that J.A.'s proper placement should be in the special education classroom at CES. J.A. also remains eligible for and interested in enrollment in the school district. Accordingly, based upon this record and recognizing the reality that administrative and judicial review of an IEP will not usually be complete until a year after an IEP has expired, the Magistrate Judge concludes that this action is not moot as the issue of mainstreaming will remain in dispute and therefore capable of repetition, yet evading review.
2. Procedural Violations
a. Predetermining the Lack of an Aide
Plaintiffs first contend that Defendant improperly predetermined, without any data, that an aide would be overly restrictive in regular education. At the administrative hearing, as to Plaintiffs' predetermination claim, the ALJ questioned if that claim did not fundamentally go to the question of whether or not the IEP was appropriate and the child's appropriate placement." (Docket Entry No. 6-1, at p. 16). In response, Plaintiffs cited Deal v. Hamilton Cty. Bd. of Educ. ,
In Deal , the school system would not offer a child with autism the service of applied behavioral analysis.
The evidence reveals that the School System, and its representatives, had *832pre-decided not to offer Zachary intensive [applied behavioral analysis ("ABA)"] services regardless of any evidence concerning Zachary's individual needs and the effectiveness of his private program. This predetermination amounted to a procedural violation of the IDEA. Because it effectively deprived Zachary's parents of meaningful participation in the IEP process, the predetermination caused substantive harm and therefore deprived Zachary of a FAPE.
The Court found that the district court erred in assuming that just because the plaintiffs were present and spoke at various IEP meetings, they were thus afforded adequate opportunity to participate, explaining that such participation must be more than a mere form--it must be "meaningful."
"To avoid a finding of predetermination, there must be evidence the state has an open mind and might possibly be swayed by the parents' opinions and support for the IEP provisions they believe are necessary for their child." R.L. v. Miami-Dade Cty. Sch. Bd. ,
However, Dr. Whitbread testified that the person who collects the data showing the events which trigger a Down Syndrome child's behaviors is often the paraprofessional. Wendy Cond admitted that there was not any data at the IEP meeting as to how J.A. would perform with a one-on-one aide. Thus, the failure to even consider incorporating the use of a paraprofessional with an FBA would limit the collection of any data Plaintiffs could have collected and produced in order to change the District's determination that a one-on-one aide would be too restrictive. This predetermination not to consider using a paraprofessional because the District believed it was too restrictive amounted to a procedural violation of the IDEA.
Accordingly, for these reasons, the Magistrate Judge concludes that Defendant committed a procedural violation that infringed upon Plaintiffs' ability to participate in the IEP process, which resulted in substantive harm.
b. Misleading Nature of Placement
Plaintiffs assert that Defendant misled them about the nature of J.A.'s placement at CES that impeded the parents' ability to participate accurately and meaningfully during the IEP process. (Docket Entry No. 36, at 36-37). "In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents child."
*833
3. Substantive FAPE Violations
Plaintiffs assert a claim for the denial of a FAPE for an inappropriate IEP. Specifically, Plaintiffs contend that (1) the IEP lacks meaningful academic goals; (2) it lacks appropriate behavioral supports; and (3) it lacks the support of a paraprofessional.
a. Lack of Academic Goals
In providing a FAPE, the IDEA "demands more" than providing "merely more than de minimis " educational benefit to a child with a disability. Endrew F. , 137 S.Ct. at 1001. "It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the chil's circumstances." Id. In Endrew F. , the Supreme Court stated:
The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. This reflects the broad purpose of the IDEA, an "ambitious" piece of legislation enacted "in response to Congress' perception that a majority of handicapped children in the United States 'were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to "drop out." ' "
Id. at 999 (citations omitted).
The parties stipulated that the pre-K curriculum consists of reading, writing, language, math, science, social, studies, creative arts, and PE/health. However, J.A.'s May and November 2017 IEPs did not contain academic goals, but mainly contained fine motor and gross motor skills goals. Although J.A.'s IEP plan did not contain any academic goals for math, science or social studies, Cond testified that she tried to teach J.A. math, social studies, and science. However, there was nothing in the I.E.P. for charting J.A.'s rate of progress in these subjects. Swann testified that the importance of including measurable goals in the IEP is that the goals provide a baseline on how to measure progress. Dr. Whitbread testified that the IEP for a child in pre-K should have some sort of reading or math goal, which would be consistent with the standards in Tennessee.
The IDEA requires that an IEP include "a statement of measurable annual goals, including academic and functional goals" that enable the disabled "child to be involved in and make progress in the general education curriculum" and that "meet each of the child's other educational needs that result from the child's disability."
b. Lack of Appropriate Behavioral Supports
J.A.'s November 20, 2017 IEP reflected that J.A.'s behaviors impeded his learning. However, the parties stipulated that the District did not conduct an FBA on J.A. or provide J.A. with a BIP. The IDEA provides that "[t]he IEP Team shall in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior."
As the Supreme Court noted in Endrew F. , "[w]hen a child is fully integrated in the regular classroom, as the [IDEA] prefers, what that typically means is providing a level of instruction reasonably calculated to permit advancement through the general curriculum." 137 S.Ct. at 1000 (footnote omitted). Thus, based upon the Supreme Court's analysis in Endrew F. and statutory authority, the Magistrate Judge concludes that the ALJ erred in ordering an FBA be conducted and for placement to be determined for the following school year after first finding that placement at CES was a reasonable alternative. Accordingly, the Magistrate Judge concludes that an FBA be conducted and a behavioral improvement plan ("BIP") be implemented for NMES. see S.H. ,
c. Lack of a Paraprofessional
Plaintiffs contend that the IEP is deficient because it failed to provide J.A. the basis support of a paraprofessional (a 1:1 aide in regular education). (Docket Entry No. 36, at 32). The IDEA provides that a child's IEP include "a statement of the special education and related services and supplementary aids and services ... to be provided to the child ... and a statement of the program modifications or supports for school personnel that will be provided for the child to advance appropriately toward attaining the annual goals" and "to be involved in and make progress in the general education curriculum ... and to participate in extracurricular and other nonacademic activities...."
The record reflects that the special education teacher at NMES, who worked with J.A. for 30 minutes a day, helped J.A. improve his behaviors. Cond, however, believed a one-on-one aide would be too restrictive, although the District lacked data showing how J.A. would perform with a one-on-one aide. The District believed that J.A. needed something more because an aide would only help in preventing bad behaviors rather than helping him to learn. At the resolution meeting, Stockton stated that Smith County did not provide a full time aide to any child. Swann testified that he had never worked with a Down Syndrome child who had a one-on-one aide in a regular education classroom. However, Hembree testified that some children in Smith County have been provided a full time aide. Hembree stated that she had never given special education supports or services to a child with Down Syndrome in a general education classroom and her experience in teaching children with Down Syndrome was limited to teaching them in a special education classroom. Smith testified that the District could provide a full time aide.
The record also shows that the District's teachers lacked training to deal with Down Syndrome children. Talbott testified that a paraprofessional's role is to help the child be as independent and as successful as possible. Talbott offered to provide such training to the District for free. Further, the ALJ ordered the District to participate in the training offered by the Down Syndrome Association, and since then teachers have received such training. Dr. Whitbread testified that it was possible that a paraprofessional would be too restrictive in a general education classroom, but that if a paraprofessional had proper training then it would be inappropriate to assume that a paraprofessional would be too restrictive for J.A., adding that very young children with Down syndrome often need an extra person in the classroom. Smith testified that a full-time aide could be set up for J.A. at NMES.
Defendant's reliance on I.L. through Taylor v. Knox Cty. Bd. of Educ. ,
*836Based upon preponderance of evidence, the Magistrate Judge concludes that Plaintiffs have carried their burden and that J.A. should be provided a paraprofessional in his IEP.
4. LRE Claim
In L.H. , the Sixth Circuit noted the IDEA's strong preference for mainstreaming, citing, " 'To the maximum extent appropriate, children with disabilities, ... [must be] educated with children who are not disabled,' and separated 'only when the nature or severity of the disability ... is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.' " L.H. ,
The preference to mainstream, however, is not absolute. L.H. ,
In some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming. The perception that a segregated institution is academically superior for a handicapped child may reflect no more than a basic disagreement with the mainstreaming concept. Such a disagreement is not, of course, any basis for not following the Act's mandate. In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act. Framing the issue in this manner accords the proper respect for the strong preference in favor of mainstreaming while still realizing the possibility that some handicapped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is a disruptive force in the non-segregated setting. Cost is a proper factor to consider since excessive spending on one handicapped child deprives other handicapped children. Cost is no defense, however, if the school district has failed to use its funds to provide a proper continuum of alternative placements for handicapped children. The provision of such alternative placements benefits all handicapped children.
Roncker On Behalf of Roncker v. Walter ,
*837Here, the record does not demonstrate that J.A. would not benefit from mainstreaming. Although his goals were heavy on motor skills, J.A. was making appropriate progress on them and was anticipated to complete them by the end of the year. There is no data showing that J.A. could not benefit from regular education with a paraprofessional and behavior supports as the District failed to provide any of these. Dr. Whitbread testified that J. A. operated the augmentative and alternative communication device very well and was able to communicate with it. Based upon J.A.'s educational record that she reviewed, her experience with children with Down syndrome, and her meeting with J.A., and all of the videos she watched of J.A., Dr. Whitbread opined that J.A. could benefit from a regular education classroom.
As to the second exception, "any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting," Dr. Whitbread opined that the composition of the classroom at CES would not provide a typical school experience and would not be beneficial as the makeup of the classroom would not mimic the percentages of disabled and nondisabled children in the community. Dr. Whitbread also believed that the class being made up of different children each day would be confusing to a Down Syndrome child. According to Dr. Whitbread, any benefit in a smaller classroom could be duplicated in a regular education classroom through small groups or through "pull out" or "push in" sessions. Dr. Whitbread testified that one of the main goals of inclusion in general education classrooms is so that a Down Syndrome child can learn to socialize and conform behavior by observing nondisabled children. Dr. Whitbread explained that based upon her experience and significant research "putting children in settings where there are primarily children with disabilities results in poor outcomes in almost every area that we measure, so [sic] academically and socially." The Magistrate Judge further notes that the ALJ found that placement at CES did not "far outweigh," NMES, describing the issue as a "tossup" and finding placement at CES a "reasonable alternative." Accordingly, based upon the foregoing, the Magistrate Judge concludes that the second exception does not apply.
Lastly, whether "the handicapped child is a disruptive force in the non-segregated setting," the record shows that the District did not provide J.A. with an FBA and a BIP. The ALJ did order the District to conduct such an assessment, albeit after J.A. had disenrolled, and further ordered training to be provided to the District's teachers. Dr. Whitbread testified that she could not determine what caused J.A.'s behaviors by just looking at Cond's behavioral log because the log only described the behavior without providing the "before data and after data." Dr. Whitbread testified that without a functional behavior assessment and behavior intervention plan a school would not know the "why of the behavior" and therefore could not move forward to change the behavior.
As stated previously, the IDEA has a strong preference for mainstreaming to "the maximum extent appropriate " and that disabled children will be separated "only when the nature or severity of the disability ... is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
Accordingly, for the reasons articulated, the Magistrate Judge concludes that Plaintiffs have been successful on the merits of their claims that Defendant improperly predetermined, without any data, that an aide would be overly restrictive in regular education; that J.A. was denied a FAPE because his IEP lacked academic goals, behavioral supports, and a paraprofessional; and that Defendant failed to place J.A. in the least restrictive environment by placing J.A. at CES without data showing he was unable to perform in the regular education classroom with appropriate supports.
Plaintiffs have also shown that J.A. would suffer irreparable injury without an injunction ordering him returned to NMES and for him to receive behavioral assessments and a properly trained paraprofessional, because without an injunction J.A. would be at risk of being segregated to a small special education classroom with limited contact with non-disabled peers. Dr. Whitbread testified that one of the main goals of inclusion in general education classrooms is so that a disabled child can learn to socialize and conform behavior by observing nondisabled children; that without a paraprofessional and a behavior intervention plan at NMES J.A. would not have what he needed to be successful; and based upon her experience and significant research, placing children in settings where there are primarily disabled children results in poor outcomes in almost every area measured.
There is no showing that the issuance of an injunction will cause substantial harm to others. Providing J.A. behavioral supports and a properly trained paraprofessional would assist his education in the regular education classroom and help him conform his behavior. The ALJ previously ordered the District to provide training to its teachers and to conduct an FBA. Smith testified that a full-time aide could be set up for J.A. at NMES. Dr. Whitbread testified that she would make herself available to answer any questions any teachers may have regarding Down Syndrome children and J.A.
Finally, the Magistrate Judge concludes that the public interest would be served by the issuance of the injunction as Swann and Hembree testified that they had never seen a Down Syndrome child included with supports or services in the regular education classroom in Smith County for the majority of the day. Moreover, an injunction would further the goal of the IDEA to address "[t]he perception that a segregated institution is academically superior for a handicapped child [which] may reflect no more than a basic disagreement with the *839mainstreaming concept," and that "[s]uch a disagreement is not, of course, any basis for not following the [IDEA's] mandate." Roncker ,
Therefore, the Magistrate Judge concludes that J.A. should be placed at NMES with a properly trained paraprofessional and for the District to conduct an FBA and implement a BIP. Further, based upon Dr. Whitbread's testimony that because J.A. is now six years old (and will be seven in August 2019) and research shows that there is no benefit to holding Down Syndrome children back at the pre-K level and, because most children with Down Syndrome have delayed learning and therefore developing early literacy skills as early as possible is important, the Magistrate Judge concludes that J.A. should be placed in kindergarten rather than repeat pre-K.4
IV. RECOMMENDATION
Accordingly, for these reasons, the Magistrate Judge RECOMMENDS that Plaintiffs' motion for preliminary injunction (Docket Entry No. 7) be GRANTED and that J.A. be placed in kindergarten at NMES with a paraprofessional properly trained in dealing with Down Syndrome children and for the District to conduct an FBA and implement a BIP.
The parties have fourteen (14) days after being served with a copy of this Report and Recommendation ("R & R") to serve and file written objections to the findings and recommendation proposed herein. A party shall respond to the objecting party's objections to this R & R within fourteen (14) days after being served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R & R may constitute a waiver of further appeal.
ENTERED this 20th day of December, 2018.
Related
Cite This Page — Counsel Stack
364 F. Supp. 3d 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ja-v-smith-cnty-sch-dist-tnmd-2019.