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Armstrong v. Charlotte County School District

 

27 IDELR 650
Florida
No. 97-4550E
Charlotte County Sch. Bd.
Counsel for Parents: Laura L. Whiteside, Esq., Tampa, Florida
Counsel for District: Usher L. Brown, Esq., Brown, Ward & VanLeuven, P.A., Orlando, Florida
Administrative Law Judge: David M. Maloney
December 30, 1997
 
Summary
An 11-year-old gifted student with a hearing impairment was placed in a regular education gifted sixth-grade program with an interpreter and speech/language services. The student communicated through Signed English, a form of sign language. The student's current interpreter used a combination of SE and Pidgin Signed English when interpreting for the student. The parents requested a due process hearing, alleging the student was not receiving a FAPE because the provisions of the IEP relating to interpreter services was not being implemented.
 
Held: for the Parents.
The administrative law judge determined the district denied the student FAPE due to problems with the interpreter. According to the ALJ, the interpreter used an inappropriate method of signing to the student. The interpreter did not use the method most familiar to the student, and the student only understood the interpreter approximately 50% of the time. The district was ordered to furnish the student with an interpreter who used English only. The district was also ordered to attempt to find a certified interpreter, but the ALJ stated that this might be difficult given the nature of the market for interpreters.
 
Statement of the Issues
Whether the Charlotte County School Board is providing Brian Alk a gifted, hearing-impaired 6th grader, with a free and appropriate public education?
 
Preliminary Statement
On September 30, 1997, the Charlotte County School Board received at the offices of Mr. max Schmidt, the Superintendent of Schools, a request in the form of a letter. Dated September 23, 1997, the letter was submitted by Mike and Linda A., the parents of Brian A. After writing that "Numerous discussions have taken place with school/school board officials regarding several issues with Brian's interpreter" and that "an agreement can not be reached," the A.'s requested an impartial due process hearing.

On October 6, 1997, the request was forwarded by fax to the Division of Administrative Hearings where it was given Case No. 97-4550E and assigned to the undersigned. Two days later, on October 8, 1997, a notice of hearing was issued and setting the hearing for November 5, 1997 in the Superintendent's Conference Room at the Charlotte County School District's Education Support Services Building in Port Charlotte. After rescheduling for November 7, 1997, the location of the hearing was also changed at the request of the A.'s so that it might take place at a neutral site in Port Charlotte.

During the final hearing, the parties agreed to an extension of time for the filing of this final order until December 7, 1997. When the hearing failed to conclude on November 7, 1997, it was continued until November 17, 1997. Upon failure to conclude, again, on November 17, it was continued until November 20, 1997. In the meantime, the parties agreed to an extension of time for issuance of the final order until December 29, 1997.

In addition to the testimony of Brian, his parents, and grandmother, Helen D., the A.'s presented five witnesses: Amy Sijan, Brian's former teacher and a teacher of the hearing-impaired in Lee County; Karen Jones Maney, Exq., a hearing-impaired lawyer who employs sign language interpreters; Karen Bouchette, a sign language interpreter and teacher of interpreting for the deaf at the college level; Leonard M. Ernest, an expert in the fields of audiology, sign language interpretation and qualifications for sign language interpretation; and, as an adverse witness, Ms. Ann Eppler, the Charlotte County Director of Exceptional Student Education. The A.'s offered into evidence forty-eight exhibits, numbered one through forty-seven and then forty-nine, all of which were submitted.

The School Board presented the testimony of ten witnesses: Ms. Eppler; Patricia Ann D'Alessandro, the Supervisor of the Lee County hearing-impaired program; Gail Gegg Rosenberg, Principal at Port Charlotte Middle School; Christine K. Smith, the Port Charlotte Middle School gifted program planner and Brian's current gifted math teacher; Maureen Carroll, Brian's present educational interpreter; Martin Counterman, the Port Charlotte County lead educational interpreter for the deaf; JoAnn Crandall, Brian's 6th grade teacher during the 1996-97 school year; Judy Bohlander, the principal of Peace River Elementary School during the 1996-97 school year; and, David Ursel, the lead speech-language program specialist for the Charlotte County School District. The School Board offered into evidence 153 exhibits numbered consecutively one through one hundred fifty-three, all of which were admitted into evidence.

The final volumes of the transcript were filed on December 2, 1997. Proposed final orders were submitted by both parties; petitioner's was received on December 10, 1997, respondent's on December 8, 1997.

Findings of Fact
The Parites
1. Brian was born on January 5, 1986. when he was a toddler, his mother noticed indications of a hearing-impairment. Testing revealed profound deafness from birth. Today, Brian is eleven-years-old and enrolled in the 6th grade at Port Charlotte Middle School. He is in a special education program, but not because of a hearing impairment. Brian is the only deaf child in Port Charlotte Middle School OMEGA Program, the school's exceptional education program for gifted students. His IQ has been measured at 148. The measurement may be lower than his true IQ because of the test's inability to account for a hearing impairment on the part of the taker. Placement in the gifted program is necessary to prevent frustration that could lead to low self-esteem.

2. Mike and Linda A. are Brian's parents. They are deeply involved in Brian's schooling and committed to seeing that he obtains an education appropriate to his needs.

3. The Charlotte County School Board (the "School Board") is the authority that operates, controls and supervises all free public schools in the Charlotte County School District "[i]n accordance with the provisions of s. (4)(b) of Article IX of the State Constitution..." Section 230.03(2), Florida Statutes. It receives funding from the federal government though the Individuals with Disabilities Education Act ("IDEA").

4. The Charlotte County School District's Director of Exceptional Education and Psychological Services is Ms. Ann Eppler. She is supportive of providing Brian an interpreter. Ms. Eppler's position that Brian should have an interpreter has not wavered since the development of Brian's Individualized Educational Program ("IEP") for the 1996-97 school year. At the time the IEP was developed, Ms. Eppler agreed that it should call for the provision of an educational interpreter even though Brian "can read lips...can hear sound (with hearing aids) within conversational levels...and,...can finger spell well "because an interpreter "would enhance [both] his education...[and] transition into the middle school level..." (Tr. 293)

The Various Modes of Signed Communication
5. Deaf people use many varieties of signed communication. Two of the modes are true languages: first, the variety of systems under the umbrella of manually coded English, including Signed English (SE); and, second, American Sign Language (ASL).

6. ASL is a language foreign to English. "It is as different from English as Spanish, German or Chinese." Petitioner's Ex. 33. As a foreign language, it has its own grammar, syntax, and vocabulary. Additionally, it has its own non-verbal facial signals different from those that might be employed by a speaker or signer in English. To someone who signs in one of the manually coded English systems, no matter how skilled, and who has no knowledge of ASL, signed communication in ASL imparts little if nothing. To such a person, the meaning of signed ASL is incomprehensible.

7. While the meaning of ASL communication would be lost to a signer who signs solely in English, the signer in English would pick up some of the words signed in ASL because although ASL and SE are entirely separate languages, they share about 5,000 signs. In ASL, inflectional changes are made to those 5,000 signs to create about 200,000 meanings. For the 50,000 or so words in a working English vocabulary, the 5,000 signs shared with ASL are adapted to create enough signs to bring the vocabulary up to 50,000. The extreme difference in the two languages lies in facial expression, grammatical changes and mouth movements.

8. A major difference lies in syntax. ASL employs a sentence structure very different from the structure used in the English Language. Unlike ASL, all of the modes of manually coded English follow the rules of English sentence structure.

9. The two primary modes of manually coded English are Signed English (SE) and Signed English Exact (SEE). The main difference between SE and SEE is that SEE, as one would expect from its denomination, communicates in English precisely. It uses all morphological markers such as the "ing" found at the end of a gerund, as in "running," for example. It also indicates plurals, past tense by the use of "ed," and employs other morphological markers such as "ly," for denotation of adverbs, as well as all articles, like "the" and connecting words such as "and" and "or." SE may use some markers, articles and connecting words but it does not use all. It communicates concepts well but it would not be appropriate in some settings. One such setting, for example, would be the practice of law, where the outcome of a case or the meaning of a legal document such as a contract could turn on an exact word such as "shall" or "may" or use of the past tense.

10. Another form of signed communication is Pidgin Signed English (PSE). It is a combination of ASL and SE. It follows some of the rules and some of the grammar of ASL. Likewise, it follows some of the rules and some of the grammar of English. It uses vocabulary from both. It is not a true language, partly because it has no consistency. Most problematically for the person receiving signs in PSE, it varies in how much is ASL and how much is English, "depending on the skill of the individual person" (TR. 222, Vol III) in both ASL and SE.

11. In the setting at issue here, public education, Signed English is preferred by the hearing-impaired community over both PSE and ASL. Deaf people may use ASL for social events and interaction outside of school but most deaf children use Signed English in the public schools. "Signed English is the language of the American Deaf Education System. There is no question about that." (Tr. 283). As one would expect, therefore, Signed English was the language used in the first four years of Brian's elementary education.

Elementary School
12. Brian completed elementary school in a "regular education" class, (that is, not part of a hearing-impaired or other special education program) at Peace River Elementary School. there his fifth grade teacher was Ms. JoAnn Crandall. Although it took him a little time to adjust to Ms. Crandall's class, by the end of the year, Brian was doing well both academically and socially. The reason for the period of adjustment was that he had spent his previous years in elementary school in special education: a hearing impaired program at a Lee County elementary school.

13. Brian and his family were residents of Charlotte County when Brian reached school age. But Charlotte County is too small to support a hearing impaired program at the elementary level by itself. Consequently, it participates in a multi-county hearing-impaired program (McHIP) with Hendry, Glades and Lee Counties, and at the time Brian began school, with Collier County as well. Brian started elementary school, therefore, at the McHIP elementary site, Allen Park in Lee County.

14. Despite the large geographical area from which McHIP draws its students, there are usually only 40 to 50 students at Allen Park. It has a "home-style" atmosphere, one that is nurturing for the hearing-impaired student. The program was a good one for Brian.

15. Transportation by bus was available from Charlotte County to Allen Park but the distance posed difficulties for Brian's family. To overcome these difficulties and in demonstration of their commitment to Brian's education, the family moved to Lee County after he started at Allen Park.

16. It was determined at Allen Park that an "oral" educational environment, that is, teaching without sign language by means of lip reading, auditory training, writing and pictures and other non-signing methods of communication, was not in Brian's best interest. He was taught instead in one of the two primary forms of signed communication in this country: Signed English.

17. When Brian arrived at Allen Park, he already had some knowledge of Signed English. Brian's mother had begun to take lessons in SE from a local program known as Sky High. One of the program's teachers came to the home to teach both Brian and his mother. Through this teacher of SE, Brian's mother learned about McHIP and Allen Park. She was informed, too, that the signed communication mode at Allen Park was SE rather than ASL, the other primary form of signing in the country.

18. Brian's mother took additional classes in SE at the local Cultural Center with Brian's grandmother when Brian was a preschooler. At these classes, Brian's mother and grandmother had the option of being taught SE or ASL. They chose SE knowing it would be the signing mode in which Brian would receive his classroom lessons at Allen Park.

19. Brian's family committed itself to learning to sign. The importance of the commitment is not to be underestimated. It is a step essential not only to the integration of a deaf child into the family but to the child's entry and taking part in the hearing world outside the family. This commitment places Brian's family in a minority among families with deaf children. Nationally, only about 10 per cent of such families have non-deaf members who sign. Failure to sign within the family is a major impediment to the deaf child's development. In addition to a multitude of negative consequences that flow from a sense of isolation for a deaf child whose contacts are diminished by not having a well-developed systematic method of communication, non-signing in the family delays the deaf child's overall learning. The learning delay is pervasive. It affects not only signing ability but ability to receive information through other modes of communication as well, such as lip-reading.

20. The opposite occurred in Brian's family. Signing was integrated into the family communication. A Signed English dictionary was purchased for the family early in Brian's mother's participation in signing classes. The family frequently uses it still. If Brian does not know the meaning of an English word, he looks the word up first in a dictionary of English and then looks up the sign for the word in the SE Dictionary. The family continues to sign at home in SE. Brian's father learned SE and his three-year-old sister, who has no hearing impairment, is learning to sign in SE.

21. One of Brian's Allen Park teachers, Amy Sijan, explained that at Allen Park, he was taught in a blend of SEE and SE, an admixture she referred to in her testimony as "pidgin" (Ms. Sijan's reference to the combination of SEE and SE, as pidgin, should not be confused with Pidgin Signed English, as defined above in paragraph 10). There is no confusion, however, about one point: Brian understands ASL today but from when he first began to sign as a preschooler through his elementary education at Allen Park, no teacher or anyone in his family communicated with Brian in ASL. They communicated with him in SE. English, whether signed, spoken or written, is his primary language.

Signed English: An Aid to Overcoming Barriers in the Hearing World
22. Deaf people face barriers to their participation in the hearing world. To overcome these barriers, it is to the distinct advantage of a deaf person in the United States to be able to communicate orally in English. But such ability in the deaf person is rare. Only 10 to 15 per cent of deaf people in the US speak orally well in English. Even then, most are not understood perfectly by hearing persons because of difficulty in pronunciation clarity.

23. Signing in a manually coded form of English promotes the deaf person's ability to communicate and receive communication through reading, writing, lip-reading, and speaking orally. Signing in ASL early in the home, on the other hand, will help develop a deaf child's overall language skills including ability to communicate in English. And it is certainly to a deaf child's advantage to be able to sign fluently in both ASL and SE much as it is to anyone's advantage to be bilingual in any two languages. But while studies do not indicate that signing in ASL at home does damage to a deaf child's ultimate ability to communicate in English, signing in English early promotes in most instances ability to communicate in English earlier in life. For this reason, in Brian's case, "Brian's ability to communicate in English enables him to have a potential and the opportunities that go with that potential that he would not have if his primary language were ASL." (Tr. 147-8) As the School Board recognized, it is this potential and the educational opportunities that might be realized that led it to concur in the provision of an educational interpreter for Brian through his IEP.

The IEP
24. Brian's IEP calls for the provision of both an FM system and an Educational Interpreter. The provision of these services occurred first at Peace River Elementary in Ms. Crandall's fifth grade class. (Petitioner's Ex 3, p 2 of 3). The purpose of the FM system is to enhance sound Brian might be able to pick up through the use of his own hearing aids. Brian's hearing loss is too profound for his hearing aids to enable him to discern words, but they help him to pick up volume and other clues that have the potential of increasing his understanding of the spoken word.
 
25. Provision of the FM system and an educational interpreter continued through the sixth grade. In a meeting that took place on April 7, 1997, at the end of Brian's fifth grade year, it was decided that during the next school year, his first in Middle School, Brian would continue to receive speech services. These services include:
a. Speech-language therapy...;
b. A full-time educational interpreter, (EI), one on one...The interpreter may not interpret during specific periods of time which were agreed to between the parents and the school district, including times during which [Brian] is interacting with his normal hearing peers, physical education/recreation time and lunch. In addition, the interpreter may refrain from signing when [Brian] is engaged in a collaborative learning experience and is participating in a group with normal hearing peers. The EI coordinates with [Brian's] teachers on an ongoing basis to better prepare to sign difficult concepts or words in the curriculum for which there are no standard signs. (Citations to record omitted);
c. Modifications to curriculum;
d. Modifications in the placement of [Brain] in the classroom so that [he] will have better accessibility to lip-reading. (Citations omitted);
e. Hearing aids and FM amplification...(Citations omitted);
f. Overhead projectors and the use of videos with subtitles/text in English.
(Respondent's PRO, pgs 3-4) It was also decided that he would participate in the Middle School program for gifted students, the OMEGA program, in four academic classes: Language Arts, Math, Science, and Social Studies.

26. The first educational interpreter provided for Brian in Ms. Crandall's class was not a good match for Brian. His parents requested that Brian have another interpreter because the first was not animated enough for Brian's temperament. Ms. Eppler readily agreed. Although there is tremendous demand for educational interpreters and Charlotte County's salary allowance is low for attracting a qualified interpreter, Ms. Eppler found an interpreter who was lively enough for Brian: Maureen Carroll, Brian's present educational interpreter.

Brian's Present Educational Interpreter
27. Maureen Carroll is a permanently disabled military veteran. Prior to interpreting for Brian, Ms. Carroll had no experience interpreting in gifted   classes. Her experience was with mentally handicapped individuals. She was discharged two years ago from the military but her active duty ended in 1988 following a serious accident in 1986. Following the accident, major surgery in which a nerve was severed led to a hearing impairment. The impairment requires Ms. Carroll to wear a hearing aid in one ear.

28. With the exception of language arts class in which Ms. Carroll interprets to the best of her ability in SEE, Ms. Carroll interprets for Brian in PSE. When she has been observed by Martin Counterman, Charlotte County's lead interpreter, upon whom Ms. Eppler must rely for assessment of Ms. Carroll's interpreting abilities, she has interpreted in a manually-coded form of English or PSE, not in ASL exclusively. But Ms. Carroll has little if any training in SE or SEE. Her training is in ASL.

29. Ms. Carroll's hearing impairment and the necessity that she use a hearing aid makes it difficult at times for Ms. Carroll to hear everything that is being said in class by both the students and the teacher. Leonard M. Ernest, and expert in audiology and qualifications of interpreters, explained it this way at the hearing:
Hearing aids are designed to carry voice communications from eight to twelve feet away, that's it. Beyond twelve feet, the use of a hearing aid drops dramatically.
In a classroom where you have a large class, there are lots of times the teacher is going to be more than twelve feet away from the interpreter. And, if the interpreter, even using a good hearing aid, is beyond that 12-ft range, they're not going to be able to hear the words that the teacher is using.
The other problem is that in a classroom setting, if...the teacher only was talking, and the interpreter could position himself near by the teacher, he may be okay. But if questions are coming from the back of the classroom, if there are competing signals,...groups talking all at the same time, [t]hat's the most damaging thing for a person who is hard of hearing. It's impossible to understand whether the sound is coming from this group [or another].
[M]y opinion would be a person who is hard of hearing...might be able to function in a one-to-one setting...quiet and no other distracitons, and closer than twelve feet.
Once all those wonderful parameters are taken away, and you're in a large classroom with noise and fans, writing on a blackboard, the sound[s outside]..., it's going to be very difficult for that person to be able to understand the teacher and to interpret everything that happens in the classroom.
(Tr. 251-3, Vol. III)

30. Aside from the difficulty posed by her hearing impairment, all parties agree that Ms. Carroll's skills are not at a level at which she is able to interpret everything that the teacher might be saying, as would someone certified by the National Registry of Interpreters for the Deaf signing in SEE. Ms. Carroll has been assessed by Mr. Counterman, Charlotte County's lead interpreter, as having skills at the level of an Educational Interpreter II (EIE-2). At that level approximately 75% of the spirit and content of what is being said is actually interpreted and forwarded to the interpreter's deaf client. (Mr. Counterman, himself, holds only the middle level of certifications offered by FRID: EIE-2 and QA-2 certifications; he is not NRID certified. See Paragraphs 28-36 below.) Ms. Carroll is working in EIE certification and hopes to have it by the end of the school year. But she has not yet been certified by any recognized certification authority of interpreters for the deaf.

Certification of Interpreters for the Deaf
31. The National Registry of Interpreters for the Deaf (NRID) provides certification for interpreters. The requirements for NRID certification are stringent. Along with certification goes a comprehensive Code of Ethics promulgated by NRID. These ethical standards are widely recognized, even acknowledged by the United States Supreme Court. In Zobrest v Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462, 1251, Ed.3d 1, (1993), the Court writes at 509 U.S. 13,
[T]he task of a sign-language interpreter [in an educational setting] seems to us quite different from that of a teacher or guidance counselor. Nothing in this record would suggest that a sign language interpreter would do more than accurately interpret whatever material is presented to the class as a whole. In fact, ethical guidelines require interpreters to 'transmit everything that is said in exactly the same way it was intended.'
 
32. Part of the reason for the strictness of the requirements for NRID Certification and its promulgation of a Code of Ethics is that the public-at-large fails to apprehend the difference between a person who merely signs well and a person who not only signs well but can interpret well. Karen Bouchette, an NRID-Certified interpreter offered this insight:
This is what the average person doesn't understand; and I think school administrators don't understand. They think someone knows sign language and can interpret it.
The tasks that [interpreters] are asked to do are extrememly difficult. When the hearing teacher is speaking, the interpreter is listening, tape-recording what is being said in their short-term memory, decoding it for the meaning and effect and all that. Then you change it into the style [ASL, SE, SEE, PSE] that is the most...preferred by the deaf customer.
[The interpreter] is signing what the hearing person said maybe 15 seconds ago, so it takes years of working on each little part of that task to be able to sign what...was said accurately and get feedback that [the interpreter] is being understood, while still tape recording in [the] brain what the hearing person is saying now. And then it goes the other way when the deaf person signs.
What typically happens with an unqualified interpreter is that the student doesn't get to participate in class because the interpreter is not comfortable voicing what the student is signing.
(Tr. 173-4, Vol II)

33. For sign language interpreters in Florida, there are certifications other (and much less exacting) than NRID. The Florida Registry if Interpreters for the Deaf (FRID), an NRID affiliate, has created a quality assurance screening ladder for apprentice interpreters to climb as they work toward national certification. This apprentice ladder has three steps, QA-1, QA-2 and QA-3.

34. FRID has also established an educational interpreter evaluation. The Florida Registry of Interpreters for the Deaf was the first state NRID affiliate to do so. (It may be the only state affiliate - Ms. Bouchette did not know of another). FRID also developed a separate Code of Ethics for educational interpreters and is the only state affiliate of NRID to have done so.

35. The separate code for educational interpreters was developed in Florida in recognition that educational interpreters are expected to operate outside the NRID Code of Ethics on a daily basis.

36. Under the national code, the sign-language interpreter is simply a conduit of information provided by the communicator of that information. The information is not to be tinged with opinion or viewpoint of the interpreter. "[I]t's as if [the interpreter] is not there" (Tr. 164)

37. In the educational setting, however, the sign-language interpreter is expected to be part of the educational team. The interpreter's presence manifests itself in the classroom to the hearing-impaired student and the rest of the class and at the school to all its participants. As examples, the interpreter is called on to assist the student (see Petitioner's Ex. 32, Florida Code of Ethics for Educational Interpreters, No. 3), report on the student's activities in class to a teacher in another class (id., No. 1), and is to enforce law, rules and school policies, even to mete out discipline at the school site to any student observed in violation, (id., No. 7)

38. The Forida Department of Education accepts educational interpreters at the three FRID EIE levels: EIE-1, EIE-2, EIE-3. These levels correspond roughly to FRID's three QA levels. A description of the three levels is found in Petitioner's No. 32:
LEVEL I: Denotes an Educational Interpreter (K-12) with intermediate ability, who appropriately received and expressed at least 60% of the material presented during the Evaluation. An interpreter with this level should be able to competently handle situations in which there is an opportunity to stop the student or professional for clarification or repetition.
LEVEL II: Denotes an Educational Interpreter (K-12) with intermediate ability, who appropriately received and expressed at least 75% of the material presented during the Evaluation. An interpreter with this level should be able to handle effectively difficult, faster-paced communications where there may or may not be an opportunity to stop for clarification or repetition.
LEVEL III: Denotes an Educational Interpreter (K-12) with advanced ability, who appropriately received and expressed at least 90% of the material presented during the Evaluation. An interpreter with this level can proficiently handle a full range of complex communication situations occurring in an educational environment.

39. The availability of EI certification is less demanding than NRID certification and the separate FRID Code of Ethics for educational interpreters speak to pragmatism and the reality of the difficulty faced by the Charlotte County School Board in providing interpreters for hearing-impaired students in classes outside a hearing-impaired program.

The Experience of Charlotte and Neighboring Counties
40. Through a trio of witnesses, Gail Gegg Rosenberg, Patricia Ann D'Allesandro, and Ms. Eppler, the School Board explicated the difficulty of obtaining highly qualified interpreters in Charlotte, Sarasota and Lee Counties. Through Ms. Rosenberg and Ms. D'Allesandro it relayed other realities of the education interpreter environment in the region in which Charlotte County is located.

41. While a sign language interpreter might be attracted by a school board's employee benefit package, generally work in other settings is preferred. Primarily, interpreters prefer to freelance. Furthermore, the pay scale for interpreters in southwest Florida is much lower than elsewhere in the country and the State. (The pay scales in St. John's and Broward Counties, for example, far exceed what Charlotte County offers.) There is, therefore, a shortage of sign langauge interpreters willing to interpret in the public school education setting, a shortage exacerbated for the Charlotte County School District by the low pay scale in the southwest Florida area.

42. It is unlikely that most interpreters available to interpret in the educational setting would be capable of interpreting every word spoken by the teacher let alone all the other participants in the classroom. A school system would be satisfied normally with an interpreter who is able to communicate concepts clearly at one of the "educational interpreter" levels of certification.

43. In reviewing an application and resume that revealed Ms. Carroll's credentials, the Sarasota County School District would hire the applicant, even though not presently certified, if an evaluation by a School Board staff memeber who was RID certified or an independent evaluation by the Deaf Service Center produced comments similar to those in Ms. Carroll's file. Still, employment in such a case would be conditional on obtaining some type of certification within a certain period of time, typically 18 to 24 months.

44. In Lee County, two of its ten or so educational interpeters who interpret in the middle and high schools are not yet certified. None of the interpreters interpret exclusively in SEE; to do so would be impossible for them, particularly in the higher level content areas, such as the advanced sciences. Lee County educational interpeters interpret for the deaf student primarily in PSE. Indeed, official Lee County policy does not require that interpreters interpret only in Signed English; it allows interaction in any mode of signed communication; SEE, SE, PSE or ASL. Presumably under such policy, interpretation exclusively in ASL would be allowed for a student whose primary language is English, that is, a student like Brian.

Brian in Port Charlotte Middle School
45. Brian understands some ASL, but he understands Ms. Caroll's signing only about half of the time. His FM system allows him to hear some sound in the form of a hum that may go up or down in tone and volume but not to discern any spoken words. He does not like to wear the system for various reasons and rarely uses it even though it is of some assistance. No doubt, one reason is his age. Socialization is of paramount importance to children of middle-school age. Deaf children generally feel different because of their hearing impairment. Wearing hearing aids hooked to an FM amplification system aggravates feelings of "being different," a feeling the typical middle-schooler will go to great lengths to avoid.

46. Nonetheless, Brian enjoys good peer relationships. His classmates enjoy communicating with him. While engaging in a group discussion his peers make attempts to speak one at a time to facilitate his lip reading. Some of his friends are taking a sign language couse offered after school by Ms. Carroll.

47. Despite his difficulty in understanding his current interpreter, Brian has succeeded in class so far at Port Charlotte Middle School. On the first nine weeks report card, Brian received an "A" in Science and "B's" in Social Studies and Language Arts. In Math, Brian received a "C". The Math grade greatly concerned Brian's parents because on standardized tests he scores in the highest percentiles in Math Concepts. But the "C" was not because Brian did not understand the material. It was because he failed to turn in a major assigned project and a homework assignment that counted for two homework grades. Had he turned the project in late, it is likely he would have received a "B." (Parent Note - In court transcripts: The EI told Brian not to turn in the project and related assignment because he did it wrong. He had done what the EI had "interpreted". He had worked hard to complete the work and when told it was wrong, threw it away.)

48. Thus, despite not receiving about half the interpreted communication from his interpreter, Brian is doing well academically. He is on schedule to progress from grade to grade on an age appropriate basis. He is on track to achieve a regular education diploma. The Charlotte County School District, moreover, is on record having committed to assisting Brian, as one of its hearing-impaired students, to more than just achievement with a regular education diploma. It has recognized his right to develop his skills in language, communication, and other academic and social areas to the optimum. This recognition is in the District's Special Programs and Procedures Manual.

Charlotte County's Special Program and Procedures Manual
49. The Special Programs and Procedures Manual (SP&P) was created in order to qualify for federal funding under IDEA. Pursuant to Rule 6.03411, Florida Administrative Code, the SP&P was submitted for approval to the Department of Education. The department reviewed it and approved it pursuant to its obligation at 20 U.S.C. s 1414(a). The SP&P provides in pertinent part:
Language and communication are the keys to successful living in our culture. Hearing-impaired students shall have the right to develop their potential skills in these areas and other academic and social areas to the optimum, commensurate with their mental and physical abilities. Oral communication development shall be stressed and aided by utilization of appropriate amplification equipment for enhancement of residual hearing. Adjunctive communicational skills (signing exact English and signed English) will be provided for students determined by staffing committee to need additional avenues of language input and expression. Hearing impaired students shall have the right to participate in regular academic and exploratory educational activities.
(Petitioner's Ex. 9, p. 79)
 
Conclusions of Law
50. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 2.30.23(4) (m) 5, Florida Statutes, and Rule 6A-60.03311(5), Florida Administrative Code.

51. The Individuals with Disabilities Act, (IDEA) 20 U.S.C. Se.1400 et seq., uner which the issues in this case arise, was enacted "to address a long history of discrimination by public schools against disabled children." Teague Independent School District v. Todd, 999 F.2d 127, 129 n.4 (5th Cir. 1993). As a condition of federal funding, IDEA requires that states provide all children with a "free appropriate education" (FAPE), 20 U.S.C. See 1412(1), which the United States Supreme Court has defined as an education from which the child receives some degree of benefit. Board of Education of Hendricks Hudson Central School distrct v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 30304, 3047, 73 L.Ed 2d 690 (1982).

52. It was proven that the Charlotte County School Board receives federal funding. IDEA and the FAPE requirement therefore are applicable to this case.

53. The Armstrong's contend that Brian's IEP is not being implemented through the School Board's provision of speech services to Brian in the form of an educational interpreter in a manner that meets the FAPE requirement. The issue is not so much whether that implementation is "free" but rather whether the implementation is "appropriate". Both parties assert that the question is easily answered; the case in their view is "open and shut".

54. The Armstrong's view rests in part of the School district's SP&P and its promise to provide Brian, as a hearing-impaired student, with the opportunity to achieve "optimum" development of language, communication, academic and social skills. The School Board on the other hand, compares the facts of this case to the "remarkably similar facts" of Rowley, in which the United States Supreme Court held that a hearing-impaired child with above-average intelligence was not entitled to the services of a sign-language interpreter at all because she was making adequate progress and therefore receiving some degree to educational benefit, all that IDEA mandates.

Applicability of the SP&P
55. There is no question that Brian's current interpreter does not assist him in achieving "optimum" development of his potential as called for by the SP&P. Indeed, optimum development could only be provided by teachers who sign in English in all of Brian's academic classes in the gifted program. It is equally clear that it would be unreasonable under current law to require the School Board to provide a signing teacher in all those classes when he is the only deaf child in the Port Charlotte OMEGA program. On the other hand, choosing to place Brian in a hearing-impaired non-gifted program runs afoul of FAPE requirements when placement in his case in the gifted program is necessary to promote self-esteem and prevent frustration.

56. As the School Board points out, under Rule 6A-6.03311(5) (a), this proceeding is not for the purpose of assuring compliance with the SP&P, which at its core, is a "funding" document. This proceeding is for the purpose of determining whether Brian is being provided a free and appropriate public education, a concept defined in IDEA and in Rowley above, and its progeny. Nonetheless, the SP&P is the document on which the state and ultimately the federal government made its funding decisions. While there are no cases presented by the parties which hold that promises provided in the document used by the state and the federal government for approval of IDEA funding above what is required by IDEA are determinative, the language of the SP&P must at least be a factor in determining what is appropriate. In this regard, both the language about maximizing potential and provision of adjunctive communication skills in "signing exact English and signed English" must be considered.

Application of Rowley
57. As the School Board argues, there is remarkable similarities to the facts of this case and the facts of Rowley. In Rowley, an extremely bright deaf child who was an excellent lip reader, and who was making passing marks and advancing from grade to grade, sought an order requiring a school authority to provide her with a sign-language interpreter on the basis that to not do so denied her a "free appropriate public education" contrary to Federal law. The United States Supreme Court held that her performance in school demonstrated that she had received FAPE through state provided personalized instruction with sufficient support services to permit her to benefit educationally from the instruction. The court ruled, moreover, that the requirement of FAPE does not mandate that the state maximize potential of every disabled child commensurate with the opportunity provided non-disabled children.
 
58. In commencing its discussion of the issues surrounding FAPE, the Rowley Court begain with the following definition of "free appropriate public education;"
The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State Educational Agency, (C) include an appropriate preschool, elementary or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required [under Federal law].
Rowley, 458 U.S. 188 (emphasis added) There are two factors that distinguish this case from Rowley.
 
59. First, this case concerns implementation of Brian's IEP. As the definition of FAPE makes clear, the school authority must provide special education and related services "in conformity with the [IEP]." Appropriate implementation of an IEP is an issue this proceeding is designed to address. The federal courts have made this clear. For example, in Chuhran v. Valled Lake Consolidated Schools, 839 F. Supp. 465, (E.D. Mich 1993), the following was written:
IDEA assists children with disabilities through the creation of "Individualized Education Programs" (IEPs), which are "tailored to the unique needs of the handicapped child." (citation to Rowley and other cases omitted)
                                                                                        ***
If the parent or child believes that the IEP implemented by the school "[provides a lesser education that they regard to be their legal right,...thay have an opportunity for an initial impartial due process hearing conducted at the local or regional level."
Chuhrun, at 470-1. (Parental involvement is not only crucial to IEP development but anticipated by IDEA.) See Holland v. District of Columbia, 71 F.3d 417, at 421 (D.C. Cir. 1995). Unlike in Rowley, however, the School District has agreed by way of the IEP to provide Brian with an interpreter. The question then becomes: is the interpreter provided Brian appropriate? In answering this question, the second difference between this case and Rowley comes into play.
 
60. The second difference is that IDEA has been amended to address IEP development for hearing-impaired children. As of July 1, 1998, 20 U.S.C. Section 1415 (d) (3) (B) (iv) will provide that the IEP team must:
consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communication with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode...
Although the amendment does not take affect until July 1, 1998, it provides guidance for what is appropriate in the evolving area of education for the hearing-impaired.

61. There are two major problems with Brian's present interpreter. The first is her hearing impairment. The second is that, for the most part, she signs to Brian in PSE, a combination of SE and ASL. This mode of communication is comfortable for Ms. Carroll since her training is primarily in ASL. But it is not adequate for Brian, whose primary language is English. The proof of this appropriateness is in the pudding, so to speak; Brian understands Ms. Carroll only about half the time.

62. It is not necessary that an interpreter be provided for Brian who signs completely in SEE. To do so in all likelihood would require an NRID-certified interpreter, which would be too difficult. Signing in the "pidgin" referred to by Ms. Sijan would be appropriate, since it is composed entirely of English, either SEE or SE. But signing in PSE, a combination of SE and ASL, is not appropriate for Brian. What will be received by Brian in such a case, is entirely dependent on the skills of the interpreter which varies depending on the interpreter's skills in the two languages. It is not surprising that Brian receives only about half of what Ms. Carroll interprets since her training is in ASL.

63. In selecting another interpreter, the reality of the market for educational interpreters as approved by the State Department of Education cannot be disregarded. There is, moreover, no legal requirement that an educational interpreter be certified by any legal or certifying authority. At the same time, the School Board should take into consideration Brian's academic level. For a gifted student, it seems that an interpreter, at a minimum, should already have received EIE certification. Moreover, an interpreter at the EIE-3 level, in which 90% of the spirit and content of what is being said is offered to the receiver of the interpreted communication, would probably be more appropriate for a student in a gifted class.

Order
Accordingly, it is hereby ordered that the Charlotte County School Board provide Brian Armstrong with another educational interpreter who is capable of interpreting and signing solely in English. While it may prove difficult, in selecting another interpreter, the School Board should make the effort to obtain an interpreter who is certified at the EIE-3 level.

Done and Ordered this (30th) day of December, 1997, in Tallahassee, Leon County, Florida.

David M. Maloney
Administrative Law Judge
Division of Administrative Hearings

27 IDELR 650

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