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BOARD OF EDUCATION OF THE

DETROIT PUBLIC SCHOOLS

(Hearing Dates: September 13-17, 1999)
A and B Doe, on behalf of their son C Doe,
Petitioner,
Hearing Officer Lynwood E. Beekman
BOARD OF EDUCATION OF THE DETROIT PUBLIC SCHOOLS,
Respondent.
____________________________________________

Kary Love, Esq.
Attorney for Petitioner
Executive Business Center
Suite 2, 348 Waverly Road
Holland, MI 49423
Ms. Celeste Johnson
Advocate for Petitioner
 
Lynne M. Metty, Esq.
Attorney for Respondent
 
Office of the General Counsel
Detroit Public Schools
Suite 618, 5057 Woodward Avenue
Detroit, MI 48202

____________________________________________

DECISION

BACKGROUND

This matter concerns C. Doe. Born on July 26, 1984, he is now 15 years old. C is also deaf (Ex S-5).(1) From kindergarten through the 8th grade C. attended the Day School for the Deaf operated by the Detroit Public Schools (Vol. 1, pp. 9-10). On March 22 and April 22, 1999, an Individual Educational Planning Committee (IEPC) was convened to consider C's placement for the 1999-2000 school year when he would be in the 9th grade. In the Detroit Public Schools, high school starts with the 9th grade. The Individual Educational Plan (IEP) determined that C should attend a departmentalized program for the hearing impaired at Murray Wright High School. The parents disagreed and on April 22, 1999, requested a due process hearing (Ex S-2).

On May 31, 1999, this hearing officer was advised that he had been mutually agreed upon to serve in this matter. During the course of this proceeding, the parents were represented by attorney Kary Love and parent advocate Celeste Johnson. The District was represented by attorney Lynne Metty.

The initial prehearing conference was held by telephone on June 16, 1999. It is summarized by this hearing officer's letter to the parties dated June 22, 1999 (HO Ex 4). During this initial call the parties agreed that the burden of proof would be carried by the District. Additionally, the District agreed that it would pay for the independent educational evaluation which the parents had previously requested (HO Ex 4).

As a result of discussions during subsequent conference calls and correspondence between the parties, the parties also agreed on a "stay put" placement for C at the Day School for the Deaf pending completion of this hearing and any subsequent appeals (HO Exs 9, 11, and 12; Vol. 1, p. 7).

The parents requested that this hearing be open (Vol. 1, p. 3). Hearing sessions were held on September 13 through September 17, 1999. The parties requesting an extension of the 45-day deadline to do so. At the conclusion of the hearing, counsel agreed that they would submit written briefs by September 27, 1999, even though they would not have access to a transcript. Additionally, it was agreed that this hearing officer would await receipt of the transcript (with every effort being made to have it expedited) and that he would render his decision within two weeks after his receipt of the last portion of the transcript. Finally, the parties mutually requested that the 45-day deadline under federal and state law be extended in order to allow these activities to take place under these timelines. The request was granted (Vol. 5, pp. 170-171). Both counsel submitted written briefs. Despite efforts by this hearing officer and District's counsel to expedite provision of the transcript, this hearing officer did not receive the last portion of it until October 21, 1999.

During the presentation of its case, the District called the following witnesses: Kathryn Mathey, Director of Special Education Services with the Wayne County Regional Educational Service Agency; Genevieve Nolan, Acting Supervisor for Hearing Impaired Programs with the Detroit Public Schools (DPS); Tia Richardson, interpreter at Murray Wright High School; Nicole Massey-Johnson, Special Education Department Head at Murray Wright; and Kim Gagnon, teacher for the hearing impaired at Murray Wright.

The parents called as witnesses: David Stieber, speech and language therapist with DPS; Greg Long, a psychologist and professor at Northern Illinois University; Delphine Moore, Interim Principal at the Michigan School for the Deaf (MSD); A. Doe, C. Doe's father;B. Doe, C. Doe's mother; Celeste Johnson, a deaf interpreter and advocate for C; and Robert Hoffmeister, Director of Programs and Deaf Studies at Boston University.

With respect to exhibits, this hearing officer admitted 12 exhibits (HO Exs 1 through 12; Vol. 1, p. 7). The District submitted 9 exhibits (Exs S-1 through S-8 and S-10; Vol. 1, p. 8). The parents submitted 8 exhibits (Exs P-1 through P-8; Vol. 1, p. 9; Vol. 2, pp. 4-5).

ISSUES

The parties do not dispute that C is a "handicapped person" within the meaning of R 340.1702 and is "hearing impaired" within the meaning of R 340.1707 (Ex S-2; Vol. 1, pp. 9-10). Accordingly, there is no disagreement that he is eligible for special education programs and services pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), Michigan's Mandatory Special Education Act (MMSEA), and the regulations promulgated pursuant to each of these laws. Also noteworthy is that the parties agreed upon the goals and objectives for C as set forth in the March 22/April 22, 1999, IEP here on appeal (Ex S-2).

At the outset of this matter, the issues the parents were raising at hearing were set forth in a "Notice of Disagreement with IEP" (HO Ex 1) as clarified during the conference call (HO Ex 4). However, during the course of the hearing, several of these issues were resolved in one way or another. Issues 2 and 7 in the Notice (HO Ex 1) regarding pre-determination of the placement were resolved by the District accepting the burden of proof (Vol. 1, p. 16). With regard to issue 4 on the Notice relating to audiological services, the parties agreed that the services set forth in the Notice would be placed on C's IEP (Vol. 4, p. 104). With regard to a transition plan, issue 8 on the Notice, the parties agreed that such a plan will be developed by the parties on or before December 1, 1999, and if there is a dispute regarding it, this hearing officer would hear it, with the parties later deciding whether the proceeding would be less formal (Vol. 4, pp. 104-105). Issue 10 on the Notice relates to the District's alleged failure to conduct a timely three-year reevaluation of C. The parties agreed that a multidisciplinary evaluation team meeting would be held sufficiently prior to the IEPC meeting to develop the transition plan (noted above) in order that the IEP team could consider the MET results (Vol. 4, pp. 106, 108). Issue 6 on the Notice relating to the present levels of performance (in conjunction with which the parents requested an independent educational evaluation) was resolved prior to the hearing and the District agreed to pay for the independent educational evaluation (HO Ex 4). Finally, issue 11 on the Notice relating to the District's failure to actually sign the IEP was resolved by the District noting on the record that the failure to sign it was merely an oversight and that the District was committed to implement the March 22/April 22 IEP (Ex S-2; Vol 4, pp. 105-106).

The issues that remain to be determined are as follows:

1. Placement (issue 1on the Notice): Does the March 22/April 22, 1999, IEP for C provide him with a free appropriate public education (FAPE) as required under IDEA and MMSEA in proposing that he participate in the departmentalized program for the hearing impaired at Murray Wright High School? The parents contend it does not, arguing that his individualized needs as expressed by the goals and objectives in the IEP dictate that his placement be at the Michigan School for the Deaf (MSD). The District contends that its IEP meets C's needs and is appropriate.

2. General curriculum (issue 3 on the Notice): The March 22/April 22, 1999, IEP for C notes that he will participate in a "special education curriculum leading to a high school program approved in the intermediate plan" (Ex S-2). The parents contend to the extent appropriate C should participate in the general education curriculum. The District initially took no position in this regard (but as will be discussed below it appeared during the course of the hearing that this was probably not an issue in dispute).

3. Visual alerts (issue 5 on the Notice): Do C's individual needs require visual alerts? The parents contend that while the IEP team agreed they did and agreed to include them in his IEP, in fact they were not mentioned. The District initially took no position in this regard (but during the course of the hearing as will be discussed below it appeared to agree that he needed such).

4. Extended School Year (issue 9 on the Notice): Do C's individual needs require an extended school year? The parents contend that during the March 22/April 22, 1999, IEPC meeting such was neither raised nor discussed. They contend that their basis for requesting such is both on the basis that he regresses during the summer without reasonable recoupment as well as compensatory education for alleged deficiencies in his prior programming (HO Ex 4). The District took the position that it was willing to address the issue (without admitting if C needed such). But, it alleged the parents failed to pursue it, and with the passage of the summer, the issue was moot or waived for the summer of 1999 (HO Ex 4; Vol. 4, p. 105).

FINDINGS OF FACT

In considering all of the evidence on the record, even though only small portions of it are cited here, as well as the briefs of both parties, this hearing officer's Findings of Fact are as follows:

1. C is a "handicapped person" within the meaning of R 340.1702 and is "hearing impaired" within the meaning of R 340.1707 (Ex S-2; Vol. 1, pp. 9-10). In fact, his hearing impairment is so severe he is deaf (Ex S-5).

2. Since C started school as a kindergartner, through the 8th grade, he has attended DPS's Day School for the Deaf (Vol. 1, pp. 9-10). Among C's strengths are that he is very eager to earn, has a good sense of humor and well developed social skills (Vol. 1, pp. 64-66; Ex P-1). Although the District had done no prior cognitive testing of C, it agreed to have Dr. Greg Long of Northern Illinois University do so (Vol. 2, p. 119; Vol. 3, pp. 80-81 and 83). Given C's deafness, only performance based, rather than verbal, testing instruments were used. Based upon those instruments and other considerations, Dr. Long was comfortable with assessing C's IQ as being 81 or in the low average range (Vol. 3, pp. 88, 108-109, 118, 120, 124; Ex P-1). More significantly, in reading and mathematics C exhibited significant deficits, functioning at the second grade level (Vol. 3, pp. 88, 108-109, 118, 120, 124; Ex P-1). These levels are somewhat below prior testing results which in September of 1998 found C to be achieving in reading and math at the third to fifth grade levels (Ex S-8). However, Dr. Long's results are found to be more accurate based on his background, expertise, and skill in communicating with, and assessing, deaf adolescents (as compared to the very limited skills of the DPS speech and language therapist in these regards) as well as the range and type of assessment tools utilized (Vol. 3, pp. 5, 7-18, 10, 30, 45, 71, 77, 89, 92-98, 105, 118; Ex P-1; Ex S-8). The testing also reflected that he cannot write in English (Vol. 5, p. 42). While Dr. Long believes that C's lack of ASL language skills is the reason for his functional deficits in the areas of reading and math, there are probably several reasons why those language skills are not more well developed including the prior educational approach used to instruct C, the fact that his parents are hearing (and thus his start to develop language was understandably delayed) and the level of his cognitive abilities (for if they had been known earlier, instructional strategies might have differed) (Vol. 3, pp. 171, 196-198, 201). C's ASL communication skills were evaluated for the first time utilizing a signed communication proficiency interview (SCPI) and were found to be at the intermediate level (Ex P-5; Vol. 5, p. 46). Additionally, in attempting to use ASL, evidence showed C mixes the meanings of signs, has a limited vocabulary and has very weak structures (Vol. 2, p. 102; Vol. 5, p. 47). Finally, C lacks the skill level in ASL to change "registers" (i.e., the communication levels or sentence structures which persons use when communicating in different settings) which will be problematic for him as he moves up in grade level and in attempting to learn through an interpreter (Vol. 5, pp. 48-50).

Although it is not stated on his IEP, Ms. Johnson testified members of the IEPC determined that C needs visual alerts, e.g., lights in the room that flash in the event of a fire and when the class bell rings (Vol. 2, p. 145-148). This testimony was not rebutted.

3. Given C's current low level of performance in reading and math, and considering his IQ, Dr. Long testified that he is at real risk from not being able to function independently as an adult (Vol. 3, pp. 135-136). As noted above, Dr. Long believes C's lack of language is the key reason for his deficits (Vol. 3, p. 196; Vol. 4, p. 58). In short, he testified better language means greater literacy which is the basis for all learning (Vol. 3, p. 148; Vol. 4, p. 58). Additionally, Dr. Long noted that if C obtains greater language, he will be able to function better in communicatively inaccessible environments because he needs language to be able to utilize effectively an interpreter, TTY, close captioning, etc. (Vol. 3, pp. 188-189). This testimony was not only unrebutted, but reaffirmed by other witnesses who also noted a student must first have language to learn a second language (Vol. 2, pp. 97, 102, 107-109; Vol. 4, p. 59; Vol. 5, pp. 22, 108-109).

4. Dr. Long also stated that any adolescent needs to develop an identity and self confidence, but that C does particularly as a deaf person in terms of where he fits in. Such is done in part by teaching him about the "deaf culture" (Vol. 2, p. 108, 136; Vol. 5, pp. 143, 145).(2)

5. The IEP here on appeal in the section on least restrictive environment (LRE) states: "Full time general education with support services does not meet his needs, there would be no functional communication system and he needs an accessible environment" (Ex S-2). The goals and objectives on the IEP, concerning which there was no dispute, provides in addition to those relating to reading skills, written expression skills, and mathematic skills: "To improve American Sign Language Skills expressively and receptively" (including ASL vocabulary structures and features) and "develop understanding of deaf culture and history" (Ex S-2). These critical aspects of C's IEP are totally consistent with the views of Dr. Long and others as noted above.

6. The IEP of March 22/April 22, 1999, which is here on appeal provides for C to be placed in the departmentalized program for the hearing impaired at the Murray Wright High School (Ex S-2). There are approximately 45 students with hearing impairments in the program and about 17 of them are deaf (Vol. 2, p. 24). The students receive their core subjects in classes taught by teachers of the hearing impaired while electives like art, gym, etc., are received in general education classes. Students with hearing impairments have the opportunity to participate in an array of extra curricular activities and in the 11th grade can commence vocational programming (Vol. 2, pp. 26, 30, 52).

The Murray Wright program involves three full-time interpreters and one part-time. They are used almost exclusively outside the classrooms for the hearing impaired (Vol. 2, pp. 8, 24). Five teachers for the hearing impaired participate, two of whom came from "oral" programs (Vol. 2, pp. 24, 36). With the exception of the school social worker who provides intermittent services to students at the high school, these staff are the only ones who sign (Vol. 2, pp. 21, 29). In fact, not all of the students who are hearing impaired sign (Vol. 2, p. 42). Many DPS staff testified that all of the teachers of the hearing impaired use ASL (Vol. 1, p. 66; Vol. 2, pp. 8, 27). But, the record clearly reflected that the proficiency of most of the teachers in ASL, with one exception, was very low. The teacher of the hearing impaired who testified acknowledged she was not fluent in ASL (Vol. 2, p. 46) and that she uses it, speaks orally, or uses whatever the student's mode of communication is to instruct, i.e., "total communication"(3) (Vol. 2, pp. 47, 51, 68). There appears to be no required level of proficiency in ASL for teachers in this hearing impaired program and administrators who supervise them were not aware of their proficiency level (Vol. 1, p. 100; Vol. 2, pp. 37, 62). Dr. Hoffmeister, based upon a limited, but he believes sufficient, opportunity to assess their ASL proficiency when he visited the program found three of the four teachers he met had a proficiency level of "novice" or below with the other being advanced to advanced plus (Vol. 5, pp. 57-59). This assessment was unrebutted.

With regard to the curriculum the program which would be used for C, on the IEP the box was checked indicating "special education curriculum leading to a high school diploma approved in the intermediate plan" (Ex S-2). However, testimony of both parties was consistent to the effect that basically C's instruction should be pursuant to the general education curriculum, adjusted given his individual needs, most notably his deficits in English language, with use of a special education curriculum only if such was necessary to meet his individual needs (Vol. 1, pp. 101-102, 124-126, 160; Vol. 2, pp. 161, 202).

With the exception of the school social worker who provides services to Murray Wright students intermittently or deaf adults that the students might interact with via activities through "deaf options" program or vocational activities later, there are no deaf adult models in the program itself (Vol. 1, pp. 70-71, 113). There are no visual alerts for students who are deaf. Rather, the teachers of the hearing impaired are to keep track of students in the event of an emergency and interpret public address announcements (Vol. 1, pp. 81, 90, 118-119; Vol. 2, pp. 30, 39-40, 51). A class in ASL is offered as a foreign language in the general education curriculum at Murray Wright, but it is taught on a rotating basis by one of the teachers of the hearing impaired in the program (Vol. 2, pp. 32-33 and 45).

The acting supervisor for the program for the hearing impaired who had previously been a teacher of the hearing impaired for over 20 years testified that she believed the Murray Wright program was appropriate to meet C's needs for among other reasons his wonderful adaptive behaviors (e.g., eager to learn, getting along with people, and that he would fit in well). Further, being at Murray Wright, as opposed to going to MSD, would maintain his social contacts with family and friends as well as other contacts including agencies (Vol. 1, pp. 64-66, 91-92). C's speech and language therapist also supported the Murray Wright program because of the family support he could receive here (Vol. 3, p. 42). The supervisor was not sure as to how certain of C's goals would be implemented, e.g., instruction regarding deaf culture and improving his sign language skills (Vol. 1, pp. 132, 134-135).

Dr. Hoffmeister, during his visit to the Murray Wright program, had several concerns with regard to its appropriateness for deaf students generally, but particularly C, in addition to the low level of proficiency in ASL but most of the teachers as noted above. The classrooms were set up in traditional rows rather than a semi-circle which meant that students, unless they turned around, would miss half of the communication between the teacher and deaf students who sat behind them. Hearing and hard of hearing students (who could hear with the use of hearing aids) participated in the classes for the hearing impaired resulting in the teacher often communicating with these students orally and not signing, but even communicating with these students more frequently due probably to her lack of comfort with their signing skills. Too often the teacher of the hearing impaired would make signing mistakes which caused confusion in the communication and had to be clarified, wasting a lot of instruction time. Because the only signers in the class were the teachers and the deaf students for the most part, the deaf students were left out of many classroom communications. Finally, the blackboards in the classroom were at the side of the class rather than behind the teacher, requiring the deaf child to choose between looking at the blackboard or the signing teacher. In addition to observing there were no visual alerts in the classrooms, he also noticed that only one of three teachers interpreted for the students public address announcements. Dr. Hoffmeister opined that these factors presented "serious" educational problems with the program, particularly for C (Vol. 5, pp. 57-72). He also noted concern with regard to the lack of accommodations to the deaf outside the classroom for the hearing impaired such as some way for them to communicate with school office personnel or even communicate with the outside world via TTYs which are not available (Vol. 5, pp. 79-80, 90). The existence and adverse affect of these problems was not rebutted.

7. The parents proposed that C attend MSD. Approximately 115 students with hearing impairments, mostly deaf, attend the school, 40% of which are in grades 9 through 12 and approximately 40 to 50% of which participate only during the day (Vol. 4, pp. 6, 42-43). Other students reside at the school which allows them to obtain extra help and greater opportunities to sign with staff and other students (Vol. 4, pp. 20-21). These students go home on weekends, holidays, and vacations (Vol. 4, p. 74).

Approximately 25 teachers participate in the program, four of whom are deaf, and all of whom are advanced ASL signers unless new and they need to be at least intermediate signers, committed to improve their skills (Vol. 4, pp. 7, 47). Every employee at the school must at least be able to sign at the survival level and all employees in the residential area can sign at a high level (Vol. 4, pp. 72-73). Of the staff, 30 are deaf (Vol. 4, p. 57).

For academic instruction, the children are divided into groupings by age (Vol. 4, pp. 19-20, 44). Classes in ASL are taught, not necessarily by certified teachers, but by persons who are very good signers (Vol. 4, pp. 28-30, 45, 61). Additionally, a class on deaf culture is offered (Vol. 4, p. 40). The classrooms have visual alerts, i.e., lights for class bells and fire alarm plus PA announcements are signed as well as included in a daily sheet (Vol. 4, pp. 32, 52). Each student is also taught how to use a TTY and other life skills (Vol. 4, p. 33).

Dr. Hoffmeister, in his visit to MSD, found the ASL proficiency level of the teachers to be advanced to off the scale which allowed them to move from one register to another. He also found the residency staff to be fluent ASL signers. With regard to the classrooms, they were set up in a semi-circle, all had visual alerts, and the interactions between teachers and students as well as students and students was fluent (Vol. 5, pp. 74, 78, 81).

8. In comparing the appropriateness of the Murray Wright program versus MSD's, the supervisor of the Murray Wright program, in addition to those reasons she believed it was appropriate for C as noted above, acknowledged that efforts must be made to close the gap between C's performance and that of his peers. She did not believe whether C attended Murray Wright or MSD would make any difference in this regard. She viewed the differences between the two programs being C's opportunity to interact with hearing people at lunch and other activities at Murray Wright (although later acknowledging he would also interact with hearing persons at MSD) (Vol. 1, pp. 155, 158, 162-163). While concerned the MSD placement would take C out of his community, she acknowledged with regard to his leaving the community to attend MSD that he could maintain his family and other contacts on weekends and vacations (Vol. 1, pp. 91-92, 141).

9. Clearly, C has told several people he wants to attend MSD, for among other reasons he has deaf friends there and everyone can communicate with one another. The lack of communication at Murray Wright he told others causes him to be uncomfortable (Vol. 4, pp. 82, 84, 93; Vol. 3, pp. 185-186; Vol. 5, pp. 84, 88, 91). Both his parents prefer MSD after visiting both programs (Vol. 4, pp. 88-81, 95).

10. Dr. Long opined that given C's current low achievement levels in reading and math (and considering his IQ), as noted above he runs a real risk for not being able to function independently as an adult. Accordingly, he stated that C needs a comprehensive educational approach to try to "close the gap," i.e., a "communicatively accessible environment." In this regard he emphasized that C needs opportunities to improve his ASL, not just in a class, but throughout his day. Only MSD, not the program at Murray Wright, in his view will provide a communicatively accessible environment (Vol. 3, pp. 136, 138, 145, 154-157).

Both Dr. Hoffmeister and Ms. Johnson basically agreed with Dr. Long. Neither believed the program at Murray Wright would be able to address C's goals with regard to improving his ASL skills or instruct him on deaf culture. Further, they pointed out many adverse aspects of the Murray Wright program including the various problems in the classrooms for the hearing impaired, the lack of deaf role models, the lack of visual alerts, and the lack of opportunities for incidental learning particularly during the residential aspect of MSD's program (Vol. 2, pp. 164-170, 214, 216; Vol. 5, pp. 85, 93-104, 139, 155-159).

While Drs. Hoffmeister and Long found no potential harmful effects in C attending MSD (Vol 3, p. 189; Vol. 5, p. 104) nor did C's parents (Vol. 4, p. 83), the principal at MSD and others did note one possibility. She indicated that sometimes students become "too comfortable" at MSD and as she put it need to be "pushed from the nest" (Vol. 5, p. 68). But others pointed out schools for the deaf are in some regards like a college in terms of a community, that this should be addressed in transition planning, that C must make a decision on where he will go after MSD which may not be Detroit and that meeting deaf students from other parts of the state might expand his options on where he would like to go (Vol. 3, p. 108-109, 143; Vol. 4, p. 68; Vol. 5, pp. 129-133).

11. Several witnesses who testified both for the parents and the District agreed on the following principles. Better language skills leads to greater literacy which is the basis for all learning. The fluency of a teacher in ASL is generally going to affect the student's ASL fluency and the child's development (Vol. 2, pp. 75-77, 211; Vol. 3, pp. 138, 194-195; Vol. 4, p. 59).

12. There was no evidence on the record to make any findings at all regarding whether C needs require an extended school year and, if so, what type. Accordingly, none are made.

13. Statements in the Background portion of this Decision noted above and the Conclusions of Law set forth below which also constitute Findings of Fact, are incorporated here by reference.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, the briefs of counsel, as well as this hearing officer's own legal research, the Conclusions of Law of this hearing officer are as follows:

1. Those comments made above under Findings of Fact, which also constitute Conclusions of Law, are incorporated here by reference.

2. Under IDEA a district is required to provide a "free appropriate public education" (FAPE). 20 USC 1400, et seq. A FAPE is further defined as being special education and related services which, among other things, "meets the standards of the state educational agency" and are in conformity with an IEP which meets the requirements of law. 34 CFR 300.13. "Special education" is defined as meaning specially designed instruction at no cost to the parents, to meet the unique needs of a child with a disability. 34 CFR 300.26.

In Bd of Ed v Rowley, EHLR 553:656 (US, 1982), the U.S. Supreme Court laid down a landmark, two-step test to in effect determine the appropriateness of an IEP. First, one must look at whether the District in conducting the IEP complied with IDEA procedures. Second, one must look at whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Michigan has established a higher substantive standard, namely programming must be "designed to develop the student's maximum potential." MCL 380.1751. It is the higher standard which applies here since as a "state standard" it is incorporated into the federal laws as an element of FAPE. 34 CFR 300.13(b); Woolcott v Grand Traverse Bay ISD, EHLR 556:1183 (Mich, 1984); Barwacz v Dept of Ed, EHLR 559:346 (WD Mich, 1988); Brimmer v Traverse City Area Pub Sch, 22 IDELR 5 (USDC Mich, 1994). Applying the first step of Rowley, namely whether procedural requirements were met with regard to developing the IEP for C, the parents initially contended they were not for several reasons, but solely for the purpose of placing the burden of proof on the District. Once the District accepted this burden as it did, these allegations are no longer relevant.

Turning to the second step of Rowley, one must look at whether the proposed IEP is designed to develop C's maximum potential. In addition, under both IDEA and MMSEA, it is mandated that special education programs and services be provided in the "least restrictive environment" (LRE). 34 CFR 300.550, et seq.; R 340.1722. In short, these provisions mandate that to the maximum extent appropriate, children with disabilities, are educated with children who are nondisabled. Further, that separate schooling or other removal of children with disabilities from the regular educational environment occurs only if 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. Other factors to be considered in implementing the LRE mandate are whether the school the child attends is as close as possible to the child's home, is the child's school the one which the child would attend if not handicapped, are there any potential harmful effects upon the child and the quality of services. 34 CFR 300.552; R 340.1722.

The Office of Special Education Programs (OSEP) of the U.S. Department of Education has given policy guidance on several occasions with regard to applying LRE principles in situations involving deaf students. In a Notice of Policy Guidance, OSEP opined that the major barriers to learning associated with deafness relate to language and communication which, in turn, profoundly affect most aspects of the educational process. It went on to point out that:

"Compounding the manifest educational considerations, the communication nature of the disability is inherently isolating, with considerable effect on the interaction with peers and teachers that make up the educational process. This interaction, for the purpose of transmitting knowledge in developing the child's self-esteem and identity, is dependent upon direct communication. Yet communication is the area most hampered between a deaf child and his or her hearing peers and teachers."

In developing an IEP for a child who is deaf, OSEP noted it is important to take into consideration such factors as: the communication needs and the child's and family's preferred mode of communication; linguistic needs; severity of hearing loss and potential for using residential hearing; academic levels; and social, emotional and cultural needs, including opportunities for peer interactions and communication. OSEP went onto state that: "any setting, including the regular classroom, that prevents a child who is deaf from receiving an appropriate education that meets his or her needs, including communication needs, is not the LRE for that individual child." Notice of Policy Guidance, 19 IDELR 463 (OSEP, 1992). See also Letter to Anonymous, 20 IDELR 1168 (OSEP, 1993); Memorandum 94-5, 20 IDELR 1181 (OSEP, 1994); and Policy, 23 IDELR 377 (OSEP, 1995).

The 1997 amendments to IDEA and the new regulations reenforce these considerations by requiring the IEP team to consider the communication needs of the child, including the child's language and communication needs, opportunities for direct communications 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 communicate mode. 34 CFR 300.346(a)(2)(iv).

3. In applying the above principles to C's situation, this hearing officer totally agrees with Dr. Long's statement that given C's low level of achievement in reading and math, when combined with his IQ, he is at real risk for not being able to function independently as an adult. He is now 15. Time for him to "close the gap between him and his peers" and for our state to provide special education programs and services which will develop his "maximum potential" is passing fast. Absolutely critical for C is that he improve his ASL language. It's a goal in this IEP. Moreover, there was no dispute among the witnesses that improving his language will make him more literate which is the key to his learning.

The program for the hearing impaired at Murray Wright is neither appropriate nor develops C's maximum potential for a variety of reasons. It does not provide a communicatively accessible environment. The majority of teachers are less fluent in ASL than he is. Further, the problems present in the classrooms for the hearing impaired from a communication standpoint and otherwise would significantly adversely affect C's ability to learn. While Murray Wright offers a class in ASL, it is taught by the teacher of the hearing impaired, most of whom are not ASL signers. The record fails to reflect how this program would carry out the IEP goals particularly teaching C deaf culture. Finally, the program lacks visual alerts. Interestingly, only the supervisor of hearing impaired programs gave reasons for believing the Murray Wright program was appropriate and those were all basically social (apparently not considering the communication barriers present). Bottom line, as a result of all of the above deficiencies, the Murray Wright program for the hearing impaired will not be able to effectively address either C's goals in the critical fundamental areas of reading comprehension, written expression and mathematic skills, or improving his ASL skills and understanding of deaf culture.

When the principles initially noted above are applied to the MSD program, the clear preponderance of the evidence establishes that it is both appropriate and most likely to develop C's maximum potential. Given the fluency of the teachers and other staff in ASL, it is a communicatively accessible environment. Such is true not only within the classrooms, but during the after school hours in the residence facility. Specific classes in ASL as well as deaf culture are offered and visual alerts provided. The program at MSD can address all of C's goals. The only potential drawback noted was his attending school away from his community. Other evidence reflected the negative effect, if any, is certainly mitigated by his returning to his community on weekends, addressing concerns as part of transition planning. Finally, there may be even some potential positive effects in making contact at MSD with deaf persons who will be going elsewhere. In short, the MSD program can effectively address all of C's IEP goals.

Given C's language and communication needs, particularly at his age and level of performance, MSD, even though a separate school, is the LRE for him to be educated at this time.

DECISION

Based upon the Findings of Fact and Conclusions of Law set forth above, the Decision of this hearing officer is as follows:

1. The March 22/April 22, 1999, IEP here on appeal does not provide C with a program that is either appropriate or will develop his maximum potential as required under IDEA and MMSEA respectively. On the other hand, placement at the Michigan School for the Deaf (MSD) is appropriate and will develop his maximum potential as required by the statutes. He is to be placed at MSD immediately (the goals and objectives in the IEP being utilized).

2. C is basically to be instructed pursuant to a general education curriculum, modified only as necessary to meet his individual needs, and be instructed pursuant to a special education curriculum only when required by his individual needs.

3. C's individual needs require visual alerts and such shall be included in his IEP.

4. Inasmuch as the record in this matter is devoid of any evidence by either party which addresses C's possible need for an extended school year, on or before March 30, 2000, an IEPC shall be convened for C to at a minimum consider whether his individual needs require an extended school year and, if so, what specific programs and services and how they shall be provided.

5. In accordance with the agreements made between the parties during the course of this proceeding, audiological services, specifically an annual audiogram, hearing aid check, and ear health check, as needed, shall be specifically included in C's IEP. Further, on or before December 1, 1999, at an IEPC a transition plan will be developed by the parties for C, and if there is any dispute regarding it, this hearing officer shall retain jurisdiction to hear it (the parties deciding at that time whether the proceeding would be less formal). Sufficiently prior to that IEPC, a multidisciplinary evaluation team (MET) meeting will be held in order that the IEP team can consider the MET results. Finally, the District shall pay the cost of the independent educational evaluation conducted by Dr. Greg Long.

6. The Wayne County Regional Educational Services Agency is charged with the responsibility to assure that this decision and the final decision on appeal has been implemented and so notify the Michigan Department of Education.

7. While this hearing officer has retained jurisdiction for the very limited purpose noted above pursuant to the parties agreement, this Decision constitutes a "final decision" and therefore is subject to appeal by either party within 25 calendar days as provided in Rule 25 of the Special Education Code (R 340.1725). In the event an appeal is taken by either party, the jurisdiction retained by this hearing officer shall not be in effect nor be exercised absent the specific agreement of the parties. An appeal statement, specifying particular issues of disagreement, should be directed to Mr. James Rowell, Office of Special Education and Early Intervention Services, Michigan Department of Education, P.O. Box 30008, Lansing, Michigan 48909.

Dated: October 28, 1999 __________________________________________

Lynwood E. Beekman, Hearing Officer

1.  Numbers in parenthesis shall indicate references either to exhibits or to the pages of the transcript of the hearing held in this matter. There are three types of exhibits. The hearing officer exhibits shall be referred to as "HO Ex-__." The exhibits of the parents shall be referred to as "Ex P-__." The exhibits of the school district shall be referred to as "Ex S-__."

There were five days of hearing held in this matter on September 13 through September 17, 1999. References to the pages of each of these transcripts shall be as follows: September 13 as Vol. 1, p. ___;" September 14 as Vol. 2, p. ___;" September 15 as Vol. 3, p. ___;" September 16 as Vol. 4, p. ___;" and September 17 as Vol. 5, p. ___."

2. Various witnesses testified as to what constitutes "deaf culture." Basically it involves several components such as linguistic (namely use of American Sign Language), social (in terms of various activities of deaf persons), audiological (being deaf), political (with regard to an agenda of issues important to the deaf), and implications of visual orientation (such as pointing and eavesdropping are okay) (Vol. 2, pp. 137-139; Vol. 3, p. 139).

3. "Total communication" is an approach whereby the teacher of the hearing impaired uses various strategies to convey information to a student who is hearing impaired, e.g., signs, orally, gestures, etc. Various educators of the deaf take strong exception to it being considered either a methodology or even more strongly that it might be considered some type of "language" (Vol. 5, p. 21).

 

 


 

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