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Hartmann v. Loudoun County Board of Education

July 8, 1997

MARK HARTMANN, A MINOR, BY HIS PARENTS AND NEXT FRIENDS, ROXANNA HARTMANN AND JOSEPH HARTMANN; ROXANNA HARTMANN; JOSEPH HARTMANN,

PLAINTIFFS-APPELLEES,

v.

LOUDOUN COUNTY BOARD OF EDUCATION,

DEFENDANT-APPELLANT,

AND

EDGAR B. HATRICK; NED WATERHOUSE,

DEFENDANTS.

VIRGINIA SCHOOL BOARDS ASSOCIATION; TIDEWATER DOWN SYNDROME ASSOCIATION; THE ASSOCIATION FOR PERSONS WITH SEVERE HANDICAPS, VIRGINIA CHAPTER; THE ARC OF VIRGINIA; SPINA BIFIDA ASSOCIATION OF TIDEWATER; TIDEWATER ASSOCIATION FOR HEARING IMPAIRED CHILDREN; ENDEPENDENCE CENTER, INCORPORATED; THE VIRGINIA FOUNDATION FOR THE EXCEPTIONAL CHILD AND ADOLESCENT; GRAFTON SCHOOL, INCORPORATED; PARENTS AND CHILDREN COPING TOGETHER, INCORPORATED; NORTHERN VIRGINIA CHAPTER OF THE AUTISM SOCIETY OF AMERICA; CENTRAL VIRGINIA CHAPTER OF THE AUTISM SOCIETY OF AMERICA; PENINSULA CHAPTER OF THE AUTISM SOCIETY OF AMERICA; AUTISM TRAINING AND FAMILY SUPPORT PROGRAM; ATTENTION DEFICIT DISORDER ASSOCIATION OF VIRGINIA; PENINSULA ATTENTION DEFICIT DISORDER ASSOCIATION;THE VIRGINIA INSTITUTE OF AUTISM, INCORPORATED; COMMONWEALTH COALITION FOR COMMUNITY; LOUDOUN ASSOCIATION FOR RETARDED CITIZENS; UNITED STATES OF AMERICA,

AMICI CURIAE.



Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge. (CA-95-1686-A)

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and COPENHAVER, United States District Judge for the Southern District of West Virginia, sitting by designation.

WILKINSON, Chief Judge

Argued: May 9, 1997

Reversed and remanded with instructions to dismiss by published opinion.

Chief Judge Wilkinson wrote the opinion, in which Judge Luttig and Judge Copenhaver joined.

OPINION

Roxanna and Joseph Hartmann brought suit on behalf of their disabled son Mark against the Loudoun County Board of Education under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. Section(s) 1400 et seq. The Hartmanns alleged that the Board had failed to ensure that Mark was educated with non-handicapped children "to the maximum extent appropriate" as required by the IDEA's mainstreaming provision, 20 U.S.C. Section(s) 1412(5)(B). The district court agreed, rejecting the findings of both the local hearing officer and the state review officer. The Board appeals, contending that the court's decision is contrary to the law and the evidence in the record. We agree. As Supreme Court precedent makes clear, the IDEA does not grant federal courts a license to substitute their own notions of sound educational policy for those of local school authorities, or to disregard the findings developed in state administrative proceedings. Upon careful review of the record, however, we are forced to conclude that this is precisely what has occurred in this case. Accordingly, we reverse and remand with directions to dismiss.

I.

Mark Hartmann is an eleven-year-old autistic child. Autism is a developmental disorder characterized by significant deficiencies in communication skills, social interaction, and motor control. Mark is unable to speak and suffers severe problems with fine motor coordination. Mark's writing ability is extremely limited; he does not write by hand and can consistently type only a few words such as "is" and "at" by himself on a keyboard device known as a Canon communicator. The parties agree that Mark's greatest need is to develop communication skills.

Mark spent his pre-school years in various programs for disabled children. In kindergarten, he spent half his time in a self-contained program for autistic children and half in a regular education classroom at Butterfield Elementary in Lombard, Illinois. Upon entering first grade, Mark received speech and occupational therapy one-on-one, but was otherwise included in the regular classroom at Butterfield full-time with an aide to assist him.

After Mark's first-grade year, the Hartmanns moved to Loudoun County, Virginia, where they enrolled Mark at Ashburn Elementary for the 1993-1994 school year. Based on Mark's individualized education program (IEP) from Illinois, the school placed Mark in a regular education classroom. To facilitate Mark's inclusion, Loudoun officials carefully selected his teacher, hired a full-time aide to assist him, and put him in a smaller class with more independent children. Mark's teacher, Diane Johnson, read extensively about autism, and both Johnson and Mark's aide, Suz Leitner, received training in facilitated communication, a special communication technique used with autistic children. Mark received five hours per week of speech and language therapy with a qualified specialist, Carolyn Clement. Halfway through the year, Virginia McCullough, a special education teacher, was assigned to provide Mark with three hours of instruction a week and to advise Mark's teacher and aide.

Mary Kearney, the Loudoun County Director of Special Education, personally worked with Mark's IEP team, which consisted of Johnson, Leitner, Clement, and Laurie McDonald, the principal of Ashburn. Kearney provided in-service training for the Ashburn staff on autism and inclusion of disabled children in the regular classroom. Johnson, Leitner, Clement, and McDonald also attended a seminar on inclusion held by the Virginia Council for Administrators of Special Education. Mark's IEP team also received assistance from educational consultants Jamie Ruppmann and Gail Mayfield, and Johnson conferred with additional specialists whose names were provided to her by the Hartmanns and the school. Mark's curriculum was continually modified to ensure that it was properly adapted to his needs and abilities.

Frank Johnson, supervisor of the county's program for autistic children, formally joined the IEP team in January, but provided assistance throughout the year in managing Mark's behavior. Mark engaged in daily episodes of loud screeching and other disruptive conduct such as hitting, pinching, kicking, biting, and removing his clothing. These outbursts not only required Diane Johnson and Leitner to calm Mark and redirect him, but also consumed the additional time necessary to get the rest of the children back on task after the distraction.

Despite these efforts, by the end of the year Mark's IEP team concluded that he was making no academic progress in the regular classroom. In Mark's May 1994 IEP, the team therefore proposed to place Mark in a class specifically structured for autistic children at Leesburg Elementary. Leesburg is a regular elementary school which houses the autism class in order to facilitate interaction between the autistic children and students who are not handicapped. The Leesburg class would have included five autistic students working with a special education teacher and at least one full-time aide. Under the May IEP, Mark would have received only academic instruction and speech in the self-contained classroom, while joining a regular class for art, music, physical education, library, and recess. The Leesburg program also would have permitted Mark to increase the portion of his instruction received in a regular education setting as he demonstrated an improved ability to handle it.

The Hartmanns refused to approve the IEP, claiming that it failed to comply with the mainstreaming provision of the IDEA, which states that "to the maximum extent appropriate," disabled children should be educated with children who are not handicapped. 20 U.S.C. Section(s) 1412(5)(B). The county initiated due process proceedings, see 20 U.S.C. Section(s) 1415(b), and on December 14, 1994, the local hearing officer upheld the May 1994 IEP. She found that Mark's behavior was disruptive and that despite the "enthusiastic" efforts of the county, he had obtained no academic benefit from the regular education classroom. On May 3, 1995, the state review officer ...


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