PLTFS' Proposed Findings of Fact

L.H. v.
Hamilton County Department of Education

Plaintiffs Proposed Findings of Fact and Conclusions of Law
____________________________________________
IN THE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
_________
L.H., A MINOR STUDENT, ET. AL.,
Plaintiffs,
V.
HAMILTON COUNTY DEPARTMENT OF EDUCATION,

Defendant,
__________
No. 1:14-cv-00126
The Honorable Judge Curtis Collier
TABLE OF CONTENTS
Table of Contents ........................................................................................... i
1.
The Supplemental Evidence................................................................... 2
2.
Least Restrictive Environment and the Roncker Factors ..................... 3

2.1
LRE under Roncker or FAPE under Rowley? .......................... 5
3.
Could L.H. Benefit from Regular Education? ....................................... 8

3.1
The Research .............................................................................. 9
3.2
The Appropriate Yardstick ....................................................... 12
3.3
Lack of Meaningful Parental Participation .............................. 19
3.4
The Evidence of L.H.s Progress at Normal Park .................... 22
3.5
The Myth of Hit a Wall and Down Syndrome ....................... 26
3.6
The Inclusion Statistics in Hamilton County for Children
with Intellectual Disabilities .................................................... 28
Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 1 of 70 PageID #: 6075
L.H. v. Hamilton County Department of Education

4.
Is Red Banks CDC Class Superior for L.H.? ....................................... 30

4.1
Almost Zero (1.3%) Interaction with Non-Disabled Peers ...... 31
4.2
No Grades, Homework, Report Cards, or Overall
Accountability ........................................................................... 34
4.3
The Curriculum is Not Peer Reviewed ..................................... 35
4.4
Less Academic Time and Inferior Museum Opportunities .. 36
4.5
Offering Non-Academic Inclusion Does Not Help .................. 37
4.6
Math and Handwriting in the Gym Class ................................ 38
5.
Portability: Can Any Advantages at Red Bank be Accomplished

at Normal Park? ................................................................................... 39
5.1
Pre-Teaching, Re-Teaching, and Reinforcement Does Not
Require a Segregated School with Alternative Curriculum ..... 39
6.
Was L.H. Too Disruptive for General Education? .............................. 46

6.1
Reimbursement for Unilateral Placement at Montessori
School of Chattanooga .............................................................. 50
6.2
Parents Placement of L.H. at the Montessori School of
Chattanooga .............................................................................. 53
6.3
Defendants Objections to Montessori School ......................... 56
7.
Conclusion ........................................................................................... 66
ii

JUDGE COLLIER, opinion of the Court:

A party who is aggrieved by the findings and decision made by a
state educational agency regarding an IDEA claim has the right to bring a
civil action in a district court of the United States. See 20 U.S.C.
1415(i)(2)(A).
In reviewing the matter, the district court: "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence
at the request of a party; and (iii) basing its decision on the preponderance
of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. 1415(i)(2)(C).
This is not summary judgment, where the Courts task would be to
determine the existence of factual disputes. Doe ex rel. Doe v. Metro.
Nashville Pub. Schs., 133 F.3d 384, 387 n.2 (6th Cir. 1998); Elida Local
Sch. Dist. Bd. Of Ed. v. Erickson, 252 F.Supp. 2d 476, 481 (N.D. Ohio
2003). Instead, this is a motion for the Court to consider the administrative record plus the additional evidence. In its review, the district court
should make an independent decision based on the preponderance of the
evidence but also should give 'due weight' to the determinations made during the state administrative process. Deal v. Hamilton Cnty. Bd. of
Educ., 392 F.3d 840, 849 (6th Cir. 2004) (citing Bd. of Educ. of the Hen-

drick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S. Ct.
3034, 73 L. Ed. 2d 690 (1982)).
In applying this modified de novo standard of review, district
courts may not simply adopt the state administrative findings without an
independent re-examination of the evidence, nor may they substitute
their own notions of sound educational policy for those of the school authorities which they review. Doe ex rel. Doe v. Metro. Nashville Pub.
Schs., 133 F.3d 384, 387 (6th Cir. 1998) and Thomas v. Cincinnati Bd. of
Educ., 918 F.2d 618, 624 (6th Cir. 1990)). A court is less likely to give deference to the administrative findings when the new evidence it has received conflicts with evidence in the administrative record. School Dist. of
Wis. Dells v. Z.S., 295 F.3d 671 (7th Cir. 2002).
1. THE SUPPLEMENTAL EVIDENCE
The Court heard testimony from the following witnesses called by
the Plaintiffs: Dr. Kathleen Whitbread; Dr. Darrell Meece; D.H., mother of
L.H.; Janin Brock; and Stephanie Parakh. Additionally, the Rule 26 Expert Report of Dr. Sue Buckley was submitted as evidence. The Court
heard testimony from the following witnesses called by the Defendant: Dr.
Sue Kabot, Jill Levine, Jamelie Johns, Debbie Rosenow, Mary Ann Voss,
and Margaret Abernathy. The Court received numerous exhibits submitted by both parties as reflected in the Courts docket. (D.E. 168; 168-1).

The Court will address the testimony and evidence within the
framework for least restrictive environment established by the Sixth Circuit in Roncker on behalf of Roncker v. Walter, 700 F.2d 1058 (6th Cir.
Ohio 1983).
2. LEAST RESTRICTIVE ENVIRONMENT
AND THE RONCKER FACTORS
The IDEAs provision on least restrictive environment, as it has
come to be called, states:
To the maximum extent appropriate, children with disabilities, including children in public and or private institutions or
other care facilities, are educated with children who are not
disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature and severity
of the disability is such that education in regular classes with
the use of supplementary aids and services cannot be
achieved satisfactorily.
20 U.S.C. 1412(a)(5)(emphasis added); Bd of Educ v. Rowley, 102 U.S.
176, n. 24 (1982).
The vehicles of supplemental aids and services enable children
with disabilities to be brought into, or retained, in general education classes:
Supplementary aids and services. Supplementary aids and
services means aids, services and other supports that re provided in regular education classes, other education-related
settings, and in extracurricular and nonacademic settings, to
enable children with disabilities to be educated with non-

disabled children to the maximum extent appropriate in accordance with 300.114 through 300.116.
34 C.F.R. 300.42 (emphases added); see also 20 U.S.C. 1401(33).
In the Roncker case, Neill Roncker was nine years old and severely
mentally retarded to the point of having a mental age of two to three.
Roncker, 700 F.2d at 1060. In 1983, the time of Roncker, educable mentally retarded was still a term, with those persons generally educated in
special classes within the regular public schools. Id. The school district
proposed placing Neill in a separate school for mentally retarded children.
Id. The parents disagreed that this would constitute Neills least restrictive environment. Id.
The Sixth Circuit recognized that a placement which may be considered better for academic reasons may not be appropriate because of the
failure to provide for mainstreaming. Id. at 1063. Instead, that perception may reflect no more than a basic disagreement with the mainstreaming concept, which is not, of course, any basis for not following the Acts
mandate. Id.
In cases where the school district considers a segregated facility superior, the court should determine whether the services which make that
placement superior could be feasibly provided in a non-segregated setting. Id. If they can, the segregated setting is inappropriate. Id. This

framework accords the proper respect for the strong preference in favor
of mainstreaming while still realizing the possibility that some handicapped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be
provided in the non-segregated setting, or because the handicapped child
is a disruptive force in the non-segregated setting. Id. 1
2.1
LRE UNDER RONCKER OR FAPE UNDER ROWLEY?
In its pre-trial briefing and opening statement, Defendant argues

this is not a least restrictive environment case under Roncker: Least restrictive environment is not an issue in this matter, per McLaughlin v.
Holt Pub. Sch. Bd., 320 F.3d 663, 667 (6th Cir. 2003). (D.E. 152, Defendants Pre-Trial Proposed Conclusions of Law, p. 7). Instead, Defendant
urges a FAPE analysis under Bd of Educ. v. Rowley, 458 U.S. 176 (1982).
1
Subsequent cases have broken Roncker into three factors: (1)

whether the disabled student would benefit from inclusion from general
education, (2) whether such benefits would be outweighed by benefits that
are not provided in an inclusive setting, and (3) whether the disabled child
disrupts the general education setting. Bd. of Educ. of the Toledo City
Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644, *15 (6th Cir. Ohio May
26, 2011) (citing Roncker, 700 F.2d. at 1063); accord Troy Sch. Dist. v.
K.M., 2015 U.S. Dist. LEXIS 40970 (E.D. Mich. Mar. 31, 2015). To the extent these factors do not ask whether any perceived advantage of segregated setting can also be instituted in a general education setting, these factors are not entirely faithful to Roncker.

However, this type of analysis was rejected by Roncker itself for cases of
least restrictive environment:
[T]his case involves the mainstreaming provision of the Act
while Rowley involved a choice between two methods for
educating a deaf student. In the latter case, the dispute is
simply one of methodology and the Supreme Court has emphatically stated that such questions should be left to the
states. In the present case, the question is not one of methodology but rather involves a determination of whether the
school district has satisfied the Acts requirement that handicapped children be educated alongside non-handicapped
children to the maximum extent appropriate.
Roncker, at 1062.
Close examination of McLaughlin shows the Court did not consider
it to be a least restrictive environment case because the child was fully
mainstreamed by agreement already. McLaughlin, 320 F.3d at 670. The
child, Emma, attended a kindergarten which lasted only half a day for all
children. The parties agreed to full inclusion of Emma for that entire halfday. Id. at 667. For any further education, Emma would have to go elsewhere because, again, the kindergarten program only lasted a half day.
As the Court of Appeals states: In this case, the parties did not disagree about the extent to which Emma would be mainstreamed with nondisabled peers; she was to be fully included in the Holt half-day kindergarten program. Hence, the disputed issue did not involve determination of

the least restrictive environment for Emma. Id. at 672. 2 On those limited
facts, the Sixth Circuit held that the parents do not have a right to compel
a neighborhood school purely for their convenience and a Rowley determination of methodology was appropriate.
However, the instant case is like Roncker (and scores of other cases
involving least restrictive environment), not McLaughlin and Rowley.
The parties clearly do not agree on the extent to which L.H. will be mainstreamed with non-disabled peers for third grade and beyond. In situations where pull out or resource room can keep a child with Down syndrome mainstreamed with his regular education peer-group, as opposed to
segregated classrooms, principles of least restrictive environment certainly
do apply. E.g., Oberti v. Bd of Educ., 995 F.2d 1204 (3rd Cir. 1993); see
also 34 C.F.R. 300.42 (Supplementary aids and services means aids,
services, and other supports that are provided in regular education classes,
other education-related settings, and in extracurricular and nonacademic
settings, to enable children with disabilities to be educated with nondisa-
Instead, the narrow dispute involved which of two locations any

additional special education services would be renderedin a resource
room at Dimondale Elementary or in a categorical classroom at Sycamore
Elementary. The parents did not care about any distinction between resource versus categorical; they simply cared about convenient location,
acknowledging that a categorical classroom would have been fine so long
as it were offered at their neighborhood school of Dimondale. Id. at FN2.

bled children to the maximum extent appropriate in accordance with

399.114 through 300.116). 3
L.H. has always maintained that the separate CDC classroom at
Red Bank Elementary with an alternative curriculum is not the least restrictive environment for him and, with appropriate supports and services,
he can be educated at his neighborhood zoned school of Normal Park with
his non-disabled peers. That has been the core dispute in the IEP meetings, the core dispute in the due process request, and the core dispute in
Plaintiffs lawsuit. Accordingly, the Court applies the Roncker factors to
determine L.H.s least restrictive environment to the maximum extent
appropriate.
3. COULD L.H. BENEFIT FROM REGULAR EDUCATION?
Roncker first asks whether L.H. could benefit from being in the
general education environment. Plaintiffs contend that L.H. could, and in
fact did, benefit from regular education. They offered expert testimony on
the following subjects: (1) the research benefits of inclusion for children
with Down syndrome; (2) how L.H., when considered under the proper
legal standard for a child with an intellectual disability with an IEP, did
Resource is a special education support, but it enables the child to

remain in the regular education environmentthus, being essential to
promoting least restrictive environment.
3
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make progress; and (3) how hit a wall is a common myth for children
with Down syndrome.
3.1. THE RESEARCH
The parties offered competing expert testimony on the benefits of
inclusion for children with Down syndrome. Plaintiffs offered testimony
in the form of a Rule 26 Expert Report from Dr. Sue Buckley, the founder
of Down Syndrome Education International (DSEI), Dr. Kathleen Whitbread of University of St. Josephs, and Dr. Darrell Meece of the University
of Tennessee-Chattanooga.
Dr. Buckleys Rule 26 Report was made an exhibit by Defendant
during Plaintiffs case-in-chief. The court admitted the evidence without
any request by Defendant for a limited purpose. Fed. R. Evid. 105 allows
for a request for limited admission, if done timely, but Defendant did not
make any such request at any time in Plaintiffs case-in-chief. Bronzino v.
Clinton Twp. Police Sergeant Dunn, 558 Fed. Appx. 613, 617 (6th Cir.
2014) (failure to request limiting instruction is waiver). Nor is there any
suggestion that it was intended for a limited purpose. In fact, the Report
was referred to throughout the trial with numerous witnesses with no

6085

mention of any limiting instruction at any point.
Accordingly, it was
properly admitted. 4
Dr. Buckleys published studies from 2006 concluded that children
with Down syndrome who were educated with typically developing peers,
made more academic and social progress than children with Down syndrome who received their educations in classrooms for children with disabilities. Over time, by the teenage years, the included children were more
than 3 years and 4 months ahead of the reading and writing levels of the
non-included children. Similarly, their expressive language was 2 years
and 6 months ahead of the non-included children. And by being educated
alongside typically developing children, 78% of them had language intelligible to strangers, as compared to 56% of those educated in separate classrooms. Additionally, using strict IQ comparisons, children with IQs from
35-50 who were educated in the regular education classroom made more
academic progress than children with IQs above 50 who were educated in
separate classrooms. (Ex. P-5, Buckley Report, pp. 5-9).
Plaintiffs originally intended to call Dr. Buckley live, via Skype, in

the United Kingdom, to authenticate her report and opinions. The week
before trial, Plaintiffs performed a successful trial-run from the courtroom
with Skype to the United Kingdom and had the video link ready. However, this became unnecessary once Defendant admitted the entire report
with Plaintiffs first witness and stated we will go ahead and admit it, or
words to that effect.
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Critically important, too, Dr. Buckley says there are no published

studies which have ever suggested the oppositethat special classrooms of
children with disabilities are superior to inclusive classrooms for children
with Down syndrome. (Id.).
Dr. Whitbread agrees with Dr. Buckley about the studies, stating
that not a single study supports a better outcome for children with Down
syndrome educated in separate settings. (Whitbread Trial Testimony).
She adds that the notion of removing a child with a disability from general
education in order to remedy them and then return them, is an outdated way of thinking. In her experience, once the child leaves the general ed
setting to instead learn life skills in a special education classroom, the
child never comes back. The door swings one way, as she puts it. The
Buckley study, as well as other studies in Europe (where the delineation
between mainstream classes and classes for children with a disability is
more clean cut), support her conclusion. (Id.).
In response, HCDE offered testimony from Dr. Sue Kabot of Nova
Southeastern University in Florida. Dr. Kabot testified that, in her view, it
was difficult to draw conclusions about the benefits of inclusion for children with Down syndrome. (Kabot Trial Testimony). However, Dr. Kabot
conceded that she has not done any research on Down syndrome herself,
has not published any papers concerning inclusion of a child with Down
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syndrome, and was unaware of any of the research up until the time she
was called upon to testify at the due process hearing. By her own admission, she is most studied in autism, not Down syndrome, having had various administrative roles in a segregated special education school in Florida
comprised of mainly children with autism. She acknowledged that she
found 25 studies showing benefits of inclusion for children with Down
syndrome 5 and not a single study showing a negative effect. (Kabot Trial
Testimony).
The Court finds that the strong Congressional preference in the
IDEA for inclusion of children with disabilities with their non-disabled
peers is particularly important to children, like L.H., with Down syndrome. The existing research unequivocally supports it, and Plaintiffs experts position is credited.
3.2 THE APPROPRIATE YARDSTICK
With the benefits of general education for children with Down syndrome resolved, the Court moves to the standard for assessing their progress and, particularly, the progress of L.H. 6
The studies use Quasi Experimental Design, a valid method of research for these types of issues.
5
Using the wrong standard could be considered both a procedural

failure as well as a substantive failure under IDEA. The Court considers
this within the Roncker framework.
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Dr. Kathleen Whitbread is a highly experienced professor of special

education at St. Josephs University in Connecticut. (Whitbread Trial Testimony; see also Ex. P-6a,b Whitbread Report and CV). She has worked
almost exclusively with the population of children with Down syndrome
for 35 years. Dr. Whitbread runs a clinic in conjunction with St. Josephs
University with the mission of assessing children with Down syndrome in
order for these children to receive the appropriate supports in the public
education system. She regularly consults on behalf of school districts in
numerous states. (Id.).
Dr. Whitbread reviewed L.H.s educational records from both Normal Park and the Montessori School and also personally performed an assessment of L.H. in 2015 as part of the St. Josephs Clinic. 7 She reviewed
his last three years of IEPs, along with his tri-annual assessment performed by Hamilton County Department of Education. She also reviewed
the full transcript and record of the underlying due process hearing.
(Whitbread Trial Testimony; Ex. P-6(b), p. 2).
L.H. was assessed as part of a clinic Dr. Whitbread created and
oversees at St. Josephs University which assesses children with Down
syndrome in literacy and math and also teaches her graduate students how
to properly assess a child with Down syndrome in literacy and math.
Thus, as she explained to the Court, this is a teaching clinic. The Court
notes that HCDE made continual reference at trial to the fact that L.H. was
assessed by students, but the Court finds such references to be misleading as Dr. Whitbread clearly testified that she personally oversaw all testing of L.H. by her students. (Whitbread Trial Testimony).
7
13

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According to Dr. Whitbread, performing at grade level is an inappropriate requirement for a child with an intellectual disability. (Whitbread Trial Testimony; Ex. P-6(b), p. 7). By the very nature of their disability, this population of children cannot meet such an exacting standard.
Rather, children with an intellectual disability should attempt to get as
close as possible to grade level, but they may only meet parts of the
standards. To assess whether they are progressing in general education,
reference should be made to whether the child is meeting his unique IEP
goals which are tied to or aligned with state standards. (Id.).
Dr. Whitbread also notes that grade level, itself, is an imprecise
science because even typical children will be on different grade levels.
Indeed, Hamilton County educators, Ms. Johns and Ms. Rosenow, testified that between one third (33%) and one half (50%) of all Hamilton
County public school students are not on grade-level, meaning testing
proficient or above, in math and reading, respectively. (Johns; Rosenow
Trial Testimony).
Based upon her review, Dr. Whitbread opined that HCDE was applying an on par or typicality standard. (Whitbread Trial Testimony;
Ex. P-6(b), p. 7). The court agrees, as the testimony of the second grade
regular education classroom teacher, Ms. Higgs, the special education
14

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teacher, Ms. Hope, and the lead teacher with whom Higgs and Hope consulted, Ms. Manley, all support such a strict standard:
Until L.H. masters these prerequisite skills, expecting him to perform at a level of a typical second grader will be futile.
(Ex. 1-16 Higgs Affidavit, 23).
L.H. was unable to function with the independence expected of a
typical second grader.
(D.E. 45, Ex. 7, Hope Aff. 11).
There is a higher expectation for comprehension in the second
grade than just basic who and what of a story. . . We get into more
abstract reasoning in the second grade; making predictions,
drawing inferences.
(Hope, DP Trans. 93).
He made progress. He was not able to meet those second grade
standards outlined in his IEP, but he made progress in word work.
He started with his word work level being at an early kindergarten level to toward end of kindergarten level. He made some progress behaviorally. He made progress with skip counting. He
made some progress with recognizing a few basic addition facts,
and he made some progress behaviorally. And his stamina for
working longer periods of time did progress. But, unfortunately,
he did not get to the second grade standards as his IEP was written.
(Hope, DP Trans. 243).
I believe L.H. did not make substantial progress because he did not
have the present levels of performance to be able to meet the second grade curriculum standards.
(Jeanne Manley, DP Trans. 433).
We did not believe that he would be able to make more than one
years gain in one year.
(Jeanne Manley, DP Trans. 435-36)
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I was not able to serve L.H.s needs in a regular education classroom because he lacked the prerequisite skills necessary for him to
access the second grade curriculum. Because he lacked the capacity to answer higher order questions, to form inferences and to
reach conclusions, and to process certain abstract mathematical
concepts, he was not going to keep pace with the curriculum no
matter the level of support Mrs. Hope and I tried.
(D.E. 45, Ex. 16, Higgs Aff., 21).
Dr. Whitbread says she has not witnessed such a standard being
used on a child with an intellectual disability in the last ten years and
probably not since the 1970s. (Whitbread Trial Testimony).
Nor is an on par standard even consistent with the instruction
from LRE trainers within HCDE, and the Tennessee Department of Education agrees. Ms. Janin Brock of TDOE, who testified by deposition, and
Ms. Mary Ann Voss of HCDE, explained that a child with an intellectual
disability does not have to meet the same standards or complete the exact
same curriculum as children without disabilities. (Brock Trial Testimony
via deposition, Ex. P-86; Voss Testimony). In fact, each used the mathematics example of non-disabled children measuring the degrees of a triangle, while the child with an intellectual disability may instead be learning
to recognize a triangle. (Id.; Ex. P-17, Voss Powerpoint slide).
Brock and Voss are correct. Recently, the United States Department of Educations Office of Special Education and Rehabilitative Programs (OSEP), issued guidance to states and local agencies on how the
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IDEA requires goals aligned with, but not exact replicates of, state
standards. (OSEP Dear Colleague Letter, November 16, 2015, attached
hereto as Exhibit 1). 8 Addressing the interplay between No Child Left Behind (NCLB/ESEA) and the IDEA, OSEP advised that a childs annual
goals [must] be aligned with State academic content standards for the
grade in which a child is enrolled. This alignment, however, must guide
but not replace the individualized decision-making required in the IEP
process. (Id. at pp. 3-4)
For the very small number of children with the most significant
cognitive disabilities, the grade level contentmay be restricted in scope
or complexity or take the form of introductory or pre-requisite skills. (Id.
at pp. 4-5). Thus, OSEP recognizes the childs present levels of academic
performance may be significantly below the grade in which the child is
enrolled. (Id. at 5). In fact, the child is not even required to reach grade
level within the year covered by the IEP. (Id.) For example, a child in
sixth grade may be performing in second grade levels of reading. (Id.)
OSEPs guidance is consistent with prior case law. For example, in
Girty v. Sch. Dist., 163 F.Supp.2d 527 (W.D. Pa. 2001), a case involving a
8
OSEP is the principal agency in the Department for administering

and carrying out [the IDEA] and other programs and activities concerning
the education of children with disabilities. 20 U.S.C. 1402(a). Courts
find their policy letters persuasive authority. Honig v. Doe, 484 U.S. 305,
235, n. 8 (1988) (deferring to OSEP on meaning of change of placement).
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sixth grade child who could not yet spell his own name, the Court stated,
the relevant focus is whether Spike can progress on his IEP goals in a regular education classroom with supplementary aids and services, not
whether he can progress at a level near to that of his nondisabled peers.
Id. at 536. Therefore, the focus on the gap between Spikes abilities and
the demands of the sixth grade curriculum was erroneous. Id.
Similarly, in Waukee Cmty. Sch. Dist. v. Douglas L., 2008 U.S.
Dist. LEXIS 124146, *21-22 (S.D. Iowa Aug. 7, 2008), a second grade child,
Isabel, had an intellectual disability (IQ assessed between 50 and 60)
and she utilized a 1:1 aide for assistance in the general education classroom, with tasks modified to her ability. Id. at *21-22.
The Waukee court recognized [t]here is no dispute in the present
case that Isabel was unable to perform academic work at the same level as
her peers Id. The Court rejected such an on-par standard:
By relying on a standard of "active participation," while failing to first consider what could be done to allow Isabel to be
included in the general education setting, the Appellants effectively relied on an "on par" standard of integration, which
is prohibited under the IDEA. "[W]e cannot predicate access
to regular education on a child's ability to perform on par
with nonhandicapped children."
Id. at *24-25.
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The reasoning of OSEP, Girty, and Waukee and other courts 9 to

consider this issue is persuasive, particularly considering modifications
are a change in expectations. By law, a school district cannot remove a
child with a disability from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. 34 CFR 300.116(e). The IDEA specifically contemplates that children with disabilities may lag behind their peers; for this reason, the IDEA
covers these children until they reach age 22, not just age 18. 20 U.S.C.
1412.
3.3
LACK OF MEANINGFUL PARENTAL PARTICIPATION
There are two procedural failings which robbed L.H., his parents,
and the IEP team, of a true consideration of how he could benefit from
regular education. First, Ms. Hope reported to L.H.s parents that he was
making progress on his second grade IEP goals during the first two quarters. However, Ms. Hope had actually reverted to a kindergarten curriculum (Ex. 1-7, Hope, Aff. 18-19). She did this without ever advising
9
A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 546 (D. Conn.
2002) ([T]he appropriate yardstick is whether [the child], with appropriate supplemental aids and services, can make progress towards
her IEP goals in the regular education setting.).9 See e.g., K.E. v. Indep.
Sch. Dist. No. 15, 647 F.3d 795 (8th Cir. 2011) (explaining the key question
is whether the student made gains in her areas of need and not comparing
the student to her non-disabled peers); G.B. v. Tuxedo Union Free Sch.
Dist., 751 F. Supp. 2d 552, 577 (S.D. N.Y. 2010) (same).
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L.H.s parents. (Hope Trans. at 116).
10
Hope believed this was an appro-
priate level for L.H. based upon an assessment (Brigance) which she
administered to L.H. in October 2012. (D.E. 45, Ex. 1-7, Hope, Aff. 18).
As Dr. Whitbread testified, L.H. is not a kindergartener, and teaching him as if he were is not appropriate. (Whitbread Testimony). Moreover, Dr. Whitbread states that the Brigance assessment is not a measure of
intellectual proficiency and that making high-stakes academic decisions
about a childs individual education program on the results of a single
measure is legally and professionally unacceptable. (Id.; Ex. P-6b, Whitbread Report, pp. 15-16). Departing from his goals without involving the
parents or the Team is, obviously, procedurally unfair to an analysis of
whether L.H. can benefit from regular education.
If Ms. Hope believed the goals set by the IEP team did not match
L.H.s present levels of performance in a given area, then HCDE was required to re-convene and re-examine the goals. That is different than giving up on the existing goals and reverting L.H. to kindergarten. In that
meeting, the team would have to review his present levels of performance in relationship to appropriate goals. (Id.). This process would involve meaningful parental participationnot unilateral decision making
by Ms. Hope. See 20 U.S.C. 1415(b)(1); 34 C.F.R. 300.501(a)-(b) (parThis, too, would be considered both a procedural as well as substantive
violation.
10
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ents entitled to participate in an IEP team meeting with respect to placement and provision of FAPE). Moreover, Prior Written Notice (PWN)
must be provided whenever the district proposed to change the education
of the child. 20 U.S.C. 1415(b)(3). If Ms. Hope had not been secretive, the
parents could have advised her that on par standards of second grade are
not required and, instead, modifications to second grade curriculum are
the expectation.
This is a significant procedural as well as substantive violation of
the IDEA. Procedurally, it robs the parents of participation and the Team
of revising goals as necessary. But substantively, it set L.H. upon a course
of being assessed based upon a set of goals to which Hope was not teaching. As Dr. Whitbread points out, it makes little sense to evaluate L.H.s
abilities on skills not being taught. (Ex. P-6b, p. 6, Whitbread Report).
Second, the lack of parental participation is also evident with respect to Dr. Kabots early involvement. (Ex. P-1-25). In April of 2013, at
HCDEs request, Dr. Kabot observed L.H., albeit for only 15-20 minutes,
and wrote a report on April 9, 2013 recommending various strategies and
even consideration of a different placement. (Id.; Kabot Trial Testimony).
This report, too, should have been provided in a timely manner to L.H.s
parents and the IEP Team for consideration. In fact, HCDE should have
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obtained consent from L.H.s parents before Kabots observation. See Letter to Gallo, 61 IDELR 173 (OSEP 2013) (Appx. 1).
Dr. Kabot assumed the report would be given to the IEP team.
(Kabot Trial Testimony). However, D.H. testifiedand an email from Ms.
Abernathy, the Director of Special Education, confirmsthat it was not
shared with the parents. Instead, it was used affirmatively against L.H. at
due process. (D.H. Trial Testimony; Ex. P-94 (Bates No. Hyde 4502) (Abernathy email specifically stating not to inform parents)). This strongly
suggests HCDE was looking for a rejoinder to the information openly being provided to the IEP Team by Dr. Meecebut without telling L.H.s
parents.
In sum, in the critical period of second grade, the parents were denied the opportunity to meaningfully participate in Hopes unilateral
changes to their childs education plan and Dr. Kabots proposed recommendations. Thus, it is procedurally unfair to conclude that L.H. could
not, or even did not, benefit from regular education when HCDE was
cloaking the curriculum and suggested strategies.
3.4 THE EVIDENCE OF L.H.S PROGRESS AT NORMAL PARK
In first grade (2011-2012), there is no reasonable dispute that L.H.
was meeting his IEP goals. As school began, L.H.s teacher (Ms. McCoy)
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reported that L.H. was reading on a level E 11 and was making gains in
high frequency word recognition. (D.E. 45, Ex. 6, IEP Meeting Minutes,
Hyde 00461). L.H.s special education teacher (Ms. Keith) reported that
L.H. was consistently counting to 20 and has a goal to count to 40. (Id.).
During that first grade year, L.H. consistently achieved 5s on his
quarterly progress reports, meaning L.H. was on target to meet his IEP
goals for the school year. (Ex. P1-6, IEP Progress Reports, Hyde 00430437; 00530-538; Hyde 00410-416; Hyde 00360-370). L.H. also earned
favorable report cards tied to his IEP goals. Ms. McCoy wrote on his report
card: L.H. is very close to reaching the end of first grade goal. He is reading more independently and fluently. He has come a long way since the
starting of the year. Way to go! In Writing: L.H. is writing three sentences on his own that are on topic in his daily journal every day using a graphic
organizer. He is doing a great job with this. And in Math, L.H. is doing
well adding and subtracting numbers to 20 while using manipulatives.
(Ex. P-1-17, 1st Grade Report Card).
By the end of first grade, the entire IEP team (including 8 HCDE
employees) agreed, on May 12, 2012, that L.H. had completed his first
Reading levels go from Level D through Level I, with Level I being
on grade level. (Hope, D.P. Trans., p. 90) (Level D is what we expect a
student - - a level that we would expect a student to begin first grade reading on. So we - - typically a developing student, we would want them to go
from Level D to E, F, G, H, and then I by the end of the first grade.).
11
23

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grade goals and was ready for second grade in the general education curriculum with appropriate supports. (Ex. P-1-2, 2012-2013 IEP). The IEP
section called Present Levels of Performance show the teachers year-end
remark that L.H. is reading on a Level I12 in guided reading. He is doing
well decoding and retelling stories that he reads during his one-on-one
guided reading time. Additionally, the Team agreed that L.H. can tell
time to the hour and half hour. He can count by 2s to 8 consistently, by 5s
to 40s consistently, and by 10s to 40 or 50 consistently. L.H. can read any
number 1-100. He understands fractions and . (Id. at p. 2).
For second grade, L.H. was given eleven (11) goals, eight (8) of
which were academic goals for second grade; these were tied to second
grade general education curriculum standards as indicated by the grade
level equivalency at the conclusion of each academic goal. (Ex. P-1-2, 20122013 IEP).
According to Ms. Hopes affidavit, she reported on L.H.s progress
report for the second nine weeks that L.H. lacked the prerequisite skills
and was not able to complete IEP goals. (D.E. 45, Ex. 7, Hope, Aff. 20).
That is not accurate. In the first quarter of second grade, L.H. earned all
5s across 11 goals, showing his teacher anticipated him to meet goals by
year end. (Ex. P-1-3, 2nd Grade First Quarter IEP Progress Report; Hope,
12
Reading level I indicates on grade level. (Hope, DP Trans. 90).
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DP Trans. 107-08). Similarly, the progress reports for the second nine (9)
weeks (second quarter) show all scores of 5, with three exceptions. (Ex.
P-1-4, 2nd Grade Second Quarter IEP Progress Report). The Status Summary Narrative to his Second Quarter progress report, shared with L.H.s
parents on January 11, 2013, states: We are so very proud of L.H.s behavior over the last several weeks. He has worked hard and is motivated to do
his best and make everyone proud. He is a pleasure to teach. (Id. at p.
11).
Dr. Whitbread, who has assessed hundreds of children with Down
syndrome, testified that L.H.s social skills, confidence and reading skills
were at a higher level than that typically associated with a child with Down
syndrome. (Whitbread Trial Testimony). In her hundreds of assessments,
she has seen only one other child with Down syndrome score as highly as
L.H. scored. (Id.).
Ultimately, the Court concludes that L.H. was capable of making
progress upon his own unique IEP goals tied to second grade curriculum
and the wrong measure of progress (an on par or typicality standard)
had been used as the measurement of his success. The Courts opinion is
bolstered by an apparent misconception by HCDE that L.H. had hit a
wall in his learning
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3.5 THE MYTH OF HIT A WALL AND DOWN SYNDROME

HCDE argued at due process that L.H. hit a wall with his learning
ability after the second quarter of second grade. (D.E. 45, Entry. 1, ALJ
Final Order, 10; Ex. P-1-20-Affidavit of Willeata Kendrick, 14 (Jill Levine, the principal of Normal Park, stated frankly, I believe L.H. has hit a
wall, meaning that he was not going to make any additional academic
progress in the regular education setting.)).
Plaintiffs offered the Rule 26(a) expert report of Dr. Sue Buckley,
the Founder and Director of Science and Research at Down Syndrome Education International (DSEI). (Ex. P-5, Buckley Affidavit). Her research
on children with Down syndrome spans from birth to age 20, she is a leading global authority on the subject with forty (40) years of experience, and
she founded DSEI. She provides training, assessments and support for
schools working with children with Down syndrome, including the United
Kingdom and the United States. (Buckley Aff., p. 1).
Dr. Buckley explains that children with Down syndrome do have a
specific developmental profile, with both strengths and weaknesses due
to their disability. (Buckley Aff., p. 3). In practical terms, children with
Down syndrome are weak listening learners, but strong visual learners.
(Id.). For this reason, reading is often a strength, as it is visual, and can be
used to teach spoken language. (Id.).
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Language delays, in turn, affect academic performance. (Id.). Often, these delays suggest to the non-trained person that the child with
Down syndrome has hit a wall, when, in fact, she says it is the teachers
lack of effective teaching and support based on understanding the effects
of Down syndrome on development and learning [which] has stalled the
childs progress. (Id. at 4). 13
Dr. Buckley was asked to address the following pointed question:
1. Is there any credible scientific research to support the belief that L. H.,
completing second grade in elementary school, hit a wall or reached a
plateau in his learning due to Down syndrome? (Buckley Aff., p. 2). Dr.
Buckley says no, and that such a belief is outdated and inconsistent
with an understanding of brain development and typical learning patterns of children with Down syndrome. (Id. at p. 3). As for brain development, she says it is not fixed at birthdevelopment in the structure and
function of the brain takes place over time and is strongly influenced by
input in the form of social and learning opportunities.There is simply no
ceiling, plateau, wall, or fixed point in elementary school. (Id.).
Dr. Buckley is familiar with the hit a wall or plateau description
from educators. She says:
The ALJ acknowledged the lack of experience of Normal Park educators with Down syndrome, but concluded that L.H.s teacher, Ms. Hope,
must start with some child. (D.E. 45, Entry 1, Final Order, 21).
13
27

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This notion is outdated and frequently can be traced to a

faulty premise: that having Down syndrome, as opposed to
the lack of effective teaching and support based on specific
training in the effects of Down syndrome on development
and learning for the teacher(s), has stalled the childs educational progress.
(Id. at pp. 3-4). An exhibit entered by HCDE from the Down Syndrome
Association of Michigan, entitled Supporting the Student with Down
Syndrome in Your Classroom, also indicates that hitting a plateau is a
myth that is important to dispel and that, Learning is a lifelong experience for people with Down syndrome, just like everyone. Individuals with
Down syndrome learn at a slower pace but nonetheless, continue to learn.
(Ex. P-48, Article, p. 4).
Given L.H.s progress in first grade and the first half of second
grade, along with the testimony of Dr. Buckley, the Court rejects the belief
that L.H. hit a wall as a second grader in his ability to learn. As will be
seen below, that belief is at odds with L.H.s steady progress in third,
fourth, and fifth grades.
3.6 THE INCLUSION STATISTICS IN HAMILTON COUNTY FOR CHILDREN WITH
INTELLECTUAL DISABILITIES
At the due process hearing, Dr. Meece was not permitted to testify
to statistical evidence of segregation of children with intellectual disabilities in Hamilton County. However, Dr. Meece has a Ph.D. with an emphasis in statistics and he has statistically analyzed data for the United States
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6104

Department of Education.
(Meece Trial Testimony, Ex. P-87, CV of
Meece).
Plaintiffs contend the statistical evidence points to HCDE using a
too-harsh standard for inclusion. In supplemental evidence, Dr. Meece
reviewed data published by the Tennessee Department of Education from
2011-2012 on the inclusion of children with intellectual disabilities in the
regular education classroom. (Ex. P-88, Report of TN Averages). He also
reviewed the National Data from the Office of Civil Rights (OCR) which
represents a sample from every school district in the nation. (Ex. P-89,
Report of US Averages).
Dr. Meece testified that, in Hamilton County, only 5.3% of the students with an intellectual disability are included in general education 80%
of the time compared to a national average more than three times that
amountwhere 17.4% are included more than 80% of the time. In Hamilton County, 7.4% of the students with an intellectual disability are included in general education between 40-79% of the time in comparison to
26.7% nationally. In Hamilton County, 81.1% of the students with intellectual disability are included less than 40% of the time compared to 48.2%
nationally. (Ex. P.-88, p. 2; P-89). Had L.H. been retained at Normal
Park, he would have been part of that small percentage of childrenthe
5.3% of students with intellectual disabilities that HCDE permits to remain
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6105

included more than 80% of the time in regular education classrooms. Yet
had L.H. been moved to Red Bank, he would have interacted with nondisabled peers solely during related arts classes (not during academic instruction).
Per Dr. Meece, the difference between HCDEs placement of students with intellectual disabilities and the rest of the nation is statistically
significant. (Meece Trial Testimony). To put these statistics in more human terms, Dr. Meece testified that the statistical probability of getting
struck by lightening three times and surviving all three times is greater
than the probability that these disparities are random. (Meece Trial Testimony). These are systematic problems within Hamilton County that
must be addressed through training about the role and reach of special education, the variety of supplemental supports and services, how exact
grade level standards are not required for children with intellectual disabilities, and how differentiated instruction can be accomplished with children performing at different levels.
4. IS RED BANKS CDC CLASS SUPERIOR FOR L.H.?
The second Roncker query is two-part: It asks whether the segregated facility is considered superior, and, if it is, whether the services
which make it superior could be feasibly provided in a non-segregated
setting. Roncker, 700 F.2d at 1063.
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For reasons already addressed, the Court rejects the notion that a
non-neighborhood school, with an alternative curriculum, and academic
coursework with disabled peers, would be superior. Moreover, in addition
to the research studies above, the Red Bank CDC classroom suffers many
flaws as it relates to L.H.
4.1 ALMOST ZERO (1.3%) INTERACTION
WITH NON-DISABLED PEERS
Dr. Darrell Meece is a professor of child development at the University of Tennessee-Chattanooga.
(Meece Trial Testimony; P-87, CV of
Meece). He is also L.H.s den leader for Cub Scouts and Boy Scouts, along
with being his Little League baseball coach. Dr. Meece conducted an observation of the Red Bank CDC classroom and the students in CDC as they
attended related arts classes, charting the number of interactions the children with disabilities had with non-disabled peers. (D.E. 45, Ex. 1, Meece
Observation of CDC). Dr. Meece observed hardly any interaction of children with disabilities with their non-disabled peerschild initiated interaction to another child occurred only 2.3% of the time with child response
to that interaction occurring only 1.3% of the time. (Id.; Meece, DP Trans.
56-57; Meece Trial Testimony).
Dr. Meece also observed that many of the children appeared to have
behaviors that were resistant to interactions with other children (autistic-
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6107

like behaviors) whereas L.H. is very socially motivated and very verbal
with other children. (Meece Trial Testimony). By placing L.H. in the CDC
setting, L.H. would have models of interaction with children who preferred
non-interaction. As a result, L.H. would not learn higher language skills
interacting with someone with lesser language skills. (Id.). 14
Dr. Meece also emphasized that social interaction and friendships
are very important to L.H. as L.H. is a child who is very socially aware of
his surroundings and is well received by his peers who understand he is
different, but accept him for it. (Meece, DP Trans. 45-46; D.E. 45, Ex. 1).
As D.H., the mother, pointed out, L.H. would have to make all new friends
at Red Bank and, because it was not his neighborhood school, there would
not be any natural friend/community overlap. (D.H. Trial Testimony).
Furthermore, outside the CDC classroom for lunch and related arts,
like music, activities in which HCDE claims the special education CDC
students get to interact with their non-disabled peers, the CDC students
were in the same room or cafeteria as their non-disabled peers, however,
they still remained segregated (with the CDC children even made to sit at
14
In the most recent application of Roncker within the Sixth Circuit,

social importance along with the childs capacity to learn were found to
meet the first Roncker factor and far outweigh the benefit of being in a
more restrictive setting. Troy Sch. Dist. v. K.M., 2015 U.S. Dist. LEXIS
40970, *24-25 (E.D. Mich. Mar. 31, 2015) (The testimony shows that interacting with non-disabled peers is critical to K.M.s success in school.).
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one segregated CDC lunch table left open for them in the cafeteria) having
zero interaction with their non-disabled peers. (Meece, DP Trans. 59; D.E.
45, Ex. 1, Meece Observation).
Dr. Whitbread, who reviewed Dr. Meeces observation, noted that
61% of the time the children in the CDC class were unoccupied or working
in solitude. (Whitbread Trial Testimony). This should come as no surprise, given the number of students with a multitude of disabilities and
IEP goals trying to be taught by a single teacher. The field of special education (Dr. Dianne Browder, North Carolina) recognizes that children in a
self-contained classroom are often less engaged and receive less instruction than they would in regular education classrooms. (Id.). In this case,
if these CDC students were, in fact, capable of working independently over
60% of the time, Dr. Whitbread suggested a re-examination of these childrens placements in a segregated facility like CDC. (Id.).
Although Dr. Kabot, HCDEs expert witness, says she did not recommend Red Bank CDC, she visited it along with Dr. Meece. (D.E. 45, Ex.
27, Kabot Observation of CDC; Kabot Trial Testimony). According to Dr.
Kabot, she agrees that children in the CDC classroom needed more opportunity for social interactions. (Kabot Trial Testimony; Kabot, DP Trans.
781; 836). Even the non-academic times where the children were with
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6109

typically developing peers were not being used to facilitate and encourage
interaction with typical peers. (Id.).
4.2 NO GRADES, HOMEWORK, REPORT CARDS,
OR OVERALL ACCOUNTABILITY
As a student in the CDC setting, L.H. would no longer receive a
Report Card that tracked his progress to any state educational standard.
(Ex. P- 81, Answer to Second Amended Complaint, 75).
The CDC class for 3rd 5th grade students at Red Bank does not
require homework of its students while students in the regular education setting have homework assignments beginning in Kindergarten.
(Ex. P-81, Answer to Second Amended Complaint, 77).
Thus, Red Banks CDC classroom does not offer L.H. homework,
grades, or report cards. (Id.; Manley, DP Trans. 597-98). Dr. Whitbread,
in her experience, has never seen a class where children do not have
homework. It offers the benefit of connecting parents to the school. Similarly, Dr. Whitbread testified that lack of report cards, like homework,
prohibits typical and historical routines and a means by which the parents
are involved in their childs education. (Whitbread Trial Testimony).
D.H., the mother, testified that she placed high value on report
cards, as they are a measurement of what the student is doing, but also a
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6110

means by which the parent can track the effectiveness of the instruction
for the student. (D.H. Trial Testimony).
Unlike NPMM, Red Banks CDC curriculum, called the Unique
Learning System, is not tied to any set of state standards. (Ex. P-68,
HCDEs Answera to Plaintiffs Second Set of Interrogatories No. 2).
4.3 THE CURRICULUM IS NOT PEER REVIEWED
The IDEA requires every IEP to contain a statement of the special
education and related services and supplementary aids and services, based
upon peer-reviewed research to the extent practicable.
1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4).
20 USC
Peer-reviewed research
refers to the research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards
of the field before the research is published. 71 Fed. Reg. 46,664 (2006).
Dr. Whitbread investigated the Unique Learning System (ULS) Curriculum used in the CDC classroom and determined it was not peer reviewed. (Whitbread Trial Testimony; Ex. P-6b, Whitbread Report, pp. 1617). Similarly, Dr. Kabot, who recommended the ULS system to Hamilton
County, agreed that ULS is not a substitute for a scientifically based reading curriculum and a scientifically based math curriculum. (Kabot Trial
Testimony).
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6111

4.4 LESS ACADEMIC TIME AND INFERIOR

MUSEUM OPPORTUNITIES
D.H. testified that she compared the academic instruction L.H. was
receiving at Normal Park to what he would receive at Red Banks CDC
classroom. At Normal Park, L.H. was receiving five hours per day of academic instruction with non-disabled peers. In the proposed IEP at Red
Bank, however, L.H. would have received only three hours of academic instruction and only in the CDC setting, plus thirty (30) minutes of prevocational, with the remainder of his day spent in related arts classes (Art,
Music, Gym) (D.H. Trial Testimony; Ex. P-1-2, NPMM IEP; Ex. P-57, Red
Bank Proposed IEP).
D.H. also testified about one of the primary benefits of Normal Park
that is not available at Red Bank. Normal Park is known as a Museum
Magnet school because part of its instructional programming included an
overlap with museums within the City of Chattanooga. The children took
numerous adventures to these museums and received free year-round
admissions cardsplaces like the Childrens Discovery Museum for learning about science. This was particularly important to L.H., whose favorite
subject has always been science and who enjoys hands-on visual learning
opportunities like these museum visits. (D.H. Trial Testimony).
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6112

4.5 OFFERING NON-ACADEMIC INCLUSION DOES NOT HELP

The proposed IEP for Red Bank shows, at page 26, under a section
entitled LRE and General Education, that L.H. will receive academic
and pre-vocational instruction in the Special Education setting. (Ex. P57, Red Bank Proposed IEP). It says he will participate in related arts
classes with his non-disabled peers. (Id.) (emphasis added). Although
HCDE has argued, through its Director, Ms. Abernathy, that L.H. would
also receive science and social studies with non-disabled peers, the IEP
simply does not reflect this. (Id.; Abernathy Trial Testimony). Moreover,
as Ms. Kendrick testified at the due process hearing, the ULS is based on
science and social studies and the reading and math instruction is embedded in that curriculum so that they learn to read and do math as part
of learning about science and social studies. (Kendrick, DP Trans. 473).
In addition, the proposed IEP at Red Bank reduced the five (5) hours of
reading, math, science and social studies instruction L.H. received in the
general education classroom at Normal Park and replaced it with only
three (3) hours a day of the ULS embedded reading and math instruction
curriculum per dayKendrick explaining the reduction by claiming it is a
difference in quality over quantity. (Kendrick, DP Trans. 480-81).
Dr. Whitbread testified that, when inclusion began decades ago, a
school of thought was to include children with intellectual disabilities in
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6113

non-academic subjects, believing it would be easier. (Whitbread Trial

Testimony). However, Dr. Whitbread explained that unstructured nonacademic activities like recess, lunch, and gym are actually the top three
most difficult environments socially, particularly for children with Down
syndrome. The research shows that if children fared poorly in these milieus, an attitude of we cant get them into other classes since they failed
the easy ones prevailed. (Id.). As a result of research proving this error,
that school of thinking has been rejected as inappropriate.
4.6 MATH AND HANDWRITING IN THE GYM CLASS
At the due process hearing, HCDEs Director of Special Education,
Margaret Abernathy, testified that math and handwriting can be taught in
gym class. (Abernathy, DP Trans. 537-39). Willeata Kendrick, the Supervisor of Special Education for HCDE, also supported this perplexing claim
stating it was not the quantity of instruction but the quality of instruction that matters in the CDC setting. (Kendrick, DP Trans. 480-81).
Continuing this theme at trial, Ms. Abernathy testified that Physical
Education standards do include higher order thinking skills such as math.
(Abernathy Trial Testimony). However, she conceded the gym teacher
does not take the state of Tennessee competency examination for math
(the Praxis exam) which is a requirement in order to be licensed to teach
math in this State. (Id.).
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The Court easily concludes that mathematics, along with handwriting, are core academic subjects. Offering mathematics and handwriting
through gym class is hardly a positive endorsement for the CDC setting.
Considering L.H. had math instruction with a licensed and qualified
teacher as part of the general education he received at Normal Park, it is
hardly a basis for concluding that Red Bank CDC is superior.
5. PORTABILITY: CAN ANY ADVANTAGES AT RED BANK BE ACCOMPLISHED AT NORMAL PARK?
It is difficult for the Court to determine whether Defendant genuinely believes any aspects of the CDC classroom at Red Bank are superior
for L.H. to the regular classroom at Normal Park. That is because, in part,
Defendant disagreed that this case even involves comparative considerations of least restrictive environment, a position this Court rejects.
Roncker itself states that courts must ask whether the segregated
facility is better and, if it is, ask whether the services which make it better
could feasibly be provided in a non-segregated setting. (Rocker, 700
F.2d at 1063).
5.1 PRE-TEACHING, RE-TEACHING, AND REINFORCEMENT DOES NOT
REQUIRE A SEGREGATED SCHOOL WITH ALTERNATIVE CURRICULUM
At due process, HCDE contended that a CDC class would have offered L.H. the opportunity to develop the prerequisite skills that he lacked
and to learn at his own pace. (See e.g,, D.E. 45, Ex. 7, Hope Aff. 23).
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6115

Concerning pace, HCDE maintained that L.H. requires constant preteaching, re-teaching, and repetitive reinforcement of basic concepts in
order to master them. (Ex. P-1-20, 20, Kendrick Affidavit).
HCDE contended this could not occur at Normal Park because, in
regular education curriculum, there is no opportunity for this sort of intensive over-learning because, once a topic is taught, the teacher moves
on to the next topic, expecting students to retain most of the information
they have learned. (Id.). Further, according to HCDEs Director, Margaret Abernathy, parallel instruction cannot occur in regular education
classrooms. (Abernathy, DP Trans. 529).
However, Dr. Whitbread examined every goal in the proposed IEP
for Red Banks CDC class. She testified that every single one could, in fact,
be implemented in the regular education classroom at Normal Park.
There is no barrier to pre-teaching, re-teaching, and reinforcement in regular education and, in fact, it is basic good teaching. Dr. Whitbread explained that special education is designed to prevent the practice of ejecting children without prerequisite skills from the general education classroom. (Whitbread Trial Testimony).
Moreover, for any perceived advantage of CDCs adaptive skills (life
skills) focus, Dr. Whitbread explained that a typical learning environ-
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6116

ment, not a segregated environment, is actually more effective and efficient at teaching those skills too. (Whitbread Trial Testimony).
Moreover, if additional time is needed with L.H. for pre-teaching,
etc., Dr. Whitbread explained that additional pull out with the special
education teacher (Ms. Hope) or through push in with the special education teacher (Ms. Hope) must be tried first. (Id.). If one hour of pull-out
did not work, then simply increase it (and use the correct yardstick of progress on IEP goals). Additionally, bring in the special education teacher
(Ms. Hope) to assistpush in. But defaulting all the way to a CDC classroom was too big a leap across the continuum. (Whitbread Trial Testimony). 15
Dr. Whitbreads opinions are also supported by HCDEs own personnel. Debbie Rosenow, who performed a literacy assessment on L.H. in
October 2015, testified that students can be included in the general education classroom with their same age typical peers who are on a higher reading level than they are by receiving instruction at their own reading level in
15
HCDE provided L.H. with three different ancillary attendants

during his second grade year at Normal Park. According to D.H., these
persons were untrained in assisting a child with Down syndrome. (D.H.
Trial Testimony). Ms. Hope, the special education teacher, did offer L.H.
pull-out time (resource time), but it was only for a single hour per day.
It was never increased. Ms. Hope did not enter the general classroom herself to assist L.H. (known as push in). Nor did L.H. receive any of
Kabots suggested supports of EdMark reading or TouchMath instruction.
(Hope, DP Trans. 159-60).
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6117

a resource room. (Rosenow Trial Testimony). Rosenow also testified that

if a student needs additional phonics or decoding instruction/support,
those can both be provided during pull out instruction or in a resource
room. (Id.).
Even Dr. Kabot conceded this point. Initially, Dr. Kabot testified
that, in her opinion, a pull-out and push-in support is designed to
meet the needs of students who are able to master the general education
curriculum. (Kabot Trial Testimony). However, Dr. Kabot was forced to
concede that complete mastery was not even the correct standard for children with intellectual disabilities. (Id.).
As Dr. Whitbread explained, this is the field of special education
knowing how to give a child with a disability access to the general education curriculum in his least restrictive environment through appropriate
supports and services. As she puts it, HCDE needs training on a coteaching model where the special education teacher and general education
teacher work together, along with training on the continuum of supports
available to include a child, between small supports, on the one end, and a
separate classroom, at the other end of the spectrum. (Whitbread Trial
Testimony).
In summation, Dr. Whitbread cannot conceive of any reason for
L.H. to be removed from general education and put on an alternative cur-
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6118

riculum. In fact, when actually given appropriate supports, Dr. Whitbread

has not seen a child with Down syndrome who could not make progress in
a regular education setting. (Whitbread Trial Testimony).
The use of resource as a supplemental aid or service is well established for assisting children with intellectual disabilities to remain in the
general education environment. In fact, the full range of services must be
considered before ejecting a disabled child from general education:
[B]efore a disabled child can be placed outside the regular
educational environment, the full range of supplementary
aids and services that could be provided to facilitate the students placement in the regular classroom setting must be
considered.
Letter to Hall, 30 IDELR 142 (1997) (Appx. 2); see also 34 C.F.R.
300.42; 20 U.S.C. 1401(33).
Among the long list of supplementary aids and services, a school
must consider affording the child access to a resource room, in conjunction with regular class placement, which HCDE calls pull-out:
The school must [m]ake provision for supplementary services (such as resource room or itinerant instruction) to be
provided in conjunction with regular class placement.
34 C.F.R. 300.115.
This is not a matter of first impression for inclusion of a child with
Down syndrome who may need additional one-on-one time. Oberti v. Bd
of Educ., 995 F.2d 1204 (3rd Cir. 1993). Oberti also involved a young child
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with Down syndrome for whom the school district recommended a segregated special education class outside of his neighborhood school. Id. at
1208. The parents, like L.H.s parents, did not prevail at due process. But
at the District level and in the Court of Appeals, they did prevail.
The District Court found that the school did not consider an itinerant teacher trained in aiding students with mental retardation, modification of the regular curriculum to accommodate Rafael, and special education training and consultation for the regular teacher. Id. at 1212 (citing Oberti v. Bd of Educ, 801 F.Supp. 1392, 1397 (D.N.J. 1992)).
The Court of Appeals agreed, finding the educational continuum
is not an all or nothing educational system between the poles of regular
education and separate classrooms. Id. at 1218. The school "must consider the whole range of supplemental aids and services, including resource
rooms and itinerant instruction. Id. at 1216. The Court of Appeals also
rejected a modified curriculum as a basis for exclusion. Id. at 1222.
Oberti relied on an earlier case involving a child with Down syndrome, Greer v. Rome City Sch. Dist. B, 950 F.2d 688 (11th Cir. 1991). In
both the Oberti and Greer cases, the courts reasoned that one-on-one instruction provided in self-contained classrooms also could be provided
through resource rooms or through itinerant instruction. Therefore,
the removal of the child from his regular education environment was not
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appropriate. See also H.L. v. Downingtown Area Sch. Dist., 2015 U.S.
App. LEXIS 9742, *9 (3rd Cir. June 11, 2015) (citing Oberti and explaining
that school districts must make available a continuum of placements to
meet disabled childrens needs, and in seeking to accommodate the child
in the regular classroom, they must consider the whole range of supplemental aids and services, including resource rooms and itinerant instruction.); Troy Sch. Dist. v. K.M., 2015 U.S. Dist. LEXIS 40970, *24 (E.D.
Mich. Mar. 31, 2015) (The evidence shows that K.M. could be successfully
included in general education if the proper support was in place.); 34
C.F.R. 300.550(b)(2) (school is not allowed to remove child from regular
education classes unless it establishes that with supplemental aids and
services her education cannot be achieved satisfactorily).
Modified curriculum, trained teachers and paraprofessionals, and
greater access to resource rooms are the tools of special education. Yet
HCDE and the ALJ seemed to view differential instruction, modified curriculum, and time with a paraprofessional scornfullycharacterizing it as
L.H. being in the back of the room which had a one student population.
(D.E. 45, Entry 1, Final Order, 22); (Kendrick, DP Trans. p. 495).
HCDEs Director of Special Education, Margaret Abernathy, echoed these
sentiments of isolation in the classroom in her supplemental testimony
as well.
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However, these sentiments are precisely what the Sixth Circuit

warned about in Roncker, that asking what someone thinks is best or
superior risks eliminating the required least restrictive environment
analysis altogethera basic disagreement with the mainstreaming concept. Roncker, 700 F.2d at 1063. Instead, as Roncker and later Oberti
have explained, even if it is thought the segregated facility is better, can the
services which make it better be ported, or brought into the nonsegregated setting? Id.; Oberti, 995 F.2d at 1212.
Once the appropriate yardstick is used of making progress toward
IEP goals, and once those goals (not kindergarten) were worked upon,
then any pre-teaching, re-teaching, etc. should be attempted through increased access to resource rooms with appropriately trained teachers
without taking the child from the regular education environment entirely.
6. WAS L.H. TOO DISRUPTIVE FOR GENERAL EDUCATION?
The final Roncker factor, to be weighed along with the others, is
whether L.H. is too disruptive for the general education classroom. The
ALJ did make both positive and negative factual findings on L.H.s behavior. On the positive side, the ALJ stated L.H. is a very personable child,
very social, and that social interactions are important to him, as are
friendships. (D.E. 45, Entry 1, Final Order, 3). The ALJ found that L.H.
has good social awareness, acting appropriately in social situations.
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(Id.). L.H. also has good language skills for interaction with others.
(Id.). Importantly, the ALJ found: His peers enjoy his company, accept
him, and provide help at times when it is necessary. (Id.)
On the negative side, the ALJ noted behavior problems in second
grade including invading a peers space; refusing to come in the room; he
ran away down the hall; he hit, touched, and pulled the hair of his classmates, and he threw his eyeglasses in the trash. (D.E. 45, Entry 1, Final
Order, 7-8).
These brief positives and negatives simply do not justify segregated
education. Nor do they tell the full story of just how well behaved L.H. actually is. During L.H.s first grade year at NPMM (the 2011-2012 school
year), L.H.s progress reports which relayed quarterly progress made towards his behavioral and prevocational goals was exceedingly complimentary of L.H.s behavior in the general education classroom:
L.H. has responded well to his behavior chart L.H. Not
Wasting Time. He is getting busy with work with fewer reminders (using visual prompts) and reinforces in place.
There are still times when L.H. becomes defiant and refuses
to do his work but these times are the exception rather than
the rule, right now. YEAH, Luka!! He is doing wonderful!!
(Ex. P-1-6, 1st Grade First Quarter Progress Report 2011-2012, Hyde
00436).
L.H. is initiating and maintaining appropriate social interactions on a more consistent basis. We are still encouraging
and reinforcing this. We would like to see L.H. increase his
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time on task. L.H. is completing his assigned work but still

needs prompts and assistance. We are working on reducing
these prompts as he responds positively.
(Ex. P-1-6, 1st Grade Third Second Quarter Progress Report, Hyde 00537).
L.H. has had some Rock Star days at school!! I hope this
continues in 2nd grade. He still needs reminders to stay out
of other peoples personal spaces. We would like to reduce
the number of prompts from adults when given directives.
We would also like to see L.H. become more independent
during his work tasks.
(Ex.P-1-6, 1st Grade Fourth Quarter Progress Report 2011-2012, Hyde
00362).
Most demonstrably, during L.H.s second grade year, NPMM constructed a seven-factor behavior chart 16 to keep track of L.H.s behaviors in
thirty (30) minute increments which it began using on October 15, 2012
(Hope, DP Trans. 283). The ALJ omitted any reference to this chart, but it
provides the detailed longitudinal data for assessing L.H.s behavior.
L.H.s teachers checked his behaviors every thirty minutes during
each seven-hour day of school, resulting in 14 behavioral data points per
day. Over 147 days, from October 15, 2012 to May 23, 2013, the teachers
documented L.H.s behavior using this chart. In that span of time, 1,793 of
the 2,058 check marks demonstrated that L.H. was following rules and on
The seven factors are: 1) following rules and staying on task; 2) aggression towards others; 3) out of seat or in seat; 4) redirection needed; 5)
verbal aggression; 6) seeking attention; 7) refusal to comply. (Hope, DP
Trans. 291-92). Hope then would use the data from this behavioral chart
to calculate into percentages and compare them to his IEP goals, though
Hope admits she never informed L.H.s parents of that. (Id. at 307).
16
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task an average of 87% of the day. (D.H., DP Trans. 861-63); (Hope, DP

Trans. 292-94); (D.E. 45, Ex. 6, Behavioral Charts, Bates Nos. 25602669); (D.E. 45, Ex. 28, Behavioral Chart Summary). Consequently, it is
apparent from HCDEs own records from the previous two years that
L.H.s behavior in the classroom (even when tracked in 30-minute increments), could not possibly weigh in favor of his removal from the general
education classroom.
Nor has L.H.s good behavior declined after second grade. L.H.s
third grade Montessori teacher, Jamie Watts, testified at due process that
L.H. transitioned fairly typically and got along well with his classmates.
(Watts, DP Trans. 610). While Watts had to go out and encourage L.H. to
come into the building on several occasions, Watts has never seen L.H.
throw a tantrum like a toddler or shove things up his nose, nor has L.H.
ever been sent home for poor or disruptive behavior. (Id. at 611-12; 666).
In fact, L.H. gets along well with his peers and he has real friends in his
class with typical social interactions and play. (Id. at 635) (Whitbread Trial Testimony; Ex. P-11, 3rd Grade Report Card). On L.H.s third grade
end-of-year report card, Watts wrote:
L.H. is such a sweet young man. He is learning how to be
courteous and mind his manners, even when hes frustrated
or excited. He typically cooperates well with his peers and
adults. On the playground, hes a good sport, win or lose.
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L.H. is a genuinely friendly, positive person who loves

school. He gets along well with everyone.
(Ex. P-11, 3rd Grade Report Card).
Similarly, in fourth grade, L.H.s teacher wrote: Luka is considerate, respectful and helpful. He is still learning to control his impulses and
behave responsibly, especially when we are transitioning from one activity
to another. (P-11, 4th Grade Report Card).
L.H. did have a behavioral intervention plan. For children with
Down syndrome, these supports are not uncommon. For example, in
Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993), the childs behavior involved temper tantrums, crawling and hiding under furniture, and
touching, hitting and spitting on other children and the teachers. Id. at
1208. However, these could be cured through a behavior intervention
plan. Id.; see also Troy Sch. Dist., 2015 U.S. Dist. LEXIS at **23-26.
In sum, L.H.s behavior cannot possibly be a reason to place him in
a separate school with no opportunity for grades, homework, or educational monitoring.
6.1 REIMBURSEMENT FOR UNILATERAL PLACEMENT AT
THE MONTESSORI SCHOOL OF CHATTANOOGA
Based upon Normal Park Museum Magnets unwillingness to allow
L.H. to remain in the general education classroom, along with the identified problems with the proposed CDC classroom at Red Bank, L.H.s par-
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ents placed him in the general education classroom at the Montessori

School of Chattanooga beginning his third grade year. He completed third
grade, fourth grade, and is now in fifth grade at the Montessori School
(which goes through eighth grade).
Defendant argues that Plaintiffs could have utilized the stay put
regulation of the IDEA to force HCDE to retain L.H. at Normal Park while
due process and litigation proceeded.
20 U.S.C. 1415(j); 34 C.F.R.
300.518. However, Plaintiffs are not required to leave L.H. in a situation

where the school district is adverse to them, and sacrifice their claim for
reimbursement. See Cleveland Heights-Univ. Heights City. Sch. Dist., 144
F.3d 391, 400 (6th Cir. 1998); Burlington v. Dept. of Educ., 471 U.S. 359,
372 (1985). Plaintiffs were within their rights to privately place and seek
reimbursement when facing a situation where the school district believed
it could not serve L.H. at Normal Park and where it did not seek training in
order to do so, where it used too exacting grade level standards for him,
where it unilaterally changed his curriculum level without informing the
parents, and where the school did not share Dr. Kabots April 9, 2013 observation and report with the parents. (See Ex. P-94, Bates No. 5204, Abernathy Email (instructing the report not be shared with L.H.s parents);
D.H. Trial Testimony (stating she never even saw the report until the due
process hearing)).
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Plaintiffs seek reimbursement of all costs associated with that

placement, including privately paying for a paraprofessional. See e.g.,
Deal v. Hamilton County Dep't of Educ., 2006 U.S. Dist. LEXIS 76324, *7
(E.D. Tenn. Aug. 1, 2006) (Thus, to the extent the Deals are entitled to
reimbursement, they are entitled to reimbursement for the costs of Zachary's special education and related services relating to his ABA therapy.).
Two factors determine whether reimbursement for private school is
appropriate: (1) Whether the schools proposed IEP (here, Red Bank) was
not appropriate for the child (e.g., not the least restrictive environment
with appropriate supports); and (2) Whether the private school is appropriate. Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S.
359, 369 (1985); 34 CFR 300.148(c). [E]quitable considerations are relevant in fashioning relief. Burlington, 471 U.S. at 374.
As to the second factor, the private school is not required to meet
State public school standards. Florence County Sch. Dist Four v. Carter,
114 S.Ct. 361 (1993). The Florence County decision has been incorporated
into the IDEA regulations. 34 C.F.R. 300.148(c) (parental placement
may be found to be appropriate by a hearing officer or a court even if it
does not meet the State standards that apply to education provided by the
SEA and LEAs.); C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155
(9th Cir. 2011), cert. denied, 132 S. Ct. 500 (2011) (a private placement
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may be "appropriate" for reimbursement purposes even if it fails to offer

every special service needed to maximize a child's potential and equity
does not require a reduction in reimbursement just because a parent or
guardian cannot afford to give the child everything (or cannot find a program that does)).
Accepted factors for the appropriateness of private school include
things like small class size, whether the child is making acceptable grades,
and behavioral improvements. Knable v. Bexley, 238 F.3d 755, 770 (6th
Cir. 2001); Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459
F.3d 356 (2nd Cir. 2006), cert. denied, 552 U.S. 985 (2007) (although the
private placement did not provide the student with an individual aide or
consulting services, the student received an educational benefit from the
small class size and the individualized instruction).
6.2 PARENTS PLACEMENT OF L.H. AT THE
MONTESSORI SCHOOL OF CHATTANOOGA
D.H. testified that she and G.H. chose the Montessori School of
Chattanooga for L.H. after touring the school, having multiple meetings
with the Montessori director and her staff, reviewing instructional DVDs
about the Montessori method, and having L.H. participate in a three-day
visit to the classroom he would attend. The parents were impressed that
Montessori has a curriculum aligned with state standards and that L.H.
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participates fully with his typically developing peers. Academically, beginning in third grade, L.H. had language and reading, math, science, social
studies, Spanish, and computer instruction. His favorite class was science,
particularly botany. (D.H. Trial Testimony).
The academic exposure continued in fourth and fifth grades. For
example, in fourth grade, L.H. enjoyed paleontology and dinosaurs and, in
fifth grade, he worked on learning United States history from the Civil War
to the War on Terror. (D.H. Trial Testimony). Throughout his years at
Montessori, L.H. has been given homework and regular progress reports
which help his parents monitor his instruction and progress. (Id.).
According to D.H., working memory remains L.H.s most compromised area. He has difficulty articulating concepts, even though he may
know them. Math, being conceptual, is hard for L.H. to articulate and remains L.H.s most difficult subject. Montessori uses manipulatives (objects) to teach mathall the way through eighth grade, as needed. (D.H.
Trial Testimony).
L.H. has his own assistant, Sarah Goddard, who is well trained in
Montessori methods and has three years experience as a classroom assistant. As for Down syndrome or L.H., in particular, the parents provided
her The Quick Guide to L.H., a pamphlet about Down syndrome generally and how it manifests for L.H. in the classroom, some literature from the
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National Down Syndrome Society, and a book by Dr. Sue Buckley. (D.H.
Trial Testimony).
D.H. describes the Montessori School experience as extremely positive for L.H. His Report Cards and comprehensive testing also show he
is clearly making progress. (Ex. P-11, Third and Fourth Grade Report
Cards; Ex. P-52, 3rd Grade Comprehensive Testing; P-12, ERB 2015).
At due process, the Montessori Schools Director, Bobbe Spink, explained that the Montessori approach is premised on mainstreaming regardless of disability, as they try to meet each childs individual needs.
(Spink, DP Trans. 851). In fact, the Montessori approach is based in special education, and thus, the Montessori approach uses manipulatives as
well as constantly changing the presentation of materials in order to make
the individual child learn. (Id. at 856). Spink has a special education degree and has taught Montessori for forty (40) years. (Id. at 851-53). She
was therefore tendered as an expert witness in the due process hearing,
and expressed that in her opinion, Montessori is an appropriate placement
for L.H. (Id. at 852-53).
Mr. Jamie Watts, the third grade classroom teacher at Montessori,
testified at due process regarding L.H.s academic instruction at Montessori. Watts testified that L.H. receives the same general education as his
non-disabled peers, just at his own individualized pace. (Watts, DP Trans.
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614). The curriculum tracks common core standards and includes instruction in language, reading, math, writing (including learning cursive), social
studies and science (including a weekly science experiment), Spanish, and
computer training. (Id. at 616-22).
Additionally, L.H. does have homework every night at Montessori
taking home spelling, reading, and flashcards. (Id. at 630). In addition,
L.H. has a daily journal entry to do or a reading comprehension exercise.
(Id. at 630-31). Moreover, L.H. has 13 spelling words per week, which as
of his third grade year alone were 7, 8, and 9 letters long. (Id. at 631-32).
L.H. does have an assistant with him throughout the day who helps him
with his work, usually handwriting and sometimes redirects or encourages
him to finish his assignments. (Id. at 623).
According to Watts, while at Montessori, L.H. has made real friends
at school and engages in typical social interactions with his non-disabled
peers. (Id. at 635). L.H. gets invited to be part of games and sit next to
classmates who enjoy working and playing with him. (Id.). And as documented above, L.H. has progressed through many levels of the general
curriculum in his two years of Montessori. (Id.).
6.3 DEFENDANTS OBJECTIONS TO MONTESSORI SCHOOL
Defendant argues the Montessori School of Chattanooga is not an
appropriate placement for L.H. Defendant relies upon observations and
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assessments from 2015 conducted by Dr. Sue Kabot, Jill Levine, and two
teaching coaches, Jamelie Johns and Debbie Rosenow.
Dr. Kabot is a speech and language pathologist from Florida. Dr.
Kabot testified about an assessment she conducted at the Montessori
School in October of 2015, having previously observed the Montessori
classroom in 2013.
Unfortunately, Dr. Kabot allowed her Tennessee
speech and language pathology license to lapse in June of 2014. As a result, her assessment in October of 2015 violates Tenn. Code Ann. 63-17110(a) which requires an active license for any assessment. And testifying
about her assessment would be in furtherance of that crime, albeit Dr.
Kabot acknowledgedat the very end of her direct testimonythat her license had expired.
Practicing speech and language pathology without an active license
is a class B misdemeanor in the state of Tennessee. Tenn. Code Ann. 6317-121. There certainly is authority for rejecting all testimony where the
examiner lacks an in-state license. Bossier v. State Farm Fire & Cas. Co.,
2009 U.S. Dist. Lexis 108595, *15-16 (S.D. Miss. 2009) (under Fed. R. Civ.
P. 601, rejecting testimony due to lack of state certification); see also Legg
v. Chopra, 286 F.3d 286, 292 (6th Cir. 2002) (Fed. R. Civ. P. 601 governs
competency of an expert witness under state medical standards, while Fed.
R. Civ. P. 702 governs qualifications). However, the Court chooses to view
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the lack of a license as a militating factor rather than reject the testimony
outright.
For a number of reasons, the Court is not persuaded by Dr. Kabots
opinions about the Montessori School being inappropriate for L.H. Besides lacking a Tennessee license, Dr. Kabot has never developed an IEP
for a child with Down syndrome in an inclusive environment for more
than 50% of the day. By her own admission, she advised HCDE that she is
not experienced in educational programming of a child with Down syndrome. She had never even conducted an assessment of a child with Down
syndrome who was included in the regular education classroom. (Kabot
Trial Testimony).
Moreover, in April of 2013, Dr. Kabot made a recommendation to
reconsider placement for L.H. after only 15-20 minutes of observation.
(Id.; Ex. P-1-25, Kabot Observation April 2013). Per Dr. Whitbread, one
very short observation was clearly insufficient to be making a different
placement recommendation. (Whitbread Trial Testimony).
Additionally, Dr. Kabots recommendation in April of 2013 targeted
placement even before supports and services were attempted in the regular education classroom.
(Ex. P-1-25, Kabot Observation April 2013).
Even Dr. Kabot agreed L.H. could benefit from certain supports such as
Ed Mark Reading and TouchMath. (Kabot Trial Testimony). Although
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she never specifically recommended CDC at Red Bank, Dr. Kabot was retained solely for purposes of bolstering the decision by HCDE to place L.H.
at Red Bank. In other words, she is not a disinterested or neutral witness.
Finally, it appears Dr. Kabot is being asked to opine on matters for
which she simply lacks expertise. Besides her relatively small experience
with children with Down syndrome who are included, Dr. Kabots report
attempts to rebut Dr. Meeces statistical findings. (Ex. D-16, Kabot Report, pp. 17-18). However, even Dr. Kabot admitted she lacks qualifications for such analysis and she disavowed that section of her report.
(Kabot Trial Testimony). In light of her inexperience, lack of Tennessee
license, and her willingness to state opinions and then disavow them for
lack of experience, the Court places little value in her overall testimony.
Jill Levine, Principal of Normal Park, concedes that she was the
person who stated that L.H. hit a wall at Normal Park. (Levine Trial Testimony). She observed but did not assess L.H. in September of 2015 at the
Montessori School. Her observation lasted a few hours and, in that time,
she stated that L.H. was segregated behind a bookshelf. (Id.).
Levines purpose was to observe a literacy assessment, though she
said the Montessori environment was heartbreaking to her. (Levine Trial Testimony). The Court views this with some skepticism given Levines
role, but also because she was not aware of basic facts about L.H. and the
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Montessori Schoolsuch as class size, whether L.H. had an education

plan, what his educational goals were, his amount of access to nondisabled peers, or the standard for unilateral placement cases (making
some educational progress, per Florence). She says she had no opportunity to ask any questions. (Id.). Thus, her two-hour observation has limited
value.
Defendant also offered testimony from a math coach, Ms. Jamelie
Johns, and a literacy coach, Ms. Debbie Rosenow. They conducted math
and literacy evaluations, respectively, of L.H. in September of 2015.
(Johns & Rosenow Trial Testimony; Exs. D-30, Johns Assessment, D-29,
Rosenow Assessment).
Ms. Johns believed that L.H. must be assessed without any accommodations for his disability in order to see his true abilities. (Johns Trial
Testimony). She concluded from her 35-minute math assessment that
L.H., without any accommodations, was able to perform math functions
across multiple grade levels, but that his overall performance was at a kindergarten level. She says she was looking to see if he could perform the
standards without any accommodations or modifications. Thus, based on
this single measure, Ms. Johns opined that his needs could not be met in a
regular education classroom. (Id.).
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Notably, Ms. Johns does not have a special education degree. Nor
does she have any psychological background in interpreting assessment
results. She did not offer any testimony about how L.H. would perform
with accommodations and modifications. Additionally, L.H. was given
approximately four minutes of multi-step computer instructions (despite
his working memory limitations) without any pause or review for comprehension and when he had no previous experience taking computerized
tests. (Johns Trial Testimony).
Moreover, Ms. Johns herself has no experience at all in working
with children with Down syndrome and has never taught a child with
Down syndrome. (Johns Trial Testimony). She simply has no experience
with what this population of children can achieve. With respect to L.H. in
particular, she never read any of his educational file and did not even
know he had Down syndrome until the morning of her testing. (Id.). Ultimately, Ms. Johns agrees she lacks expertise in aligning or tying IEP
goals for a child with an intellectual disability to general education standards. And she also agrees that her own 35-minute assessment results conflict with the standardized test results L.H. achieved at Montessori in 2014
and 2015. (Id.; Exs. P-52, 3rd Grade Comprehensive Testing, P-12, 4th
Grade ERB Scores).
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As mentioned above, Ms. Rosenow, a nationally certified teacher,

conducted a 50-minute literacy assessment in October of 2015 at the Montessori School. (Rosenow Trial Testimony). Essentially, Ms. Rosenow had
L.H. read two books and perform a writing sample. On the first book, a
third grade level reader, L.H. performed below 95%, and on the second
book, a first grade level reader, L.H. performed at 99%. (Id.; Ex. D-29,
Rosenow Assessment). His working memory was clearly compromised
as expected of a child with Down syndromebut he expressed written sentences, albeit with a misspelling of the word smell, from the second
book. (Id.). Ms. Rosenow believed, based upon this single measure, that it
would be difficult to meet L.H.s needs in regular education. (Id.).
Like Ms. Johns, Ms. Rosenow does not have a special education degree. And like Ms. Johns, she has never assessed a child with Down syndrome previously, nor has she ever taught such a child. She also never reviewed his records, or any of the Plaintiffs expert reports (from Drs. Buckley, Whitbread or Meece). (Rosenow Trial Testimony). L.H. again did not
receive any testing accommodations such as a paraprofessional or multiple
choice answers to help with his difficultly with oral expression as well as
fine motor delayin other words, the testing was done upon L.H. in his
unmitigated state, not his mitigated state. (Id.). And Rosenow had no
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longitudinal data with which to compare the validity her one-shot assessment in October of 2015. (Id.).
Despite these shortcomings, Ms. Rosenow does concede that more
intensive help can be given to a child through resource rooms, without removing the child completely from regular education. (Rosenow Trial Testimony). Resource rooms, she concedes, can include work on phonics instruction, decoding, and access to more rigorous text. (Id.). These are the
very areas in which Ms. Rosenow believed L.H. required more work.
In rebuttal evidence, the Court also heard from L.H.s fourth and
fifth grade Montessori School teacher, Ms. Stephanie Parakh. Ms. Parakh
has a degree in elementary education, is licensed for public schools in the
state of Tennessee, even having previously taught for HCDE for four years,
and is certified in the Montessori methods for educating students. (Parkh
Trial Testimony). Ms. Parakh testified that L.H.s seating arrangement is
no different than the other studentsall typically developing peersand
he is not segregated behind a bookcase or any other object during any part
of his day. (Id.).
At the Montessori School, L.H. is one of 18 students in the classroom. The class consists of a teacher, Ms. Parakh, an aide for all students,
and a paraprofessional assigned to L.H. L.H. receives lessons in language,
math, geometry, botany, zoology, Spanish, and history. His educational
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plan is reviewed and updated every two weeks based upon his progress in
the general education curriculum. (Parkh Trial Testimony).
Ms. Parakh stated that L.H. passed from fourth grade to fifth grade
and continues to make appropriate progress. His behavior is described as
friendly, happy, and excited; he gets along well with other students, with
only minimal issues involving personal space. (Id.).
Notably, the Montessori School has given L.H. standardized tests.
L.H. participated in nationwide standardized testing during April 2015 of
his fourth grade year at the Montessori School. (Id.; Ex. P-12, ERB 2015
Scores). As shown in the chart below (taken from his actual scores), in his
worst area of testing, Verbal Reasoning, L.H. had a scaled score of 309,
which correlates to performing as well as or better than 39% of all students nationwide to whom the test was administered. And in his best area
of testing, Reading Comprehension, L.H. received a scaled score of 332,
which correlates to performing as well or better than 66% of all students
nationwide to whom the test was administered.
Norm group:
Test:
Verbal Reasoning
Vocabulary
Reading Comprehension
Writing Mechanics
Writing Concepts & Skills
Scaled
Score
309
321
332
329
326
National Norm Group

%ile
Rank
39
53
66
59
45
Stanine
4
5
6
5
5
64

6140

Quantitative Reasoning
Mathematics 1&2
321
289
57
44
5
5
(Ex. P-12, 4th Grade ERB Test Scores).

The Court cannot ignore L.H.s progress. His consistent passing of
grades, the testimony of Ms. Parakh and Mr. Watts, and the standardized
tests scores all support the fact that he is making progress at Montessori.
The parents are not required to supply the equivalent of a federally and
state funded education, though their private payments of a paraprofessional for their son is evidence of their commitment to his educational
needs.
The costs of tuition to the Montessori School of Chattanooga and
the paraprofessional provided by L.H.s parents for his third grade (20132014), fourth grade (2014-2015) and current fifth grade year (2015-2016)
were summarized by D.H. The annual tuition is $7,500, though the parents have received some offsets which have lowered that amount slightly.
(D.H. Trial Testimony). They have paid for a paraprofessional each year,
based upon the actual time spent with L.H. That time was a high of
$17,128 in 2013-2014 to an anticipated low of $9,000 for the present
school year of 2015-2016 based upon L.H.s reduction of need for a
paraprofessional as he matures. (Id.).
65

6141

From third grade through fifth grade, the parents have paid, or
shortly will have paid, a total of $63,149.61 for which they seek reimbursement. (Id.). Thereafter, they propose submitting the exact future
billings to Defendant. The Court finds reimbursement of the $63,149.61
appropriate and, going forward, Plaintiffs are directed to submit future
educational costs to Defendant for reimbursement.
7. CONCLUSION
When tasked with assessing the capability of persons with intellectual disabilities such as Down syndrome, HCDE would be well served by
accepting input from persons knowledgeable and experienced in that field.
Otherwise, a prejudice may result in the manner that has been described
by Justice Kennedy:
Prejudice, we are beginning to understand, rises not from
malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374-375 (U.S.
2001).
While significant advances have been made to protect the rights of
persons with intellectual disabilities, adequate training about both special
needs as well as myths related to educating children with special needs
must continue.
66

6142

For all the foregoing reasons, the Court finds that the general education classroom at Normal Park Museum Magnet, not Red Banks CDC
classroom, constitutes L.H.s least restrictive environment. Put differently, Red Banks CDC classroom is more restrictive than necessary for L.H.,
once he is provided appropriate supports and measured by appropriate
standards of progress in the general education classroom. Further, the
Court finds that L.H.s private placement at the Montessori School of Chattanooga is appropriate and awards past and future reimbursement. Accordingly, the judgment of the administrative hearing officer is hereby reversed. The Plaintiffs are the prevailing party.
SO ORDERED.
67

6143

Respectfully Submitted,
GILBERT RUSSELL McWHERTER
SCOTT BOBBITT, PLC
_s/Justin S. Gilbert
Justin S. Gilbert (TN Bar No. 017079)
100 W. Martin Luther King Blvd, Suite 504
Chattanooga, TN 37402
Telephone: 423-499-3044
Facsimile: 731-664-1540
jgilbert@gilbertfirm.com
Jessica F. Salonus (TN Bar No. 28158)
101 North Highland
Jackson, TN 38301
Telephone: 731-664-1340
Facsimile: 731-664-1540
jsalonus@gilbertfirm.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that a true and exact copy of
the foregoing has been mailed electronically via the Courts electronic
filing system, to all counsel of record on this the 12th day of February
2016.
D. Scott Bennett
Mary DeCamp
Leitner, Williams, Dooley & Napolitan, PLLC
Tallan Building
200 W. ML King Blvd., Suite 500
Chattanooga Tennessee 37402-2566
/s/ Justin S. Gilbert__________________
68

6144

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L.H. v.

Hamilton County Department of Education

HAMILTON COUNTY DEPARTMENT OF EDUCATION,

The Supplemental Evidence................................................................... 2

Least Restrictive Environment and the Roncker Factors ..................... 3

Could L.H. Benefit from Regular Education? ....................................... 8

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 1 of 70 PageID #: 6075

L.H. v. Hamilton County Department of Education

Is Red Banks CDC Class Superior for L.H.? ....................................... 30

Portability: Can Any Advantages at Red Bank be Accomplished

Was L.H. Too Disruptive for General Education? .............................. 46

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 2 of 70 PageID #: 6076

L.H. v. Hamilton County Department of Education

JUDGE COLLIER, opinion of the Court:

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 3 of 70 PageID #: 6077

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 4 of 70 PageID #: 6078

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 5 of 70 PageID #: 6079

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 6 of 70 PageID #: 6080

L.H. v. Hamilton County Department of Education

LRE UNDER RONCKER OR FAPE UNDER ROWLEY?

In its pre-trial briefing and opening statement, Defendant argues

Subsequent cases have broken Roncker into three factors: (1)

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 7 of 70 PageID #: 6081

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 8 of 70 PageID #: 6082

L.H. v. Hamilton County Department of Education

Instead, the narrow dispute involved which of two locations any

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 9 of 70 PageID #: 6083

L.H. v. Hamilton County Department of Education

bled children to the maximum extent appropriate in accordance with

Resource is a special education support, but it enables the child to

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 10 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 11 of 70 PageID #:

L.H. v. Hamilton County Department of Education

mention of any limiting instruction at any point.

Plaintiffs originally intended to call Dr. Buckley live, via Skype, in

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 12 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Critically important, too, Dr. Buckley says there are no published

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 13 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Using the wrong standard could be considered both a procedural

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 14 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Dr. Kathleen Whitbread is a highly experienced professor of special

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 15 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 16 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 17 of 70 PageID #:

L.H. v. Hamilton County Department of Education

Case 1:14-cv-00126-CLC-SKL Document 170 Filed 02/12/16 Page 18 of 70 PageID #:

L.H. v. Hamilton County Department of Education