Proposed Findings of Fact by Hamilton County Department of Education. (Bennett (04523978xA015B)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA
L.H., a Minor Student, et al,
Plaintiffs,
vs.
HAMILTON COUNTY DEPARTMENT
OF EDUCATION,
Defendant.
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No. 1:14-cv-00126-CLC-SKL
Judge Curtis L. Collier
JURY DEMAND
HAMILTON COUNTY DEPARTMENT OF EDUCATIONS

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
NOW COMES the Defendant, the Hamilton County Department of Education, by and
through counsel, and, following the close of the evidentiary hearing pursuant to 20 U.S.C.
1415(i)(2)(C), offers these Proposed Findings of Fact and Conclusions of Law in support of the
arguments that this Defendant provided L.H. with a free appropriate public education during the
2012-2013 school year; that the proposed individual education plan for the 2013-2014 school
year was calculated to provide a meaningful educational benefit in the least restrictive
environment appropriate for L.H.; and that The Montessori School was not an appropriate
private placement for L.H.
PROPOSED FINDINGS OF FACT
This matter came before the Court upon a review of the administrative record compiled
by Administrative Law Judge Marion Wall on October 29, 30, and 31, 2013. Additionally, this
Court heard additional evidence pursuant to 20 U.S.C. 1415(i)(2)(C) over the course of several
days during January 2016. The Plaintiffs called Dr. Kathleen Whitbread, Dr. Darrell Meece, and
Case 1:14-cv-00126-CLC-SKL Document 169 Filed 02/12/16 Page 1 of 54 PageID #: 6021
D.H. as witnesses. They also called Janin Brock, an official with the Tennessee Department of
Education, to testify by deposition. The Hamilton County Department of Education called Dr.
Sue Kabot, Jill Levine, Jamelie Johns, Mary Ann Voss, Margaret Abernathy, and Debbie
Rosenow as witnesses. On rebuttal, the Plaintiffs called Stephanie Parakh and recalled D.H.
1.
Dr. Sue Buckley
Initially, note that Dr. Sue Buckley, identified by the Plaintiffs as an expert witness, did
not testify at the hearing. While the Plaintiffs assumed that the Defendant had introduced her
expert report into the record as substantive evidence, defense counsel in fact used the report to
cross-examine the Plaintiffs primary expert, Dr. Kathleen Whitbread, pursuant to Rule 703 of
the Federal Rules of Evidence since Dr. Whitbread referred to Dr. Buckley as her role model.
While the Plaintiffs were able to have Dr. Buckley testify via video link, they chose not to do so.
Even if the Court were to consider Dr. Buckleys expert report as substantive evidence,
however, it would have to do so in view of Dr. Buckleys own conflicting opinions regarding the
education of children with Down syndrome. For instance, Dr. Buckley maintains that students
with Down syndrome do not experience a plateau in their academic development. Even so, she
concedes that at least one study shows evidence of a plateau in the language development of
individuals with Down syndrome during middle childhood. (It is also worth noting that the
average [British Picture Vocabulary Scale] score was exactly the same for younger and older
mainstream children. Some research has suggested that a plateau of language growth may be
reached in middle childhood.Although this hypothesis has lately been questioned, these
results lend some support to this hypothesis.) (Defs Ex. 38: Language and Memory
Development in Children with Down Syndrome, p.453).
Similarly, Dr. Buckley contends that a more inclusive educational environment is better
for academic growth, but she acknowledges that she cannot allow for the effect of different
curricula offered in different schools. (In a recent study, inclusive education showed significant
benefits for the speech and language development of teenagers with Down syndrome: they were
more than two years ahead of peers in special education on the measure of expressive language,
probably as a result of daily access to literacy activities and to the wider curriculum, as well as
the effect of being immersed in a typical language community.) (Defs Ex. 40: Meeting the
Educational Needs of Children with Down Syndrome, p. 3) (emphasis added).
She concedes in a more recent article, however, that the curriculum in a more specialized
setting might be more tailored to the language needs of children with Down syndrome. She and
her co-authors note that mainstream schools may not provide the individualized language
teaching that children in special schools enjoy, nor such regular access to specialist professionals
such as speech and language therapists. (Defs Ex. 38, p. 448). Indeed, noting a large study
conducted in the United States, she and her co-authors write It is less clear whether school
placement has an effect on developmental growth. Fewell & Oelwein (1990), in the United
States, examined the relationship between time spent in integrated school settings and
developmental gains across six domains for a large group of children with Down syndrome. The
only effect of schooling was on the expressive language of the children with Down syndrome
where the children who were in special schools were significantly more advanced. (Defs Ex.
38, p. 449)(emphasis added).
In fact, despite Dr. Buckleys sweeping statements that inclusive settings are always
better for students with Down syndrome than are more restrictive settings, her own writings
acknowledge that these statements are not universally true. As Dr. Sue Kabot explained, and
3
even as Dr. Kathleen Whitbread acknowledged, there are significant limitations in the field of
Down syndrome research; there are no single case studies that examine the impact of the
educational environment on the academic growth of children with Down syndrome.
For this reason, and to her credit, Dr. Buckley acknowledges that children with Down
syndrome are individuals. She recognizes that the knowledge that a child has Down syndrome
does not define the child or predict his/her progress.children with Down syndrome vary widely
in their progress, and each child must be seen as a child first. (Defs Ex. 40, p. 1).
Having acknowledged that children with Down syndrome are individuals, Dr. Buckley
nevertheless assumes that there is a specific profile applicable to each child with Down
syndrome. In her report, for example, she categorically assumes that children with Down
syndrome have better receptive language than they do expressive language. (Pls Ex. 5, p. 4).
Indeed, this assumption actually underpins all of Dr. Buckleys opinions regarding the education
of children with Down syndrome.
She states in Meeting the Educational Needs of Children with Down Syndrome that
children with Down syndrome benefit from an inclusive education probably as a result of daily
access to literacy activities and to the wider curriculum, as well as the effect of being immersed
in a typical language community. (Defs Ex 40, p. 3). As Dr. Whitbread acknowledged, the
assumption is that children with Down syndrome, with their better receptive language,
understand more than they can express.1 The assumption, therefore, is that a child with better
receptive language will benefit from a language-rich environment even though he might not be
able to express his true level of understanding.
Dr. Meece paralleled this opinion stating that the words they understand are more than the words they can say.
The problem with Dr. Buckleys opinion, however, is that, while it might be applicable to
every other child with Down syndrome, it has no application to L.H. There is no dispute that
L.H. does not have better receptive language than expressive language. Both Dr. Kabot in
September 2015 and a speech and language pathologist with the Hamilton County Schools in
March 2012 found that L.H.s receptive and expressive language skills were equally poor.
(Defs Ex. 28, p.1). In fact, Dr. Kabot found that L.H.s total language skills were in the lowest
one-tenth of one percent. (Defs Ex. 28, p. 3).
Because L.H.s receptive language skills are no better than his expressive language skills,
he does not share the same profile that supports why Dr. Buckley and Dr. Whitbread believe
students with Down syndrome benefit from inclusion. Simply stated, with such poor receptive
language skills, there is no reason to suppose that L.H. would benefit from a typical language
environment. Indeed, there is every reason to believe that he needs more systematic language
instruction such as that discussed in the Fewell & Oelwein study. (See Defs Ex. 38, p. 449).
Dr. Buckleys unfamiliarity with L.H. actually undercuts the validity of her report. L.H.
has a severe language impairment with total language skills in the lowest one-tenth of the first
percentile. As Dr. Buckley observes, a childs language deficit is one of the most significant
obstacles one must consider. The childs language does not simply impact his ability to express
himself; it also impacts his ability to think, reason, and conduct internal conversations. From this
perspective, the fact that L.H.s receptive language, i.e., his ability to understand, is significantly
worse than an otherwise typical child with Down syndrome necessarily impacts every
assumption that Dr. Buckley and Dr. Whitbread have made.
In addition to making false assumptions regarding L.H.s language profile, Dr. Buckley
has also made incorrect assumptions regarding the Defendants efforts to educate L.H.
5
Reviewing the list of documents that Dr. Buckley considered, one can quickly see that the
Plaintiffs did not provide her with the Affidavit of Willeata Kendrick or the Affidavit of Jeanne
Manley. Both omissions are significant.
Because Dr. Buckley did not have Ms. Kendricks Affidavit, she erroneously assumed
that school system officials were holding L.H. to second grade standards. In fact, Ms. Kendrick
clearly explains in her Affidavit that the parents wanted to hold L.H. to second grade standards.
School system officials believed that L.H. needed a modified curriculum that would allow him to
develop prerequisite skills. Because Dr. Buckley did not have an opportunity to review this
Affidavit, however, she incorrectly assumed that the school system was unmindful of L.H.s
disabling condition.
Similarly, Dr. Buckley castigates the school system for not having had anyone familiar
with Down syndrome who could have offered educational support to L.H. If Dr. Buckleys
assumptions were correct, then her conclusions would be as well; the school system would have
been neglectful in having failed to learn all it could have learned regarding the needs of a child
with Down syndrome.
In actuality, however, Jeanne Manley, the lead teacher who provided support for Lisa
Hope, has significant experience with intellectual disabilities generally and Down syndrome
particularly. In both her Affidavit and in her hearing testimony, Ms. Manley explained her
understanding of the educational needs of these children and how she worked with Ms. Hope to
provide quality instruction for L.H. It is shocking, therefore, that the Plaintiffs failed to provide
Ms. Manleys testimony to Dr. Buckley for her comment.2
As noted below, however, this is not the only example of the Plaintiffs having failed to provide their experts with
material evidence.
Similarly, one can only assume that the Plaintiffs also failed to provide Dr. Buckley with
Dr. Sue Kabots background. In her report, Dr. Buckley refers to Dr. Kabot as the school
systems autism expert. Dr. Buckley apparently believes that Dr. Kabots expertise is solely in
the area of autism. She seems unaware that Dr. Kabot is actually an expert in the area of
educating students with intellectual disabilities. She seems further unaware that Dr. Kabot has
expertise in the area of applied behavioral analysis.
This unfamiliarity with Dr. Kabots background is significant given that Dr. Buckley
notes in her article The Power of Behavioral Approaches We Need a Revival, that applied
behavioral analysis may be a useful technique for improving the communication skills of
children with Down syndrome. (Defs Ex. 39, p. 104). Dr. Kabot has extensive experience in
applied behavioral analysis and has long advocated using this methodology for the education of
students with intellectual disabilities.
It is at this point that Dr. Kabots true value to this case becomes apparent. While Dr.
Whitbread testified that Down syndrome is different from autism, there is no dispute that all
individuals with intellectual disabilities suffer from significant deficits in cognitive development
and adaptive skills. There is likewise no dispute that a child who is intellectually disabled by
virtue of Down syndrome has the same basic deficits as a child who is intellectually disabled by
virtue of autism. Both children fit within the same eligibility category under the IDEA and thus
demonstrate the same basic educational needs. As Dr. Buckley notes, and as Dr. Kabot testified
at the administrative hearing, applied behavioral analysis is a useful technique for educating
students with intellectual disabilities regardless of the childs underlying condition.
In view of Dr. Buckleys unfamiliarity with L.H. and the qualifications of the school
systems teachers and consultant, her opinions in this case are of negligible value.
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2.
Dr. Kathleen Whitbread
Dr. Kathleen Whitbread is the Plaintiffs literacy expert. Understanding her expertise in
context, she admitted that she is not a speech and language pathologist and that she actually has
no speech and language pathologist on staff at her clinic. She offers this admission even after
agreeing with Dr. Buckley that language deficits are the most significant issue impacting the
education of a child with Down syndrome.
Without a clear understanding of L.H.s speech and language problems, Dr. Whitbread
has a limited understanding of the relationship between L.H.s language and his literacy. For
instance, Dr. Whitbread conceded that one can mistake single word vocabulary and
comprehension; vocabulary is often a function of memory, but memory is not the same thing as
comprehension.3 Because Dr. Whitbread did not have the benefit of a speech and language
pathologist to assess L.H., she was unaware that L.H.s single word vocabulary and syntax are
two of his relative strengths.
Consequently, Dr. Whitbread erroneously concluded from L.H.s relative strengths that
he has better comprehension than he actually does. Had she had the benefit of Dr. Kabots more
recent speech and language assessment, or even the speech and language assessment from March
2012, she would have realized that, given L.H.s severe language impairment, he could not have
been reading for comprehension at the level she supposed.
Indeed, Dr. Whitbread fell into the same trap as did Dr. Buckley; she assumed based
upon L.H.s Down syndrome that his receptive language is better than his expressive language.
Although Dr. Whitbread disagreed, the great weight of the evidence also establishes that one can mistake syntax
for comprehension. The Maze Reading Assessment (Defs Ex. 42, p. 150), which Dr. Whitbread believes measures
comprehension, is actually designed to measure a childs understanding of word order in a sentence, i.e., syntax.
Debbie Rosenow explained how the two are distinct.
In laymans terms, she assumed that he understood more than he could express. Consequently,
she interpreted L.H.s relative strengths in single word vocabulary and syntax through the lens of
these false assumptions and concluded that L.H. had remarkable comprehension relative to other
children with Down syndrome. Had she looked past the speech and language profile she
assumed that L.H. had, then she would have realized that L.H. could not have been reading at the
third grade level.
In addition to forming opinions about L.H. without fully understanding his speech and
language profile, Dr. Whitbread formed opinions without having any data documenting how
L.H.s teachers had worked to educate him. In her expert report, Plaintiffs Exhibit 6b, Dr.
Whitbread criticized school officials for having taken no data to document their efforts to
educate L.H. As Dr. Whitbread explained, data collection allows teachers to see the steps they
have taken to educate a child and how the child has responded to those measures. Good data,
therefore, enables an educator to make well informed decisions regarding educational
programming for a child.
Interestingly, the reason Dr. Whitbread believed that school officials took no data of L.H.
is simply because the Plaintiffs failed to provide her with the data the teachers had collected.
On page 2 of her report, there is no reference to data among the records that she reviewed, and
the body of her report states flatly that there was no data to review.
During her direct testimony, however, Dr. Whitbread contradicted her report and stated
that she had reviewed Lisa Hopes data collection logs. Even so, she maintained that these
collection logs did not provide useful information regarding what Ms. Hope had done to educate
L.H. It is interesting to note that Dr. Whitbreads billing records do not allow for sufficient time
to have reviewed the videos and the other documents in this case, let alone Ms. Hopes data
collection logs.
On cross-examination, Dr. Whitbread then admitted that she had first reviewed Ms.
Hopes data collection logs, all 705 pages of them, perhaps as recently as the Sunday before the
hearing. (Ex. 6 to the Transcript of the Proceedings, HCDE 2314-3022). Evidently, the
Plaintiffs did not provide Dr. Whitbread with this vital information at the time they solicited her
expert opinion. Furthermore, having received Dr. Whitbreads opinion, the Plaintiffs apparently
did not believe it was necessary to alert Dr. Whitbread to the fact that Ms. Hope and the other
teachers had in fact collected hundreds of pages of data on L.H. Even though Dr. Whitbread
supplemented her report in July, Defs Ex. 41, she makes no mention of having reviewed the
teachers data collection logs.
Having conceded that she first looked at Ms. Hopes data collection logs the Sunday
before the hearing, Dr. Whitbread nevertheless maintained that the information in the data
collection logs was unhelpful. Dr. Whitbread was unaware, however, that in addition to the
hundreds of pages of data collection logs that were in L.H.s academic file, there were also 1,461
pages of worksheets, teachers notes, and other documents that illustrated what the teachers were
working on during any given day, the accommodations and modifications the teachers employed,
and how L.H. performed in response to these modifications and accommodations. (Ex. 6 to the
Transcript of the Proceedings, HCDE 0852-2313). Simply stated, while the Plaintiffs provided
Dr. Whitbread with Ms. Hopes data collection logs shortly before the hearing, they failed to
provide Dr. Whitbread with the remainder of L.H.s academic file that would have enabled Dr.
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Whitbread to have a better understanding of how L.H. was performing in school and steps his
teachers were taking to educate him.4
In addition to having formed her opinions without a full understanding of L.H.s speech
and language deficits or the efforts school system officials made to educate L.H., Dr. Whitbread
formed her opinions without having visited Normal Park, The Montessori School, or Red Bank
Elementary School. She never interviewed any of Normal Parks teachers regarding the efforts
they made to educate L.H., and she does not understand the way Normal Park actually
implements its literacy program, Guided Reading. What she knows about Guided Reading is
predicated upon what other people have written about Guided Reading rather than what Normal
Park actually does.
Similarly, what Dr. Whitbread knows about The Montessori School is limited to what she
understands about Montessori education in general. She has never met Jamie Watts, L.H.s
teacher during the 2013-2014 school year. She conceded that his limited understanding of the
term intellectual disability would be shocking in one of her students at St. Josephs
University.5 She explained, however, that she expects her students to know more since there are
standards that govern the licensure of a public school teacher.
Dr. Whitbread also conceded that she had a limited understanding of L.H.s educational
environment at The Montessori School. Although she purportedly reviewed the video of L.H. at
4
Although FAPE for the 2012-2013 school year is no longer an issue per the terms of the Final Pretrial Order, Dr.
Whitbread testified that the IEP for the 2012-2013 school year did not offer L.H. an opportunity to develop
prerequisite skills such as higher order thinking and reading comprehension. On cross-examination, however, she
conceded that many of the objectives embedded into the various IEP goals did in fact touch upon both higher order
thinking and reading comprehension.
5
Mr. Watts testified at the administrative hearing that attention deficit/hyperactivity disorder is one of several
intellectual disabilities. He had no understanding of the term intellectual disability as that term is defined under
the Individuals with Disabilities Education Act.
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The Montessori School from the Spring of 2014, she did not recall whether L.H. was
functionally isolated during the academic part of the day; whether L.H. spent no more than nine
percent of the time interacting with typical peers; whether there was evidence of any academic
instruction or visual support during the day; or any other aspect of The Montessori environment.
Indeed, her inability to recall any details of this video is telling given her belief that a placement
at The Montessori School is automatically preferable to a placement at Red Bank Elementary
School.
And again, Dr. Whitbread formed this opinion not having seen the Red Bank CDC
classroom or indeed any CDC classroom within the Hamilton County Schools. She relied only
upon Dr. Meeces report and her erroneous assumption that most students were left isolated and
disengaged during most of the academic day. In fact, Dr. Meece actually reported that most
students were working independently, which Dr. Whitbread conceded would be a very good
thing.
Ultimately, Dr. Whitbreads opinions are the result of a heavy prejudice against any selfcontained classroom such as Red Banks CDC room. Apparently ignoring federal education
policy that there should be a range of services and placements designed to meet the
individualized needs of students with disabilities, 34 C.F.R. 300.114, Dr. Whitbread has never
recommended anything less than 50% inclusion for any student with disabilities. Her track
record is predicated upon her belief that access to typically developing peers is paramount.
Where Dr. Whitbreads bias becomes evident is that she has rejected the proposed IEP
for the 2013-2014 school year even though it would have provided L.H. with more access to
typically developing peers than he is actually getting at The Montessori School. L.H. would
have been in the CDC room for approximately half the day receiving intensive instruction in
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reading and math in a modified curriculum. The rest of the academic day, he would have had
classes with typically developing peers in science, social studies, and related arts.
In contrast, at The Montessori School, during the 2013-2014 school year, L.H. was
functionally isolated for most of the academic day. He had minimal interaction with typically
developing peers; a time index study of the video indicates that he was interacting approximately
nine percent of the time. (Defs Ex. 26; Defs Ex. 16, p. 16). Even a more recent time index
study of The Montessori School shows that L.H. is interacting with typically developing peers
for no more than 16% of the academic day. (Defs Ex. 28, p. 9). He sits off to the side by
himself, and yet Dr. Whitbread believes that is a more appropriate setting than the proposed IEP
for 2013-2014 would have been.
Accordingly, there are two over-arching problems with Dr. Whitbreads testimony. First,
she has formed her opinions based upon an incomplete understanding of L.H. and his academic
environment. She does not fully understand how L.H.s speech and language deficits impact his
educational needs and so she relies upon a learning profile for students with Down syndrome that
does not apply to L.H. Similarly, because she did not have access to thousands of pages of
information pertaining to L.H.s education, she does not fully understand the efforts school
system officials made to educate L.H.
Second, Dr. Whitbreads opinions are clouded by heavy bias in favor of inclusion, a bias
that does not account for the needs of the particular child or the manner in which inclusion is
implemented in a particular case. As evidenced by the problems with The Montessori setting,
Dr. Whitbread used inclusion as a place as opposed to a legitimate educational strategy.
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3.
Dr. Darrell Meece
Dr. Meece is a professor at the University of Tennessee at Chattanooga who teaches early
childhood development. He does not teach special education, and he has never been a special
educator. Indeed, he does not hold a teaching license in the State of Tennessee. He has some
limited understanding of Down syndrome, most notably because of his connection to L.H.
Dr. Meeces familiarity with Down syndrome, however, is very generalized. Dr. Meece
testified that, based upon his understanding of children with Down syndrome, the words they
understand are more than the words they say. In other words, he agrees with the generalized
assumption that students with Down syndrome have better receptive language than they do
expressive language. Dr. Meece seems to assume that L.H. fits into this profile.
Dr. Meece had an opportunity to observe the CDC classroom at Red Bank Elementary
School. During this review, he did not examine the pedagogy but instead focused entirely upon
the social interaction between the students. Notably, when he was recording student activities,
he did not differentiate between students who were working independently and students who
were by themselves and disengaged. Indeed, when asked whether he differentiated between
these groups, he asked rhetorically why would I do that? He conceded, however, that most of
the students in the classroom were in fact working independently.
Dr. Meeces perspective, while kindly and concerned with the social happiness of the
children, is ironically emblematic of an outdated way of thinking. As Janin Brock testified by
deposition, special education once set the bar too low for students with disabilities, focusing
primarily upon their happiness and social skills. Tennessee, however, now sets the bar higher.
Public education labors to teach students with disabilities to work independently so that they may
be successful after high school.
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What Dr. Meece saw as a weakness of the CDC classroom, children with disabilities
working independently on their own, is actually a strength of this particular classroom.
Furthermore, this classroom would have offered L.H. something he desperately needs the
opportunity to develop independent skills that that he thus far lacks.
Dr. Meece also testified that there is a statistically significant disparity between the
frequency at which Hamilton County Schools assign students with disabilities to more restrictive
settings as compared to other school systems around the nation. Initially, note that this statistical
analysis is irrelevant inasmuch as it does not inform the Court as to L.H.s unique educational
needs.
More to the point, however, Dr. Meece could not offer an opinion about the reason
behind this statistical disparity. He could not state that Hamilton Countys placement rates are
too high or that the rest of the nations placement rates are too low. He could not state that
Hamilton Countys placement rates might be a function of more affluence such that schools are
better equipped to offer necessary educational interventions to students who need them. In other
words, while he could state that there is a disparity between Hamilton Countys placement rates
and other districts, the Plaintiffs invite this Court to speculate as to the reason behind this
difference. Thus, not only is this testimony irrelevant as to L.H.s needs but also it is legally
irrelevant since it is more prejudicial than probative of any fact at issue.
4.
D.H.
D.H., the mother of L.H., testified about many things and, in particular, offered her
opinion that L.H. was making progress at The Montessori School and was working on grade
level, albeit with supports and modifications. Notably, D.H. is not an educator and is not in a
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position to testify beyond a laymans perspective as to the extent to which L.H. has progressed in
his education or the level at which he is presently working in school.
While the Plaintiffs introduced a number of educational records through D.H., the Court
cannot give these records any weight inasmuch as D.H. is not the author of these records and no
one testified about the extent to which The Montessori School provided L.H. with supports and
modifications. In other words, there is no way to interpret these records so that one can discern
L.H.s present levels of performance, which is a necessary starting point for determining a
childs educational needs under the IDEA. 20 U.S.C. 1414(d)(1)(A).
D.H. also testified that L.H.s assistant was an employee of The Montessori School rather
than of the parents. While that might be true for the present school year, the administrative
record is clear that Jamie Watts, the classroom teacher for the 2013-2014 school year, understood
that the assistant was an employee of D.H. instead of The Montessori School. Mr. Watts was
clear that this assistant reported to D.H. and was evaluated by D.H., not by him. D.H. acted pro
se at the hearing and could have contradicted Mr. Watts, but she failed to do so. Alternatively,
she could have clarified the assistants employment status with Bobbe Spink, the Director of The
Montessori School, but she failed to do so.
While the Court might have excused D.H. for having failed to argue this point effectively
at the administrative hearing since she was pro se, this argument is harder to make now that she
is represented by counsel. Whereas Mr. Watts says that the assistant was D.H.s employee, D.H.
denies it. The one person who could have clarified this point, Director Spink, was listed as a
witness for the Plaintiffs and yet failed to testify. The Court must necessarily infer, therefore,
that Ms. Spinks testimony in this point would have been unfavorable to the Plaintiffs, i.e., that
the assistant was in fact an employee of D.H. instead of The Montessori School.
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D.H. also testified that L.H. has an IEP at The Montessori School, an IEP for two weeks
at a time. An example of a Montessori IEP, however, was introduced as Exhibit 14 to the
Transcript of the Proceedings. It obviously has no similarity to an IEP developed under the
IDEA. The Montessori IEP, if that is its correct terminology, lacks a statement of the childs
present levels of performance, how his present levels of performance impact the childs ability to
access the general education curriculum, a statement of goals and objectives designed to progress
the childs education, or any of the other criteria set forth in 20 U.S.C. 1414(d)(1)(A).
Undoubtedly, D.H. is pleased with the level of attention she receives from The
Montessori School. She testified that, in conjunction with implementing this so-called IEP, the
Montessori teacher discusses L.H.s education with her regularly. As a paying customer of The
Montessori School, D.H. receives the attention she expects.
It should be noted, however, that D.H. also received a significant level of communication
from the teachers at Normal Park. Although D.H. initially denied that L.H.s teachers had
communicated with her at all, she admitted on cross-examination that the educators actually
communicated with her frequently by email. The EasyIEP contact log also documented multiple
communications with D.H. and G.H. specifically addressing L.H.s educational needs. (Ex. 6 to
the Transcript of the Proceedings, HCDE 4256-4309). Within HCDE 0852-2313, there are also
weekly notes between the teachers and the parents regarding L.H.
D.H. even acknowledged the work of L.H.s teachers in a handwritten thank you note in
November 2012 and in a lengthy email in February 2013. (Defs Exs. 44 and 46). These dates
are significant. In October, L.H.s teachers had begun modifying L.H.s lessons and were
employing other strategies to control his behavior and build his prerequisite skills; a month later,
the parents were noticing the results. In February, Ms. Levine had suggested that L.H.s
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academic progress at Normal Park had ground to a halt such that the IEP team needed to
consider more aggressive measures to meet L.H.s needs. D.H. seems to have understood the
teachers concerns and acknowledged their desire to do what was best for L.H.
On re-direct, however, D.H. suggested that her two thank you notes were disingenuous
efforts to catch bees with honey. Even if D.H. were not deliberately attempting to deceive the
teachers into believing that D.H. was satisfied with their efforts, D.H.s admission is notable; she
admits to having told the teachers what she believed they wanted to hear so that she might get the
things she desired from them.
Within this context, the Court must weigh D.H.s deposition admission, Defs Ex. 47, p.
33, that she thought it would have been unconscionable to leave L.H. at Normal Park pursuant
to the stay put provisions of the IDEA rather than to pursue a unilateral private placement at
The Montessori School. Indeed, rightly or wrongly, D.H. was simply indignant that school
officials believed that L.H. was no longer deriving a meaningful educational benefit from his
placement at Normal Park. Aside from her own subjective belief, however, there is no evidence
to support D.H.s claim that school officials had simply stopped educating L.H.
5.
Janin Brock
Ms. Brock, an official with the Tennessee Department of Education, testified by

deposition. Ms. Brock has never overseen the Hamilton County Schools or this part of the State.
She is unaware whether any officials with the Hamilton County Schools have ever attended any
of her presentations. Presently, Ms. Brock is actually with the Tennessee School for the Blind
and has no responsibility for IDEA compliance for any local school district. Accordingly, her
testimony is of questionable relevance.
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That said, Ms. Brock agreed that one of the recent educational reforms in Tennessee has
been to raise the bar for students with disabilities. As part of this effort to raise the bar, the State
has expected local school districts to place a greater focus on teaching students academic skills.
Depending upon the needs of any given child, different accommodations, modifications and
placements are appropriate to teach that child those skills.
For instance, Ms. Brock considered a hypothetical situation of a student who might be
learning to recognize a triangle whereas his classmates might be calculating the interior angles of
a triangle. Ms. Brock explained that the student learning to recognize the triangle would be
working on a modified or alternative curriculum. She also said that such a child would be better
off in a special education classroom because the instructional gap between him and his
classmates would be so great that he would not benefit from the general education setting. She
stressed that educators have to meet the needs of students where they are and build their skills
from there.
Ms. Brock also said that teachers generally know within the first nine weeks whether a
child will benefit from a general education placement or whether a more restrictive placement
might be necessary. Notably, she explained that teachers sometimes need the first nine weeks to
work to get a childs behaviors under control. Once the teachers can begin to assess the childs
academic functioning, however, they can determine rather quickly whether the child will be
successful in general education.
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6.
Dr. Susan Kabot
Dr. Kabot testified as an expert in the education of students with intellectual disabilities.
She also testified based upon her own certification and experience as a speech and language
pathologist.6
Dr. Kabot initially noted the inherent weaknesses in the research pertaining to students
with Down syndrome. In particular, she observed that, because Down syndrome is a low
incident disability, there is a small sample size any time one is comparing one population of
these students with another population. Furthermore, because of the ethical prohibition against
assigning students to different education modalities on a purely random basis, it is difficult to
measure a particular students response to any given educational environment. There are also no
match control groups, no clearly established measurement of outcomes, no clearly defined sets of
interventions, or indeed any generally accepted parameters so that one can take the results of a
particular study and use them to inform a decision pertaining to a particular child. In view of the
inherent limitations in the research, Dr. Kabot states that the best source of data for any
education team is the data from a particular child.
From that perspective, Dr. Kabot explained the evaluations and observations she made of
L.H. in September 2015. Using specialized speech and language assessments, she determined
that L.H.s receptive language was in the lowest one percent. Similarly, his expressive language
was in the lowest one percent. Contrary to what one would expect of children with Down
syndrome, L.H. did not demonstrate the typical strength of receptive language vis--vis
She had a speech and language pathology license in Tennessee and Florida, but she discovered that the Tennessee
license had lapsed on the morning of her testimony. She disclosed this matter to the Court. The fact that her
Tennessee license lapsed, however, does not diminish her expertise in this particular field.
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expressive language. Given his overall limitations, L.H. has a combined language score in the
lowest one-tenth of one percent, an impairment she described as severe.
Dr. Kabot did note, however, that L.H. does have relative strengths in the areas of single
word vocabulary and syntax. These relative strengths are significant given that Dr. Whitbread
presumed based upon L.H.s single word vocabulary and his use of syntax that he has good
reading comprehension. Dr. Kabot disagrees with Dr. Whitbreads conclusion, however, once
again noting that his total language scores fall in the lowest one-tenth of one percent; he lacks the
language skills to comprehend written material above the first grade level.
Dr. Kabot also noted that L.H. has some significant deficits over and above his receptive
and expressive language. He lacks what Dr. Kabot described as perspective taking, which is
the ability to understand concepts from the perspective of a third party. Dr. Kabot testified that
this inability to see a third partys perspective will limit his ability to form inferences and to
develop conclusions, necessary skills in order to develop reading comprehension.
Dr. Kabot agrees with Debbie Rosenow, a literacy expert with the Hamilton County
Schools, when she concludes that L.H.s overall reading comprehension is at the first grade level.
Whereas Ms. Rosenow arrived at this conclusion based upon the use of comprehension
assessments, Dr. Kabot arrived at this conclusion using language assessments. Because a childs
use of language necessarily affects his literacy, Dr. Kabot noted that L.H. could not possibly read
at a higher level than his language skills would permit. Since his overall language skills placed
him at the level of first grader, that is the level where he reads as well.
Notably, Dr. Kabots assessment is entirely consistent with the result of the speech and
language assessment performed by Hamilton County Schools in March 2012. (Defs Ex. 28, p.
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1; Ex. 6 to Transcript of the Proceedings, HCDE 0635-0640). Thus, Dr. Kabots results do not
stand in isolation but rather are consistent with other known data regarding L.H.
Dr. Kabot also had the opportunity to observe L.H. at The Montessori School, both in
October 2013 and again in September 2015. During these observations, Dr. Kabot noticed that
the learning environment lacked the structure that every expert agrees L.H. needs. There was no
systematic instruction. There was no use of visual supports. There was no collection of data to
inform the teachers instruction of L.H. He was isolated from the remainder of his class during
the academic day. A time index study from September 2015 showed that L.H. was interacting
with typically developing peers no more than 16% of the time. There was a notable lack of
whole group instruction.
Dr. Kabots observations at The Montessori School were consistent with what one can
see from a video of The Montessori School taken in May 2014; a copy of this video is introduced
as Defendants Exhibit 26. According to the Plaintiffs responses to the Defendants discovery,
this video demonstrates a typical day for L.H.
What is notable about this video is the lack of systematic instruction, the lack of visual
support, and the lack of data collection. The teachers aide is never seen actually teaching L.H.;
her purpose appears to be nothing more than to keep him from wandering off task. The only
time L.H. appears to be in close proximity to another child, he is working on a preschool-aged
video. Based upon a time index study, Dr. Kabot found that L.H. interacted with typically
developing peers no more than nine percent of the time.
The significance of L.H.s functional isolation at The Montessori School cannot be
overlooked. To the extent that L.H. might benefit from the language modeling of typically
developing peers, that modeling is missing from The Montessori School environment. Perhaps
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this poor language environment accounts for L.H.s failure to maintain some academic skills as
noted by Jill Levine. In any case, it reflects poorly upon the suitability of The Montessori
Schools academic environment for L.H. given that, per Dr. Whitbread, access to typically
developing peers is of paramount concern for L.H.
In view of L.H.s language needs and the educational environment available at The
Montessori School, Dr. Kabot testified unequivocally that The Montessori School is not an
appropriate placement for him. She noted that the type of systematic instruction that he needs
and the level at which he needs it is simply not present in the Montessori environment where
children are expected to work independently and at their own pace. She explained that, even as
Dr. Buckley and her colleagues suggested in Language and Memory Development in Children
with Down Syndrome (Defs Ex. 38), L.H. needs direct, systematic and specialized
instruction in both reading and language.
In rebuttal to the testimony of Dr. Whitbread, Dr. Kabot stated that she had actually
observed L.H.s teacher, Lisa Hope, working with L.H. During the course of her observation,
she saw Ms. Hope using appropriate strategies. She also reviewed the data Ms. Hope was
collecting based upon her work with L.H. and noted that Ms. Hope was making explicit notes
regarding her differing accommodations and modifications in response to L.H.s academic
performance.
Dr. Kabot also disagreed with Dr. Whitbreads criticism of the Unique Learning System.
She explained that, within the context of social studies and science, Unique teaches reading and
math. She also explained that a CDC room is not limited to the use of the Unique Learning
System but also can use all manner of other curricula necessary to teach a child such as L.H. She
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stated, however, that the Unique Learning System is appropriate for L.H. in view of the fact that
L.H., by virtue of his intellectual disability, by definition has a significant disability.
She also explained that L.H.s IEP for the 2012-2013 school year did have appropriate
measures for the development of prerequisite skills in general and reading comprehension in
particular. From her perspective as a speech and language pathologist, Dr. Kabot noted that in
order for L.H. to develop intellectually, it is vital for him to develop his language skills in the
context of his overall educational experience. In her opinion, the 2012-2013 IEP contained goals
and objectives that were calculated to pursue that end.
7.
Jill Levine
Jill Levine, the principal at Normal Park Museum Magnet School, testified as an expert in
the field of literacy. She described the literacy program at Normal Park and, in particular,
explained how Dr. Whitbreads assumptions regarding Normal Parks literacy instruction were
incorrect.
She also explained the steps L.H.s teachers took to educate him. In addition to Lisa
Hopes 60 minutes of pull-out/resource instruction each day, Ms. Hope provided inclusion
support in L.H.s regular education classroom. L.H.s regular education teacher, Stephanie
Higgs, also developed lesson plans designed specifically for L.H. and spent 30 minutes each day
teaching L.H. reading one-on-one. The teachers also collaborated with one another closely to
share ideas on how to educate L.H. Despite their best efforts, however, Ms. Levine concluded
that L.H. was ceasing to derive a meaningful educational benefit from his placement at Normal
Park.
Ms. Levine also testified about her observation of L.H. at The Montessori School in
September 2015, the record of which is Defendants Exhibit 30. First, she watched Debbie
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Rosenow, a literacy coach for the Hamilton County Schools, conduct a reading assessment of
L.H. Despite the fact that L.H. seemed to recognize single words on the third grade level, he was
unable to read fluently or to comprehend third grade texts. Ms. Rosenow then assessed L.H.
using second grade texts, which still proved difficult for L.H. Both Ms. Levine and Ms.
Rosenow concluded that L.H.s instructional level would be at the first grade level, which would
allow teachers to build upon what L.H. could do and to stretch his abilities.
Ms. Levine also watched L.H. compose some sentences regarding the book he had read
for Ms. Rosenow. L.H. first said what he would write, and then he wrote it. Ms. Levine and Ms.
Rosenow noted that L.H. composed sentences that were not actually about the contents of the
book. Moreover, Ms. Levine was able to compare L.H.s sentences to work he had done at
Normal Park in May 2013, almost two and one-half years earlier. In her judgment, L.H.s work
showed less complexity. He had stopped using punctuation and capital letters. His sentences
were also shorter. In her view, L.H.s work showed regression when compared against his
earlier work at Normal Park.
Ms. Levine also had the opportunity to observe L.H. in his Montessori classroom. She
was concerned that L.H. sat by himself, separated from the rest of the class by a bookshelf. She
noted no interaction with typically developing age peers, and he spent a great deal of time
engaged in tasks other than work. He stamped his leg with an ink stamp and then went looking
for an eraser to remove the ink blot. L.H.s assistant was engaged in keeping L.H. on task rather
than providing him with any instruction. When Ms. Levine looked at L.H.s classwork, she
noticed that it was on the fourth grade level, well beyond what Ms. Rosenow had just determined
to have been L.H.s instructional level.
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Ms. Levine also explained that Normal Park incorporates into its instruction program
many of the concepts Dr. Whitbread suggested would be appropriate for L.H. Dr. Whitbread
described the concept called Universal Design for Learning, or UDL. Ms. Levine explained that
UDL is a philosophy and that Normal Park actually imbeds this philosophy in the schools
museum-based curriculum. L.H.s teachers were particularly focused on using these techniques
to provide him with instruction.
8.
Jamelie Johns
Jamelie Johns is a math coach for the Hamilton County Schools. She testified as an
expert in the area of mathematics instruction.
In September 2015, Ms. Johns conducted a mathematic assessment of L.H. A copy of
her assessment results and her report was received into evidence as Defendants Exhibit 31.
L.H.s parents videoed this assessment, and a copy of this video was received into evidence as
Defendants Exhibit 32.
The math assessment Ms. Johns performed is computer-based. It is interactive, meaning
that the test becomes more or less difficult depending upon a students answers to questions.
The answers are all multiple choice, and as the questions become easier, the computer presents
fewer and fewer choices. While some of the terminology in the instructions might have been
confusing to L.H. had he progressed into more complicated questions, Ms. Johns explained that
the program quickly lowered its level of difficulty to a very simplistic level that L.H. could
understand. Ms. Johns states that L.H. had no difficulty understanding what he was supposed to
do, as distinct from what was being tested, and the video demonstrates that he was able to
understand what he was supposed to do.
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According to Ms. Johns, however, L.H. had great difficulty understanding basic
mathematical concepts. He did not have reliable one-to-one number correspondence. He had
difficulty adding one digit numbers and resorted to counting. Even when counting, however, he
could not count from a given number and had to start from the number one. He also had
difficulty skip-counting, i.e., counting by twos, which Ms. Johns explained as a precursor to
understanding basic algebra.
In addition to conducting the computerized assessment, Ms. Johns also asked him some
questions and asked him to demonstrate his answers on a sheet of paper. He was unable to
demonstrate any of the basic mathematical concepts through this methodology any better than he
was on the computer.
Interestingly, L.H. did demonstrate some relative strengths. For example, he could write
the fraction , which is a third grade skill. On the other hand, he had difficulty understanding
the quantity 16, which is a kindergarten skill. These relative strengths vis--vis pervasive,
encompassing weaknesses seem to be in keeping with L.H.s overall profile; he has certain
splinter skills that suggests he understands concepts that he really does not.
Based upon her assessment of L.H., Ms. Johns concludes that L.H. is working at the
kindergarten level in the area of mathematics. He has not internalized basic concepts that are
necessary in order for him to use mathematics at a higher level. She believes that any education
plan for L.H. must be designed to develop L.H.s understanding of these core mathematical
concepts.
In pursuit of this understanding, Ms. Johns recommends a modified curriculum with
intensive, systematic instruction. Ms. Johns believes that L.H. cannot develop the level of
understanding he needs in these basic concepts while working on the general education
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curriculum. She also believes that L.H. needs an intensive level of instruction that cannot be
offered in the general education setting.
On cross-examination, Ms. Johns conceded that L.H. had not had access to his assistant
during the assessment. She also conceded that she did not modify the test for L.H. but instead
was giving the same sort of assessment she would have given a regular education student. It
should be remembered however, that the test itself contained its own accommodations and
modifications, i.e., it became easier.
Ms. Johns explained that the purpose of her assessment was to determine L.H.s
independent level of functioning. She understands that students in special education are entitled
to accommodations and modifications, but she explained that, in order to have a better
understanding of what the appropriate accommodations and modifications might be, one must
necessarily start with a clear understanding of what the child can do independent of these
accommodations and modifications.
By way of example, Ms. Johns explained that an individual who is near-sighted certainly
may use glasses during the course of the day. An eye doctor, however, does not measure his
patients vision while the patient is wearing existing glasses. The doctor first measures the
patients uncorrected vision in an effort to determine what the patient actually needs. For this
reason, in order to understand what L.H. can actually do and, consequently, what he actually
needs in terms of an education plan, she believed it was important to measure his level of
independent functioning. Her assessment was designed to do that.
9.
Mary Ann Voss
Ms. Voss is a Supervisor of Special Education in the Hamilton County Schools. She
testified as a fact witness rather than as an expert.
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Ms. Voss explained that Hamilton Countys Unique Learning System is an alternative
curriculum tied to the State of Tennessees general education standards. She also explained that
it uses topics based upon science and social studies to teach reading and math. It is not itself a
science or social studies curriculum but rather uses those topics as the vehicle to teach core
concepts of reading and math to students with significant disabilities. Within that vein, Ms. Voss
explained that students who are identified as intellectually disabled, by definition, have
significant disabilities. She also explained that a student with a severe language impairment
would also qualify as having a significant disability. For both groups of students, those who are
intellectually disabled or who have a severe language impairment, Unique would be an
appropriate curriculum.7
Ms. Voss also explained that Uniques curriculum is simply a set of standards that
students are expected to know. Curricula are not peer-reviewed. Ms. Voss went on to explain,
however, that the strategies imbedded within the Unique Learning System are research-based
and peer-reviewed. These strategies include tiered instruction based upon a students level of
proficiency, pre and post instructional assessments, and a host of other strategies that are part of
sound pedagogy.
Ms. Voss also took issue with Dr. Whitbreads assumption that one must either use the
Unique curriculum or principles of Universal Design. In fact, Ms. Voss explained that these
programs are actually complimentary. Again, Unique is a curriculum supported by various
Ms. Voss also clarified some terminology. Whereas Janin Brock testified by deposition that there is a difference
between a modified curriculum and an alternative curriculum, Ms. Voss explained that they are actually
synonymous. Educators tend to think of a modified curriculum as a curriculum that is still taught in a general
education setting and reserve the term alternative curriculum for those modifications that are being taught in a
special education setting such as a CDC room. Fundamentally, however, the teachers are making modifications to
the general education standards in order to meet an individual students needs.
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strategies whereas UDL is simply an approach to making the curriculum accessible to students.
She explained that teachers in Hamilton County Schools incorporate UDL into their instruction
every day.
On cross-examination, Ms. Voss was asked about a PowerPoint presentation that she had
given regarding inclusive education and Hamilton Countys commitment to include students
with disabilities in the general education setting. On re-direct, Ms. Voss clarified that inclusion
for any given child must be pursued to the maximum extent appropriate. Reviewing the rest of
her PowerPoint presentation, she called the Courts attention to various concerns including
whether a child might be functionally isolated in a classroom.
In particular, Ms. Voss spoke to the concerns that a students aide might be a very
isolating influence, both because the aide might limit the students ability to interact with
typically developing peers, but also because the aide might stifle the childs ability to develop
independent thinking and functioning. For this reason, Ms. Voss explained that one of the most
restrictive placements for any given child might be the general education setting where he has
become dependent upon a one-to-one aide.
10.
Margaret Abernathy
Ms. Abernathy is the Director of Exceptional Education for Hamilton County Schools.
She testified as an expert in the field of special education.
Ms. Abernathy responded to Dr. Whitbreads opinion that Hamilton County Schools
should have considered increasing L.H.s pull-out/resource hours instead of considering a CDC
program. Ms. Abernathy disagreed with Dr. Whitbread and explained that L.H. was no longer
benefitting from his existing placement. She explained that, in the opinion of the IEP team, it
was inappropriate to consider increasing the service hours of what had become an ineffective
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approach. Instead, the team believed that L.H. needed an entirely different curriculum offered in
a highly structured environment in order to meet his specific educational needs.
Ms. Abernathy also explained that the proposed IEP for the 2013-2014 school year had
L.H. in a special education setting for 90 minutes of reading and 90 minutes of math each day.
L.H.s other academic classes would have been offered in the general education setting. While
the IEP does not state expressly that L.H. would have had science and social studies in the
general education setting, Ms. Abernathy explained that the default is always general education.
Since general education is always the default setting, unless the service page, found in this IEP at
page 25, specifies otherwise, the child must be taught in the general education setting. Since the
special education services set forth on page 25 do not provide for science and social studies to be
taught in the special education classroom, L.H. would have been taught these classes in general
education with typically developing peers.
There is no dispute, however, that L.H. would have received instruction in his related arts
classes in the general education setting. Ms. Abernathy testified that these classes are true
academic classes and that they incorporate basic mathematics and reading comprehension into
the lessons. Ms. Abernathy pointed to grade level standards for both art and wellness, received
into evidence as Defendants Exhibits 36 and 37; one can see how preparing a written report
regarding calorie consumption can implicate both mathematics and reading comprehension. One
can also see how preparing a report regarding a piece of art touches upon English and language
arts.
Ms. Abernathy also rebutted Dr. Whitbreads criticism that the IEP for the 2012-2013
school year failed to offer L.H. the opportunity to build prerequisite skills such as reading
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comprehension and higher order thinking. She walked through the portions of the IEP that touch
upon these matters.
Finally, Ms. Abernathy responded to Dr. Meeces assertion that the Hamilton County
Schools assign a disproportionately higher percentage of students with intellectual disabilities to
self-contained classrooms vis--vis the rest of the nation. Ms. Abernathy explained that, since
school systems have the discretion to designate a particular population of students under various
eligibility criteria, it is impossible to know from school district to school district whether any
particular label represents the same group of students. For example, a student with autism might
be identified as autistic under the IDEA eligibility criteria or he might be identified as
intellectually disabled. The category the team might choose could be a function of what the team
believes most appropriate for that given child. Ultimately, however, there is no way one can
reliably conclude that the population of students Hamilton County designates as having
intellectual disabilities is the same population that some other school district might designate.
11.
Debbie Rosenow
Debbie Rosenow is a literacy coach with the Hamilton County Schools, and she testified
as an expert in the area of literacy instruction.
Ms. Rosenow evaluated L.H. in September 2015 using the Fountas & Pinnell assessment
measure. Defendants Exhibit 29 is the record of this assessment. She started by showing L.H. a
list of words at the fourth grade level. Because L.H. did not recognize the threshold level of
words, Ms. Rosenow selected a list of words scaled at the third grade level. L.H. recognized
enough of these words for Ms. Rosenow to feel comfortable assessing his comprehension at this
level.
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When Ms. Rosenow showed L.H. a third grade text, however, he had difficulty reading
it. He also had difficulty answering basic reading comprehension questions about this text. Ms.
Rosenow then showed L.H. a second grade text, which he was able to read more easily. Even so,
he had difficulty answering questions about the text he had read.
After asking L.H. to read the second grade text, Ms. Rosenow asked L.H. to form two
sentences about what he had just read. She then asked him to write the two sentences he had just
formed. The sentences are found as part of Defendants Exhibit 30. Ms. Rosenow noticed that
L.H.s sentences were not actually responsive to her question or the content of the text.
It was also significant to Ms. Rosenow that L.H. did not have difficulty expressing
himself. Ms. Rosenow acknowledged that students with Down syndrome often have difficulty
with expressive language. L.H., however, easily described what he wanted to say, and then he
wrote the sentences setting forth what he had said. Ms. Rosenow believed, therefore, that L.H.s
expressive language delays were not a barrier to his ability to demonstrate comprehension.
Instead, Ms. Rosenow concluded from his non-responsive answer that he simply had not retained
the focus of the text he had just read.
Based upon her assessment of L.H., Ms. Rosenow concludes that L.H.s appropriate
level of instruction would be at the end of the first grade. She believes he would have difficulty
comprehending text above that level. She also believes that he could not perform work at a
fourth grade level in the Hamilton County Schools.
Ms. Rosenow also offered the opinion that an IEP team would need to consider L.H.s
extreme difficulty in comprehending language when developing an education plan for him. She
stated that he would need a modified curriculum with focused, systematic instruction where he
could develop the basic building blocks of comprehension. She also stated her belief that, in the
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case of L.H., the gap between his present levels of performance and the general education
curriculum is such that the scope and sequencing of the prerequisite skills he needs to build
could not be met in a general education setting using the general education curriculum.
On cross-examination, Ms. Rosenow conceded that she was unfamiliar with the specific
accommodations and modifications that L.H. receives at The Montessori School. She explained,
however, that her purpose was to assess L.H.s reading comprehension independently so as to
determine his true level of functioning.
Ms. Rosenow also conceded that students who are reading for comprehension below
grade level can and do have their needs met through resource or pull-out services. She also
conceded that, simply because a child is reading below grade level, it does not follow that the
child must necessarily be removed from the general education setting even when that child is
being placed on a modified curriculum.
On re-direct, however, Ms. Rosenow clarified that whether pull-out and resources
services would be appropriate for any given child would depend entirely upon that childs
educational needs and the extent of the gap between the child and the general education
curriculum. In essence, her testimony echoed that of others; educational decisions must be based
upon the needs of the individual child.
Interestingly, during cross-examination, Plaintiffs counsel made the case that more than
half of Hamilton Countys students in grades 3 through 8 did not perform at grade level on the
TCAP Reading Assessment. On re-direct, however, Ms. Rosenow explained that the TCAP
assessment does not assess the same grade level standards that the State Department of
Education requires the Hamilton County Schools to teach. While that seems to be a peculiar
dichotomy, it certainly explains why most of Hamilton Countys students in grades 3-8 would
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not pass the assessment; they are being taught a set of standards different from those measured
by the TCAP.
12.
Stephanie Parakh
Ms. Parakh testified as a rebuttal witness on behalf of the Plaintiffs to the effect that L.H.
was making progress at The Montessori School. She stated that he receives various supports and
modifications, including help from an assistant. Ms. Parakh did not explain, however, the nature
of the supports and modifications that L.H. receives. Furthermore, while it is said that L.H. was
working on a fourth grade level during the 2014-2015 school year, Ms. Parakh did not explain to
what extent various supports and modifications were necessary to enable L.H. to work on this
level. Putting it another way, Ms. Parakh did not offer any opinion regarding L.H.s independent
level of performance.
Ms. Parakh also stated that L.H. has what has been called a Montessori IEP. In support
of this testimony, however, Ms. Parakh did not describe L.H.s present levels of performance,
how his disabling condition impedes his ability to access the general education curriculum, or the
specific goals and objectives that The Montessori School was pursuing as part of L.H.s
educational program. In essence, this so-called IEP is nothing more than a series of lessons that
each student pursues over the course of a two-week period. Apparently, all students have a socalled IEP whether disabled or not. Indeed, Jamie Watts testified at the administrative hearing
that, apart from the aide paid for by D.H., L.H. was treated exactly the same as the other students
at The Montessori School.
13.
The Administrative Record
Administrative Law Judge Marion Wall heard three full days of testimony in this matter
and compiled an extensive administrative record consisting of thousands of pages of documents.
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By and large, the administrative record supports Judge Walls findings of fact and his
conclusions of law, and Sixth Circuit authority requires this Court to give Judge Walls findings
and conclusions due weight. Metropolitan Bd. of Ed. v. Guest, 193 F.3d 457, 464 (6th Cir.
1999). There are two issues, however, worth noting.
First, Judge Wall makes the statement that L.H. has strong language skills. It is unclear
from Judge Walls written opinion precisely what he meant by this phrase. There was evidence
from the teachers that L.H. has a good vocabulary and a strong memory. To the extent that
Judge Wall was referring to these traits, both the administrative record and the additional
evidence submitted to this Court support that finding.
If Judge Wall was referring to L.H.s receptive and expressive language skills, however,
then this Court must disagree with that conclusion. The speech and language assessment
conducted by Hamilton County Schools in the March 2012 found that L.H. had a significant
impairment in the area of speech and language. Even then, contrary to the profile typically
associated with students with Down syndrome, L.H.s receptive language was marginally worse
than his expressive language.
Dr. Kabots speech and language assessment of L.H. in September 2015 comports with
Hamilton Countys earlier assessment. As noted above, Dr. Kabot found that L.H.s total
language skills are in the lowest one-tenth of the first percentile. Dr. Kabot classified L.H.s
language impairment as severe. Notwithstanding this severe impairment, Dr. Kabot also noted
that L.H. has a relative strength in the area of single word vocabulary and syntax. Once again, it
appears that L.H. demonstrates certain skills that suggest that he can perform at a higher level
than he actually can.
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Subject to this clarification regarding Judge Walls characterization of L.H.s language

skills, both the administrative record and the additional evidence produced to this Court support
Judge Walls findings of fact and his resulting conclusions of law.
Another point worth noting is the extent to which L.H. is said to have made progress
during the 2012-2013 school year. The word progress is used differently in different contexts.
For example, in her hearing testimony, Ms. Hope describes that L.H. made progress in some
areas such as word work, behavior, skip counting, and basic math facts. (Transcript of the
Proceedings, p. 243). However, Ms. Hope also notes that the teachers were seeing no progress in
comprehension in reading and language arts. (Transcript of the Proceedings, p. 220). She also
noted on progress reports that L.H. was making little or no progress toward completion of his
IEP goals and objectives. (Transcript of the Proceedings, pp. 218-19).
Moreover, setting aside Ms. Hopes optimistic belief that L.H. was making some
progress, one cannot overlook that L.H. had never mastered crucial, rudimentary concepts such
as one-to-one number correspondence and seemed to lose previously mastered foundational
skills such as alphabetical order. While Dr. Whitbread stated that students with Down syndrome
do not regress or lose previously mastered skills, that opinion is contrary to both the literature
and human experience. (See Defs Ex. 48: Educators Manual, Down Syndrome Association
of Western Michigan, p. 383). Thus, the notion that L.H. made some progress in the areas in
which Ms. Hope was able to work with him must be understood alongside the realization that
L.H. failed to acquire or maintain those prerequisite skills that did not receive equally intense
attention.
It is within this context that Judge Wall expressed his concern that L.H. was not deriving
a meaningful educational benefit from his placement at Normal Park. Whatever other benefit
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6057
L.H. may have gleaned from this placement, this Court must give due weight to the finding that
L.H. was not mastering essential skills that will be vital to his future academic growth and,
hopefully, his increased independence. More to the point, there was no prospect that L.H. would
be able to master these essential skills in a general education setting.
PROPOSED CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, and in further consideration of the
administrative record, the following conclusions of law necessarily follow:
I.
L.H. Received a Free Appropriate Public Education During the 2012-2013 School
Year.
Initially, based upon the terms of the Final Pretrial Order, it does not appear that whether
L.H. received a free appropriate public education during the 2012-2013 school year is a
contested issue of fact or law. Nevertheless, Dr. Whitbread claimed that the IEP for the 20122013 school year failed to help L.H. build prerequisite skills such as reading comprehension and
higher order thinking.
Stacked against this assertion, however, is Dr. Whitbreads concession that,
notwithstanding the labeling of the various IEP goals, the objectives do touch upon components
of reading comprehension and higher order thinking. School system officials, for their part, also
explained how the IEP goals and objectives were calculated to help L.H. develop reading
comprehension and higher order thinking. Indeed, D.H. testified that she was very satisfied with
the development of the 2012-2013 IEP. This Court must also note that the Plaintiffs did not
assert in their complaint for due process that the 2012-2013 IEP was flawed in any way. Dr.
Whitbreads opinion, therefore, stands alone and is contradicted both by the evidence and the
Plaintiffs own position.
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6058
Furthermore, Administrative Law Judge Wall concluded based upon the testimony of the
teachers that they worked faithfully to execute the terms of the 2012-2013 IEP. The only
evidence presented to this Court to the contrary is Dr. Whitbreads testimony that she saw no
data informing her about what steps teachers took to educate L.H. Of course, Dr. Whitbreads
testimony must be understood in the context that she had not spoken with L.H.s teachers to
know what they had done to educate L.H.; she had not seen L.H.s data collection logs until the
Sunday before the hearing; and she had never reviewed L.H.s work samples. Once again, Dr.
Whitbreads opinion stands alone.
For her part, Dr. Buckley does take issue with the school system having failed to secure
an expert in the area of Down syndrome in order to provide insight into the needs of L.H. Of
course, Dr. Buckleys opinion is limited by the Plaintiffs having failed to provide her with the
Affidavit or hearing testimony of Jeanne Manley, the lead teacher who was tasked with
providing Ms. Hope with guidance and support. Like Dr. Whitbread, Dr. Buckley also did not
have the benefit of speaking with L.H.s teachers or reviewing the work they compiled
documenting their efforts to educate this child.
In view of the Final Pretrial Order, the evidence produced at the hearing of this matter,
and the due weight this Court must give to the findings of the Administrative Law Judge, there is
no question that L.H. received a free appropriate public education during the 2012-2013 school
year. The IEP was reasonably calculated to provide L.H. with a meaningful educational benefit,
and his teachers worked faithfully to execute the terms of this IEP.
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II.
The 2013-2014 IEP Was Reasonably Calculated to Provide L.H. with a Free
Appropriate Public Education in His Least Restrictive Environment.
Initially, note that the Administrative Law Judge had the benefit of hearing much more
extensive testimony regarding L.H.s then-existing present levels of performance than did this
Court during the course of the January 2016 testimony. The Administrative Law Judge also had
the benefit of reviewing L.H.s educational documents contemporaneously with the testimony of
L.H.s teachers. This Court must therefore give due weight to Judge Walls finding of the
2013-2014 IEP was reasonably calculated to provide L.H. with a free appropriate public
education in what would have been the least restrictive environment appropriate to him.
In response, the Plaintiffs have apparently abandoned their argument that the proposed
IEP failed to offer L.H. a meaningful educational benefit. Instead, they contend that, since L.H.
was purportedly making some progress toward his IEP goals, there was no justification
consistent with the public policy behind the IDEA that he be removed from Normal Park.
While the IDEA incorporates a strong preference that every child with disabilities be
mainstreamed with typically developing peers, the law recognizes that mainstreaming will not
work for every child. Indeed, 34 C.F.R. 300.114(a)(2)(i) provides that a child should be
educated in the mainstream environment to the maximum extent appropriate. (Emphasis
added). Courts recognize that mainstreaming is not appropriate if the disabled student would not
benefit from mainstreaming; if any marginal benefit from mainstreaming would be outweighed
by the benefits gained from services that could not feasibly be provided in a non-segregated
setting; or the disabled child would be a disruptive force in the mainstream setting. Roncker v.
Walter, 700 F.2d 1058, 1063 (6th Cir. 1983). Since the Sixth Circuit has recognized that not
every child with a disability can receive an appropriate education in the regular education setting,
40

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a school districts proposed placement is appropriate if it pursues mainstreaming the maximum

extent possible. Doe v. Board of Education of Tullahoma, 9 F.3d 455, 460 (6th Cir. 1993).
Following Roncker, the Plaintiffs argument fails for three reasons. First, the great
weight of the evidence establishes that L.H. was not making progress during the 2012-2013
school year at Normal Park. Ms. Hope explained during the administrative hearing, and Judge
Wall found, that she had been overly optimistic that L.H. would complete his IEP goals. She
was more realistic, however, as she was assessing L.H.s progress toward his individual
objectives. (Transcript of the Proceedings, pp. 251-52). Most of the progress reports record that
L.H. was making very little progress toward these objectives, that no progress was being made
because there had been insufficient time, or no progress was being made because L.H. lacked
prerequisite skills. Since the individual objectives support the broader goals, one may not look at
L.H.s scores on his goals without also considering the underlying objectives.
Within this vein, one also must consider that, over the course of his four-year career in
the Hamilton County Schools, L.H. had mastered none of his goals and had mastered only 13 of
his objectives.8 Given that L.H.s IEP teams repeated many of the same goals and objectives
over the course of these four years, one must recognize that L.H. was not progressing in real
terms towards the education plan that his teams believed to have been important. (Transcript of
the Proceedings, pp. 713-14; Ex. 24).
As an aside, the term mastery was used in different contexts. The law does not require L.H. to master the
general education curriculum. In order to determine whether L.H. is deriving a meaningful educational benefit from
any education plan, however, one must consider whether he is mastering his IEP goals. While the term mastery
was not used with clear precision, there is no real question that school officials did not expect L.H. to master the
general education curriculum since the 2012-2013 IEP, by its very terms, expressly authorized Ms. Hope to modify
the curriculum to meet L.H.s needs.
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Furthermore, one cannot overlook the undisputed testimony that L.H. lost prerequisite
skills when they were not repeated and reinforced. To the minimal extent that L.H. may have
progressed toward certain IEP objectives during the course of any given year, one has to view
this progress alongside of his diminished proficiency in other key areas. Simply stated, one
has to look at the child as a whole rather than at isolated skills and determine whether he is
making educational progress.
Viewed from this more comprehensive perspective, one cannot say that L.H. was making
progress at Normal Park during the 2012-2013 school year. To the contrary, the evidence
supports Judge Walls conclusion that L.H. was not deriving a meaningful educational benefit
from Normal Park despite the support of his teachers.
Second, the evidence of record establishes that the benefits of the Red Bank CDC
placement would have outweighed any marginal benefits from Normal Park. Dr. Sue Kabot,
Debbie Rosenow, Jamelie Johns, Jill Levine, and each of L.H.s teachers testified that the gap
between L.H.s present levels of performance and the academic rigor of the general education
environment was such that the nature and extent of the pre-teaching, re-teaching, and
reinforcement that L.H. needs to develop and retain prerequisite skills could not have been
accomplished in a mainstream setting. As Ms. Hope explained, she had been working to fill
gaps in L.H.s knowledge base, augmenting prerequisite skills that he either lost or had never
acquired, such that she could never get ahead and pre-teach the general education lessons.
Based upon this experience, when developing the IEP for the 2013-2014 school year, the
team knew that L.H.s teachers would not be able to pre-teach the lessons that L.H. would have
received in the general education setting because they would be working on basic prerequisite
skills that he still did not understand. Contrary to the Plaintiffs assertions, school officials do
42

6062
not believe that pre-teaching and re-teaching are not available in a general education setting and
cannot be offered in pull-out/resource settings. Their position is simply that the pre-teaching and
re-teaching that L.H. needs are not available in this context.
In fact, L.H.s IEP team concluded that L.H. needed a fundamentally different curriculum
and a fundamentally different environment. Because L.H. lacked the prerequisite skills to
understand the general education curriculum, the team believed he needed a modified or
alternative curriculum to allow him to build a foundation for reading and mathematics. The team
also believed that this curriculum could not be taught in the general education setting because the
gap between what L.H. could understand and what the rest of the class would be learning would
be isolating; because the presence of L.H.s aide would squelch independent functioning and
would be further isolating; because the rudimentary level of L.H.s required instruction could not
be taught alongside the more complicated grade level material; and because the intensity of
instruction L.H. required could not be accomplished in a general education classroom. Simply
put, school officials could not have provided L.H. the instruction he needed in the areas he
lacked within the general education environment.
That said, it is notable that school officials did not propose a more restrictive IEP for L.H.
than he actually required. Based upon the scope and sequencing of the instruction L.H. needed,
the team proposed that L.H. receive 90 minutes of intense, systematic instruction in reading and
another 90 minutes of intense, systematic instruction in mathematics, both of which would be
offered in the special education setting through the use of an alternative curriculum.
The team did not propose that L.H. spend his entire day in a CDC classroom. The IEP
specifically envisioned that L.H. would have gone to related arts, including music, art, wellness,
physical education, etc., with typically developing peers. A necessary reading of the IEP also
43

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shows that L.H. would have participated in both science and social studies classes with his
typically developing peers. Accordingly, for almost half of the academic day, L.H. would have
been in the general education setting.
The Plaintiffs contend that the IEP necessarily assumes that L.H. would have received all
his academic instruction in the special education setting. The only way to reach this conclusion,
however, is to assume that L.H. would have had a shorter academic day than everyone else.
Page 25 of the IEP, which lists the special education services, specifically references 90 minutes
of reading and 90 minutes of math. Since science and social studies are not mentioned on this
service page, unless one infers that L.H. would have gone home halfway through the day, then
one must necessarily read the IEP to mean that L.H. would have had these classes with his
typically developing peers. As Ms. Abernathy explained, since general education is the default
setting for all students except to the extent the IEP specifies otherwise, that is the only way to
read L.H.s IEP.
Third, and most significantly, this case has never been about whether L.H. should be
mainstreamed. Even his 2012-2013 placement at Normal Park had him receiving pullout/resource services outside the general education setting for an hour a day. The issue is
whether the proposed IEP has him mainstreamed to the maximum extent appropriate.
In arguing against the CDC placement, but impliedly in favor of increased pullout/resource hours, the Plaintiffs see a distinction where none actually exists. During the course
of the hearing, Plaintiffs counsel stated again and again that resource classrooms are designed to
support a general education setting. While that is true, one cannot forget that resource settings
are not the general education classroom. Indeed, Ms. Voss explained that the purpose of
resource is to enable the child to spend more time in general education. When educators must
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6064
increase resource hours at the expense of time in the general education classroom, it may be
necessary for educators to consider a different strategy.
It is for this reason that the Sixth Circuit recognizes that there is no fundamental
difference between time spent in a resource setting and time spent in a CDC setting.
McLaughlin v. Holt Pub. Sch. Bd., 320 F.3d 663, 671-72 (6th Cir. 2003). By conceding that the
IEP team should have considered more resource time for L.H., the Plaintiffs have necessarily
conceded that the general education classroom was no longer the least restrictive environment
appropriate for L.H.
Under McLaughlin, the Plaintiffs concession that more resource time would have been
appropriate shifts this Courts inquiry from the standards set forth in Roncker to the very
different standard of Board of Educ. v. Rowley, 458 U.S. 176 (1982). Under Rowley, as
modified by Deal v. Hamilton County Board of Education, 392 F.3d 840, 864-865 (6th Cir.
2004), the question becomes whether L.H. would have had a meaningful educational benefit
from the 2013-2014 IEP and the proposed placement in the CDC room at Red Bank Elementary
School.9
The Plaintiffs apparently concede that the 2013-2014 IEP would have provided L.H. with
a meaningful educational benefit. Even if this point were in dispute, however, the evidence
establishes that L.H. did not need more of the same services he had been getting. The teachers
testified, and Judge Wall found, that L.H.s pull-out time was spent trying to reinforce core
concepts. There was simply not enough time available to teach him these concepts and to preteach the lessons the class would be learning next. Ms. Hope discovered that L.H. required
9
As an aside, the Plaintiffs take issue with the fact that Red Bank Elementary School was not L.H.s neighborhood
school. The IDEA does not guarantee a child has a right to attend a neighborhood school. McLaughlin, 320 F.3d at
670.
45

6065
constant reinforcement of basic concepts lest he lose them. The evidence supports the finding
that L.H. needed a fundamentally different type of curriculum at a fundamentally different
learning environment. The proposed Red Bank CDC placement, therefore, was reasonably
calculated to provide a meaningful educational benefit.
Once again, it is important to note that the proposed IEP would not have had L.H. in the
CDC room for more time than his team thought absolutely necessary for him to receive
instruction in reading and math. This is a significant point to keep in mind inasmuch as, in
application, the educators proposed to use the CDC room in essentially the same fashion as the
parents had hoped they would use a resource room. The only material difference between what
the school system proposed and what the parents desired is that a CDC placement required L.H.
to go to a different school. As already noted, however, the IDEA does not guarantee a childs
right to attend a particular school.
Based upon the administrative record and the evidence introduced to this Court in
January 2016, there is no question that the proposed IEP for the 2013-2014 school year was
reasonably calculated to provide L.H. with a free appropriate education in the least restrictive
environment appropriate to him. As part of judging whether the proposed 2013-2014 IEP
provided L.H. with a free appropriate public education in the least restrictive environment
appropriate to him, it is important to underscore the finding that L.H. received a free appropriate
public education during the 2012-2013 school year. Since he received FAPE during that school
year, and since he nevertheless failed to make progress and even appeared to lose previously
mastered skills, there is a heavy presumption that school officials reasonably believed that they
needed to consider a different approach to L.H.s education in order for him to have a
meaningful educational benefit from any IEP.
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III.
The Montessori School Was Not an Appropriate Placement for L.H.

Once again, note that the 2012-2013 IEP provided L.H. a free appropriate public
education and that the Plaintiffs were satisfied with this IEP. That point is critical in view of the
parents objections to the IEP proposed for the 2013-2014 school year. The Plaintiffs objected to
the proposed IEP and filed for due process, triggering the stay put provisions of the IDEA. 20
U.S.C. 1415(j).
The purpose of stay put is to protect both the parents and the school system from the
financial hazards associated with a unilateral private placement. The law is very clear that
parents who choose to place a child in a private placement without consent of the school system
do so at their own financial expense. Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d
755, 763 (6th Cir. 2001). That is particularly the case when the child was receiving a free
appropriate public education at the last agreed upon setting.
In application to this case, the stay put provisions of the IDEA prevented the school
system from implementing the 2013-2014 IEP and transferring L.H. to Red Bank. He would
have remained at Normal Park, which is the placement that Dr. Whitbread and Dr. Meece both
stated was best for him.
D.H., however, admitted that she decided to move L.H. from Normal Park after the
February 2013 IEP meeting because she believed it would have been unconscionable to have
left him there. Simply stated, she was offended that L.H.s teachers believed that the team
should consider a more restrictive placement for L.H. (Defs Ex. 47: D.H.s Deposition
Excerpts). While educational decisions are often clouded by emotion, the law does not give the
parents the right to consider a unilateral private placement simply because they have taken
offense to an educators otherwise rational suggestion.
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6067
The parents offense is also difficult to understand in view of two thank-you notes that
D.H. wrote to school officials. While D.H. now maintains that she concluded in February 2013
that school officials had decided that they were no longer interested in educating L.H. such that,
in essence, she had to consider a private placement in defense of L.H.s educational opportunity,
these thank-you notes tell a different story. In November 2012, D.H. thanked Ms. Hope and Ms.
Higgs for the steps they had taken after fall break to meet L.H.s educational needs. (Defs Ex.
44). Additionally, in February 2013, only days after the IEP meeting in which Ms. Levine
suggested that L.H. had hit a wall, D.H. praises Ms. Levine and the teachers for the steps she
took to explain their concerns regarding L.H. and the steps they were nevertheless taking to help
L.H. learn. (Defs Ex. 46).
In response, D.H. makes the curious statement that these thank-you notes were nothing
more than efforts to catch bees with honey. If D.H. were suggesting that she was telling the
educators what she believed they wanted to hear so she could obtain what she wanted for L.H.,
i.e., a Normal Park education, that is a surprising admission given that, at present, D.H. would
like this Court to order the school system to reimburse her for the cost of the Montessori
program.
In any case, given that reimbursement is an equitable remedy, and further given that there
appears to have been no reason for the Plaintiffs to have abandoned their first complaint for due
process and pursued a unilateral placement at The Montessori School, reimbursement is
inappropriate. Berger v. Medina City Sch. Dist., 348 F.3d 513, 522-23 (6th Cir. 2003).
Moreover, even if there were otherwise good grounds to pursue private placement, this
Court cannot find that The Montessori School is an appropriate placement. It is well settled that,
to warrant reimbursement, a private placement must offer at least the same level of services as
48

6068
would have been available in the school systems placement. Id. There is no sense, however, in
which The Montessori School meets that standard.
The Montessori School lacks a special education program that is designed to meet the
needs of a student such as L.H. L.H.s classroom teacher for the 2013-2014 school year, which
is the relevant time period for consideration of reimbursement, did not even know what an
intellectual disability was. He believed that attention deficit disorder was one of many
intellectual disabilities and seemed to have no understanding that intellectual disability is a term
reserved for those students with significant cognitive and adaptive impairments. For her part,
Dr. Whitbread conceded that it would be shocking if one of her students had such a poor
understanding of intellectual disability.
Likewise, although the Plaintiffs claim that L.H. has a so-called IEP at The Montessori
School, its clear that every child has a so-called IEP. It is also clear that this IEP looks nothing
like an IEP mandated by the Individuals with Disabilities Education Act. A copy of one of
L.H.s IEPs was included as Exhibit 14 of the administrative record; it is nothing more than work
samples compiled over the course of a two-week period. It contains no statement of L.H.s
present levels of performance; it contains no analysis of how L.H.s disabling condition impacts
his ability to understand the general education curriculum; and it contains no goals and
objectives calculated to enable the child to progress educationally. For his part, L.H.s teacher
explained that he was treated just the same as every other student, which is hardly indicative of
special education.
It is also important to note that L.H. had both a one-to-one attendant at Normal Park and
a teacher providing him with pull-out/resource services in addition to a regular education teacher.
At The Montessori School, there was one teacher for L.H.s entire class, and D.H. hired an aide
49

6069
whom she employed herself. Although D.H. maintains that this aide was an employee of The
Montessori School, L.H.s classroom teacher was very clear that this aide worked for D.H.; he
even stated that he did not evaluate her. It is incredible that this aide could have been an
employee of The Montessori School and the teacher not have known it. Whether D.H. paid the
aides salary and routed it through The Montessori School is irrelevant to the larger issue; this
aide obviously worked for D.H. rather than the school. Of course, the Director of The
Montessori School, whom the Plaintiffs listed as a witness, could have testified to this point and
clarified any confusion on the part of the classroom teacher, and yet the Plaintiffs chose not to
call her.
The significance of this point is that an aide employed by the parents obviously lacks the
perspective and the professional detachment of an aide who is employed directly by the school.
It is yet another example of how a placement at The Montessori School does not provide the
same level of supports and services that would have been available in a Hamilton County
placement.
Likewise, one cannot overlook that L.H. has received no special education support from
The Montessori School. The Hamilton County Schools continues to provide L.H. with speech
and language service, and D.H. has solicited a school system employee to tutor L.H. in reading.
(Defs Ex. 5: Plaintiffs Response to Request to Admit No. 2).
Perhaps more disturbingly, however, L.H. has been functionally isolated at The
Montessori School far beyond what he would have been had he remained at Normal Park and
certainly more than he would have been had he gone to Red Bank Elementary School. The video
from the Spring of 2014 shows that L.H. is interacting with typically developing peers for no
more than nine percent of any typical day. (Defs Ex. 5: Plaintiffs Answer to Interrogatory No.
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3). A similar time index study from September 2015 indicates that L.H. is now interacting with
peers for just 16% of the academic day. During this time, he sits by himself and is functionally
isolated from the rest of the class. Sadly, for L.H., inclusion is nothing more than a location
rather than an educational environment. By having pursued inclusion in name only, the parents
have actually placed L.H. in a far more restrictive setting than would ever have been appropriate
in Hamilton County Schools. Given Dr. Whitbreads opinion that access to typically developing
peers is of paramount concern, there is simply no justification for L.H.s placement at The
Montessori School.
Reinforcing this point, also note that The Montessori School lacks the methods that all of
the experts agree L.H. needs. There is no systematic, direct instruction. There is no use of visual
supports which are vital to a child with Down syndrome. There is no collection of data to inform
future instruction. The purpose of L.H.s aide is simply to keep him on task.
Indeed, comparing L.H.s work in the Hamilton County School system from the Spring
2013 with his performance on assessments in the Fall of 2015, he has either remained static in
terms of academic growth or he has actually regressed. Given that The Montessori School
appears tailored primarily for self-motivated, self-directed students, these results are not
surprising.
In response, the Plaintiffs would contend that L.H. is actually working on grade level. In
support of this argument, they would point to standardized tests and classwork from the Spring
of 2015 that show him performing on par with other fourth graders. It is important to note,
however, that no one from The Montessori School actually testified about L.H.s level of
academic performance vis--vis typically developing peers. Likewise, while there was some
testimony that The Montessori School provides L.H. with accommodations and modifications,
51

6071
there was no explanation about the extent to which these accommodations and modifications
support L.H.s performance as opposed to substitute for his performance. When assessed based
upon his own independent functioning, L.H. appears to perform on the level of a first grader.
Without more information regarding the level of accommodations and modifications that L.H.s
aide provides him, this Court is left to surmise that Montessoris records tell more about the
aides ability to test at the fourth grade level than they do L.H.s ability to test at the fourth grade
level.
To that point, special education does not require students with disabilities to perform at
the same level as their typically developing age peers. That said, special education also does not
spackle over a childs disabilities so that everyone can pretend that he functions at the same level
of his typically developing age peers. To the contrary, the purpose of special education is to
teach a child so that he can function more comparably to his typically developing age peers than
his disability might otherwise permit. To achieve that end, however, educators must start with a
realistic understanding of where a child is performing and then take steps to close the gap
between where the child is and where the team reasonably believes he can be. The ultimate goal,
pursuant to Deal, is to provide the child with a meaningful educational benefit in view of his
abilities and potentialities so that he can function as independently as possible.
The Plaintiffs, however, appear content to allow L.H. to become increasingly dependent
upon his aide, masking over his deficits so that he can be included in the general education
setting for the sake of inclusion alone. Federal education policy, however, is not driven by
inclusion for the sake of inclusion but rather education in the most inclusive environment
appropriate. There is a subtle but vitally important difference between the two approaches.
Whereas the Montessori program may be inclusive from the perspective of where L.H. is being
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6072
educated, he is not interacting with typically developing peers and he is certainly not developing
educational independence.
Indeed, the proposed placement at Red Bank CDC actually would have offered L.H.
everything the Plaintiffs imagine to be available at The Montessori School. He would have been
fully included for half the academic day and would have received systematic, intensive
instruction in reading and math during the other half of the day. Underscoring this point, Dr.
Meece himself recognized that the students in the CDC room were working independently.
There is nothing in L.H.s academic performance that suggests he is presently on that path
himself.
CONCLUSION
Based upon the evidence compiled at the administrative level, to which this Court must
give due weight, and in view of the evidence received by this Court pursuant to 20 U.S.C.
1415(i), this Court must conclude that L.H. did receive a free appropriate public education
during the 2012-2013 school year; that the proposed IEP for the 2013-2014 school year was
reasonably calculated to provide L.H. with a free appropriate public education in the least
restrictive environment appropriate to him; and that The Montessori School is not an appropriate
placement not only because the Plaintiffs unreasonably pursued a unilateral private placement,
but also because The Montessori School does not offer a child like L.H. with an appropriate
education.
For these reasons, the Plaintiffs Complaint should be dismissed. Furthermore, the
Defendants Motions for Summary Judgment on the issues of discrimination and retaliation in
violation of Section 504 and Title II of the ADA should be granted.
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Respectfully submitted
LEITNER, WILLIAMS, DOOLEY & NAPOLITAN,
PLLC
By: s/ D. Scott Bennett
D. SCOTT BENNETT TNBPR: 015988
MARY C. DECAMP TNBPR: 027182
Attorneys for Defendant Hamilton County
Department of Education
Tallan Building, Suite 500
200 West M.L. King Blvd.
Chattanooga, TN 37402
Telephone: (423) 265-0214
scott.bennett@leitnerfirm.com
mary.decamp@leitnerfirm.com
CERTIFICATE OF SERVICE
I hereby certify that on February 12, 2016, a copy of the foregoing was filed
electronically. Notice of this filing will be sent by operation of the Courts electronic filing
system to all parties indicated on the electronic filing receipt. All other parties will be served by
regular U.S. Mail. Parties may access this filing through the Courts electronic filing system.
s/ D. Scott Bennett
D. SCOTT BENNETT TNBPR: 015988
MARY C. DECAMP TNBPR: 027182
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Proposed Findings of Fact by Hamilton County Department of Education. (Bennett (04523978xA015B)

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

HAMILTON COUNTY DEPARTMENT OF EDUCATIONS

Case 1:14-cv-00126-CLC-SKL Document 169 Filed 02/12/16 Page 1 of 54 PageID #: 6021

Dr. Sue Buckley

Case 1:14-cv-00126-CLC-SKL Document 169 Filed 02/12/16 Page 2 of 54 PageID #: 6022

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Dr. Kathleen Whitbread

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Dr. Darrell Meece

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Ms. Brock, an official with the Tennessee Department of Education, testified by

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Dr. Susan Kabot

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Mary Ann Voss

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The Administrative Record

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Subject to this clarification regarding Judge Walls characterization of L.H.s language

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a school districts proposed placement is appropriate if it pursues mainstreaming the maximum

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The Montessori School Was Not an Appropriate Placement for L.H.

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