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, * No. 1:14-cv-00126-CLC-SKL

*

vs. * Judge Curtis L. Collier

*

HAMILTON COUNTY DEPARTMENT * JURY DEMAND

OF EDUCATION, *

*

Defendant. *

HAMILTON COUNTY DEPARTMENT OF EDUCATION’S

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

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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. Buckley’s expert report as substantive evidence,

however, it would have to do so in view of Dr. Buckley’s 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.”) (Def’s Ex. 38: “Language and Memory

Development in Children with Down Syndrome…,” p.453).


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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.”) (Def’s 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.” (Def’s 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.” (Def’s Ex.

38, p. 449)(emphasis added).

In fact, despite Dr. Buckley’s 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


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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….” (Def’s 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. Buckley’s 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.” (Def’s 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.

1 Dr. Meece paralleled this opinion stating that “the words they understand are more than the words they can say.”


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The problem with Dr. Buckley’s 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.

(Def’s 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. (Def’s 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 Def’s Ex. 38, p. 449).

Dr. Buckley’s 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 child’s language deficit is one of the most significant

obstacles one must consider. The child’s 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 Defendant’s efforts to educate L.H.


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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. Kendrick’s 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. Buckley’s

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. Manley’s testimony to Dr. Buckley for her comment.2

2 As noted below, however, this is not the only example of the Plaintiffs having failed to provide their experts with

material evidence.


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Similarly, one can only assume that the Plaintiffs also failed to provide Dr. Buckley with

Dr. Sue Kabot’s background. In her report, Dr. Buckley refers to Dr. Kabot as the school

system’s “autism expert.” Dr. Buckley apparently believes that Dr. Kabot’s 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. Kabot’s 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. (Def’s 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. Kabot’s 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 child’s underlying condition.

In view of Dr. Buckley’s unfamiliarity with L.H. and the qualifications of the school

system’s 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. Kabot’s 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.

3 Although Dr. Whitbread disagreed, the great weight of the evidence also establishes that one can mistake syntax

for comprehension. The Maze Reading Assessment (Def’s Ex. 42, p. 150), which Dr. Whitbread believes measures

comprehension, is actually designed to measure a child’s understanding of word order in a sentence, i.e., syntax.

Debbie Rosenow explained how the two are distinct.


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In layman’s 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 Hope’s 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. Whitbread’s billing records do not allow for sufficient time


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to have reviewed the videos and the other documents in this case, let alone Ms. Hope’s data

collection logs.

On cross-examination, Dr. Whitbread then admitted that she had first reviewed Ms.

Hope’s 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. Whitbread’s 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, Def’s Ex. 41, she makes no mention of having reviewed the

teachers’ data collection logs.

Having conceded that she first looked at Ms. Hope’s 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. Hope’s 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 Park’s 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. Joseph’s

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. Meece’s 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. Whitbread’s opinions are the result of a heavy prejudice against any self-

contained classroom such as Red Bank’s 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. Whitbread’s 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. (Def’s Ex. 26; Def’s 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. (Def’s 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. Whitbread’s 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. Whitbread’s 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. Meece’s 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. Meece’s 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 County’s placement rates are

too high or that the rest of the nation’s placement rates are too low. He could not state that

Hamilton County’s 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 County’s 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


16

position to testify beyond a layman’s 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

child’s 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 assistant’s 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. Spink’s 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.


17

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 child’s

present levels of performance, how his present levels of performance impact the child’s ability to

access the general education curriculum, a statement of goals and objectives designed to progress

the child’s 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. (Def’s 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


18

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, Def’s 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.


19

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 child’s behaviors under control. Once the teachers can begin to assess the child’s

academic functioning, however, they can determine rather quickly whether the child will be

successful in general education.


20

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 student’s 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-à-vis

6 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.


21

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. Whitbread’s 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 party’s 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 child’s

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. Kabot’s assessment is entirely consistent with the result of the speech and

language assessment performed by Hamilton County Schools in March 2012. (Def’s Ex. 28, p.


22

1; Ex. 6 to Transcript of the Proceedings, HCDE 0635-0640). Thus, Dr. Kabot’s 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. Kabot’s 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 Defendant’s Exhibit 26. According to the Plaintiff’s responses to the Defendant’s 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 teacher’s 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


23

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

School’s 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…” (Def’s 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. Whitbread’s 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


24

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. Whitbread’s assumptions regarding Normal Park’s literacy instruction were

incorrect.

She also explained the steps L.H.’s teachers took to educate him. In addition to Lisa

Hope’s 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 Defendant’s Exhibit 30. First, she watched Debbie


25

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.


26

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 school’s

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 Defendant’s Exhibit 31.

L.H.’s parents videoed this assessment, and a copy of this video was received into evidence as

Defendant’s 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 student’s 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.


27

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 two’s, 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 ¼, 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-à-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


28

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

patient’s vision while the patient is wearing existing glasses. The doctor first measures the

patient’s 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.


29

Ms. Voss explained that Hamilton County’s Unique Learning System is an alternative

curriculum tied to the State of Tennessee’s 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 Unique’s 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 student’s 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. Whitbread’s 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

7 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 student’s needs.


30

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 County’s 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 Court’s 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 student’s aide might be a very

isolating influence, both because the aide might limit the student’s ability to interact with

typically developing peers, but also because the aide might stifle the child’s 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. Whitbread’s 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


31

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 Defendant’s 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. Whitbread’s criticism that the IEP for the 2012-2013

school year failed to offer L.H. the opportunity to build prerequisite skills such as reading


32

comprehension and higher order thinking. She walked through the portions of the IEP that touch

upon these matters.

Finally, Ms. Abernathy responded to Dr. Meece’s assertion that the Hamilton County

Schools assign a disproportionately higher percentage of students with intellectual disabilities to

self-contained classrooms vis-à-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. Defendant’s 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.


33

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 Defendant’s 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


34

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 child’s

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 County’s 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 County’s students in grades 3-8 would


35

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 so-

called 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.


36

By and large, the administrative record supports Judge Wall’s findings of fact and his

conclusions of law, and Sixth Circuit authority requires this Court to give Judge Wall’s 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 Wall’s 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. Kabot’s speech and language assessment of L.H. in September 2015 comports with

Hamilton County’s 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.


37

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

skills, both the administrative record and the additional evidence produced to this Court support

Judge Wall’s 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. Hope’s 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 Def’s Ex. 48: “Educator’s 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


38

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 2012-

2013 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. Whitbread’s 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.

Whitbread’s opinion, therefore, stands alone and is contradicted both by the evidence and the

Plaintiffs’ own position.


39

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. Whitbread’s testimony that she saw no

data informing her about what steps teachers took to educate L.H. Of course, Dr. Whitbread’s

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.

Whitbread’s 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. Buckley’s 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.


40

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 Wall’s 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,


41

a school district’s 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).

8 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.


42

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 Wall’s 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


43

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


44

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 pull-

out/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 pull-

out/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


45

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 Court’s 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 pre-

teach 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.


46

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 child’s

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.


47

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. (Def’s 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 educator’s otherwise rational suggestion.


48

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. (Def’s 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. (Def’s 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


49

would have been available in the school system’s 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, it’s 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


50

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

aide’s 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.

(Def’s 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. (Def’s Ex. 5: Plaintiffs’ Answer to Interrogatory No.


51

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. Whitbread’s 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-à-vis typically developing peers. Likewise, while there was some

testimony that The Montessori School provides L.H. with accommodations and modifications,


52

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 Montessori’s records tell more about the

aide’s 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 child’s 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


53

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

Defendant’s 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.


54

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 [email protected] [email protected]

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 Court’s 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 Court’s electronic filing system.

s/ D. Scott Bennett D. SCOTT BENNETT – TNBPR: 015988 MARY C. DECAMP – TNBPR: 027182


Documents

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