Mark HARTMANN, a minor, by his parents and next friends, Roxanna HARTMANN and Joseph Hartmann; Roxanna Hartmann; Joseph Hartmann, Plaintiffs-Appellees, v. LOUDOUN COUNTY BOARD OF EDUCATION, Defendant-Appellant, and Edgar B. Hatrick; Ned Waterhouse, Defendants.
No. 96-2809
United States Court of Appeals, Fourth Circuit
Decided July 8, 1997
118 F.3d 996
Argued May 9, 1997.
The National Labor Relations Board has itself imposed minimum due process standards in evaluating the fairness of arbitration proceedings resolving unfair labor practice issues. Spielberg Manufacturing Company, 112 N.L.R.B. 1080 (1955). Thus, it has refused to defer to an arbitrator‘s decision where evidence was deliberately withheld from an arbitrator, Precision Fittings, 141 N.L.R.B. 1034, 1041-43 (1963), where the grievant was given insufficient time to prepare, Gateway Transp. Co., 137 N.L.R.B. 1763, 1764 (1962), or was not afforded an opportunity to cross-examine a witness, Versi Craft Corp., 227 N.L.R.B. 877 (1977).
In this case, the record establishes that the arbitrator made a fundamental procedural error in deciding the merits of the controversy after advising the parties that he would not do so until after he decided the procedural issues and until Matlack had an opportunity to present its case on the merits. In the district court‘s words, the arbitrator simply “told the parties one thing and, albeit mistakenly, did another.” Matlack, Inc., 916 F.Supp. at 486. The arbitrator‘s resolution of the merits of the Union‘s Article 50 grievance without benefit of Matlack‘s evidence or argument on the issue severely impeded Matlack‘s right to notice and opportunity to be heard in such an adversarial proceeding. See Konkar Maritime Enters., 668 F.Supp. at 271. This is precisely the type of procedural error that “undermine[s] the validity of the arbitration process,” Gorman, Labor Law 602, permits an arbitrator to take remedial measures such as withdrawal, and authorizes a district court to vacate and remand an arbitration award.
III.
We conclude that the functus officio doctrine did not proscribe the district court from examining the arbitrator‘s post award letter which purported to clarify the intended scope of the award, and that the arbitrator‘s award was partially the product of a fundamental procedural irregularity. Accordingly, we will affirm the district court‘s decision to vacate the substantive portion of the award and to remand the remainder of the proceedings to another arbitrator.
Mark HARTMANN, a minor, by his parents and next friends, Roxanna HARTMANN and Joseph Hartmann; Roxanna Hartmann; Joseph Hartmann, Plaintiffs-Appellees,
v.
LOUDOUN COUNTY BOARD OF EDUCATION, Defendant-Appellant, and Edgar B. Hatrick; Ned Waterhouse, Defendants.
Virginia School Boards Association; Tidewater Down Syndrome Association; The Association For Persons With Severe Handicaps, Virginia Chapter; The Arc of Virginia; Spina Bifida Association of Tidewater; Tidewater Association For Hearing Impaired Children; Endependence Center, Incorporated; The Virginia Foundation For the Exceptional Child And Adolescent; Grafton School, Incorporated; Parents And Children Coping Together, Incorporated; Northern Virginia Chapter of the Autism Society of America; Central Virginia Chapter of the Autism Society of America; Peninsula Chapter of the Autism Society of America; Autism Training and Family Support Program; Attention Deficit Disorder Association of Virginia; Peninsula Attention Defi
No. 96-2809.
United States Court of Appeals, Fourth Circuit.
Argued May 9, 1997.
Decided July 8, 1997.
Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and COPENHAVER, United States District Judge for the Southern District of West Virginia, sitting by designation.
Reversed and remanded with instructions to dismiss by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge LUTTIG and Judge COPENHAVER joined.
OPINION
WILKINSON, Chief Judge:
Roxanna and Joseph Hartmann brought suit on behalf of their disabled son Mark against the Loudoun County Board of Education under the
I.
Mark Hartmann is an eleven-year-old autistic child. Autism is a developmental disorder characterized by significant deficiencies in communication skills, social interaction, and motor control. Mark is unable to speak and suffers severe problems with fine motor coordination. Mark‘s writing ability is extremely limited; he does not write by hand and can consistently type only a few words such as “is” and “at” by himself on a keyboard device known as a Canon communicator. The parties agree that Mark‘s greatest need is to develop communication skills.
Mark spent his pre-school years in various programs for disabled children. In kindergarten, he spent half his time in a self-contained program for autistic children and half in a regular education classroom at Butterfield Elementary in Lombard, Illinois. Upon entering first grade, Mark received speech and occupational therapy one-on-one, but was otherwise included in the regular classroom at Butterfield full-time with an aide to assist him.
After Mark‘s first-grade year, the Hartmanns moved to Loudoun County, Virginia, where they enrolled Mark at Ashburn Elementary for the 1993-1994 school year. Based on Mark‘s individualized education program (IEP) from Illinois, the school placed Mark in a regular education classroom. To facilitate Mark‘s inclusion, Loudoun officials carefully selected his teacher, hired a full-time aide to assist him, and put him in a smaller class with more independent children. Mark‘s teacher, Diane Johnson, read extensively about autism, and both Johnson and Mark‘s aide, Suz Leitner, received training in facilitated communication, a special communication technique used with autistic children. Mark received five hours per week of speech and language therapy with a qualified specialist, Carolyn Clement. Halfway through the year, Virginia McCullough, a special education teacher, was assigned to provide Mark with three hours of instruction a week and to advise Mark‘s teacher and aide.
Mary Kearney, the Loudoun County Director of Special Education, personally worked with Mark‘s IEP team, which consisted of Johnson, Leitner, Clement, and Laurie McDonald, the principal of Ashburn. Kearney provided in-service training for the Ashburn staff on autism and inclusion of disabled children in the regular classroom. Johnson, Leitner, Clement, and McDonald also attended a seminar on inclusion held by the Virginia Council for Administrators of Special Education. Mark‘s IEP team also received assistance from educational consultants Jamie Ruppmann and Gail Mayfield, and Johnson conferred with additional specialists whose names were provided to her by the Hartmanns and the school. Mark‘s curriculum was continually modified to ensure that it was properly adapted to his needs and abilities.
Frank Johnson, supervisor of the county‘s program for autistic children, formally joined the IEP team in January, but provided assistance throughout the year in managing Mark‘s behavior. Mark engaged in daily episodes of loud screeching and other disruptive conduct such as hitting, pinching, kicking, biting, and removing his clothing. These outbursts not only required Diane Johnson and Leitner to calm Mark and redirect him, but also consumed the additional time necessary to get the rest of the children back on task after the distraction.
The Hartmanns refused to approve the IEP, claiming that it failed to comply with the mainstreaming provision of the IDEA, which states that “to the maximum extent appropriate,” disabled children should be educated with children who are not handicapped.
While the administrative process continued, Mark entered third grade in the regular education classroom at Ashburn. In December of that year, the Hartmanns withdrew Mark from Ashburn. Mark and his mother moved to Montgomery County, Virginia, to permit the Hartmanns to enroll Mark in public school there. Mark was placed in the regular third-grade classroom for the remainder of that year as well as the next.1
The district court reversed the hearing officer‘s decision. The court rejected the administrative findings and concluded that Mark could receive significant educational benefit in a regular classroom and that “the Board simply did not take enough appropriate steps to try to include Mark in a regular class.” The court made little of the testimony of Mark‘s Loudoun County instructors, and instead relied heavily on its reading of Mark‘s experience in Illinois and Montgomery County. While the hearing officer had addressed Mark‘s conduct in detail, the court stated that “[g]iven the strong presumption for inclusion under the IDEA, disruptive behavior should not be a significant factor in determining the appropriate educational placement for a disabled child.” Loudoun County now appeals.
II.
The IDEA embodies important principles governing the relationship between local school authorities and a reviewing district court. Although
These principles reflect the IDEA‘s recognition that federal courts cannot run local schools. Local educators deserve latitude in determining the individualized education program most appropriate for a disabled child. The IDEA does not deprive these educators of the right to apply their professional judgment. Rather it establishes a “basic floor of opportunity” for every handicapped child. Rowley, 458 U.S. at 201, 102 S.Ct. at 3047. States must provide specialized instruction and related services “sufficient to confer some educational benefit upon the handicapped child,” id. at 200, 102 S.Ct. at 3047 but the Act does not require “the furnishing of every special service necessary to maximize each handicapped child‘s potential,” id. at 199, 102 S.Ct. at 3047.
In this same vein, the IDEA‘s mainstreaming provision establishes a presumption, not an inflexible federal mandate. Under its terms, disabled children are to be educated with children who are not handicapped only “to the maximum extent appropriate.”
III.
The district court‘s ruling strayed generally from the aforementioned principles. It diverged in particular from our decision in DeVries v. Fairfax County Sch. Bd., 882 F.2d 876 (4th Cir.1989). In DeVries, we held that mainstreaming is not required where (1) the disabled child would not receive an educational benefit from mainstreaming into a regular class; (2) any marginal benefit from mainstreaming would be significantly outweighed by benefits which could feasibly be obtained only in a separate instructional setting; or, (3) the disabled child is a disruptive force in a regular classroom setting. Id. at 879. Although the district court failed to mention DeVries, its opinion suggests that none of these three categories describes Mark‘s situation. The district court found that Mark could receive substantial educational benefit in a regular classroom, that his disruptive behavior was not sufficient to justify a more segregated instructional setting, and that the Leesburg program would not have been an appropriate placement. After careful examination of the record, however, we are forced to conclude that the district court‘s decision fails to account for the administrative findings and is not supported by the evidence based on a correct application of the law. In effect, the court simply substituted its own judgment regarding Mark‘s proper educational program for that of local school officials.
A.
In finding that Mark could receive an educational benefit in a regular classroom, the district court disregarded both the hearing officer‘s finding and the overwhelming evidence that Mark made no academic progress in the regular second grade classroom at Ashburn. Mark‘s teacher testified, for example, that he was unable to retain skills: “once we thought he mastered [a math skill] and we left it alone and went onto another concept, if we went back to review, it seemed that he had forgotten.” She confessed, “I felt like he lost a year in my classroom.” Other Loudoun County personnel testified to the same effect. His speech therapist, for instance, stated that “[t]he only gain that I saw him make was in the one to one setting.” The supervisor for the county‘s program for autistic students likewise concluded, “I think there has been no progress academically in the inclusive settings;” “I think we‘re wasting his time.” The hearing officer accordingly found that “Mark made no measurable academic progress attributable to his placement in the regular classroom.”
Mark‘s situation is similar to the one we faced in DeVries, 882 F.2d 876. In upholding
The district court acknowledged the testimony of Mark‘s second grade teacher regarding his lack of progress, but asserted that the hearing officer‘s conclusions were erroneous because the officer failed to give due weight to the testimony of Cathy Thornton, Mark‘s private tutor during second grade, and to Mark‘s first grade experience in Illinois. To the contrary, the administrative decisions took careful note of both. The hearing officer fully credited Thornton‘s testimony, finding that Mark made progress with both her and his speech therapist. The officer went further, however, and observed that both the tutoring and speech instruction occurred in a one-to-one setting outside of the regular class. In light of Mark‘s failure to progress in the regular classroom, the officer drew the only reasonable inference from this evidence, namely that separate instruction was precisely what Mark needed to make educational progress. As to Mark‘s experience in Illinois, the state review officer explained that the Illinois assessment of Mark‘s capabilities was flawed:
[I]t became clear during the course of the second grade that Mark‘s academic skills were not as advanced as the Illinois school system thought. Mark cannot read and cannot add, yet the Illinois teachers thought he was reading at first grade level and progressing in the first grade math workbook.... Mark apparently did not make the academic progress in first grade the records forwarded to Loudoun County from Illinois indicated....
While the district court opinion references the hearing officer‘s decision, its failure to address the administrative findings noted above simply does not reflect the teachings of Rowley and Doyle that state proceedings must command considerable deference in federal courts.
The district court also relied heavily on Mark‘s subsequent performance in the Montgomery County schools during fourth grade. While Montgomery County personnel did make some conclusory statements asserting that Mark made progress, the evidence is inconclusive at best. The district court pointed to math skills Mark demonstrated at the end of fourth grade, for example, but Mark was pulled out of the regular class for math instruction, just as Loudoun County had recommended. Any progress he made in math therefore simply supports the conclusion that separate, one-to-one instruction is appropriate for Mark. Mark also continued to receive speech therapy one-on-one, and his special education teacher in Montgomery County admitted that the county had no reliable method for assessing Mark‘s reading ability.
Finally, the district court pointed to perceived improvement in Mark‘s social skills due to interaction with his non-disabled peers. Any such benefits, however, cannot outweigh his failure to progress academically in the regular classroom. The mainstreaming provision represents recognition of the value of having disabled children interact with non-handicapped students. The fact that the provision only creates a presumption, however, reflects a congressional judgment that receipt of such social benefits is ultimately a goal subordinate to the requirement that disabled children receive educational benefit. Here the evidence clearly supports the judgment of the local education officials and the administrative hearing officers that Mark‘s educational progress required significant instruction outside of the regular classroom setting.
The district court attributed Mark‘s lack of progress in Loudoun County to the county‘s alleged failure to make reasonable efforts to accommodate him in the regular classroom. We interpret this as a ruling that the county failed to provide the supplementary aids and services contemplated by the IDEA‘s mainstreaming provision.
The district court‘s conclusion is remarkable in light of the extensive measures taken on Mark‘s behalf. The hearing officer found that Loudoun personnel were “enthusiastic” about including Mark at Ashburn, a description fully supported by the record. The Ashburn principal deliberately reduced the size of Mark‘s class and ensured that it was composed of students who were more independent and had higher level skills. Mark‘s teacher was selected because of her excellent teaching abilities, and the county hired a full-time, one-on-one aide for Mark. Mark received a full hour of speech and language instruction daily. Frank Johnson, the supervisor of the county‘s program for autistic children, provided assistance in behavior management throughout the year. Halfway through the year, the school‘s efforts increased when Virginia McCullough began providing special education services directly to Mark as well as advising Mark‘s teacher and aide. Inclusion specialists Gail Mayfield and Jamie Ruppmann consulted with the school during the fall, and Mark‘s teacher sought advice from other experts whose names were provided to her by the school or the Hartmanns. The teacher testified that she met constantly with Mark‘s aide, his speech therapist, the IEP team, and others to work on Mark‘s program—daily at the beginning of the year and at least twice a week throughout.
The district court nonetheless found the county‘s efforts insufficient. The court relied primarily on its conclusion that the Loudoun educators involved with Mark had inadequate training and experience to work with an autistic child.2 The court found the credentials of two groups to be lacking. Neither the special education professionals nor the regular education instructors were deemed properly qualified. The conclusion that Mark had inadequately trained personnel developing and implementing his program, however, is irreconcilable with either the law or the record.
As to special education personnel, the district court concedes that the individuals working with Mark during the first half of the year, Mary Kearney and Jamie Ruppmann, were fully competent to assist him. Kearney led Mark‘s IEP team, while Ruppmann provided consultation services. In addition to serving as the county Director of Special Education, Kearney had participated in the Virginia Systems Change Project, a two-year state program on mainstreaming which involved selected schools from across the state. Ruppmann is an experienced, highly qualified consultant.
During the second half of the year, Frank Johnson led the IEP team, and Virginia McCullough provided Mark with special education services. The district court rejected their qualifications, asserting, for example, that Johnson‘s credentials were clearly inadequate because they were inferior to those of Kearney and Ruppmann. However, in addition to serving as the supervisor of Loudoun County‘s program for autistic children, Johnson had a special education masters degree, did graduate work with an autistic child, worked directly with approximately ten autistic children as a teacher, and had attended special education courses and seminars relating to autism throughout his professional career. Both McCullough‘s early childhood degree program and her work in Loudoun County focused specifically on integrating children with disabilities into the regular classroom.
The suggestion that the regular education instructors, Mark‘s teacher and aide, were not adequately qualified also does not survive close scrutiny. Diane Johnson was an experienced professional properly certified under state law, and Virginia law does not require teaching assistants to be certified. Furthermore, Johnson and Leitner both obtained special training to work with Mark. Both received in-service instruction and attended an outside seminar on inclusion of disabled children in the regular classroom. They also were trained in facilitated communication, a special communication method used with Mark in Illinois.
To demand more than this from regular education personnel would essentially require them to become special education teachers trained in the full panoply of disabilities that their students might have. Virginia law does not require this, nor does the IDEA. First, such a requirement would fall afoul of Rowley‘s admonition that the IDEA does not guarantee the ideal educational opportunity for every disabled child. Furthermore, when the IDEA was passed, “Congress’ intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped.” Rowley, 458 U.S. at 208, 102 S.Ct. at 3051. The IDEA “expressly incorporates State educational standards.” Schimmel v. Spillane, 819 F.2d 477, 484 (4th Cir.1987). We can think of few steps that would do more to usurp state educational standards and policy than to have federal courts rewrite state teaching certification requirements in the guise of applying the IDEA.
In sum, we conclude that Loudoun County‘s efforts on behalf of Mark were sufficient to satisfy the IDEA‘s mainstreaming directive.
C.
The district court also gave little or no weight to the disruptive effects of Mark‘s behavior in the classroom, stating that “[g]iven the strong presumption for inclusion under the IDEA, disruptive behavior should not be a significant factor in determining the appropriate educational placement for a disabled child.” This statement simply ignores DeVries, where we specifically held that mainstreaming is inappropriate when “the handicapped child is a disruptive force in the non-segregated setting.” 882 F.2d at 879 (quoting Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.1983)). In this case, disruptive behavior was clearly an issue. The hearing officer summarized:
[Mark‘s] misbehaviors include continual vocalization, especially whining, screeching and crying when unhappy or frustrated, hitting, pinching, kicking, biting, sucking the leg of a chair, rolling on the floor, and removing his shoes and clothing. Mark is a big strong child who cannot be easily restrained when he engages in injurious behaviors such as hitting, kicking, pinching and biting. His continual vocalizations are distracting and make it difficult for other children to stay on task. When Jamie Ruppmann observed Mark in his class-
room, she observed two instances of significant disruption, in which he threw himself on the floor. She noted that in each instance it took about five to eight minutes to get Mark settled down. His loud screeching outbursts, which occur daily, take the attention of the teacher and the aide to redirect him; these outbursts also take the other children off task and they then have to be redirected. Mark hits and pinches others several times a day.
While the hearing officer did not find Mark‘s disruptive behavior by itself to be dispositive, the attention she gave to Mark‘s conduct was entirely appropriate, indeed required, under DeVries.
D.
The district court also found that Leesburg would not have been an appropriate placement. This conclusion generally derived from the same analysis that led to the court‘s determination that Mark should remain in the regular classroom. To the contrary, we hold that the proposed Leesburg placement was carefully tailored to ensure that he was mainstreamed “to the maximum extent appropriate.”
IV.
This is not a case which either the local educational authorities or the reviewing administrative officers took lightly. We have sketched in great detail the efforts that Loudoun County made to provide Mark Hartmann with a suitable education. Furthermore, the administrative review process could not have been more thorough. The hearing officer heard testimony from eighteen witnesses over a two month period and made detailed factual findings regarding all aspects of Mark‘s educational experience. The officer‘s analysis carefully incorporated those findings and specifically addressed the evidence the Hartmanns presented in support of their position. The district court, however, set all this extensive effort and review at nought. The court failed to mention, let alone discuss, critical administrative findings inconsistent with its conclusions. While making much of the credentials and credibility of witnesses endorsing full inclusion, the court gave little or no attention to the testimony of Loudoun professionals. In some instances the court, without listening to local educators, discounted their views despite the fact that the hearing officer had found them credible. One Loudoun official was dismissed outright as “a philosophical opponent of inclusion” for daring to state that he saw no evidence that Mark had progressed in the regular classroom.
The IDEA encourages mainstreaming, but only to the extent that it does not prevent a child from receiving educational benefit. The evidence in this case demonstrates that Mark Hartmann was not making academic progress in a regular education classroom despite the provision of adequate supplementary aids and services. Loudoun County properly proposed to place Mark in a partially mainstreamed program which would have addressed the academic deficiencies of his full inclusion program while permitting him to interact with nonhandicapped students to the greatest extent possible. This professional judgment by local educators was deserving of respect. The approval of this educational approach by the local and state administrative officers likewise deserved a deference from the district court which it failed to receive. In rejecting reasonable pedagogical choices and disregarding well-supported administrative findings, the district court assumed an educational mantle which the IDEA did not confer. Accordingly, the judgment must be reversed, and the case remanded with directions to dismiss it.
REVERSED AND REMANDED.
WILKINSON
Chief Judge