Citations
- 364 F. Supp. 3d 803
Full opinion text
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Pending before the Court is the Magistrate Judge's Report and Recommendation ("R & R") (Doc. No. 38), Smith County School District's ("Smith County") objections to the R & R (Doc. No. 43), and Plaintiffs' response in support of the R & R (Doc. No. 44). For the reasons stated below, Smith County's objections to the R & R will be overruled, and the Magistrate Judge's R & R will be approved and adopted.
I. Factual Background
This is an action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. , brought by B.P., and on behalf of J.A., her 6-year-old son. J.A. has been diagnosed with Down Syndrome and is eligible for special education with Smith County under the category of Developmental Delay. (Doc. No. 7-2 at 1.) J.A. entered the Smith County School System in 2017-2018 calendar year, and discussions between B.P. and Smith County regarding an individualized education program ("IEP") began in April 2017. (Doc. No. 6 at 202.) J.A.'s formal IEP meeting was conducted on May 19, 2017, and, at that meeting, the parties agreed that the IEP would be revisited after the first nine weeks of the school year to determine if adjustment was necessary. (Doc. No. 38 at 2.) Thereafter, J.A. was placed in a regular education classroom at New Middleton Elementary School ("New Middleton") and began preschool there on August 7, 2017. (Id. )
On October 25, 2017, the parties held a follow-up IEP meeting. (Id. at 5.) J.A.'s difficulties with his placement were discussed at this meeting. (Id. ) For example, it was reported that J.A. had difficulty with the overwhelming stimuli of the classroom, would roam the school, lick furniture and other students, and was generally unable to control his behavior. (Id. ) Smith County proposed moving J.A. to a comprehensive development class ("CDC"), a special education class comprised of both disabled and non-disabled students, located at Carthrage Elementary School ("Carthage"). (Id. ) B.P., J.A.'s mother, did not agree with the proposed change in placement and requested that J.A. be provided with a one-on-one aide in the New Middleton classroom so that his behavior could be monitored and improved. (Id. ) Smith County declined to offer J.A. a one-on-one aide in the regular classroom environment, determining that it would be too restrictive. (Id. at 6.)
J.A. continued his placement in the regular classroom at New Middleton, and another IEP meeting was held on November 20, 2017, during which Smith County again recommended J.A. be moved to the CDC class at Carthage. (Id. ) B.P. reiterated her objection to such a placement because New Middleton was closer and would offer an opportunity for J.A. to imitate the other, non-disabled students. (Id. ) B.P. again requested that Smith County provide a one-on-one aide, but Smith County resisted, contending that the aide would only help in preventing J.A.'s bad behaviors rather than facilitate his learning. (Id. ) At this meeting, Alecia Talbott, the parents' advocate, recommended that J.A. (1) receive a functional behavior assessment ("FBA"); and (2) the school implement a Behavior Intervention Plan ("BIP"), with reevaluation in February or March. (Id. at 7.)
Shortly thereafter, in early December 2017, B.P. viewed a Facebook video, showing J.A.'s classmates performing a dance routine while J.A., not being assisted by the teacher in participating, stood and watched. (Id. at 10.) As a result, B.P. withdrew J.A. from New Middleton. (Id. ) B.P then filed a due process complaint on J.A.'s behalf. (Id. at 8.) At the required resolution meeting, Smith County stated that they were willing to proceed with a FBA, BIP, and other training, but reiterated that: (1) the Carthage elementary staff was more highly trained and experienced; (2) J.A. would receive more attention at the Carthage CDC class; and (3) a one-on-one aide would be too restrictive. (Id. ) Smith County "drew a line" on placement and the request for a one-on-one aide. (Id. )
As a result, B.P. requested a due process hearing before an ALJ. (See generally Doc. No. 6.) At the conclusion of the hearing, the ALJ ruled in favor of Smith County, finding that the November IEP, recommending placement in the Carthage CDC, did not violate J.A.'s right to free and appropriate public education ("FAPE"). (Doc. No. 7-4 at 4-10.) The ALJ concluded that: (1) the one-to-one aide would help manage J.A.'s behavior but would not provide additional educational benefit or decrease the classroom stimuli; (2) placement at Carthage was a reasonable alternative; and (3) Smith County based its new placement on available information and was willing to conduct additional evaluations (the FBA) but was unable to because of J.A.'s withdrawal. (Id. at 10.) The ALJ also determined that, because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP was limited to completion of the FBA (agreed to by Smith County) so that a proper placement for J.A. could be determined for the upcoming school year. (Id. )
B.P., on behalf of J.A., appealed the ALJ's decision, and the Magistrate Judge held a supplemental hearing. (Doc. No. 38 at 17-23.) After the evidentiary hearing, the Magistrate Judge entered a 48-page R & R, recommending that J.A.'s previously filed Motion for a Preliminary Injunction (Doc. No. 7) be granted and that J.A. be placed in kindergarten at New Middleton with a paraprofessional properly trained in dealing with Down Syndrome children. The Magistrate Judge also recommended that Smith County be required to conduct a FBA and implement a BIP for J.A. (Doc. No. 38 at 1.)
Smith County has filed objections to the R & R, which are detailed below. (See Doc. No. 42.) Having considered the matter de novo as required by Rule 72 of the Federal Rules of Civil Procedure, including the record before this Court and the one developed during the administrative proceedings, the Court finds that the R & R appropriately resolves the issues presented and, as such, it will be adopted. Because the R & R will be adopted, the objections thereto (Doc. No. 42) will be overruled, and J.A.'s Motion for Preliminary Injunction (Doc. No. 7) will be granted. Before discussing the specific objections to the Magistrate Judge's recommended resolution, however, a little background on the IDEA helps place Smith County's arguments in perspective.
II. Background of the IDEA
The IDEA "offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education'...to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Schs., --- U.S. ----, 137 S.Ct. 743, 748, 197 L.Ed.2d 46 (2017). An eligible child "acquires a 'substantive right' to such an education once a State accepts the IDEA's financial assistance," id. at 749, and "school districts receiving funds under the IDEA must establish an IEP for each child with a disability." Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 762 (6th Cir. 2001). A FAPE has two requirements: (1) the school must prepare an IEP for the disabled student; and (2) the IEP must provide the FAPE so as to educate the disabled student in the "least restrictive environment" ("LRE") possible. L.H. v. Hamilton Cty. Dep't. of Educ., 900 F.3d 779, 788 (6th Cir. 2018).
The IEP is "[t]he linchpin of the IDEA." Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App'x 423, 426 (6th Cir. 2016) (citing Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). "Every year, an 'IEP Team' comprising an eligible child's parents, his teachers, a representative of the local educational agency, and, whenever appropriate, the child himself, meets to discuss the child's progress and educational goals." This is formulated into the IEP, which is "a document that evaluates the child's academic achievement and functional performance, as well as his short-term and long-term goals." Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(II), (d)(3)(B) ). "The IEP also specifies the services that the school will provide to help the child to accomplish his goals and sets forth the criteria that the IEP Team will use to evaluate the child's progress over the course of the coming year." Id. (citing 20 U.S.C. § 1414(d)(1)(A)(i)(III)-(IV) ). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).
The requirement that an IEP be "reasonably calculated to enable the child to receive educational benefits," was addressed by the Supreme Court in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, --- U.S. ----, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). There, the Court wrote:
The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. See §§ 1414(d)(1)(A)(i)(I)-(IV). This reflects the broad purpose of the IDEA, an "ambitious" piece of legislation enacted "in response to Congress' perception that a majority of handicapped children in the United States 'were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to drop out.' " Rowley, 458 U.S. at 179, 102 S.Ct. 3034 (quoting H.R. Rep. No. 94-332, p. 2 (1975) ). A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.
[F]or most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. Every IEP begins by describing a child's present level of achievement, including explaining 'how the child's disability affects the child's involvement and progress in the general education curriculum." § 1414(d)(1)(A)(i)(I)(aa). It then sets out "a statement of measurable annual goals...designed to...enable the child to be involved in and make progress in the general education curriculum," along with a description of specialized instruction and services that the child will receive. §§ 1414(d)(1)(A)(i)(II), (IV). The instruction and services must likewise be provided with an eye toward "progress in the general education curriculum." § 1414(d)(1)(A)(i)(IV)(bb).
Id. at 999, 1001. "[T]he process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome," and, therefore, the IEP's substantive "educational benefits" are best measured under the paradigm of "appropriate progress" based "on the unique circumstances of the child for whom it was created." Id.
The "least restrictive means" is a non-academic restriction or control on the IEP-separate and different from the measure of substantive educational benefits-that facilitates the IDEA's strong "preference for 'mainstreaming' handicapped children." Rowley, 458 U.S. at 181 n.4, 102 S.Ct. 3034. "To the maximum extent appropriate, children with disabilities...[must be] educated with children who are not disabled," and separated "only when the nature or severity of the disability...is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." § 1412(a)(5)(A). This preference is not absolute, however, and a school may separate a disabled student from the regular class under circumstances when: (1) the student would not benefit from regular education; (2) any regular-class benefits would be far outweighed by the benefits of special education; or (3) the student would be a disruptive force in the regular class. Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
Formulating the IEP's substantive educational benefits most often concerns methodology, such as deciding between alternative programs or methods for educating a disabled student-these types of decisions require the school district's educational expertise. McLaughlin v. Holt Publ. Sch. Bd. of Educ., 320 F.3d 663, 673 (6th Cir. 2003). Establishing the least restrictive means, however, concerns whether, or the extent to which, a disabled student can be mainstreamed rather than segregated and does not require any such educational expertise. Roncker, 700 F.2d at 1062. Simply put, "[i]n some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming." Id. at 1063. Mainstreaming can be, and often is, a contentious issue between the school and the disabled student's parents. L.H., 900 F.3d at 789.
III. Standard of Review
The district court applies a "modified de novo " standard of review, meaning that it must make an independent decision based on the preponderance of the evidence while also giving "due weight" to the determinations made by the State ALJ. Rowley, 458 U.S. at 206, 102 S.Ct. 3034 ; Burilovich v. Bd. of Educ. of Lincoln Consol. Schs., 208 F.3d 560, 565 (6th Cir. 2000). Towards this objective, the court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 1415(i)(2)(B). The court may not "simply adopt the state administrative findings without an independent re-examination of the evidence," but neither may it "substitute [its] own notions of sound educational policy for those of the school authorities which [it] review[s]." Rowley, 458 U.S. at 206, 102 S.Ct. 3034 ; Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998). As with the deference to school officials on matters of substantive educational methodology, the weight due to the State ALJ's findings depends on whether the finding is based on educational expertise. McLaughlin, 320 F.3d at 669. "Less weight is due...on matters for which educational expertise is not relevant because a federal court is just as well suited to evaluate the situation[;] [m]ore weight...is due to...determinations on matters for which educational expertise is relevant." Id.
IV. Smith County's Objections
It is difficult to determine the exact nature of Smith County's objections the R & R. Smith County identifies the "appropriateness" of the Magistrate Judge's placement determination as the basis for its objections. However, the gravamen of Smith County's objections is geared towards the Magistrate Judge's alleged lack of deference to "the opinions of professionals who have spent five days a week with J.A. for nine weeks, as opposed to a run-in, run-out observation and paid-for opinion." (Doc. No. 42 at 7.) Smith County argues that the Magistrate Judge concludes that "what is best for J.A. is to be determined by someone who has been hired to render an opinion for the parents, and that forty-five days of hand on experience with J.A. is not relevant." (Id. at 8.) Moreover, Smith County asserts that:
Magistrate Brown did not, in fact, give the local educators nor [ALJ] Summers' "greater deference" to the substantive aspects of the IEP proposed by [Smith County]. Judge Summers heard the witnesses who had worked with J.A., and who had discussed his program with his mother, showed her the classroom at Carthage Elementary heard J.A.'s parents testify, and she considered that same law and the same criteria for making the judgment as did Magistrate Brown. In the process the "greater deference" disappeared.
(Id. at 14.) The remainder of Smith County's filing challenges the Magistrate Judge's decision generally and argues that placement in the CDC class at Carthage would provide J.A. with "the best of both worlds." (Id. at 18-20.) Smith County requests that the Court: (1) reinstitute ALJ Summers' decision; (2) order that J.A. be returned to Smith County to complete the FBA and BIP; and (3) order the parties to reconvene to determine J.A.'s abilities so that appropriate personnel can determine an appropriate IEP. (Id. at 21.)
V. Analysis
As a preliminary matter, the Court again notes that Smith County's objections lack specificity. (Id. at 6.) Smith County's filing provides a "Background" heading, under which it summarizes the relevant factual information, and then an "Objections" heading. (Id. ) Smith County then provides 16 pages of argument, with no subheadings, and no definitive statements of its objections (i.e., Smith County's first objection is...).
When a party files objections to a magistrate judge's report and recommendation regarding a dispositive motion, the district court must review de novo any portion of the report and recommendation to which objections are "properly" lodged. Fed. R. Civ. P. 72(b)(3) ; see also 28 U.S.C. § 636(b)(1)(B) & (C). Only "specific written objections" to the magistrate judge's proposed factual findings and legal conclusions are "proper" under Rule 72(b). Likewise, the applicable statute contemplates de novo determination only "of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C) (emphasis added). In conducting its review, the district court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
In this circuit, litigants must file specific and timely objections to a magistrate judge's report and recommendation under 28 U.S.C. § 636(b)(1)(C) in order to preserve the right to appeal a subsequent order of the district court adopting that report. Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001) (citing Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object. Id. (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ). Moreover, "an 'objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an 'objection' as that term is used in this context." VanDiver v. Martin, 304 F.Supp.2d 934, 938 (E.D. Mich. 2004).
A large portion of Smith County's alleged objection consists of general disagreement with the Magistrate Judge's suggested resolution, and, as such, is not an objection that is properly before this Court. See id. To the extent that Smith County objects to the weight and deference the Magistrate Judge provided to the ALJ opinion and the Smith County witnesses' testimony, that objection is considered below. Any other objections buried within Smith County's filing are not considered by the Court. See Emerson v. Novartis Pharm. Corp., 446 F. App'x 733, 736 (6th Cir. 2011) ("[J]udges are not like pigs, hunting for truffles that might be buried in the record.") (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ).
As noted, the thrust of Smith County's objection is that the Magistrate Judge gave too much weight to J.A.'s expert, at the expense of: (1) the ALJ's written opinion; and (2) the testimony of Smith County's educators and officials. (Doc. No. 42 at 8-18.) Importantly, as in L.H., Smith County is not arguing that J.A.'s expert was unqualified, which could be framed as a legal challenge, rather, Smith County is arguing that her testimony was unpersuasive considering the other testimony, which is a challenge to the Magistrate Judge's weighing of the evidence and determination of the facts. See 900 F.3d at 794.
At bottom, Smith Count argues that the Magistrate Judge should have deferred to the opinions of Smith County's teachers and staff because they had spent far more time with J.A. and were more familiar with his abilities, behaviors, and limitations, so they knew best how he should be educated. In L.H., the Sixth Circuit specifically confronted this issue and explained:
If the law were that a court must defer to the opinions of those who spend the most time with the student and presumably know him best, then there would be no place for experts. Moreover, parents could never prevail because the student's teachers will always spend more time with the student or know the student better than the parents' hired experts. On the other hand, the parents spend more time with the student and know the student better than any teacher. Taking [this] argument to this ultimate end, the district court would actually defer to the student's parents, who surely know the student the best, regardless of any expertise.
See id. Here, the Magistrate Judge recounted testimony from all of the witnesses, both lay (i.e., B.P., Smith County officials and experts) and expert (Dr. Kathleen Whitbread, J.A.'s expert). (Doc. No. 38 at 3-22.) The Magistrate Judge appropriately considered these witnesses' testimony in coming to his decision and carefully balanced the competing testimony. (Id. at 34-38.) The Magistrate Judge also considered the ALJ's oral and written opinion and provided a detailed explanation for his divergent determinations. (Id. at 14-16, 34-48.) Nor was the Magistrate Judge beholden or entitled to merely rely on the ALJ's opinion. Rowley, 458 U.S. at 206, 102 S.Ct. 3034 (holding that the court may not "simply adopt the state administrative findings without an independent re-examination of the evidence"). There is simply no basis in the record, beyond mere disagreement with his ultimate determination, for concluding that the Magistrate Judge provided improper deference to any witnesses' testimony. Accordingly, the Court is convinced that the Magistrate Judge has considered the relevant factors and reasonably calculated his ruling to enable J.A. to receive the appropriate educational benefits he is entitled to under the IDEA. Endrew F. ex rel. Joseph F., 137 S.Ct. at 999. Smith County's objection will therefore be overruled.
VI. Conclusion
On the basis of the foregoing and having fully considered the arguments raised by the parties, the R & R is APPROVED AND ADOPTED . The Court will issue a separate order setting out the preliminary injunction. Plaintiffs' complaint also requests several other forms of relief, including compensatory damages and reimbursement for expenses. (Doc. No. 1 at 24.) Consequently, this case is RETURNED to the Magistrate Judge for further case management, including disposition of these other claims for relief upon dispositive motion.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
JOE B. BROWN, United States Magistrate Judge
To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge
Pending before the Court is Plaintiffs' motion for preliminary injunction (Docket Entry No. 7). For the reasons stated below, the Magistrate Judge RECOMMENDS that Plaintiffs' motion be GRANTED and that J.A. be placed in kindergarten at New Middleton Elementary School with a paraprofessional properly trained in dealing with Down Syndrome children and for the District to conduct a Functional Behavior Assessment ("FBA") and implement a Behavior Intervention Plan ("BIP").
I. INTRODUCTION
Plaintiffs, J.A. and his parent and next friend, B.P., filed this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. , Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. , and Title II of the Americans with Disabilities Act ("ADA"), with amendments, 42 U.S.C. § 12182, against Defendant, Smith County School District. Plaintiffs assert that Defendant's decision to move J.A., who has Down Syndrome, from a classroom with non-disabled children to a segregated classroom primarily comprised of children with disabilities, without first considering additional supports and services, was more restrictive than necessary and therefore violated J.A.'s right to receive a free appropriate public education ("FRAPE") in the least restrictive environment ("LRE").
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs filed for due process on December 4, 2017. (Docket Entry No. 7-2, Joint Stipulations, at ¶ 14). On December 12, 2017, J.A. withdrew from New Middleton Elementary School ("NMES"). Id. at, ¶ 15. Plaintiffs' due process complaint was heard by a State administrative law judge ("ALJ") who conducted a due process hearing on May 1-2, 2018, which resulted in an unfavorable decision against Plaintiffs. (Docket Entry Nos. 6-1 and 6-2; Docket Entry No. 7-4). Plaintiffs subsequently filed this action in federal court on May 21, 2018. (Docket Entry No. 1). On May 24, 2018, Plaintiffs filed their motion for preliminary injunction. (Docket Entry No. 7). On July 11, 2018, the District Judge referred this action to the Magistrate Judge to enter a scheduling order for the management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b), Fed. R. Civ. P., and the Local Rules of Court. (Docket Entry No. 24). On July 23, 2018, the Magistrate Judge conducted a lengthy telephone conference with the parties and set a hearing for September. (Docket Entry No. 27). The parties agreed that the hearing would encompass both the preliminary injunction, as well as a hearing on the merits of the action. Id. On September 17, 2018, the Magistrate Judge held an evidentiary hearing, and the parties filed their proposed findings of fact and conclusions of law on October 9, 2018. (Docket Entry Nos. 32 and 36-37).
A. ADMINISTRATIVE HEARING
1. Testimony of Wendy Cond
J.A. was born on August 17, 2012. (Docket Entry No. 7-2, at ¶ 2). J.A. was diagnosed with Down Syndrome and is eligible for special education with Smith County School District under the category of Developmental Delay. Id. at ¶ 1. J.A.'s first Individualized Education Program ("IEP") meeting for preschool was held on May 19, 2017. Id. at ¶ 3. At the meeting, J.A.'s mother was told that after the first nine weeks the IEP would be reexamined based upon how J.A. was progressing in the regular education classroom. (Docket Entry No. 6-1, pp. 43, 53, 136). J.A. was placed in the regular education classroom at New Middleton Elementary School ("NMES") and began preschool there on August 7, 2017. (Docket Entry No. 7-2, at ¶¶ 4-5).
Wendy Cond, who had eleven years of experience teaching pre-kindergarten ("pre-K"), taught the regular education pre-K class at NMES for the 2017-2018 school year. (Docket Entry No. 6-1, at pp. 23, 25). Cond had never taught special education, did not have special education training and had never taught a child with Down Syndrome. Id. at pp. 26, 104-05. Cond's class consisted of twenty children, including J.A. Id. at pp. 25-26. Cond had a full-time paraprofessional to help her with the children (1 to 10 ratio) in the classroom. Id. at pp. 28-29. The pre-K curriculum consists of reading, writing, language, math, science, social, studies, creative arts, and PE/health. (Docket Entry No. 7-2, at ¶ 6).
The District provided J.A. thirty minutes each day of "pull out" special education academic services, 30 minutes each week of occupational therapy, 30 minutes each week of physical therapy, and 20 minutes twice per week of speech language therapy. Id. at ¶ 7. Cond testified at the May 1, 2018 administrative hearing that J.A.'s May 2017 IEP plan did not contain any academic goals for math, science or social studies. (Docket Entry No. 6-1, at pp. 36, 71). J.A.'s goals were mainly in the area of fine and gross motor skills. Id. at p. 37. Cond explained that no teacher had seen J.A. prior to the May I.E.P. meeting and because J.A. was nonverbal the educators wanted to see what J.A. could do once school started. Id. Nevertheless, Cond did try to teach J.A. math, social studies, and science. Id. at p. 146. However, there was nothing in the I.E.P. for charting J.A.'s rate of progress in these subjects. Id. at pp. 147-48.
Cond testified that, after having a discussion with the principal, Shawn Frye, about J.A.'s reoccurring behavioral problems, she began keeping a running log of J.A.'s behavioral problems so that she would know how to address them. Id. at pp. 53-54. J.A.'s behavioral problems consisted of him licking objects, hitting, throwing things, climbing, having toilet training accidents, putting things in his mouth, and running away from adults. Id. at pp. 54-56, 58, 77, 137-39, 141-42, 149, 151. The log entries ran from August 10, 2017, through sometime in November 2017. Id. at p. 59. Cond did not give a copy of her log to J.A.'s parents, but testified that she would tell J.A.'s mother about what happened at school or would call her if J.A. had an accident. Id. at p. 54. Despite J.A.'s behavioral problems, the District did not conduct a Functional Behavior Assessment ("FBA") on J.A. or provide J.A. with a Behavior Intervention Plan ("BIP"). (Docket Entry No. 7-2, at ¶¶ 8-9).
Cond also informed J.A.'s mother about how J.A. was performing in school through the mid-nine week and nine week progress reports. (Docket Entry No. 6-1, at p. 61). J.A.'s first mid-nine week progress report reflected that "most of the time" J.A. "share[d] and t[ook] part in play activities," "t[ook] part in art activities," "ha[d] good cafeteria behavior," "[was] a good helper," and "ha[d] positive school behavior." (Docket Entry No. 7-5, at 1). "Some of the time" J.A. "particpate[d] in group activities," [sat] quietly during circle time," "work[ed] and play[ed] well with others," and "listen[ed] and follow[ed] directions." Id. J.A.'s second mid-nine week progress report reflected that J.A. was having difficulty writing his name, saying the alphabet, naming all letters in his name and identifying it, counting to 30, and identifying colors, with the exception to the color blue. Id. at 2. J.A. also was having difficulty recognizing letters. Id. Cond testified that J.A. did not have grades for math, social studies and science because "[h]e wasn't able to tell me or show me anything with that," and "[h]e had difficulty" in those areas of learning. (Docket Entry No. 6-1, at pp. 131-32). As to the goals listed on J.A.'s IEP plan, the school anticipated him meeting these stated goals by the end of the IEP term in May 2018. Id. at p. 74.
On October 25, 2017, another IEP meeting was held. (Docket Entry No. 7-2, at ¶ 11). At this meeting, J.A.'s misbehaviors were discussed, but there was no discussion of conducting an FBA and creating a behavior plan. (Docket Entry No. 6-1, at pp. 74-75, 77). The items "FBA (If appropriate)" and "Behavior Plan (if appropriate)" labeled on J.A.'s IEP were stricken with a line through them by the District. Id. at p. 76. The District proposed moving J.A. to a comprehensive development class ("CDC"), a special education class located at Carthage Elementary School ("CES"), which was approximately thirty minutes from J.A.'s home. Id. at pp. 78-79, 101; Docket Entry No. 7-2, at ¶ 11. Cond explained that the CDC class at CES was an "inclusion class," which contained non-disabled and disabled students in a smaller classroom, with three teachers in a smaller group setting. Id. at p. 79. J.A.'s mother did not agree with the proposed change in placement and requested that J.A. be provided with a one-on-one aide that could help with his behavior. Id. at pp. 77-78, 154. According to Cond, J.A.'s mother made statements at the October IEP meeting that reflected that she did not want J.A. to attend CES because of a community rivalry between Gordonsville, where NMES is located, and Carthage. Id. at pp. 142-44, 152-53. Although J.A.'s mother also stated that she wanted J.A. in a regular education classroom with an aide, Cond believed that the "rivalry was the biggest part of it." Id. at pp. 152-53. The District declined to provide J.A. with a one-on-one aide in the regular education classroom because it believed it "would be too restrictive." (Docket Entry No. 7-2, at ¶ 10).
An additional IEP meeting was held on November 20, 2017. Id. at ¶ 12. The District again recommended that J.A. be moved to CES, but J.A.'s mother objected because NMES was closer and would offer peers that J.A. could imitate. Id. ; Docket Entry No. 6-1, at pp. 82-83. J.A.'s mother reiterated that she wanted J.A. to be assigned an aide to help prevent some of J.A.'s behavioral problems in the classroom. Id. at pp. 87-88, 102. The District believed that J.A. needed something more because an aide would only help in preventing bad behaviors rather than helping his learning. Id. at pp. 87, 140, 144-45. Cond admitted that there was not any data presented at the IEP meeting showing how J.A. would perform with a one-on-one aide, but stated that the special education teacher, who worked with J.A. for 30 minutes a day and helped with his behaviors, had to spend time stopping J.A.'s behaviors and rerouting them, and Cond opined that a one-on-one aide would essentially have done the same thing for the full day. Id. at pp. 44-45, 91, 138.
J.A.'s November 20, 2017 IEP indicated that J.A.'s behaviors impeded his learning. Id. at pp. 93-94. Cond initially testified that the District was willing to address J.A.'s behaviors by conducting a functional behavior assessment and providing a behavior intervention plan, but that "we all felt that [J.A.] needed to be in a smaller group setting." Id. at p. 94. When asked, "Were you willing to give him the assessments, an opportunity to see if they worked in your class, before moving him to a different school?", Cond answered, "We didn't discuss that, no." Id. at pp. 94-95. Cond was further asked, "[D]id you all offer the child ... the opportunity to have the assessments done and see if they could work in your classroom?", to which she responded, "I don't believe it would have been in my classroom, no." Id. at p. 95. As to the District's consideration of providing J.A. with additional supports at NMES through accommodations, assertive technology, or additional special education services, Cond testified that they tried putting a weighted vest on J.A. to help with his misbehaviors, but that the vest was not effective. Id. at pp. 109-10. Cond also testified that she used iPads in her classroom and technology used with the computer. Id. at p. 110.
J.A.' s November IEP was to run from November 20, 2017, to May 19, 2018. Id. at p. 82. J.A.'s new IEP did not have any math, science, or social studies goals. Id. at pp. 84-85, 96, 126-27. The IEP documentation from the November 20, 2017 meeting shows that the District marked through the area for addressing present levels of performance for reading and mathematics and replaced them with speech and occupational therapy goals. Id. at pp. 102-03. The November IEP recommended that J.A.'s academics would be taught in a special education setting by a special education teacher four times per week, seven hours per session, for a total of 28 hours per week. Id. at pp. 96-97. The IEP provided that J.A. would be placed in an integrated self-contained pre-K at CES. Id. at pp. 97-98. Cond explained that her regular education pre-K class is considered a self-contained classroom whereas an integrated self-contained classroom is comprised of disabled and non-disabled students. Id. J.A.'s mother did not sign the IEP. Id. at p. 93.
The parents' advocate, Alecia Talbott, was present at the November IEP meeting and recommended that J.A. receive a functional behavior assessment with real data and to try a new plan until February or March 2018 to see how J.A. performed in class. Id. at pp. 103, 106. According to Cond, Talbott had not observed J.A. in Cond's classroom. Id. at pp. 133-34. Cond believed that J.A. needed to be in a smaller classroom because he was "overwhelmed by everything going on" in her classroom. Id. at p. 139. Cond testified that the District was willing to do an assessment, but not at NMES. Id. at pp. 106-07. Instead, the District recommended CDC placement at Carthage. Id. at p. 107.
On December 18, 2017, six days after J.A.'s mother withdrew him from NMES, a resolution meeting was held between the parties regarding Plaintiffs' December 4, 2017 due process complaint. Id. at pp. 115-16. At the meeting, Eric Swann, Smith County's school psychologist, stated that they were "100% on board" with an FBA and a behavior plan and open to training. Id. at pp. 107, 116-17, 202; Docket Entry No. 7-7. However, Swann believed that the Carthage elementary staff was more highly trained and experienced to meet JA's needs, that J.A. would receive more attention at CES, and that an aide would segregate J.A. more. Id. at pp. 116-18; Docket Entry No. 7-7. Swann stated that the District would draw a line on placement and on the request for a one-to-one aide. Exhibit 13 and 15 Recording of Resolution Meeting. Emmerson Stockton, the director of special education, stated that "[n]o student in Smith County ha[d] a full day aide" and believed that "the CDC classroom [would] move at [J.A.'s] rate" as the general education class had "to continue moving to meet standards." Id. at pp. 117, 118, 188; Docket Entry No. 7-7; Exhibit 13 and 15 Recording of Resolution Meeting. J.A.'s mother's position was that the same supports could be provided in the general education class. Id. at pp. 118-19; Docket Entry No. 7-7.
2. Testimony of Alecia Talbott
Alecia Talbott, the executive director for the Down Syndrome Association of Middle Tennessee, testified that the Down Syndrome Association ("DSA") provides education and support to families and caregivers who have children with Down Syndrome, employers, the community, business owners, and educators. Id. at p. 157. Talbott testified that the DSA provides free training to educators at various levels, including paraprofessionals. Id. at pp. 158-59. Talbott testified that a paraprofessional's role is not that of a babysitter, but to help the child be as independent and as successful as possible. Id. at p. 160. Talbott testified that she attended some of the IEP meetings with J.A.'s mother and offered training to the District, but that no one from the Smith County School System contacted her or went to any trainings. Id. at p. 162.
Based upon the discussion at the IEP meeting about J.A.'s misbehaviors, Talbott recommended that J.A. receive a functional behavior assessment, explaining that an FBA "analyzes the child's behavior across different settings, different times of the day, across a number of weeks," seeking to find out why the child is engaging in that behavior, or what's maintaining that behavior. Id. at pp. 167-68. Talbott further testified that an individualized education plan includes supports and services. Id. at p. 173.
3. Testimony of J.A.'s Parents
At the administrative hearing, J.A.'s mother, B.P., denied that the community rivalry was the reason she did not want J.A. to be placed at CES, stating that she would not object to his placement at CES as long it provided the least restrictive environment in a regular education class with supports and services. Id. at pp. 174-75. J.A.'s mother testified that she was never shown Cond's behavior log and was only informed about his behaviors during the first two weeks of school. Id. at pp. 176-77. J.A.'s mother testified that she was never offered having an aide and behavior plan at NMES. Id. at p. 177. J.A.'s mother understood the term CDC to refer to children who have disabilities. Id. at p. 178. J.A.'s mother testified that after being told at the November IEP meeting that J.A. would not have an aide and an FBA at NMES and then seeing a video on NMES's Facebook page, showing J.A.'s classmates performing a dance routine while J.A., not being assisted by a teacher in participating, just stood there and watched, she decided to withdraw J.A. from NMES. Id. at pp. 178-181, 185. As a result, she placed J.A. in camp at Dynamic Therapy on Mondays and Fridays for three hours a day where he received occupational, physical and speech therapy, and at Mother's Day Out, which was more of a preschool setting with non-disabled students, on Tuesdays and Thursdays for five hours a day. Id. at p. 181. There was not another public school option where they lived. Id. at p. 194. J.A.'s mother also involved J.A. in community activities such as being a model in pageants, participating in homecoming, and playing T-ball. Id. at pp. 195-97.
J.A.'s mother further testified that she visited CES with the director of schools, Barry Smith, to observe how the classroom worked. Id. at p. 187. According to J.A.'s mother, they did not discuss the community rivalry between New Gordonsville and Carthage. Id. at pp. 187-88. J.A.'s mother also denied stating that if CES's special education classroom were in Gordonsville she would be fine with it. Id. at p. 198. J.A.'s mother would not object to a twenty mile difference in placement if she could find a premier educational program that she believed was perfect for J.A. Id. at 192-93. J.A.'s mother stated that she did not know that if she had left J.A. at NMES and filed her due process complaint that his services would have stayed the same. Id. at p. 193.
J.A.'s father, B.A., testified that community rivalry did not play a role in where J.A. was educated and that if J.A. could be included with non-disabled peers in Carthage that would be acceptable. (Docket Entry No. 6-2, at pp. 265-67). J.A.'s father testified that he would be willing to enroll J.A. in another year of preschool if J.A. were provided an aide. Id. at p. 268. J.A.'s father did not attend the IEP meetings in May and October, but was present at the one in November. Id. at p. 270.
4. Eric Swann
Eric Swann, a school psychologist with Smith County, testified that he never heard anyone from the District offer the opportunity for J.A. to remain in the regular education classroom at New Middleton with a one-on-one aide or provide J.A. with a behavior intervention plan. (Docket Entry No. 6-1, at pp. 202, 215). Swann also testified that he had never worked with a Down Syndrome child who had a one-on-one aide in a regular education classroom. Id. at p. 213. Swann stated that there were discussions at the November IEP meeting about having a behavior plan at CES. Id. at p. 215.
Swann testified that although an IEP is typically written for a year long period, it can be revised based upon how the child is doing in class. Id. at p. 219. Swann explained that the importance of the IEP including measurable goals is that the goals provide a baseline on how to measure progress. Id. at pp. 218-19.
Swann testified that the school system would provide free transportation for J.A. to attend CES at no cost to the parents. Id. at pp. 234-35. Swann testified that the class at CES is a special education classroom and has a general education curriculum. Id. at p. 239. When asked if he thought a more restrictive setting would be appropriate if J.A. made more or better progress in that setting, Swann answered, "Maybe. Yes. It depends on kid by kid, but, yeah." Id. at p. 240. As to conducting a functional behavioral assessment, Swann testified as follows:
Q. But it's true, is it not, that y'all didn't stop the IEP process and say, let's do the FBA and see how he does in regular ed before we talk about placement in a different setting?
A. That was considered. I guess, at the point of the school year, we had -- we felt like we had this great placement at Carthage Elementary, and that JA would do just awesome there. We could have done a lot of things, but ultimately we felt like we had enough information to make that decision at that point. And rather than go through, you know, three or four more months in the general ed classroom trying those things, we felt like we had enough information to make that decision, and we just knew that he would do well over there.
Q. Okay. So you assumed that a functional behavior assessment would not lead to a different conclusion?
A. Correct.
Id. at pp. 243-44.
Swann explained that J.A.'s behavioral issues did not improve very much and, because of the large number of children in his classroom, J.A. was very rarely on task without direct supervision from the staff to be successful in the regular education classroom. Id. at p. 246. Swann stated that the long-term goal of putting J.A. in the classroom at CES was to acquire skills to advance to the regular education classroom. Id. Swann testified that the District believed that a one-on-one aide would be more restrictive because the aide would be used to "basically hold JA upright, to hold him still, to keep him from being ... disruptive to other students or engaged, on task, ... that one-on-one person would be just providing him direct instruction throughout the day .... He wouldn't be meaningfully involved in the classroom." Id. at p. 247. Swann testified that the District believed it had enough information from the classroom aide and from the special education aide on how J.A. interacted with them in J.A.'s regular pre-K classroom and that J.A. "required basically that one-on-one assistance throughout the day." Id. at p. 250. Swann admitted that he did not know if the school ever had a four or five year old with Down Syndrome in the regular education classroom. Id. at p. 248.
5. Testimony of Lisa Hembree
Lisa Hembree, the special education coordinator with the board of education, testified that she had 32 years of experience teaching CDC resource at every spectrum of special education for seventh to twelfth grade. (Docket Entry No. 6-2, at pp. 272-273, 282). Over those years, Hembree, at times, was brought in to provide special education supports in general education classrooms, which is a part of inclusion. Id. at pp. 273-74. However, Hembree had never given special education supports or services to a child with Down Syndrome in a general education classroom and her experience in teaching children with Down Syndrome was limited to teaching them in a special education classroom. Id. at p. 279.
In determining whether to assign a child an aide, Hembree testified that the District must look at each child on an individual basis and not just because the child has Down Syndrome. Id. at p. 280. Hembree acknowledged that there have been students who have been provided a full day aide in Smith County and that Smith County did not have a policy that would prevent a student from having one. Id. at pp. 281-82. Hembree never observed J.A. in the classroom. Id. at p. 284. Hembree testified that she believed that J.A. needed to participate in pre-K again at CES and that after nine weeks for the District to see if progress were being made. Id. at p. 299.
Hembree also testified that the use of the term "CDC" in the documents regarding J.A.'s placement at CES was incorrect and was not what the District intended as the classroom at CES was not a CDC classroom. Id. at pp. 300-02. The CES classroom was a special education classroom with non-disabled children. Id. at p. 302. However, Hembree testified that regardless of the CES classroom being classified as a CDC classroom the District made it clear to J.A.'s mother that it was an integrated classroom with typical peers, that is, non-disabled children. Id. at pp. 305-06. Hembree did not know of any children with Down Syndrome who are educated in the general education classroom for the majority of the day. Id. at p. 304. As for J.A. repeating pre-K, Hembree testified that if an FBA were conducted, part of it would need to be conducted in a classroom and the other part could be conducted over the summer. Id. at p. 314.
6. Dr. Kathleen Whitbread
The State administrative law judge ("ALJ") determined that the testimony of Dr. Whitbread, Plaintiffs' expert witness, would not be "helpful" or "worthwhile," stating that "we're all certainly capable of stipulating that she's going to testify that JA should be in an integrated or general ed classroom with supports." Id. at pp. 261-63. As a result, Plaintiffs were allowed to submit Dr. Whitbread's report as an offer of proof. Id. at pp. 263, 317; Docket Entry No. 7-3.
7. State Administrative Law Judge's Oral Decision
At the conclusion of the hearing, the ALJ issued an oral decision from the bench, stating, in part, as follows:
The issue that we are addressing is educating JA in the least restrictive environment with the most educational benefit.... And I don't think there's any real disagreement between the parties that the placement at NMS, without some sort of modification, was not working, so something needed to change....
The petitioners were essentially asking for the placement to remain the same, with the addition of a one-to-one aide. I mean, that accomplished leaving JA in a regular classroom with predominantly non-disabled children, would provide him help with his behaviors. The downside that I could see from that placement was the absence of a special ed teacher, a potentially chaotic environment that may have been contributing to some of his behaviors, and having an adult with him throughout the entire school day could potentially be a more restrictive placement than the alternative. And also, recognizing that a child with an adult caretaker doesn't really help him blend with his classmates.
The alternative that was offered by the school system was the integrated classroom at Carthage Elementary School, where admittedly, there was -- while some, as we have been referring to them, typical children, it was predominantly children with disabilities. But my understanding is that there was still a regular curriculum, more teachers for fewer children, so while JA would not be -- have a one-to-one aide, there would be more adults for fewer children, and JA would not be singled out in that classroom as the child that needed the specific adult caretaker. You have a special ed teacher with proven results, a more controlled environment. But also, possibly - well, certainly, a more restrictive environment than where he was at NMS....[C]ertainly the petitioners have suggested, and I know that their expert would testify, that the alternative with the one-to-one aide would be better and the least restrictive.
And in weighing all of this information, I cannot conclude that the school system's alternative, it violates the IDEA. I think it's a tossup, based upon the criteria that I just iterated. I don't think it's, again, in violation of the IDEA. I think it's a reasonable alternative to educating JA in the least restrictive environment available to Smith County.
....
And based upon the testimony that I have heard this morning, and the fact that the appeal was of this current IEP, which we are still in, although for a limited time, I am going to order the functional behavioral assessment, upon JA's return to the school system, obviously. I think that until he's actually enrolled in Smith County, I don't -- I wouldn't assume that there is any impediment to him being enrolled today. And whether or not there's a limitation on getting that done -- the functional behavioral assessment -- in the next 17 days, at least in sufficient time for decisions to be made about the next school year, which would include whether or not he is reenrolled in Pre-K or moves on to kindergarten. I'm not going to make that decision. I think that smarter people than me should be making that decision with the necessary additional information.
I'm also not going to order a one-to-one aide. I think until the functional behavioral assessment is completed and there's an opportunity to review those results and a determination is made -- I understood from Mr. Swann that, you know, behaviors could be related to the size of the classroom and the stimulation in that classroom, or there may be other issues that could be addressed with an aide. And until we have that information, I think it's premature to make a decision about where JA should be educated.
Id. at pp. 318-321.
8. State Administrative Law Judge's Written Decision
The ALJ's written decision mainly reiterated the ALJ's oral decision. The ALJ found that the "integrated classroom at Carthage Elementary was inappropriately referred to as a Comprehensive Development Classroom (CDC) which typically includes only children with special needs." (Docket Entry No. 7-4, at 4, ¶ 7). The ALJ found that the District declined to provide a "one-to-aide," but "did agree to conduct a Functional Behavior Assessment (FBA), which was not completed because JA was disenrolled by his parents from the school system in mid-November." Id. at 4, ¶ 10. Some of the ALJ's stated legal conclusions were, in part, as follows:
8. Although the one-to-one aide would help manage JA's behaviors in the regular classroom, it would not provide any additional educational benefit, and the stimulation he receives in that environment could be exacerbating his behaviors.
9. Notwithstanding the objection from JA's parents, it cannot be concluded that the proposed placement at Carthage Elementary in the integrated classroom was not a reasonable alternative to the regular classroom at NMES with the requested one-to-one aide or in violation of the IDEA.
10. The school system based its proposed new placement on the information that it had available after only 3 months of schooling and was willing to undertake additional evaluation of JA's behaviors but was unable to do so when he was disenrolled.
11. JA may have remained at NMES during this additional evaluation, as the parents preferred, had JA remained enrolled and taken advantage of the "stay put" provisions of 20 U.S.C. § 1415(j).
12. Because the IEP was within 17 days of expiration at the time of the hearing, relief for the disputed IEP is limited to completion of the FBA, agreed to be the school system, as soon as practicable so that a proper placement for JA can be determined for the upcoming school year.
(Docket Entry No. 7-4, at 10, ¶¶ 8-12). The ALJ also ordered the District to "participate in the training offered by the Down Syndrome Association." Id. at 11.
B. SUPPLEMENTAL HEARING IN FEDERAL COURT
1. Testimony of Kellye Martin
Kellye Martin is a regular education teacher as well as a special education teacher and has twelve years of experience teaching pre-K at Carthage Elementary School. (Docket Entry No. 33, at pp. 10-11, 18-19, 154-55). There are two types of pre-K classes at CES, "voluntary pre-K" and "Special Needs Pre-K with Typical Peers." Id. at pp. 13-15. Martin teaches in the "Special Needs Pre-K with Typical Peers," which is a classroom for children who have more difficulty than those in voluntary pre-K and who may need more help with speech, behavior, orthopedic functioning, or anything that may make them more productive or able to learn in a smaller environment. Id. at pp. 14, 15. Martin's classroom is not a "CDC" classroom where children need more supports and cannot handle a regular classroom for long periods of time. Id. at pp. 14, 15, 32. Voluntary pre-K is a regular education classroom that may have children with special needs that are lesser than those in Martin's class. Id. at pp. 15, 26. Martin's curriculum meets State curriculum standards. Id. at p. 151.
Martin's class has eleven children on the roll whereas voluntary pre-K has twenty. Id. at p. 18. Generally, seven to nine children attend Martin's class per day, as some children come on different days. Id. Usually, there are two nondisabled children, referred to as typical peers, who attend each day with seven children with special needs. Id. at pp. 19-23. The same nondisabled children do not attend every day. Id. Martin has a paraprofessional assisting her in her classroom. Id. at pp. 36, 155.
Martin never taught or observed J.A. Id. at pp. 35-36. Martin has taught two children with Down Syndrome at CES. Id. at p. 37. Martin was not aware of any children with Down Syndrome who have been placed into voluntary pre-K at CES. Id. Martin testified that in 2018 she received training in teaching Down Syndrome children from Down Syndrome of Middle Tennessee following the May 2018 due process hearing. Id. at pp. 39-40.
2. Testimony of Kathleen Whitbread
At the supplemental hearing before the Magistrate Judge, Dr. Kathleen Whitbread testified as an expert in educating children with Down Syndrome. Id. at pp. 65-66. Dr. Whitbread, a former special education teacher, has been a university professor where she taught at the undergraduate and graduate levels on the topic of the inclusion of Down Syndrome children in general education classrooms. Id. at pp. 57-62. Dr. Whitbread's course work included the effective use of paraprofessionals and behavior intervention plans with Down Syndrome children. Id. at p. 62.
Dr. Whitbread testified that while every child is unique Down Syndrome children share a common learning profile, such as "memory working memory" issues, delayed speech, and being more successful with visual learning than auditory learning. Id. at p. 66. As to helping nonverbal Down Syndrome children communicate, Dr. Whitbread testified that an augmentative and alternative communication device ("AAC"), a somewhat complex touchscreen device similar to an iPad that utilizes pictures and acts as a bridge to help communicate with such children while waiting for their language to develop, may be used. Id. at pp. 66-71. Dr. Whitbread testified that she met with J.A. the day prior to the supplemental hearing for an hour and a half and that J. A. operated the AAC device very well and was able to communicate with it. Id. at pp. 70-73. Dr. Whitbread did not observe Martin's classroom. Id. at p. 124. Dr. Whitbread acknowledged that J.A. was still not completely toilet trained. Id. at p. 132.
Because of his age, currently six years old, Dr. Whitbread believed that J.A. should go to kindergarten rather than repeat preschool based on research that shows that there is not a benefit to holding children with Down syndrome back, especially at the pre-K level. Id. at pp. 74-75. Dr. Whitbread explained that before age nine the brain is flexible in terms of acquiring new information and that, because most children with Down syndrome have delayed learning, developing early literacy skills as early as possible is important. Id. at pp. 75-76. Dr. Whitbread also testified that the IEP for a child in pre-K should have some sort of reading or math goal, which would be consistent with the standards in Tennessee. Id. at pp. 77-78.
As to the appropriate role of a paraprofessional in pre-K or kindergarten for a Down syndrome child, Dr. Whitbread testified that a typical role would be to reinforce learning. Id. at p. 81. Whether a paraprofessional would be too restrictive in a general education classroom, Dr. Whitbread testified that it was possible, but that it was "typically a training issue." Id. at p. 82. Dr. Whitbread opined that if a paraprofessional had proper training then it would be inappropriate to assume that a paraprofessional would be too restrictive for J.A., adding that very young children with Down syndrome often need an extra person, who is properly trained, in the classroom. Id. at p. 84.
With respect to creating a behavior intervention plan, Dr. Whitbread testified that behavior is communication and when a Down Syndrome child is exhibiting negative behavior a teacher must figure out what the child is trying to communicate by behaving in that manner. Id. at pp. 85-86. Dr. Whitbread explained that a functional behavior assessment attempts to figure out the function behind the behavior by collecting "a lot of data." Id. at p. 86. A person must observe over a period of time to determine the event triggering the behavior and then test the behavioral theory. Id. at pp. 87-88. Dr. Whitbread testified that the person who collects this data is often the paraprofessional because the aide has more flexibility with time. Id. at p. 88. Ho