Full opinion text
MEMORANDUM OPINION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW RICHARD G. KOPF, United States Magistrate Judge. John French (Mr. French), as guardian and next friend of his adopted son, David French (David), brings this action pursuant to the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400, et seq. This action, particularly authorized by 20 U.S.C. § 1415, is brought to obtain review of the decision of the hearing officer, the Honorable W. Russell Bowie (hearing officer), retained by the Nebraska Department of Education (NDE) regarding the appropriate educational placement of David. In addition to NDE, also named as defendants are the Omaha Public Schools (OPS) and the Nebraska School for the Deaf (NSD). The parties consented to try this case before me in my capacity as a United States Magistrate Judge, and the Honorable William G. Cambridge, United States District Judge, District of Nebraska, referred the matter to me for trial. The matter was submitted on March 11, 1991, after five days of trial, with the submission of proposed findings of fact and conclusions of law. Supplemental oral argument was heard by telephone conference call April 4, 1991. Pursuant to Federal Rule of Civil Procedure 52, I now set forth the court’s findings of fact and conclusions of law in the form of this memorandum opinion. I find in favor of the defendants, and against the plaintiff, for the reasons set forth herein. I. STATEMENT OF THE CASE A. In December, 1989, Mr. French filed a petition with NDE, later amended, naming OPS and NSD as respondents. NDE assigned the petition to the hearing officer to conduct a hearing and render a decision and order pursuant to Neb.Rev.Stat. § 79-3351 (Reissue 1987) and 20 U.S.C. § 1415. The dispute between Mr. French and OPS and NSD involved the appropriateness of the then-current Individual Education Plan (IEP) regarding David. Although David was a resident within the jurisdiction of OPS, he was being educated at NSD pursuant to a contract between NSD and OPS. Mr. French contended that David’s placement at NSD was inappropriate and that he should be placed in a school with hearing children. Mr. French also challenged the adequacy of the IEP, claiming that it failed to provide a measurable starting point for analysis, that it failed to state cohesive, attainable, short-term goals and objectives, and that it failed to set forth realistic, objective criteria for determining whether David had progressed toward those goals and objectives. At no time was NDE a party to the proceedings, except to the extent that it was the agency obligated to consider Mr. French’s petition. An evidentiary hearing was conducted before the hearing officer and on May 18, 1990, the hearing officer rendered his opinion (Exhibit 13, at 114-130). The hearing officer believed there were two issues before him. The first issue was whether or not NSD, as opposed to the hearing-impaired classroom at the Washington School operated by OPS, was an appropriate placement for David. The second issue was whether the IEP developed by OPS was appropriate for David. As to the first issue, the hearing officer concluded that given David’s multiple handicapping conditions, his medically fragile condition, and his need for a self-contained classroom with physical therapy, David’s placement at NSD was not inappropriate, but the decision on where to place David for the 1990-91 school year should be made after his new IEP was drafted, giving due weight to the suggestions of all of the team participants. Secondly, the hearing officer concluded that the IEP drafted by OPS was deficient in that it did not correctly and adequately state David’s current level of development or educational performance and that it did not list appropriate objective criteria, evaluation procedures, and schedules for determining achievement of educational objectives. Accordingly, the hearing officer ordered OPS to develop an IEP for David for 1990-91, with objective and correct statements of his current educational capabilities, setting forth goals and objectives in a clear, unambiguous manner, with objective criteria for measuring David’s progress, taking into account the active learning recommendations of the Boys Town National Institute (BTNI), as well as parental input. The hearing officer further found that except for NSD’s participation in the development of a new IEP for 1990-91, the claim against NSD should be dismissed. B. In June, 1990, Mr. French, on behalf of David, filed suit in this court against OPS, NSD, and NDE, pursuant to the provisions of 20 U.S.C. § 1415(e)(2). NSD filed a motion to dismiss, claiming that Mr. French’s complaint failed to state a claim against NSD upon which relief could be granted and further claiming that as an instrumentality of the State of Nebraska, NSD is immune from suit under the Eleventh Amendment to the Constitution of the United States. NDE filed a motion to dismiss on essentially the same grounds, adding as a third ground that since this action was brought pursuant to 20 U.S.C. § 1415(e)(2) and since NDE was not a party to the administrative hearing, it was improperly joined as a defendant. The motions to dismiss were denied. NSD and NDE then filed answers and counterclaims, asserting, among other things, that the hearing officer’s decision should be affirmed regarding placement, but reversed regarding the sufficiency of the IEP. OPS filed an answer and counterclaim. OPS requested that the decision of the hearing officer be affirmed regarding placement, and reversed regarding the sufficiency of the IEP. C. A pretrial conference was held and the parties agreed that the following might be accepted by the court as established facts for purposes of this case only: (1) Plaintiff John French is the parent and next friend of his 14-year old son, David French. David was born with a condition known as Kniest Syndrome, a form of dwarfism, with a profound bilateral hearing loss and malignant hyperthermia. Like many persons with profound deafness, David is unable to speak intelligibly and must rely on non-speech modes of communication. He also has a visual impairment and certain physical disabilities which affect his ambulation and impair his ability to use his hands for sign language and finger spelling. Plaintiff and his son reside in the Omaha Public School District in Omaha, Nebraska. (2) Defendant Omaha Public Schools (hereinafter OPS) is a school district organized and operating pursuant to the laws of the State of Nebraska and constitutes a local educational agency as defined in 20 U.S.C. Section 1401(a)(8). It is required by law to provide special education to handicapped students and has received federal funds for the education of handicapped children pursuant to 20 U.S.C. Sections 1400 et seq. on the basis of assurances that it will comply with the requirements of federal statutes and regulations. (3) Defendant Nebraska School for the Deaf (hereinafter NSD), is a school for the hearing impaired which serves hearing impaired and multi-handicapped students. NSD is financed by state and federal funds and is administered directly by Defendant Nebraska Department of Education (hereinafter NDE). (4) Defendant NDE is the agency responsible for the supervision of elementary and secondary education in the State of Nebraska. NDE is responsible for employing and retaining hearing officers to conduct special education appeal hearings as required by Nebraska and federal law. NDE is a state educational agency as defined in 20 U.S.C. Section 1401(a)(7). It receives federal funds for the education of handicapped children pursuant to 20 U.S.C. Sections 1400 et seq. on the basis of assurances that it will ensure that local school districts comply with federal statutes and regulations. (5) In 1987, David French was placed at NSD pursuant to an Individual Education Plan (hereinafter IEP) formulated by OPS and NSD staff and agreed to by Plaintiff. David has continued to be placed at NSD. (6) On December 6, 1989, Plaintiff, pursuant to Title 92, Chapter 55 of the Nebraska Administrative Code, filed an appeal with NDE regarding the IEP and placement affecting his son. (7) A hearing on said appeal was held on March 20, 21, 22 and April 2 and 6, 1990 before a hearing officer appointed by NDE, and a Final Decision and Order was issued by said hearing officer on May 18, 1990. (8) This action was commenced on June 18, 1990 by the filing of a Complaint which was timely filed pursuant to 20 U.S.C. Sections 1400 et seq. This Court has jurisdiction under 28 U.S.C. Section 1343(3) and (4) and 20 U.S.C. Sections 1400 et seq. Order on Pre-trial Conference ¶ C (Filing 39). Thereafter, a five-day trial to the court commenced February 7, 1991. At the conclusion of the trial on February 11, 1991, the parties were given thirty days to submit proposed findings of fact and conclusions of law. I heard additional oral argument by telephone on April 4, 1991 regarding the question of whether Mr. French continued to desire placement of David at the Washington School, an elementary school, and, if so, whether, there were age-appropriate peers at that school. The trial testimony had focused on whether David should be placed at the Lewis & Clark Junior High School (Lewis & Clark), whereas the administrative hearing had focused on placement at the Washington School. Later Mr. French responded in writing, and stated that, despite the ambiguity in the record about whether there were age-appropriate peers at Washington School at the present time, he desired placement at Washington School, Lewis & Clark, or another “mainstream” OPS school suitable for David. OPS responded by providing a partial transcript of the trial record in apparent answer to the question of whether there were age-appropriate peers at the Washington School. The two issues to be resolved by the court are: (1) Is David’s current placement at NSD consistent with the “mainstreaming” requirements of 20 U.S.C. § 1412(5)? (2) Was the 1989-90 IEP deficient in terms of (a) failing to provide “a statement of the present levels of educational performance of such child,” or (b) failing to state “appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved,” within the meaning of 20 U.S.C § 1401(a)(19)(A) and (E)? II. FACTS A. David is now fourteen years of age. He was born July 20, 1976. For about the first five years of his life, David lived in a home for the severely mentally retarded in Illinois, but around the age of three, because he was showing some signs of development, it was decided that he could be adopted. Mr. French adopted David in 1981, when David was four years and nine months old. When Mr. French adopted David, he adopted a child with almost overwhelming disabilities. David was born with a condition known as Kniest Syndrome, a form of dwarfism. Among other things, David suffered from severe to profound bilateral hearing loss. This meant David was unable to hear and to speak intelligibly. David’s primary handicap insofar as education is concerned is that his hearing impairment has substantially delayed his ability to communicate with others, both in initiating communication and receiving communication from others. While David uses hearing aids, the aids apparently are of little help to David. David’s primary educational handicap may be described in lay terms as delayed language development. For example, when he was adopted by Mr. French, David could express only four words in sign language. This compares with hearing children of David’s same chronological age who would customarily be expected to know at least several thousand words. Evidently David’s early institutionalization coupled with his hearing impairment caused him to lack even the most rudimentary communication skills at the time he was adopted. In addition to the educationally significant handicap described above, David has other handicaps which, to a lesser degree, impact his ability to initiate or receive communication. David has, for lack of a better word, “webbed” hands. This means it is very difficult to understand David’s sign language because he cannot use his fingers to form the signs. Moreover, David suffers from a visual impairment. While this impairment is accommodated with glasses to some degree, David must be allowed to look at small objects over the top of his glasses and a tilt-top book holder or surface is very helpful to him when reading. Still further, David has a problem with hand dexterity. While he can write, he writes very slowly. For all practical purposes, David cannot speak. David has physical disabilities in addition to the handicaps which directly impact upon his ability to communicate. When he was small, David was unable to walk because of various orthopedic difficulties. After extensive surgery, David is now able to walk with the aid of crutches. According to Mr. French, David can walk from one to two miles and can also walk over rough terrain. Around home and on some smooth surfaces, David evidently can walk without crutches. David can generally negotiate ramps and hills if the slopes are gentle. He can walk upstairs if the stairs are uniform and of average depth and height. David also suffers from a spinal condition known as odontoid hypoplasia which, as I understand it, means that David’s head is not securely connected to his spinal column. If David were to suffer a significant blow from behind, or a significant flexion of his neck, he might experience severe neurological injury. David’s orthopedic specialist, Dr. Esposito, has not recommended against David’s placement in a regular school environment. Dr. Esposito indicated it would be better for David if the hallways were clear when he attempted to negotiate stairs because he would have difficulty with other children trying to pass him. However, all this meant was that David would require “a little extra time or to be allowed to transit between classes when other children aren’t in the hallway” (Exhibit 22; TR 25: 4-19). In this sense, David is no different from other children with handicaps treated by Dr. Esposito. Dr. Esposito was of the opinion that it would be an extremely unusual event for David to suffer a blow to his head at school significant enough to cause neurological injury. For example, flying balls would not pose a danger to David. Even if he were knocked down in the hallway, the risk to David would be from breaking a bone as opposed to any significant neurological injury. If this were not enough, David also has pulmonary difficulties. His spine causes compression on his windpipe at the base of his neck, which in turn limits airflow and causes David to experience shortness of breath with exertion, such as during long walks. According to Dr. Mark C. Wilson, a specialist in pediatric pulmonology, David’s pulmonary condition does not require any special consideration such as elevated humidity, avoidance of exposure to persons with respiratory infections, or special consideration regarding physical positioning. David needs and benefits from physical therapy and occupational therapy which has in the past been delivered at school. Moreover, because of David’s spinal condition he must watch his weight. It is advisable for a dietician to monitor David’s food intake while at school so as to avoid “junk” food. In terms of his overall disabilities, David is unusual for yet another reason. Very few children who suffer from Kniest Syndrome have survived as long as David. Thus, it is very difficult to give a prognosis for David. The impression I have from the evidence is that David, now age 14, presents a unique set of interrelated problems for those who endeavor to educate him. According to OPS David presents the school system with most difficult language delay problem of any of hearing impaired child in the OPS system who is not mentally retarded. B. Notwithstanding David’s disabilities, the evidence is clear that Mr. French has required David to work hard to overcome his disabilities. As a result, Mr. French has also required much of the educators who have sought to teach David. As will be discussed more fully later, Mr. French’s emphasis on David’s overcoming his disabilities has led to tension between Mr. French and various educators. This pattern began to develop with Mr. French, David, and educators in Illinois. After Mr. French adopted David, he wanted to begin David’s education. Educators in Quincy, Illinois, recommended that David be placed in an institutional setting similar to the one he came from. Mr. French objected. Accordingly, David was placed in the Adams School in Quincy, Illinois. However, he was placed in a self-contained hearing-impaired classroom, which meant that all of the children in the classroom were hearing impaired. The Adams School in Quincy, Illinois, was a regular school in the sense that the hearing-impaired classroom was part of a school that also educated nonhandicapped children. It is not clear from the record precisely how much contact David had with hearing children at the Adams School, but it is likely that he would have had at least some contact at lunch, at all-school meetings, and the like. It is clear that David was placed in a “self-contained” hearing-impaired classroom, meaning that virtually all of his educational instruction took place with other deaf students. David stayed at the Adams School for approximately three years. He remained in the hearing-impaired classroom all three years, which Mr. French described as a “pre-school classroom for the hearing impaired” (Exhibit 17A; TR 13: 2-9). From a class picture it appears that all of David’s fellow students were age appropriate or of about the same age as David. It is not clear how David progressed at the Adams School. On the one hand, in order to stay in the preschool hearing-impaired classroom, David had to learn a given number of signs during the first ten weeks or be expelled. According to Mr. French, at the end of ten weeks David had learned several times the required number of signs. However, perhaps not too surprisingly, given David’s handicaps, after three years in the preschool hearing-impaired classroom, David had only “developed some academic knowledge” (Exhibit 17A; TR 14: 25). This meant that David “did a lot of the pre-school curriculum there, learning colors, learning the alphabet, learning how to locate sounds with his hearing aids, learning to discriminate sounds” (Exhibit 17A; TR 15: 1-5). There is nothing in the record which gives any convincing evidence, in quantitative terms, as to where David was educationally when he began at the Adams School and where he was at the time he left the Adams School. David was eight years old when his family moved to Minnesota in the fall of 1984. David was placed in kindergarten class for the hearing impaired at the Como School. The hearing-impaired kindergarten class at the Como School was similar to David’s classroom at the Adams School in the sense that it was a self-contained classroom. As I understand it, the term “kindergarten” was used in an effort to describe the academic level of the students. According to Mr. French, David seemed bored with the kindergarten class. As a consequence, Mr. French pressed the Como School for another placement. With the assistance of Dr. Susan Rose, an outside consultant who later appeared as an expert witness in the administrative hearing for Mr. French, David was placed in another hearing-impaired classroom taught by Mary Schultz, who also appeared as an expert witness for Mr. French in the administrative hearing. This placement occurred in January, 1986. David was placed in a self-contained hearing-impaired classroom in the Como School which roughly paralleled a regular second-grade classroom in instructional difficulty. All of the children were hearing impaired. The other children were about the same age as David, between eight and ten years old. There were seven or eight children in the classroom, including David. During his time in Mary Schultz’s classroom, David had opportunities to interact with nonhandicapped children in the lunchroom, during school assemblies, and the like. According to Dr. Rose, although she evidently did no testing to confirm her beliefs, David made substantial progress during his first month in Mary Schultz’s classroom. After that period of time, Dr. Rose ceased to observe David. Mr. French proposes that the hearing-impaired classroom at the Como School, taught by Mary Schultz, is the proper prototype against which to measure David’s progress, or lack thereof, at NSD. In other words, Mr. French believes that the hearing-impaired classroom at the Como School is a good example of how David should be taught. Among the reasons for Mr. French’s feeling that Mary Schultz’s classroom is a good example of how David should be taught is the progress Mr. French believes David made with Mary Schultz. Mr. French evidently attributes this supposed progress to David’s opportunity to interact with hearing children. I believe the facts indicate that while David made some progress in Mary Schultz’s classroom, his progress was not nearly as dramatic as Mr. French suggests. David left Mary Schultz’s classroom in May, 1987, when he was approximately ten years and ten months old. At that time, David was functioning at a level near the end of first grade when compared to the educational level of hearing students. Mary Schultz evaluated David in May, 1987. In her opinion, David had made “outstanding progress” (Exhibit 1, Tab D at 36). However, she also concluded that David should “remain in a self-contained classroom with much 1-1 teaching, with some group work, with highly structured lessons and expectation” (Exhibit 1, Tab D at 36). I found it useful to compare what David’s teacher in the kindergarten class at the Como school said about David’s progress with the progress Mary Schultz observed over the next two years. By doing so, I conclude that while David made some progress at the Como school, it certainly was not dramatic progress. More importantly, it is difficult to attribute his progress to a “mainstream” environment. David’s teacher in the kindergarten class at the Como School wrote in her yearly summary at the end of 1985: David has improved somewhat over the past year. He has worked in the 1st grade Math book and can add 1 +number and get the correct answer. He’s inconsistent with some of the more difficult problems. He has begun to use a Communication Board. He is offered both signing and the board as his means of communication. David has improved with spelling of words, color and number words. David needs consistent discipline — for example, giving him the choice of working now, playing later or if he doesn’t work now, he doesn’t play later. It is recommended that the elevator not be given as a reward for good behavior. Reading: Has completed Getting Ready to Read — didn’t really understand situations Mathematics: MacMillan Math— Grade 1 — completed Unit 7. Exhibit 1, Tab D at 50. Mary Schultz wrote at the end of the 1986 school year that David: [c]ame to my classroom January 1986. Deb Streeter served as a 1-1 tutor. The last 10 weeks of school, David spent much of the day with the entire class. He did well in that situation. Math— counts well, adds, subtracts — 10 well. Has begun to spontaneously sign a few words each day. Uses his communication board only as a last resort. It is very difficult to read David’s signs. Does not interact with other students unless they initiate it. Wears personal aids well, Responds to sounds. Lipreads familiar language. Does not use speech at all. Behaves well — Assertive Discipline and Good Behavior Card for Home —Reading: Milestones — Red Book #7 Mathematics: Hands on Math Manipulatives Needs someone to push him to be motivated. Exhibit 1, Tab D at 51. But by the end of the next year David’s progress was problematical. In June, 1987, Mary Schultz wrote: David did not have a 1-1 tutor. He still needs lots of 1-1 teaching, but can function in a small group for a short time. He does not add to a discussion or volunteer in a group. David writes legibly. He signs to class members or to teacher and is understood much of the time — but every day there are things I don’t get. He does not use the communication board. He asks how to spell words. When asked to use more words, he can. David gets frustrated and resorts to banging his elbows at times. He responds well to strict discipline. Does well in Math. Knows facts, can borrow, carry, is learning to multiply. Can read, solve simple story problems. Greatly enjoys maps. Spontaneously talks to me about his daily, monthly schedule, physical well being & behavior daily. Doesn’t communicate with peers unless they direct it. They like David a lot. Reading: Milestones Mathematics: 2nd Grade (workbook) Macmillian. Exhibit 1, Tab D at 51. C. Mr. French and David moved to Omaha, Nebraska, in the fall of 1987. Apparently looking at prior information, OPS officials concluded that David was generally functioning at a level near the end of first grade when compared to “mainstream” students, noting that in reading comprehension, for example, David’s ability ranged from a kindergarten level to mid first-grade level, whereas his mastery of numbers concepts ranged from mid first-grade level to mid second-grade level. In order to determine where best to place David, OPS and NSD spent thirty to forty-five days evaluating him for diagnostic purposes. During that time, various professionals analyzed whether David could be placed in a hearing-impaired classroom at the Washington School or whether it would be more appropriate to place him at NSD. With the agreement of Mr. French, school officials concluded that a permanent placement at NSD was appropriate. The rationale for placing David at NSD, as opposed to the hearing-impaired classroom at the Washington School, was to provide him with an all-signing environment throughout the day, thereby increasing his communicative ability while still providing the intense one-to-one level of instruction David evidently required. In this regard, Ms. Hopkins, former OPS assistant supervisor for the acoustically handicapped program, explained that the Washington School would have been a more restrictive placement than NSD: A. It was my opinion that Washington would be a more restrictive placement than Nebraska School for the Deaf. Q. Can you explain what you mean by a more restrictive placement? A. That David would be in contact with one classroom teacher who signed with whatever number students happened to be in that classroom for that year, whether it was five, two, six, seven, eight students in that classroom, that he might have occasion to see perhaps the other three teachers throughout that day and perhaps the other students of that day though the— Q. The other what students? A. The other hearing impaired students in that building which would amount to perhaps 20 people. He would not have signing communication with anyone else in that particular school building and— Q. Why is that? A. Because they do not have fluent sign knowledge. Q. In your— A. The other teachers, the other students, the other adults of that facility are not fluent in sign language. It was very important that he have an opportunity to develop social functional communication and that he had to use his language to make it that way. Therefore, he needs to continually be expressing this language so it’s generalized and becomes a part of his base language, and in order for him to do that in a meaningful way, he had to do it with adults and students and individuals who knew sign language and, therefore, the greatest opportunity that would provide him the most — most optimal opportunities for this to happen was Nebraska School for the Deaf. Q. Why is Nebraska School for the Deaf different than Washington School in that regard? A. Nebraska School for the Deaf has an environment where everyone knows sign language. Q. By everyone, you mean the students? A. I mean the students, the teachers, the woman who work [sic ] in the cafeteria, the engineers, the janitors, the libriarian [sic ], the secretaries, everyone knows sign language. Q. What about the people that work in the dorm? A. They know sign language as well. Q. Did you believe David would have opportunities to communicate with non-handicapped students at Washington School if he were in the acoustically handicapped program there? A. Minimally. Q. Why do you say that? A. David must be educated in a one-to-one setting. We would have to create that. It’s not there. Exhibit 18; TR 65: 6-25; 66: 1-25; 67: 1-16. Ms. Hopkins testified that since David could not be “mainstreamed” into academic classes, but required virtual one-to-one instruction, he would at best have only a minimal opportunity to communicate with hearing students. Moreover, because he had very little ability to communicate with hearing individuals except by means of pad and pencil or some other device, there would be little educational benefit if David were placed at the Washington School for purposes of interaction with hearing students: A. David would not be mainstreamed into classes for instruction because that is not appropriate for him. He might see hearing children in the hallway, going to a restroom or to get a drink of water. He might see hearing children at lunch. He might see children during an assembly. These opportunities would, in my opinion, be difficult for David to communicate in that you don’t carry a note pad and a pencil with you when you go to lunch and when you go in the hallways; that when you are in an assembly, that you are not there with no [sic ] pad and pencil, that the hearing children would not be fluent in sign, would not be familiar with David. David’s sign language is very difficult to read and unless you are very skilled at reading signs, his — as obviously I’m not, because I have a very difficult time reading David, I think the interactions that he would have with that hearing population would be minimal. Exhibit 18; TR 67: 25; 68: 1-19. D. David began attending NSD. NSD is a state owned and operated school under the jurisdiction of NDE. It is located in Omaha, Nebraska. Its primary mission is to teach deaf children. Almost all of the staff and faculty at NSD, including custodians, nurses, and dieticians, are proficient in sign language. Each NSD teacher is appropriately licensed as required by law. NSD provides an aide to assist David in the classroom, to redirect his attention to the classroom teacher or to his desk work, and to assist him between classes and between buildings on the NSD campus. Although NSD has dormitory facilities, David lives with Mr. French. Other deaf students who attend NSD also live at home. A wheelchair is made available to David for transportation over longer distances on the NSD campus. It is unclear from the evidence how many students were in David’s class during his first year at NSD. During the time period covered by the administrative hearing (the 1988-89 school year and the 1989-90 school year), David was in a class with three other students. During the 1990-91 school year, there was only one other student in his class. Each student who was in class with David was age appropriate and had about the same language proficiency. Approximately fifty-seven deaf students attended NSD in 1990. Because of Mr. French’s work schedule he often finds it inconvenient to pick David up at the end of the school day. David is able to use the dormitory facilities at NSD until Mr. French arrives, and in the past David has used the extra time to work on improving his proficiency in keyboarding. As might be expected all of the children at NDS are deaf and must use sign language. Some NSD students also have other disabilities. It is not clear how frequently, but, on occasion, hearing children are guests at NSD for extra-curricular activities such as athletic events and social activities. David receives instruction from a variety of teachers. In other words, David is taught by different teachers for each academic subject. Every Thursday all of David’s work is copied and given to an IEP coordinator. The IEP coordinator monitors compliance with the IEP and assists the classroom teachers in their planning for David. Most of his teachers are quite proficient in sign language and some of his teachers are themselves deaf. There have been times when at least two of the teachers at NSD could not sign. On one occasion there was a long-term substitute who was unable to sign. On another occasion David’s English teacher, Ms. Perkins, taught him although she was unable to sign. However, Ms. Perkins did understand sign language, and was learning to sign. On both occasions there were interpreters available for use by these teachers to assist them in their instruction. Presently at least five of David’s teachers have master’s degrees with endorsements in teaching disabled students. E. During the first and second years of David’s placement at NSD, Mr. French became increasingly concerned about David’s progress. Among other things, Mr. French observed that David seemed much less enthusiastic about school than he was while enrolled in Mary Schultz’s class at the Como School. Moreover, Mr. French was alarmed because his scrutiny of David’s school papers had convinced him that David was doing work he had already mastered, and the papers seemed to Mr. French to reflect a style of education which was repetitive in nature and stressed rote learning as opposed to more active learning. Prom the record, there seems to be no question that David’s progress at NSD has been slow. However, it also appears that in some areas David is making significant progress. Some examples will help illustrate this point. Jill Ramsey, head teacher in the elementary school at NSD, who has a master’s degree and is also a speech pathologist, testified that when David arrived at NSD from Minnesota he was using only a word or two and was not initiating conversations. More recently, however, David’s communication with others has grown a great deal: A. When he came to our school — how do I want to say this to make it clear? He was using a word or two. He was not initiating conversation with us. He was not initiating ideas. The ideas came from other professionals, children would begin to talk with him and he would not respond. He would ask — pardon me, someone would ask him what something meant and he would have this — this expression as if I don’t understand but he would not give you any indication of where this was unclear Of very recently, he has made a great deal of growth in A, initiating greetings with peers as well as adults. His — the number of words he puts together, signed or spoken, to communicate has increased a great deal. He is answering questions — he is answering questions, for instance, with a — why question with because so and so with several words. He also, if he does not know, it’s taken a lot of work, but he is answering, I don’t understand, I don’t know, again, please, these kinds of things to aid in the communication between himself and a partner. Exhibit 19; TR 41: 25; 42: 1-22. Ms. Ramsey further testified that David frequently expresses emotion, which he had not done before, and often expresses that he is happy because of school: Q. You talked earlier about expressing emotions. Has he improved or increased in his ability to express his emotions since and during the period of time you have worked with him? A. Yes, definitely. Q. Can you explain how? A. We are specifically focused right now on various words which express emotion, excited, proud — oh, I’m at a loss right now. Those are the two that come to my mind, because recently he did a wonderful job in a language lesson in remembering what had to happen and the speech was involved also, and I said, how do you feel about this good work that you did? And he signed and vocalized excited, proud, and those are words that I wasn’t aware that he was utilizing spontaneously or even was aware of when he first came to NSD. Q. Generally speaking, is David a happy child at NSD? MRS. CLARKSON: Object to form. MR. BOWIE: Overruled. Q. Please answer. A. He very much appears to be at school. Every morning, as I alluded earlier, with the opening exercises, the children, how do you feel they ask the teacher, the teacher asks them, how are you today. Well, I’m happy. Why are you happy? And this kind of thing, and David’s response frequently is I am happy because school [sic], which leads me to believe that he is excited about the things he’s doing. Exhibit 19; TR 43: 13-25; 44: 1-18. At this point, it is appropriate to interject that evaluating David’s progress, or lack thereof, is an extremely difficult, and at times essentially subjective, endeavor. All of the parties to this litigation, and all of the experts, agree that standardized testing measurements, while useful, need to be looked at with some skepticism because the tests were not initially designed for deaf children and because David’s disabilities make him an extremely difficult child to evaluate. Nevertheless, David’s progress at NSD, when measured by objective testing standards, has been slow. For example, the most recent IEP, which is not challenged by OPS or Mr. French, indicates that after three years at NSD David was still at the kindergarten- to first-grade level for many language-based subjects (Exhibit 101). However, David’s progress at NSD is about the same as experienced in other schools according to Dr. Kellogg, the Assistant Commissioner of Education and Administrator at NSD: Material on standardized tests has been sent by OPS to father. This material will show Mr. French that David has made more progress than he will admit. For example, he has improved in reading comprehension from a 1.0 level in Minnesota to a 1.7 grade level here. In math concepts he moved from 1.9 to 3.0. [sic ] in less than one year. The boy has not improved in grade level (1.7 to 1.7) in word reading but that is an area in which multihandicapped deaf children seem to have deficiencies and an area in which gains are not easily seen. A gain of 1.7 in the 5.3 years he was in school prior to coming to Nebraska does not show that our problems are unique with this youngster. Exhibit 1, Tab WW at 1-2. Dr. Kellogg has a doctorate in education, and is certified in teaching the deaf. He converses with David in sign language two to three times a week. Unfortunately, the relationship between NSD and Mr. French became increasingly stressed during this period of time. In one instance, Dr. Kellogg barred Mr. French from the school’s campus without a pass “because his behavior is unpredictable” (Plaintiff’s Exhibit 1, Tab WW at 2). Mr. French refused permission for David to participate in some NSD field trips and extracurricular activities such as cub scouts. Although NSD would provide transportation for David, Mr. French elected to transport David himself, evidently because David requires a special seat for safe transportation. NSD had offered to obtain the necessary seat. David was tardy eighty-seven out of ninety-six school days during the first semester of the 1990-91 school year. According to Mr. French, David was tardy because he did not want to go to school, whereas the defendants imply that Mr. French was the cause of David’s tardiness. NSD staff have expressed a willingness to use ideas and materials suggested by Mr. French, but state that Mr. French has been uncooperative. Mr. French states that NSD staff has essentially ignored his suggestions. The inescapable conclusion from the evidence is that Mr. French’s dispute with NSD, a genuinely substantive dispute regarding placement, has at times deteriorated to the point where both Mr. French and the NSD staff have resorted to petty behavior. F. In 1989 the difficulties between Mr. French and NSD and OPS led to an independent evaluation by the Boys Town National Institute (BTNI). In February, 1989, BTNI evaluated David at its center for childhood deafness. This was a multidisciplinary assessment including analysis of David’s communication abilities, academic abilities, social abilities, and psychological status. Evidently BTNI was not asked to express an opinion as to whether or not David should continue at NSD. Rather, BTNI’s efforts were directed toward helping the interested parties assess David’s present level of academic performance in order to suggest ways in which his performance might be improved. BTNI made quite specific findings and recommendations in the areas of psychology, communication, and academics: FINDINGS AND RECOMMENDATIONS: Based on formal evaluation findings and informal observations, the following summary of results and recommendations was formulated by the evaluation team: PSYCHOLOGY: Findings: 1. David is functioning at least within the average range of non-verbal intellectual ability. 2. David had difficulty with details and cause and effect relationships. 3. His social communication skills were very limited. Recommendations: Based upon David’s performance during this evaluation, it was suggested that he receive counseling to assist him in developing socially-appropriate behavior. Since some of his social skills are directly related to his delayed language abilities, it was suggest [sic ] that the social counseling sessions be integrated with language therapy from a language interventionist. COMMUNICATION: Findings: 1. David is functioning at an approximate 5-7 year range for knowledge of vocabulary and basic concepts. 2. David demonstrated relative strength in his knowledge of and his ability to converse about certain topics (i.e. travel; geography). 3. His social conversation was restricted in quality and and [sic] flexibility. 4. David tended to be a “responder” rather than an initiator of conversational interaction with most adults. Recommendations: 1. Due to David’s limited social conversational skills, it was suggested that he receive therapy in social/pragmatic communication skills. 2. Because of his significantly delayed language abilities, it was suggested that David have a language based curriculum. 3. David should be given the opportunity to learn keyboarding and computer word processing skills, that will aid his literate language use and may potentially augment communication. 4. It was further recommended that an augmentative communication evaluation should be conducted in the future. ACADEMICS: Findings: 1. David’s academic abilities ranged between a late first grade and a third grade level. 2. David demonstrated a relative strength in math calculations. 3. Results on the language-based subject areas evaluated (reading, applied math, general knowledge) were significantly below average when compared to hearing students at his present grade level. 4. David’s comprehension of information presented in written or spoken language form was significantly below hearing peers at his functioning grade level. Very structured, familiar language needed to used [sic] for David to understand the majority of the linguistic information presented during these evaluation sessions. Recommendations: 1. Based upon the results and observations of his performance during this evaluation, it is suggested that David would benefit most from a highly structured learning environment, that is language-based and and [sic] emphasizes active learning. 2. Because of the difficulty David had understanding spoken and written language, it is suggested that he would attend better and learn more with a one-to-one student-to-teacher ratio for language-based subjects and presentation of new information. 3. David [sic] performance suggested that he has rote memory for information and application of skills. To foster functional use of learned information, it is suggested that David be provided with opportunities for meaningful application of acquired skills. 4. To assist David with a fuller knowledge of learned information, it is suggested that his curriculum be integrated, with an emphasis on vocabulary and concept formation. 5. Given David’s age and present level of language and learning abilities, it is suggested that he have a vocational evaluation in the future. Such an evaluation would assist him in preparing for the future. Exhibit 1, Tab MM at 50-52. G. The IEP which was at issue before the hearing officer was developed on September 29, 1989 (Exhibit 2, Tab U at 6). The IEP concluded that: David would not benefit from regular educational programs for grade or age appropriate students because: (1) his receptive language and reading comprehension allow him only to function with students at the 5-7 year old level; (2) he can only follow 1- to 2-step directions; (3) David needs one to one instruction due to his poor attending skills even with benefit of an interpreter; and (4) he shows reduced effort and motivation when confronted with unfamiliar language or difficult tasks. Exhibit 2, Tab U at 6. Mr. French objected to the placement decision stated in the IEP. He did not, however, object to any of the other findings or statements of the IEP. The IEP in this case is thirty-five pages long and largely single spaced. The participants in the IEP conference included Mr. French, Dr. Kellogg, NSD administrator, Ms. Ramsey, NSD speech and language pathologist, Ms. Minerich, classroom teacher of the hearing impaired, Dr. Hixson, OPS placement administrator, and Paula Hopkins, OPS supervisor of hearing-impaired programs. In addition to the input of the BTNI report, four of David’s classroom teachers and a resource teacher for the hearing impaired provided additional information. Approximately four pages of the IEP are devoted to David’s then present level of academic performance. The IEP first describes efforts to measure David’s intellectual ability by stating the scores of two IQ tests. The IEP then endeavors to describe David’s general information fund level by detailing the results of two tests to measure educational achievement. The IEP goes on to describe what has been observed about David generally. For example, the IEP states that David’s sign language level may be described as “expressive signs are telegraphic with some three word correct syntax. Intelligibility of signs by adults in speech class-15%, in Lunch by supervisor-5%” (Exhibit 2, Tab U at 8-9). Following the statement of David’s general performance levels are specific statements concerning David’s communicative ability, language ability, reading ability, mathematic ability, science ability, social studies ability, occupational therapy situation, and physical therapy situation. In-eluded in each of these categories is a description of David’s performance which most often contains observations of David as well as his scores on various testing instruments. For example, the IEP states that David has “manuscript and cursive writing skills,” but his writing is “at slow speed”, while his “letters are formed and produced correctly” (Exhibit 2, Tab U at 9). In the area of communication, the IEP endeavors to describe David’s lip reading skills by referring to the “Craig Lipreading Inventory.” In the area of language, the IEP describes both David’s age equivalency to other students (5-6 year old age) and his grade equivalency to other students (first to second grade equivalent, but at only the first percentile in terms of language competence). The IEP then proceeds to describe David’s present language performance skills in terms of beginning knowledge, vocabulary, analogies, antonyms and synonyms, and concept development. Similar examples could be given for the IEP’s presentation of David’s reading ability, mathematical ability, science ability, social studies ability, occupational therapy needs, and physical therapy needs in terms of the IEP’s effort to describe David’s level of performance at that time. Insofar as listing objectives, evaluation procedures, and schedules for determining achievement of educational objectives, the IEP is quite detailed. This section of the IEP is twenty-three pages long and lists approximately eighty objectives. There are objectives for art, computers, language, math, physical education, reading, “pragmatics,” science, social studies, auditory training, occupational therapy, and physical therapy. For each objective there is a description of the person who is to implement the objective, a narrative description of the objective, a statement of what evaluation procedures will used, and a schedule for when those evaluation procedures will be implemented. A few examples will serve to illustrate how the IEP approaches this area. One of the objectives for language was the following: OBJECTIVE FOR: LANGUAGE IMPLEMENTED BY: CLASSROOM TEACHER Given reading paragraph with three to ten specified events at second to third grade reading level, student will retell the content of the story, using key vocabulary cue list without teacher assistance (independently) at 80% accuracy. EVALUATION PROCEDURE: Independently read paragraph and asked to retell story content of the ten events, given list of key vocabulary EVALUATION SCHEDULE: Weekly Exhibit 2, Tab U at 21. As a further example, the IEP describes an objective for “pragmatics” this way: OBJECTIVE FOR: PRAGMATICS IMPLEMENTED BY: SPEECH/LANGUAGE PATHOLOGIST Student will demonstrate the ability to perform each of the following six language functions: requesting, discussion of effect, expression of need, initiation of communication, question asking, greetings, taking conversational turns and describing. When given a direction or when asked a question by the speech pathologist in speech class, student will use the correct language function with no prompt using voice and sign (fingerspelling) simultaneously at the 80% level on 9 of 10 occasions. EVALUATION PROCEDURE: Based on observation and charting by speech pathologist EVALUATION SCHEDULE: Monthly PROGRESS: Response 1. Student will request clarification, actions and objects Response 2. Student will discuss his feelings using complete English sentences Response 3. Student will initiate a conversation with the speech pathologist, paraprofessional and lunchroom supervisor and take three conversational turns Response 4. Student will express his needs in speech class (Example: “I am thirsty.”) Response 5. Student will initiate and respond directly to greetings by adults and peers at school Response 6. Student will describe an unknown object so that an adult can guess what it is Exhibit 2, Tab U at 30. H. Dr. Rose, an educational consultant who had previously assisted Mr. French at the Como School, testified at the administrative hearing as to her views that the IEP in this case was deficient. Dr. Rose has a good deal of experience with the development and implementation of IEP’s. Regarding the IEP statement of David’s present level of performance, Dr. Rose particularly criticized: (1) the use of standardized tests because those tests had not been “normed” on deaf children; (2) some of the observational data because the data were too subjective; (3) some of the observations because they were unclear; and (4) some of the levels of performance because they seemed to be contradicted by the BTNI study. In terms of the portion of the IEP dealing with objectives, evaluation procedures, and schedules for determining achievement of educational objectives, Dr. Rose concluded, among other things, that: (1) some of the objectives did not comport with assessment data; (2) in some cases the objectives would be difficult to implement; and (3) in some cases the objectives are too difficult for David to master. Interestingly, Dr. Rose testified that the IEP developed by the Como School (Exhibit 1, Tab D at 22-24) was deficient in many respects. As Dr. Rose put it, “I don’t agree with it. I’m not saying that Como is right. I’m here to say what is right for David” (Exhibit 15; TR 102: 24-25; 103: 1). Indeed, even a cursory analysis of the IEP prepared by the Como School and authored by Mary Schultz (Exhibit 1, Tab D at 22-24) reveals that it is quite limited and abbreviated when compared with the objectives section of the IEP prepared by OPS (Exhibit 2, Tab U at 16-40). Oddly enough, Dr. Rose seemed to suggest that there were no assessment data suggesting that David required virtually constant one-to-one instruction. Dr. Rose said she had not “seen anything to the contrary that he could get along without one-to-one [teaching]” (Exhibit 15; TR 86: 11). But Mary Schultz had recommended in May, 1987, that David “remain in a self-contained classroom with much 1-1 teaching, with some group work ...” (Exhibit 1, Tab D at 36). The extensive BTNI examination concluded that David would “attend better and learn more with a one-to-one student-to-teacher ratio for language-based subjects and presentation of new information” (Exhibit 1, Tab MM at 52). Apparently Dr. Rose’s criticism is not that David does not require extensive one-to-one instruction, but rather that David does not require “continuous” one-to-one instruction. If this is the criticism, the distinction that Dr. Rose seeks to make is not clear from the record. Mary Schultz, David’s classroom teacher at the Como school, also testified at the administrative hearing, and seconded many of Dr. Rose’s opinions. Mary Schultz testified that David’s social interaction and language interaction skills would improve if he were in a more integrated setting with more types of children, including hearing children. On cross-examination, she admitted that when David left the Como school to come to Nebraska, he was not meeting the curriculum goals for his grade level, with the exception of math. Mr. French testified at both the administrative hearing and the trial of this case. Mr. French doubted whether David was receiving educational benefit from placement at NSD, particularly because of the segregated environment. Mr. French explained the numerous trips and other activities he and David have participated in, and also explained that David is able to communicate with hearing people with his assistance. Indeed, the BTNI evaluation noted that “David’s father greatly facilitated the interaction [with the BTNI evaluator]” and the “father has developed strategies that are facilitative to David’s conversational interactions” (Exhibit 1, Tab MM at 3). Nevertheless, the BTNI study noted that even with Mr. French’s help David did not often ask questions, request clarifications, discuss his likes and dislikes in detail, or initiate conversations. David’s responses to greetings or other social conversational interactions were frequently inconsistent. Mary Pat Moeller, coordinator of the BTNI study, testified at the administrative hearing. She testified that “educators could learn a lot from observing the father and son interact” because the father has “a very, very good way of reading David and knowing how to draw optimum performance from him by asking questions in the appropriate manner” (Exhibit 20; TR 31:15-20). Ms. Moeller also testified that if one wants to communicate with David in a way that “is meaningful to him, you need to use sign to do that” and thus it was important for David to be with people who sign, whether or not they are deaf (Exhibit 20; TR 63: 22-25; 64: 1-7). Ms. Moeller felt that to promote the goals of educating David, he would have “more of a chance of interacting with other signing children” than hearing children, but “it’s hard to generalize” because some “hearing children will take the time that’s required to learn to sign and interact with David” (Exhibit 20; TR 63: 6-15). Paula Hopkins, who was assistant supervisor of programs for the hearing impaired for OPS, testified at the administrative hearing and at trial. Ms. Hopkins is trained as a speech and language pathologist. Because David had such a severe language delay, she believed he needed to be at NSD because of its all signing environment and because NSD could provide one-to-one instruction. I. Much of the testimony presented during trial of this case in this court — as opposed to the evidence presented to the hearing officer regarding the Washington Elementary School — dealt with the propriety of placing David at Lewis & Clark Junior High School. I had the firm impression that Mr. French wanted placement at Lewis & Clark because there was more of a chance for David to come into contact with age-appropriate peers, both deaf and hearing. Indeed the present IEP, developed after the hearing officer’s ruling, stipulated that David’s placement should be with “age appropriate peers” (Exhibit 101). This IEP has not been challenged. It is therefore appropriate to discuss in some detail the facts surrounding Mr. French’s proposal that David be placed at Lewis & Clark. It is also helpful to state some of the facts pertinent to a possible placement at the Washington School, since that is what the hearing officer examined and Mr. French evidently would accept placement at Washington School. As a general matter the difference between Washington School and Lewis & Clark insofar as David is concerned is quite simple. David is fourteen years of age, with an language ability of a child between ages five and seven. At Lewis & Clark there are age-appropriate deaf peers, but their language abilities are far superior to David’s. At Washington School there are deaf children who function at David’s language level, but instead of being age-appropriate, those students are of kindergarten age. There are age-appropriate hearing peers at Lewis & Clark, but no age-appropriate hearing peers at Washington School. The parties presented no evidence about the hearing impaired program at the Washington School for the 1990-91 school year and beyond. For previous years, the evidence revealed that Washington School maintained a hearing impaired classroom for kindergarten through third grade students, as well as offering hearing impaired assistance to children in grades four through six. Although it is not entirely clear, it appears that the kindergarten through third grade hearing-impaired program is distinct from hearing-impaired programs for the higher grades at Washington School. All of the deaf students were “mainstreamed” in at least some classes during each day. While there might have been a deaf child in the sixth grade room who might have been as old as fourteen or fifteen years of age, this child was not in the kindergarten through third grade hearing-impaired program. There is no evidence of any child at Washington School who was at or near David’s age and who also had David’s level of language development. Paula Hopkins believed that if David were to attend the Washington School’s self-contained hearing-impaired classroom for kindergarten through third graders he would have to remain there for the entire school day. Lewis & Clark Junior High School has an enrollment of approximately nine hundred students. The hearing-impaired students who presently attend Lewis & Clark all have language abilities superior to David’s (ranging from a low of fourth-grade language ability to a high of twelfth-grade language ability), and all of the students in the hearing-impaired classroom are mainstreamed for at least some of their academic course work. Lewis & Clark presently employs one teacher for the deaf students and one interpreter. Paula Hopkins worked for OPS from 1974 through 1990 and was assistant supervisor for the hearing-impaired program at OPS. She testified that there was a vast difference in language ability between David and the other deaf students at Lewis & Clark. Ms. Hopkins testified that the curriculum employed at Lewis & Clark was at