Full opinion text
MEMORANDUM-DECISION AND ORDER McCURN, Senior District Judge. INTRODUCTION Plaintiffs Gary and Ruth Mavis commenced this action on behalf of their daughter, Emily, alleging that the defendant, South Lewis Central School District Board of Education (“District”), violated what is now known as the Individuals With Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. § 1400 et seq., by failing to provide Emily with a “free appropriate public education” as required under the Act. Also named as a defendant-in this action is the New York State Commissioner of Education, Thomas Sobol (“the Commissioner”). On November 13, 1990, the court heard oral argument on the parties’ cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Following oral argument, the court read a decision into the record denying every aspect of the Commissioner’s motion, except that pertaining to the merits of plaintiffs’ IDEA claims. The court reserved decision on that aspect of the Commissioner’s motion. The court also reserved decision on the District’s motion for summary judgment, which also pertains solely to the substance of plaintiffs’ IDEA claims. Similarly, the court reserved decision on plaintiffs’ cross-motion for summary judgment. At that time, the court strongly urged the parties to settle this matter without court intervention, and with that goal in mind the court decided to hold its decision in abeyance while the parties conferred. Unfortunately the parties were not able to resolve' this matter, even with additional assistance from the court in July, 1991. For the next two yéars there were off again-on again settlement negotiations directly between the parties, but none of them proved fruitful. With another school year fast approaching, and the fourth since the commencement of this lawsuit, on August 16, 1993 the plaintiffs and the District advised the court that a settlement would not be forthcoming. They therefore requested that the court issue a decision on the pending cross-motions for summary judgment. At that time, permission was sought and granted for the filing of supplemental memoranda of law .and supplemental documentation. Having had the opportunity to carefully review all- of the submissions made in connection with these motions, including the quite lengthy administrative record, the court is now in a position to render its decision with respect thereto. As with many IDEA cases, the controversy here centers on exactly what constitutes a “free appropriate public education” for Emily. To -fully appreciate the parties’ respective positions on that issue, it is necessary to carefully examine the history of this litigation, including a fairly detailed review of the various classroom settings in which Emily has been placed over the years. BACKGROUND I. 1986-87 Academic Year At around two years of age, Emily Mavis was diagnosed as having mild mental retardation. In 1986 at six years of age, she began attending Glenfield Elementary School, her neighborhood school. When she first entered Glenfield in the fall of 1986, the District had not yet classified her as a child with a disability. Emily was placed in Ms. McAuliffe’s regular kindergarten then. Emily continued in that setting throughout the 1986-87 academic year. Although she did not receive any special education services at that time, she did receive speech therapy once or twice a week. Affidavit of Ruth Mavis (Oct. 26, 1990) (“Mavis Affidavit I”) at ¶ 8. For purposes of this lawsuit, that year can be described as uneventful. During May and June, 1987, with • the plaintiffs’- consent, Emily was evaluated by Peter Dawson — a District psychologist and at the time the District’s chairperson for the Committee on Special Education (“CSE”). That evaluation showed that Emily was “moderately mentally retarded with concurrent deficits in adaptive behavior.” Id. at 3, ¶10. II. 1987-88 Academic Year The following academic year (1987-88), Emily remained in Ms. ‘ McAuliffe’s kindergarten class. However, prior to the start of this academic year, Mr.. Dawson recommended to the CSE that Emily be classified as mentally retarded and that she be placed in an “Option II” special class. Mr. Dawson did recommend, however, that Emily be “mainstreamed” for music and physical education. At a CSE meeting to review Emily’s evaluation, which the plaintiffs attended, it was decided that Emily would continue in Ms. McAuliffe’s kindergarten class until a second psychological evaluation- could be done and additional classroom observations made. That course of action came about because the CSE itself, after plaintiffs presented reports from a neurologist and an occupational therapist which conflicted with Mr. Dawson’s recommendations, could riot reach a consensus as to Emily's needs or as to her placement. At the start of that school year, in Septémber, 1987, the District arranged a second psychological evaluation with a Dr.. Jack Landy. Dr. Landos attempts to evaluate Emily at this time were unsuccessful and he'was unable to reach any definite conclusion as to her diagnosis. On December 3, 1987, another CSE meeting was convened to discuss Emily’s status. Plaintiffs were again present. The CSE formally identified Emily as a child-with a-handicapping condition and classified her as “mentally retarded.” That classification is not in dispute. The CSE then recommended that while Emily should- continue in that same kindergarten setting, she needed the assistance of a half-time aide and she should also receive speech therapy. Those recommendations were included in the CSE’s Phase I IEP. After plaintiffs agreed with the CSE’s recommendation, it was implemented in January, 1988. Simultaneously with the implementation of the Phase I IEP, Emily’s teacher prepared a Phase II IÉP containing specific goals and objectives for Emily, which differed from those of the other kindergarten students. Emily was expected, however, to work on part of the regular kindergarten curriculum. Despite the fact that neither Emily’s kindergarten teacher nor her half-time aide had any special education background, by June, 1988, Emily had achieved 14 of the 24 goals outlined in the Phase II IEP. At Mr. Dawson’s request, Dr. Landy again attempted to evaluate Emily; this time he was successful. Id. at ¶ 22. Consistent with other professionals who had evaluated Emily, Dr. Landy found “[t]hat [she] was functioning at the lower end of the middle range of mental retardation.” Id. The CSE then met in May, 1988, to reevaluate Emily’s IEP. The CSE made the following recommendations, which represented a change from its prior recommendations: 1. Option II as a primary placement. 2. Mainstreaming and integration in the following areas: language development in option I music and gym with grade 1 lunch, assemblies, field trips 3. Speech therapy 30 minutes/day, 5 days/week. Affidavit of Robert E. Hornik, Jr. (Nov. 6, 1990) (“Hornik Affidavit I”), exh. B thereto (May 12, 1988 CSE Minutes) at 4. Plaintiffs disagreed with those recommendations because basically they wanted Emily to remain in a regular first grade classroom while at the same time receiving special education services. Therefore, as they had a right to do, plaintiffs requested an impartial due process hearing. III. 1988-89 Academic Year Prior to the time of that hearing,- Emily was again evaluated; this time by Roberta Schnorr. Currently Dr. Schnorr is an assistant professor in the Education Department at the State University of New York at Oswego. In her initial report which is quite extensive and is part of the record on these motions, Dr. Schnorr concluded “that Emily’s needs could be met by placement in a regular class with some special services,” such as a qualified aid to provide support to Emily both on an individual basis and in group setting. Id. at ¶ 27 and exh. A thereto at 27. In August, 1988, a two day hearing was conducted before an impartial hearing officer appointed by the District. Pending a decision from the hearing officer, in September, 1988, for the third consecutive year, Emily was placed in McAuliffe’s kindergarten class. In accordance with the December, 1987 IEP, Emily continued to receive a half-time aide and speech therapy. On September 19,1988, the impartial hearing officer issued a decision. She found that although Emily was appropriately classified as mentally retarded, due to the insufficiency of the record, she was unable to reach a decision as to whether the CSE’s recommended placement was appropriate. See Affidavit of Peter Dawson (“Dawson Affidavit I”) (May 30, 1990), exh. 2 thereto (Sept. 18, 1989 Hearing Officer Decision) at 15-16. More specifically, the hearing officer identified the following deficiencies: Although in Exhibit 25 the District purports to offer a profile of the Option II class in which EMILY would be placed, neither the-exhibit nor the testimony of the District’s witnesses provides sufficient specificity concerning EMILY and the other students in the proposed placement regarding the four , areas of need by which students are deemed to be appropriately grouped; academic or educational achievement and learning characteristics; social development; physical development;. management needs____ These areas must be considered in addition to ranges in chronological age and instructional- level. Id., exh. 2 thereto at 15 (citations omitted). The hearing officer opined that in her view such information was vital because “[t]he capabilities and needs of the other children in the proposed placement are relevant factors in determining the appropriateness of such placement, and the District has failed to establish that the capabilities and needs of the other children in the proposed placement are similar to those of EMILY____” Id. (citations omitted). The hearing officer also outlined a host of other omissions: [t]he Phase I IEP,developed for EMILY fails to establish with precision the individual needs of this pupil. The child’s current level of functioning for both reading and math were presented as a single level, with no indication-of the child’s language development, in spite of extensive evaluations which have been carried out and are available to the CSE____ The IEP offers no statement of needs or objectives for the child in the area of physical development, though the Regulations of the Commissioner of Education clearly indicate that this includes more than gross physical development or medical needs____ The IEP also fails to describe and provide for the student’s individual learning style, nor does it indicate the maximum class size and the staff to student ration which would be appropriate. The IEP does not indicate whether EMILY is to be mainstreamed in art, and it fails to indicate the expected school credential. Id. at 15-16 (citations omitted). Accordingly, the hearing officer remanded the matter to the CSE instructing it to [d]evelop[ ] ... a more complete Phase I IEP in accordance with the requirements of the Regulations of the Commissioner of Education---- The District must also develop a profile of the Option II class in which it is proposed to place EMILY with sufficient specific information in the areas delineated within the Regulations to allow the Hearing Officer to determine whether the proposed placement is appropriate. Id. at 16 (citation omitted): Shortly thereafter, on October 13, 1988, the CSE again met with the plaintiffs present. The CSE then prepared a new IEP for Emily, modifying its placement recommendation. Specifically, the CSE recommended: 1, Option I — Maximum class size: 12 Student to teacher ratio: 12:1 2. Mainstreaming in art, music, gym on the first grade level. Lunch will be with the Option I class in the lunchroom with typical students the same approximate age. Emily will join field trips and assemblies on an individual or group basis with other age appropriate classes. 3. Speech therapy — 30 min/day, 5 days/ week Hornik Affidavit I, exh. C thereto at 3 (Oct. 13, 1988 CSE Minutes). According to the District, the reason for that modification was -that “[ (a) ] the class profiles for the Option I class and the Option II class had changed between May 1988 and October 1988, thus making the Option I class an appropriate placement for Emily in an environment less restrictive than the prior Option II placement and (b) the CSE believed that the plaintiffs would find the modified recommendation ' less objectionable.” ■ District’s Rule 10(j) Statement at ¶ 10. Plaintiffs objected to that modified recommendation based upon their continued belief that Emily’s “[njeeds could be met in a first grade class.” Mavis Affidavit I at ¶ 35. The impartial hearing was reconvened on November 29, 1988, to consider the CSE’s modified recommendation. After hearing additional testimony, on January 16, 1989, the hearing officer rendered a decision upholding the CSE’s modified recommendation. In particular,' the hearing officer found that: It was clearly established, and all witnesses were in agreement, that Emily is not capable of carrying' out the regular first grade curriculum. Also, It [sic] was demonstrated that Emily attained limited success in the regular kindergarten program, although she was in the same grade for a second year and had the assistance of a half-time aide. Thus the recommended placement is both appropriate and the least restrictive environment in which to provide Emily her educational program. Dawson Affidavit I, exh. 2 thereto (Hearing Officer Decision of Jan. 16, 1989) at 11. Plaintiffs then appealed that decision to the Commissioner. On May 2, 1989, the Commissioner issued a written decision dismissing that appeal stating, “Based on the record before me, I conclude that petitioners’ daughter would not be appropriately placed in a regular first grade program with special education support services.” Id, exh. 3 thereto (Commissioner’s Decision) at 4r-5. The Commissioner further found that “[t]he academic component of the placement recommended for petitioners’ daughter to be appropriate to meet her educational needs because it provides her with the individualized attention and academic support she requires at a level commensurate to her ability.” Id at 5. IV. 1989-Present On August 31, 1989, plaintiffs commenced the present action seeking -judicial review of the Commissioner’s decision. In the meantime, Emily has remained in the regular education program at Glenfield Elementary School. During the 1989-90 academic year, Emily attended a regular first grade class at Glenfield Elementary. The following year she was placed in a combination first and second grade classroom. The District has continued to provide her with speech therapy and a half-time aide, Mavis Affidavit at ¶ 42, although provision of these services was sporadic during the last academic year (1992-93). See Affidavit of Ruth (Aug. 25, 1993) (“Mavis Affidavit II”) at ¶¶ 22-23. In the years since the commencement of this lawsuit, Emily has advanced from grade to grade so that currently she is enrolled in a regular sixth grade class. See Mavis Affidavit II at ¶ 22. The District is quick to point out though that this advancement has been so that Emily would not be too far removed from her chronological peers. Affidavit of Robert J. Hornik, Jr. (Sept. 17, 1993) (“Hornik Affidavit II”) at ¶4. The District also explains that Emily’s placements over the years have been in accordance with the various statutory and regulatory “stay-put” provisions; those placements have also come about as a result of compromises reached between the District and the plaintiff parents. Over the years, the plaintiffs have not been satisfied with Emily’s various placements and their concerns are fully detailed in the supplemental affidavit of Mrs. Mavis, as well as in Dr. Schnorr’s supplemental report. The court will not set forth here each and every claimed deficiency in Emily’s placements, but a few are noteworthy. First, during the most recent full academic year (1992-93), no special education teacher was ever assigned to Emily. Id. at ¶ 20. Second, according to the plaintiffs, Emily’s teachers need training to assist them in integrating her into the classroom. In Dr. Sehnorr’s words, as it is now, Emily must “integrate herself’ into the classroom.- Id. at ¶21(e). Finally, even though Emily’s IEP for the 1992-93 year continued to mandate that she receive speech therapy five times per week, no such therapy was provided after approximately February, 1993. Id. at ¶ 22. Not surprisingly, the District’s view of Emily’s most recent placements differs from that of the plaintiffs. The District readily admits that it did not.consider Emily’s placement during the 1992-93 academic year to be “appropriate.-” Hornik Affidavit'll at ¶5. The District explains, however, that through the years Emily’s placements have been the result of many compromises by both the District and the plaintiffs. Regardless of whether or not a given service or program was provided to Emily, the bottom line as far as the District is concerned is that during the last academic year (1992-93), Emily’s behavior deteriorated. Paul Platz, Emily’s “open area and home base teacher” from January, 1993 through the end of that school year opined, based upon his observations, “that Emily’s behavioral problems seemed to increase as Emily became more familiar with places and people. That is, as Emily settles into a situation, she seems to act out more.” Affidavit of Paul Platz (Sept. 17, 1993) at ¶ 12. Mr. Platz also noted that “Emily has had episodes of “acting out” outside the classroom ... [,]” although he did not elaborate upon this. Id. at ¶ 13. The District attributes what it perceives as the deterioration in Emily’s behavior to the fact that a regular classroom environment simply is not appropriate for Emily. The District is now moving for summary judgment, contending that the CSE’s recommended placement for Emily is appropriate as a matter of law. The District further ■contends that summary judgment is appropriate on plaintiffs’ claim for attorney’s fees because plaintiffs are not a prevailing party -under 20 U.S.C. § 1415(e)(4)(B), and thus are not entitled to recover attorneys’ fees thereunder.- Lastly, the District contends that it is entitled to summary judgment on plaintiffs’ claim pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, because “[t]he evidence clearly demonstrates that the School District has taken all of the steps required to protect Emily Mavis’ due process rights and to provide for her education, and has not engaged in any discriminatory conduct toward Emily.” District Memorandum of Law at 12. The Commissioner is also moving for summary judgment. First, the Commissioner believes that he is entitled to summary judgment because this action is barred by the Eleventh Amendment. Second, he asserts that this action is barred by the applicable statute of limitations. Third, the Commissioner asserts that his determination that the District had provided Emily with an appropriate education was “correct,” and thus summary judgment is warranted. Finally, in .a letter submission the Commissioner asserts that because he was not a party to the administrative proceeding, “[he] is neither a necessary nor proper party in this case.” Letter from Lawrence Doolittle to Court (Nov. 5, 1990). Plaintiffs counter that the District continually has refused to provide Emily with the supplemental services necessary to allow her to succeed in a regular classroom, and thus they are entitled to summary judgment as a matter of law on their IDEA claims. With respect to the Commissioner’s motion, plaintiffs respond that this action was timely commenced and that he is a proper party hereto. Thus, - plaintiffs assert that defendants’ summary judgment motions should be denied in their entirety, and that instead the plaintiffs are entitled to summary judgment on their cross-motion. ■ After carefully reviewing all of the numerous submissions made in connection with these motions, including the quite lengthy administrative record, the court is now in a position to fully discuss and decide the numerous issues raised by these motions. DISCUSSION 1. Commissioner’s Procedural Arguments A. Statute of Limitations The plaintiffs and the Commissioner are in agreement that in New York an IDEA action is governed by the four month statute of limitations set forth in § 217 of the New York Civil Practice Law and Rules. See Adler By Adler v. Education Dept. of State of N.Y., 760 F.2d 454 (2d Cir.1985). Section 217 provides, in relevant part: [a] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact,---- N.Y.Civ.Prac.L. & R. § 217 (McKinney 1990). The Commissioner maintains, without citing any authority, that under that statute service of “appropriate process” must be effected in four months for an action thereunder to be timely. In the present case, the Commissioner rendered his decision on May 2, 1989, but service was not effected upon him until September 12, 1989. Therefore, the Commissioner believes this action is time barred. There are two fundamental flaws in the Commissioner’s argument. The first flaw is that he assumes that the statute of limitations begins running in an IDEA action on the date the Commissioner’s decision is rendered. Judge Wexler explicitly held to the contrary however in Gerasimou By Gerasimou v. Ambach, 636 F.Supp. 1504 (E.D.N.Y.1986). “[A] party’s right to seek review under § 1415(e)(2) [of the IDEA] accrues when he [or she] receives notice of a final decision by the Commissioner.” Id. at 1509 (emphasis added) (citations and footnote omitted). In the present case, therefore, plaintiffs’ right to seek review of the Commissioner’s decision did not accrue until May 5, 1989, when plaintiffs’ attorney was notified by receipt of a copy of that decision. The second fatal flaw is a result of the Commissioner’s disregard for the Federal Rules of Civil Procedure. “[I]t is well established that where the right asserted is created by federal statute, the time of commencement of the action is determined by federal law.” Id. (citations omitted). In accordance with Fed.R.Civ.P. 3, “[a] civil action is commenced by filing a complaint with the court. In federal court, therefore, filing ends the running of the limitation period.” Id. (citation omitted). Consequently, in Gerasimou, the court held that the four month statute of limitations under § 217 began running when plaintiffs attorney received notice of the Commissioner’s decision. Id. at 1510. Based upon the court’s reasoning in Gerasimou, it is clear that in the present case plaintiffs’ action was timely commenced. Plaintiffs filed their complaint with this court on August 31, 1989, prior to the termination of the four month statute of limitations; and that filing ended the running of the limitations period under § 217. Thus, the Commissioner’s argument that this action is time barred is completely without merit. B. Eleventh Amendment The Commissioner’s next procedural argument is that the Eleventh Amendment bars this action as against him. More specifically, relying upon Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989), the Commissioner asserts that because in IDEA actions such as the present one the State has not waived its immunity from suit under the Eleventh Amendment, this action is barred by that amendment. In Dellmuth the Supreme Court did recognize that the EHA does not abrogate the states’ Eleventh Amendment immunity from suit. Consequently, the Court held that the Eleventh' Amendment acted as a bar to plaintiffs’ EHA claim seeking to collect tuition reimbursement from the Pennsylvania Secretary of Education. See also, Gerasimou, supra, 636 F.Supp. at 1512-13 (plaintiffs claim against State Commissioner of Education barred by the Eleventh Amendment insofar as she was seeking monetary damages). The Court in Dellmuth did not, however, address the issue of whether the Eleventh Amendment bars a claim for attorneys’ fees against the state or a- state official. The Seventh Circuit did however address that precise issue in Tonya K. By Diane K. v. Bd. of Educ. of Chicago, 847 F.2d 1243 (7th Cir.1988). Relying upon Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Court held that in an EHA action the Eleventh Amendment did not prohibit a court from “[a]ward[ing] as part of the costs of the case the attorneys’ fees reasonably incurred in obtaining that permissible, prospective relief,” against the state Superintendent of Education. Id. at 1246. The Seventh Circuit reasoned that although an award for damages against the state official would not be permissible in light of the Eleventh Amendment “[flees are not damages,” and therefore they are permissible. Id. See also, Fontenot v. La. Bd. of Elem. & Secondary Educ., 835 F.2d 117, 120 (5th Cir.1988) (Eleventh Amendment not bar to award of attorneys’ fees against State Superintendent of Special Education Center as part of costs to parent of disabled child under EHA); Rose v. State of Neb., 748 F.2d 1258, 1262-63 (8th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 61, 88 L.Ed.2d 50 (1985) (Eleventh Amendment not bar to attorney fee award against, among others, State Commissioner of Education); and Michael M. v. Bd. of Educ. of NYC School Dist., 686 F.Supp. 995, 1003 (E.D.N.Y.1988) (same). Even though all of the cases just cited were decided prior to Dellmuth, as previously stated, because there is absolutely no mention in Dellmuth of attorneys’ fees, in the court’s view, Dellmuth did not overrule these cases and they remain viable and persuasive precedent on this issue. In the present ease, the only type of monetary relief plaintiffs are seeking from the Commissioner is in the form of attorneys’ fees. The other relief which plaintiffs are seeking from the Commissioner (and the District) is declaratory in nature. In particular, the plaintiffs are seeking a declaratory judgment “[t]hat defendants have-violated Emily Mavis’ rights under the Education of the Handicapped Act and Section 504 of the Rehabilitation Act of 1973____” Complaint at 10, ¶ a. They are also seeking a declaratory judgment “Directing defendant Board of Education to develop and implement an individualized education program which provides for Emily Mavis’ education in the least restrictive environment, an age-appropriate regular education classroom with appropriate special education services----” Id. at 10-11, Kb. Clearly such prospective relief is not barred by the Eleventh Amendment. See, e.g., Burr by Burr v. Sobol, 888 F.2d 258, 259. (2nd Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990), (Eleventh Amendment not violated where court vacated Commissioner’s decision and reinstated state hearing officer’s decision); Kerr Center Parents Assoc. v. Charles, 897 F.2d 1463, 1469 (9th Cir.1990) (emphasis in original) (“[t]o the extent that the district court ordered the state to comply prospectively with its obligations under the EAHCA,” such order did not .violate the eleventh amendment); Straube, supra, 801 F.Supp. at 1172 (same). Additionally, based upon the Court’s reasoning in Tonya K, the Eleventh Amendment is not a bar to plaintiffs’ action against the Commissioner insofar as they are seeking attorneys’ fees. Consequently, there is no validity to the Commissioner’s position that the Eleventh Amendment bars recovery against him for prospective relief and attorneys’ fees; therefore his motion for summary judgment on this basis is denied. C. “Ongoing Controversy” Next the Commissioner makes a weak argument that because effective July 1, 1990, he no longer serves as the State Review Officer under 20 U.S.C. § 1415(c), there is “no ongoing controversy between the plaintiff [sic] and the Commissioner----” Doolittle Letter. Apparently the Commissioner believes that that is a basis for granting his summary judgment motion. The Commissioner is ignoring the fact, however, that plaintiffs’ claims against him.in this case arose prior to July 1, 1990. Moreover, the fact that the- procedural requirements have changed slightly since the commencement of this action has no bearing here. At the time these plaintiffs were involved in the administrative proceeding, the Commissioner was the statutorily designated state review officer; thus he is • not entitled to summary judgment simply because he no longer is designated as such. D. Proper Party As with his other arguments, the Commissioner makes the bald assertion, with no case support, that because he was not a party to the administrative proceeding, he is not “properly a party” to this action. Commissioner’s Memorandum of Law at 3. In a subsequent letter to the court the Commissioner did cite one case, Antkowiak by Antkowiak v. Ambach, 838 F.2d 635 (2nd Cir.1988), which he claims supports this proposition, but it most clearly does not. As plaintiffs correctly point out, pursuant to 20 U.S.C. § 1415(e)(2), they were only entitled to bring this action because they were “aggrieved” by Commissioner’s decision. So, obviously then the Commissioner is a proper party to this action, and the Commissioner’s motion must be denied insofar as it is premised upon the assertion that he is not. ■ II. IDEA Before turning to the substance of plaintiffs’ IDEA claims, there are several important preliminary issues which the court must address. The first is whether plaintiffs should be allowed to supplement the record as to Emily’s progress and current status. A. Supplementing Record Due in large part to the parties’ intransigence, a significant amount of time has passed since the court first heard oral argument on these motions. In fact, Emily is now 13, almost 14, years old and currently in the sixth grade, whereas at the commencement of this lawsuit in August, 1989, Emily was nine years old and entering the first grade. Because of this, in August of this year, plaintiffs sought to supplement the record regarding Emily’s academic status. In addition, because of recent developments in this constantly evolving area of the law, the plaintiffs sought permission to file a supplemental memorandum of law. The District promptly objected to allowing the record to be supplemented, although it did not object to the filing of supplemental memoranda of law. To avoid any further delay, the court allowed the parties to file supplemental memoranda of law and to supplement the record. In so doing, however, the court advised that after having an opportunity to. review the same, as well as the applicable law, it would then decide whether it would actually consider the supplemental documents in conjunction with these motions. There ■ being no objection to the court’s consideration of the supplemental memoranda of law, that has been done. Rather the real bone of contention here is whether the plaintiffs should be allowed to supplement the record at this point in the litigation. Plaintiffs argue that under § 1415(e)(2) of the IDEA, they should be allowed to do so. The District responds that under that statute, the court should exercise its discretion and decline to allow the record to be supplemented “because the information is immaterial and irrelevant to the issues now pending before the court.” Hornik Affidavit II at ¶ 2. More specifically, the District asserts that the supplemental information provided by the plaintiffs has no bearing on the issue of whether the challenged placement was “appropriate,” because this information mostly pertains to what transpired during the past academic year (1992-93) and that is not at issue in this lawsuit. Furthermore, the District points out that Emily’s placement during the 1992-93 academic year did not come about because the District determined that it was appropriate for her; but rather, that placement came about, as had Emily’s placements in the previous four years, as a result of the various “stay-put” provisions of the IDEA and the New York Education Law, in combination with interim compromises worked put between the District and the plaintiff parents. Section 1415(e)(2), the provision of the IDEA under which plaintiffs are seeking to supplement the record, provides in relevant part: In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. 20 U.S.C. § 1415(e)(2) (West 1990) (emphasis added). There is relatively little case law construing the additional evidence clause of this statute. However, the First Circuit in Town of Burlington v. Department of Educ., 736 F.2d 773 (1st Cir.1984), aff'd on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), did have occasion to interpret that particular clause. Finding “no legislative history to guide [it] on the construction to be given ‘additional evidence,’ ” id. at 790 n. 20, the Court went on to construe the term “ ‘additional’ in the ordinary sense of the word, ..., to mean supplemental.” Id. at 790 (citation and footnote omitted). The Court then explained: [t]he reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing. Id. (emphasis added). Indeed, the First Circuit went so far as to recognize “that in many instances experts who have testified at the administrative hearing will be bringing the court up to date on the child’s progress from the time of the hearing to the trial.” Id. at 791. More recently, in Metro. Gov. of Nashville & Davidson County v. Cook, 915 F.2d 232 (6th Cir.1990), the Sixth Circuit was faced with the issue of whether the district court erred in admitting evidence under § 1415(e)(2) relating to less restrictive alternative educational placements for the child. The Court held that the district court did not err, and in so doing expressly declined to adopt the position of the Court in Town of Burlington, “[i]nsofar as this language suggests that additional evidence is admissible only in limited circumstances, such as to supplement of fill in the gaps'in the evidence previously introduced, ...” Id. at 234. Disagreeing with the First Circuit’s definition of “additional,” the Court offered its own view as to the meaning of that term: “ ‘Additional,’ in its ordinary usage, implies something that is added, or something that exists by way of addition. To ‘add’ means to join or unite; the limitation on what can be joined inherent in the term‘supplement’ is not present in the term ‘add.’ ” Id. Interestingly, the Sixth Circuit opined that: [e]ven the First Circuit [in Town of Burlington ] would not have found fault with the consideration of evidence of additional placements in the present case. Town of Burlington, leaves the determination of what additional evidence may be admitted to the trial court. In the present case, the admission of additional evidence regarding less restrictive placements does not undercut the statutory role of administrative expertise. It is appropriate for a court that has determined that a hearing officer failed to consider the statutorily least restrictive alternative requirement to consider less restrictive placements. Id. at 235. One additional case deserves comment and that is Jean N. and Lee N. v. Tirozzi, 17 EHLR 580 (D.Conn.1991), a case heavily relied upon by the District to support its position that the court should not permit the record to be supplemented in this case. According to the District, Tirozzi stands for the proposition that “[Emily’s] current status, including her performance and placement during the past school year, are wholly irrelevant ... and would by inappropriate for the Court to consider in connection with the pending motion[s].” Letter of Robert Hornik, Jr. to Court (Aug. 12, 1993) at 1. What is abundantly clear after a careful reading of Tirozzi, however, is that it actually supports the position of the plaintiffs and not that of the District. In Tirozzi, the district court was asked to consider the testimony of four professionals “ “who ha[d] been involved with the evaluation and provision of education, psychotherapy, or speech and language services for the plaintiffs child since the conclusion of the state due process hearing’.” Id. at 581 (citation. omitted). The court allowed those professionals to testify even though they had testified at the state due process hearing. The court found that “[although ‘an administrative hearing witness is rebuttably presumed to be foreclosed from testifying at trial,’ Town of Burlington, [supra, 736 F.2d] at 791,” the plaintiffs had overcome that presumption because [i]t has been well over two years since the plaintiffs' and defendants completed the state due process proceedings, and the witnesses proposed by the plaintiffs will be ‘bringing the court up to date’ on the child’s progress from the time of the hearing to the trial, a function, expressly accepted by the court in Town of Burlington Id. (citation omitted). Thus, the court allowed the proposed witnesses to “testify as to the condition of the plaintiffs’ child subsequent to the conclusion of the state due process hearing.” Id. (emphasis added); see also Lenn v. Portland School Committee, 998 F.2d 1083, 1088 (1st Cir.1993) (implying that district court properly received newly emergent documentation chronicling the child’s educational progress). Regardless of how “additional evidence” is defined, the court believes that under the facts presented by this case, it is proper to allow the record to be supplemented. Supplementing the record hére will, as in Cook, serve to “bring the court up to date” on Emily’s progress since both the due process hearing and the time when these motions were argued. Only by allowing the record to be supplemented will the court have a complete picture as to Emily’s educational status. As the parties know all too well, the educational issues which must be resolved in a case such as this are far from easy, and in the court’s view any relevant evidence which would assist the court in deciding these issues should be considered. And, as the parties are also aware, in prior litigation, the court has taken a similarly expansive view of the additional evidence requirement of § 1415(e)(2). See Hiller v. Bd. of Educ. of Brunswick Cent. Sch. D., 687 F.Supp. 735, 739 (N.D.N.Y.1988) (McCurn, C.J.) (“[N]otwithstanding the [plaintiffs’] failure to initiate a hearing contesting the decision that David was not handicapped for the present academic year, this court, in its independent review of whether David has received an appropriate education in 1985 can hear additional evidence.”). Moreover, allowing plaintiffs to supplement the record here is consistent with the Second Circuit’s observation in Briggs that even though “the parties declined to present any additional evidence that had not been presented to the hearing officer, ..... they could have done so pursuant to 20 U.S.C. § 1415(e)(2).” Briggs v. Bd. of Educ. of State of Conn., 882 F.2d 688, 691 (2nd Cir.1989), Furthermore, after meticulously reviewing the administrative record in this ease, as will be further discussed, it does not appear to the court that either the hearing officer or the Commissioner considered the least restrictive alternative placement for Emily. Thus, under the Sixth Circuit’s reasoning in Cook, because of that omission it is entirely appropriate for this reviewing court to consider additional evidence of less restrictive placements, such as Dr. Schnorr’s initial recommendation that Emily be mainstreamed for more than just nonacademic subjects. See Mavis Affidavit I, exh. A thereto at 19. Lastly, the court notes that consideration of this supplemental documentation in no way undermines or supplants the administrative process because that information was- not before either the hearing officer or the Commissioner. ■ By the same token, however, even though the court has decided that it is permissible to supplement the record, the court does not mean to suggest that now it will be expanding the scope of the issues raised in the initial motions. It will not. B. Statutory Framework At the heart of the IDEA is the laudable purpose of “assur[ing] that all children with disabilities have available to them, ..., á free appropriate education____” 20 U.S.C. § 1400(c) (West Supp.1993). According to the IDEA, a “free appropriate public education” encompasses “special education and related services to meet the needs of children with disabilities.” 20 U.S.C. § 1400(b)(7) (West Supp.1993). “An appropriate education is therefore provided when personalized educational services are provided.” Straube, supra, 801 F.Supp. at 1174-75 (em- phasis added) (citing Board of Education v. Rowley by Rowley, 458 U.S. 176, 197, 102 S.Ct. 3034, 3046, 73 L.Ed.2d 690 (1982)). Given the relatively broad statutory definition of a “free appropriate public education,” however, what constitutes the same has engendered much litigation in the years since the enactment of the IDEA. But, before, turning to the particular IDEA concerns raised by these motions, a discussion of the Act’s statutory framework, as well as relevant case law construing that Act is in order. The dispositive issue in this case is whether the District’s proposed placement for Emily fully comports with the IDEA and, in particular, the mainstreaming requirement thereunder. Although easy to state, as will be seen, this issue is not easy to resolve. To decide this troublesome issue a clear understanding of the Act’s mainstreaming requirement is necessary, and the court will endeavor to provide that. The seminal IDEA case is Board of Education v. Rowley by Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), wherein the Supreme Court set forth a two-part inquiry for claims under that Act. The first inquiry under § 1415(e)(2) of the IDEA is to determine whether the state has “complied with the procedures set forth in the Act ...” Id. at 206-07, 102 S.Ct. at 3051. The second inquiry is whether “the individualized educational program [IEP] .. [is] reasonably calculated to enable the child to receive educational benefits[.]” Id. A number of Circuit Courts have acknowledged, though, that this two-part test is not particularly useful in a case such as the present one where the issue is whether the IDEA’S mainstreaming requirement has been satisfied. See Oberti, supra, 995 F.2d at 1215; Greer v. Rome City School Dist., 950 F.2d 688, 695-96 (11th Cir.1991), revised on other grounds by, 967 F.2d 470 (11th Cir.1992); Daniel R.R., supra, 874 F.2d at 1045; and A.W. v. Northwest R-1 School District, 813 F.2d 158, 163 n. 7 (8th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 144, 98 L.Ed.2d 100 (1987). Instead of employing the Rowley test, the Fifth Circuit in Daniel R.R. adopted a different two-part test for mainstreaming eases, which requires courts to ask the following questions: First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. See § 1412(5)(B). If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate. Daniel R.R., 874 F.2d at 1048 (emphasis added). With the proviso that the factors listed therein were by no means exhaustive, the Daniel R.R. Court identified a number of factors which it deemed relevant to the mainstreaming issue. See id. First a court should consider “[w]hether the state has taken steps to accommodate the handicapped child in regular education[;]” and second it should consider, “[w]hether the child will receive an educational benefit from regular education.” Id. at 1048-49. Further the Daniel R.R. Court stated that, “[w]e also must examine the child’s overall educational experience in the mainstreamed environment, balancing the benefits of regular and special education for each individual • child[,]” and “[w]hat effect the handicapped child’s presence has on the regular classroom environment and, thus, on the education that the other students are receiving.” Id. at 1049. As in the present case, Daniel’s parents had maintained that the school district’s refusal to place him in a class of nondisabled students violated the IDEA. Utilizing the factors just enumerated, however, the Court concluded that Daniel’s removal from regular education did not “[r]un afoul of the EHA’s preference for mainstreaming.” Id. at 1050. The Court reasoned that Daniel’s removal did not violate the EHA because he could not be educated satisfactorily in a regular classroom. Id. In reaching that conclusion the Court pointed to the fact that the district had “[t]aken creative steps to provide Daniel as much access to nonhandicapped students as it can, while providing him an education that is tailored to his unique needs,” resulting in mainstreaming Daniel to the “maximum extent possible.” Id. The Court also relied upon the fact that “Daniel’s needs commanded most of the Prekindergarten instructor’s time and diverted much of her attention away from the rest of her students.” Id. In addition, even with a modified curriculum Daniel, received .“few benefits” in the regular classroom. Id. Elaborating upon the educational benefits which Daniel received, or, more accurately, did not receive, the Court ultimately concluded that because he did not participate in class activities and because he “cannot master most or all of the lessons taught in the class[,] ... [p]re-kindergarten offers Daniel nothing but an opportunity to associate with nonhandicapped students.” Id. Further, noting that the full day program was simply too strenuous for a child such as Daniel, and that he would sometimes fall asleep at school due to exhaustion, the Court explained that, “[r]egular education not only offers Daniel little in the way of academic or other benefits, it also may be harming him.” Id. at 1051. Another detrimental effect of educating Daniel in a regular classroom was that “the stress of regular education may be causing [him] to develop a stutter.” Id. Lastly, the Court found that because of the inordinate amount of time the instructor had to devote to Daniel, other, “equally deserving students” were not being fairly treated in the classroom. Id. Viewing all of these factors together, the Court found that Daniel could not be satisfactorily educated in a regular classroom. Since Daniel R.R., and since these motions were argued, the Third and Eleventh Circuits have expressly adopted the Daniel R.R. two-part inquiry for mainstreaming cases. See Oberti 995 F.2d at 1215; and Greer, 950 F.2d at 696. Most recently, in Oberti the Third Circuit opined, “[w]e think this two-part [Daniel R.R. ] test, which closely tracks the language of § 1412(5)(B), is faithful to IDEA’S directive that children with disabilities be educated with nondisabled children ‘to the maximum extent appropriate,’ 20 U.S.C. § 1412(5)(B), and to the Act’s requirement that schools provide individualized programs to account for each child’s specific needs, 20 U.S.C. §§ 1401,1414(a)(5).” Oberti 995 F.2d at 1215 (other citations omitted). The Court in Oberti also expressly rejected the earlier interpretation of IDEA’S mainstreaming requirement offered by the Sixth Circuit in Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983), explaining that the two-part Daniel R.R. test is the better standard because the Roncker test fails to make clear that even if placement in the, regular classroom cannot be achieved satisfactorily for the major portion of a particular child’s education program, the school is still required to include that child in school programs with nondisabled children (specific academic classes, other classes such as music and art, lunch, recess, etc.) whenever possible. Id. • Application of the Daniel R.R. test in Oberti resulted in the Court affirming the district court’s finding that the school district violated the IDEA’S presumption in favor of mainstreaming, when it placed a Down’s Syndrome child in a separate education program outside the school district. In reaching that conclusion, the Circuit Court first examined whether the district court’s finding that the school district had taken no meaningful steps to try to include the child in a regular classroom with supplementary aids and services was clearly erroneous. Oberti 995 F.2d at 1221. The Court held that it was not because over the course of two academic years the district had made only “negligible efforts” to include the child in a regular classroom. Id. at 1220. To illustrate, during one academic year “the only period during which the School District mainstreamed Rafael in a regular classroom, the School District placed Rafael in the developmental kindergarten class' “without a curriculum plan, without a behavior management plan, and without providing adequate special education support to the teacher.’ ” Id. at 1220 (quoting Oberti v. Board of Educ. of Clementon School Dist., (“Oberti II”) 801 F.Supp. 1392, 1402 (D.N.J.1992)) (other citation omitted). The following academic year the Court found that the child “was placed in a segregated class with ‘no meaningful mainstreaming opportunities,’ ..., and that ‘[t]he School District’s consideration of less restrictive alternatives for the 1990-91 school year was perfunctory.’ ” Id. at 1221 (quoting Oberti II, 801 F.Supp. at 1396 and 1397). What is more, the record in Oberti demonstrated that “the School District had access to information and expertise about specific methods and services to, enable children with disabilities like Rafael to be included in a regular classroom, ..., but that the School District did not provide such supplementary aids and services for Rafael in the kindergarten class.” Id. (citation and footnote omitted). With respect to the second factor analyzed by the Third Circuit — a comparison of the educational benefits of a segregated .placement versus placement in a regular classroom — the Court deferred to the lower court’s findings that not only would the child “benefit academically and socially from inclusion in a regular classroom,” but that “ ‘non-disabled children class will likewise benefit’ from the inclusion of Rafael in a regular classroom.” Id. at 1221-22 (quoting Oberti II, 801 F.Supp. at 1404) (other citation omitted). As to the third and final factor evaluated by the Oberti Court — the potentially disruptive effect of Rafael’s presence on other children in the regular classroom — the Court held that the lower court’s finding that “the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class “were exacerbated and remained uncontained due to the inadequate level of services provided there,’ that Rafael’s behavioral problems were diminished in settings where an adequate level of suppleméntary aids and services were provided, and that both the School District and the ALJ ‘improperly justified Rafael’s exclusion from less restrictivé placements in subsequent years based upon those behavior problems.’” Id. at 1222-23 (quoting Oberti II, 801 F.Supp. at 1403). Because the Circuit Court affirmed the lower court’s determination that the school district had violated the IDEA’S mainstreaming requirement, the Court did not go on to apply the second part of the Daniel R.R. test — that is whether the child had been included in programs with nondisabled children whenever possible. Id. at 1223. Likewise, in Greer the Eleventh Circuit followed the Fifth Circuit’s lead in Daniel R.R. and applied that two-part mainstreaming test to determine whether a ten year old child with Down’s Syndrome was being educated in the “least restrictive environment.” The district court found that she was not and on appeal the Circuit Court agreed. As in Oberti applying the Daniel R.R. test the Court found that it need not reach the second part of that test because the school district failed to meet the first part of the test. In other words, the Greer Court found that the school district did not show whether education in a regular class could be satisfactorily achieved with the use of supplemental aids and services because, among other reasons, “prior to and during” the development of the child’s IEP, it did not consider a full range of supplemental aids and services, such as “resource rooms and itinerant instruction,____” Id. at 698. The Court also faulted the school district for not making any effort to modify the kindergarten curriculum to accommodate the child in a regular classroom. Id. Finally, the Court reasoned that, “the school district’s determination that [the child] would receive more benefit from education in a self-contained special education classroom than in a regular classroom is due no deference because school officials failed to consider what benefit she would receive from education in a regular classroom with appropriate supplemental aids and services.” Id. (emphasis in original). As just discussed, Greer and Oberti are instructive from a substantive viewpoint, but they also provide guidance on two significant procedural issues here. The first is which party bears the burden of proof with respect to the IDEA’S mainstreaming requirement. As the Third Circuit accurately observed in Oberti, “neither Rowley nor the Act itself specifically addresses which party bears the burden of proof at the district court level,----” 995 F.2d at 1218. Despite the lack of guidance from either of those two sources, the Oberti Court plainly held that when the IDEA’S mainstreaming requirement is at issue, “it is appropriate to place the burden of proving compliance with IDEA on the school.” Id. at 1219. In so holding, the Third Circuit soundly reasoned that: “[t]he Act’s strong presumption in favor of mainstreaming, 20 U.S.C. § 1422(5)(B), would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom.” Id. at 1219. The Court also set forth a few “practical considerations” to support its finding that the school district should bear the burden of proof when mainstreaming is at issue: Requiring parents to prove at the district court level that the school has failed to comply with the Act would undermine the Act’s express purpose ‘to assure that the rights of children with disabilities and their parents are protected,’ 20 U.S.C. § 1400(c), and would diminish the effect of the provision that enables parents and guardians to obtain judicial enforcement, of the Act’s substantive and procedural requirements, ____ In practical terms, the school has an advantage when a dispute arises under the Act.: the school has better access to the relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child’s education), and greater overall educational expertise than the parents____ Id. at 1219 (citations omitted). This court fully agrees with the Third Circuit’s analysis and conclusion in Oberti. Therefore, the burden of proving compliance with the IDEA’S mainstreaming requirement here is on the District. The court is fully cognizant of the Second Circuit’s comment in Briggs that “[njeither the court nor the Briggs pointed out anything in the administrative record to substantiate the claim that James’ needs could be met in a less segregated setting.” Briggs, 882 F.2d at 692. As did the Third Circuit, however, this court does not find Briggs to be persuasive authority on the issue of which party bears the burden of proof when the IDEA’S mainstreaming requirement is at issue. Clearly that issue was not before the Court in Briggs. Rather, the primary focus of the Court’s inquiry in Briggs was whether the district court gave sufficient deference to the agency experts and hearing officer; and the Court found that it did not. Id. at 693. As previously mentioned, the issue of which party bears the burden of proof on the mainstreaming issue at the district court level “is quite different from the district court’s obligation to afford due weight to the administrative proceedings.” Oberti 995 F.2d at 1218. Consequently, in this case the burden is on the District to show that Emily’s proposed placement, which would segregate her for subjects which are traditionally deemed to be more academic in nature (such as math, science and social studies), comports with the IDEA’S statutory presumption in favor of mainstreaming. The Eleventh Circuit’s decision in Greer also has some relevance to this case from a procedural standpoint. In Greer the Court had occasion to address at what point in the process a school district must consider whether education in the regular classroom may be achieved satisfactorily with supplemental aids and services. As previously mentioned, the Court unequivocally held that a school district must make that assessment “pripr to and during the development of the IEP.” 950 F.2d at 696 (emphasis in original). “It is not sufficient that school officials determine what they believe to be the appropriate placement for a handicapped child and then attempt to justify this placement only after the proposed IEP is challenged by the child’s parents.” Id. In more terse language, the Court later stated, “[w]e will not consider after-the-fact justifications for a predetermined placement.” Id. at 698. After carefully reviewing the record, the Court found that “the school district, during the development of the IEP, did not take, steps to accommodate Christy in the regular classroom[,]” because, inter alia, they “failed to consider the full range of supplemental aids and services, including resource rooms and itinerant instruction, that could be provided to assist Christy in the regular classroom.” Id. (emphasis added). Thus after Greer, in the present ease it is incumbent upon the District to show that prior to and during the development of the challenged IEP, it considered the “full range of supplemental aids, arid services” that could be provided to assist Emily in a regular classroom. See id. C. IDEA Compliance 1. Standard of Review In analyzing the thorny issue of whether the CSE’s recommended placement, which the plaintiffs are challenging, is in full compliance with the IDEA, the court is mindful of its fairly circumscribed role in this proceeding. The IDEA, as interpreted by the Supreme Court in Rowley, mandates that “due weight shall be given to these [administrative] proceedings.” 458 U.S. at 206, 102 S.Ct. at 3051 (emphasis added). In this regard, as this Court has previously observed, “[a] number of other courts, including the Second Circuit, have held that the administrative findings-in lawsuits brought under the [IDEA] should be accorded some degree of deference.” Hiller v. Bd. of Ed. of Brunswick Cent. Sch. D., 743 F.Supp. 958, 968 (N.D.N.Y.1990) (McCurn, C.J.) (emphasis added). However, exactly what constitutes “due weight” as envisioned by the Rowley Court remains an open issue in this Circuit, as well as in others. For example, fairly recently in Fuhrmann, Jridge Hutchinson dissenting suggested that the Third Circuit follow the due weight standard articulated by the First Circuit in Town of Burl