U.S. 9th Circuit Court of Appeals
SACRAMENTO CITY SCHOOL DIST. v. RACHEL H.,
14 F.3d 1398
14 F.3d 1398 (9th Cir.
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, BOARD OF EDUCATION,
PLAINTIFF-APPELLANT, v. RACHEL H., BY AND THROUGH HER GUARDIAN AD LITEM,
ROBERT HOLLAND; WILLIAM HONIG, CALIFORNIA STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION; CALIFORNIA STATE DEPARTMENT OF EDUCATION HEARING OFFICE,
McGEORGE SCHOOL OF LAW; AND MARY COTE, HEARING OFFICER, DEFENDANTS-APPELLEES.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 12, 1993.
Decided January 24, 1994.
Jane E. Slenkovich, Phoebe G. Graubard, Saratoga, CA, for
Diane J. Lipton and Arlene B. Mayerson, Kathryn E. Dobel, Disability
Rights Education & Defense Fund, Inc., Berkeley, for defendants-appellee
Joseph R. Symkowick, Barry A. Zolotar, Joyce O. Eackrem, California
Dept. of Educ., Sacramento, CA for defendants-appellees William Honig,
CA State Superintendent of Public Instruction, California State Dept. of
Educ. Hearing Office, McGeorge School of Law and Mary Cote, Hearing
Michael Jay Singer, Jeffrica Jenkins Lee, Attys., Appellate Staff,
Civ. Div., Dept. of Justice, Washington, DC, for amicus.
Appeal from the United States District Court for the Eastern District
Before: SNEED, POOLE, and TROTT, Circuit Judges.
SNEED, Circuit Judge:
The Sacramento Unified School District ("the District") timely
appeals the district court's judgment in favor of Rachel Holland
("Rachel") and the California State Department of Education. The court
found that the appropriate placement for Rachel under the Individuals
with Disabilities Act ("IDEA") was full-time in a regular second grade
classroom with some supplemental services. The District contends that
the appropriate placement for Rachel is half-time in special education
classes and half-time in a regular class. We affirm the judgment of the
FACTS AND PRIOR PROCEEDINGS1
Rachel Holland is now 11 years old and is mentally retarded. She was
tested with an I.Q. of 44. She attended a variety of special education
programs in the District from 1985-89. Her parents sought to increase
the time Rachel spent in a regular classroom, and in the fall of 1989,
they requested that Rachel be placed full-time in a regular classroom
for the 1989-90 school year. The District rejected their request and
proposed a placement that would have divided Rachel's time between a
special education class for academic subjects and a regular class for
non-academic activities such as art, music, lunch, and recess. The
district court found that this plan would have required moving Rachel at
least six times each day between the two classrooms. Holland, 786 F.Supp.
at 876. The Hollands instead enrolled Rachel in a regular kindergarten
class at the Shalom School, a private school. Rachel remained at the
Shalom School in regular classes and at the time the district court
rendered its opinion was in the second grade.
The Hollands and the District were able to agree on an Individualized
Education Program ("IEP")2 for Rachel.
Although the IEP is required to be reviewed annually, see 20 U.S.C.
1401a(20)(B), because of the dispute between the parties, Rachel's IEP
has not been reviewed since January 1990.3
The Hollands appealed the District's placement decision to a state
hearing officer pursuant to 20 U.S.C. 1415(b)(2). They maintained that
Rachel best learned social and academic skills in a regular classroom
and would not benefit from being in a special education class. The
District contended Rachel was too severely disabled to benefit from
full-time placement in a regular class. The hearing officer concluded
that the District had failed to make an adequate effort to educate
Rachel in a regular class pursuant to the IDEA. The officer found that
(1) Rachel had benefitted from her regular kindergarten class - that she
was motivated to learn and learned by imitation and modeling; (2) Rachel
was not disruptive in a regular classroom; and (3) the District had
overstated the cost of putting Rachel in regular education - that the
cost would not be so great that it weighed against placing her in a
regular classroom. The hearing officer ordered the District to place
Rachel in a regular classroom with support services, including a special
education consultant and a part-time aide.
The District appealed this determination to the district court.
Pursuant to 20 U.S.C. 1415(e)(2), the parties presented additional
evidence at an evidentiary hearing. The court affirmed the decision of
the hearing officer that Rachel should be placed full-time in a regular
In considering whether the District proposed an appropriate placement
for Rachel, the district court examined the following factors: (1) the
educational benefits available to Rachel in a regular classroom,
supplemented with appropriate aids and services, as compared with the
educational benefits of a special education classroom; (2) the
non-academic benefits of interaction with children who were not
disabled; (3) the effect of Rachel's presence on the teacher and other
children in the classroom; and (4) the cost of mainstreaming Rachel in a
1. Educational Benefits
The district court found the first factor, educational benefits to
Rachel, weighed in favor of placing her in a regular classroom. Each
side presented expert testimony which is summarized in the margin.4
The court noted that the District's evidence focused on Rachel's
limitations but did not establish that the educational opportunities
available through special education were better or equal to those
available in a regular classroom. Moreover, the court found that the
testimony of the Holland's experts was more credible because they had
more background in evaluating children with disabilities placed in
regular classrooms and that they had a greater opportunity to observe
Rachel over an extended period of time in normal circumstances. The
district court also gave great weight to the testimony of Rachel's
current teacher, Nina Crone, whom the court found to be an experienced,
skillful teacher. Ms. Crone stated that Rachel was a full member of the
class and participated in all activities. Ms. Crone testified that
Rachel was making progress on her IEP goals: She was learning one-to-one
correspondence in counting, was able to recite the English and Hebrew
alphabets, and was improving her communication abilities and sentence
The district court found that Rachel received substantial benefits in
regular education and that all of her IEP goals could be implemented in
a regular classroom with some modification to the curriculum and with
the assistance of a part-time aide.
2. Non-academic Benefits
The district court next found that the second factor, non-academic
benefits to Rachel, also weighed in favor of placing her in a regular
classroom. The court noted that the Hollands' evidence indicated that
Rachel had developed her social and communications skills as well as her
self-confidence from placement in a regular class, while the District's
evidence tended to show that Rachel was not learning from exposure to
other children and that she was isolated from her classmates. The court
concluded that the differing evaluations in large part reflected the
predisposition of the evaluators. The court found the testimony of
Rachel's mother and her current teacher to be the most credible. These
witnesses testified regarding Rachel's excitement about school,
learning, and her new friendships and Rachel's improved self-confidence.
3. Effect on the Teacher and Children in the Regular Class
The district court next addressed the issue of whether Rachel had a
detrimental effect on others in her regular classroom. The court looked
at two aspects: (1) whether there was detriment because the child was
disruptive, distracting or unruly, and (2) whether the child would take
up so much of the teacher's time that the other students would suffer
from lack of attention. The witnesses of both parties agreed that Rachel
followed directions and was well-behaved and not a distraction in class.
The court found the most germane evidence on the second aspect came from
Rachel's second grade teacher, Nina Crone, who testified that Rachel did
not interfere with her ability to teach the other children and in the
future would require only a part-time aide. Accordingly, the district
court determined that the third factor, the effect of Rachel's presence
on the teacher and other children in the classroom weighed in favor of
placing her in a regular classroom.
Finally, the district court found that the District had not offered
any persuasive or credible evidence to support its claim that educating
Rachel in a regular classroom with appropriate services would be
significantly more expensive than educating her in the District's
The District contended that it would cost $109,000 to educate Rachel
full-time in a regular classroom. This figure was based on the cost of
providing a full-time aide for Rachel plus an estimated $80,000 for
schoolwide sensitivity training. The court found that the District did
not establish that such training was necessary. Further, the court noted
that even if such training were necessary, there was evidence from the
California Department of Education that the training could be had at no
cost. Moreover, the court found it would be inappropriate to assign the
total cost of the training to Rachel when other children with
disabilities would benefit. In addition, the court concluded that the
evidence did not suggest that Rachel required a full-time aide.
In addition, the court found that the District should have compared
the cost of placing Rachel in a special class of approximately 12
students with a full-time special education teacher and two full-time
aides and the cost of placing her in a regular class with a part-time
aide. The District provided no evidence of this cost comparison.
The court also was not persuaded by the District's argument that it
would lose significant funding if Rachel did not spend at least 51% of
her time in a special education class. The court noted that a witness
from the California Department of Education testified that waivers were
available if a school district sought to adopt a program that did not
fit neatly within the funding guidelines. The District had not applied
for a waiver.
By inflating the cost estimates and failing to address the true
comparison, the District did not meet its burden of proving that regular
placement would burden the District's funds or adversely affect services
available to other children. Therefore, the court found that the cost
factor did not weigh against mainstreaming Rachel.
The district court concluded that the appropriate placement for
Rachel was full-time in a regular second grade classroom with some
supplemental services and affirmed the decision of the hearing officer.
The district court had jurisdiction pursuant to 20 U.S.C. 1415(e)(2).
We have jurisdiction pursuant to 28 U.S.C. 1291.
STANDARDS OF REVIEW
The appropriateness of a special education placement under the IDEA
is reviewed de novo. W.G. v. Board of Trustees, 960 F.2d 1479, 1483 (9th
Cir. 1992); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th
Cir. 1987). The district court's findings of fact are reviewed for clear
error. Ash v. Lake Oswego Sch. Dist., 980 F.2d 588 (9th Cir. 1992); W.G.
v. Board, 960 F.2d at 1483. The clearly erroneous standard applies to
the district court's factual determinations regarding (1) whether Rachel
was receiving academic and non-academic benefits in the regular
classroom; (2) whether her presence was a detriment to others in the
classroom; and (3) whether the District demonstrated that the cost of
placing her in a regular classroom would be significantly more
expensive. See Ash, 980 F.2d at 588 (district court's factual
determination that student was incapable of deriving educational benefit
outside of residential placement is reviewed for clear error); see also
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048
(5th Cir. 1989) (whether education in the regular classroom, with
supplemental aids and services, can be achieved satisfactorily is an
"individualized, fact specific inquiry").
It has been over a year since the district court rendered its
decision. The court concluded that the appropriate placement at that
time was full-time in a regular classroom. It noted that Rachel and the
educational demands on her may change and that the IDEA had foreseen
such changes in providing for an annual IEP review.
This court cannot determine what would be the appropriate placement
for Rachel at the present time. However, we conclude that this case
presents a live controversy, because the conduct giving rise to the suit
"is capable of repetition, yet evading review." Honig v. Doe, 484 U.S.
305, 318, 108 S.Ct. 592, 601 (1988); Daniel R.R., 874 F.2d at 1040. As
the district court noted, the District and the Hollands have conflicting
educational philosophies and perceptions of the District's mainstreaming
obligation. The District has consistently taken the view that a child
with Rachel's I.Q. is too severely disabled to benefit from full-time
placement in a regular class, while the Hollands maintain that Rachel
learns both social and academic skills in a regular class and would not
benefit from being in a special education class. This conflict is a
continuing one and will arise frequently. See Holland, 786 F.Supp. at
877 n. 4. Moreover, it is likely to evade review since the nine-month
school year will not provide enough time for judicial review. See Board
of Educ. v. Rowley, 458 U.S. 176, 186-87 n. 9, 102 S.Ct. 3034, 3040-41
n. 9, 73 L.Ed.2d 690 (1982); Daniel R.R., 874 F.2d at 1041.
B. Mainstreaming Requirements of the IDEA
1. The Statute
The IDEA provides that each state must establish:
[P]rocedures to assure that, to the maximum extent appropriate,
children with disabilities . . . are educated with children who are not
disabled, and that special classes, separate schooling, or other removal
of children with disabilities from the regular educational environment
occurs only when the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily. . . .
20 U.S.C. 1412(5)(B).
This provision sets forth Congress's preference for educating
children with disabilities in regular classrooms with their peers.
Department of Educ. v. Katherine D., 727 F.2d 809, 817 (9th Cir. 1983),
cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985); see
also Oberti v. Board of Educ., 995 F.2d 1204, 1213 (3d Cir. 1993) (as
corrected, June 23, 1993); Greer v. Rome City Sch. Dist., 950 F.2d 688,
695 (11th Cir. 1991), withdrawn, 956 F.2d 1025 (1992), and reinstated,
967 F.2d 470 (1992); Daniel R.R., 874 F.2d at 1044.
2. Burden of Proof
There is a conflict regarding which party bears the burden of proof.
The Third Circuit has held that a school district has the initial burden
of justifying its educational placement at the administrative level and
the burden in the district court if the student is challenging the
agency decision. See Oberti, 995 F.2d at 1219. Other circuits have held
that the burden of proof in the district court rests with the party
challenging the agency decision. See Roland M. v. Concord Sch. Comm.,
910 F.2d 983, 991 (1st Cir. 1990), cert. denied, 499 U.S. 912, 111 S.Ct.
1122, 113 L.Ed.2d 230 (1991); Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.
1988). Under either approach, in this case the District, which was
challenging the agency decision, had the burden of demonstrating in the
district court that its proposed placement provided mainstreaming to
"the maximum extent appropriate."
3. Test for Determining Compliance with the IDEA's Mainstreaming
We have not adopted or devised a standard for determining the
presence of compliance with 20 U.S.C. 1412(5)(B). The Third, Fifth and
Eleventh Circuits use what is known as the Daniel R.R. test. Oberti, 995
F.2d at 1215; Greer, 950 F.2d at 696; Daniel R.R., 874 F.2d at 1048.5
The Fourth, Sixth and Eighth Circuits apply the Roncker test. Devries v.
Fairfax County Sch. Bd., 882 F.2d 876, 879 (4th Cir. 1989); A.W. v.
Northwest R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir.), cert. denied,
484 U.S. 847, 108 S.Ct. 144, 98 L.Ed.2d 100 (1987); Roncker v. Walter,
700 F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct.
196, 78 L.Ed.2d 171 (1983).6
Although the district court relied principally on Daniel R.R. and
Greer, it did not specifically adopt the Daniel R.R. test over the
Roncker test. Rather, it employed factors found in both lines of cases
in its analysis. The result was a four-factor balancing test in which
the court considered (1) the educational benefits of placement full-time
in a regular class; (2) the non-academic benefits of such placement; (3)
the effect Rachel had on the teacher and children in the regular class;
and (4) the costs of mainstreaming Rachel. This analysis directly
addresses the issue of the appropriate placement for a child with
disabilities under the requirements of 20 U.S.C. 1412(5)(B).
Accordingly, we approve and adopt the test employed by the district
4. The District's Contentions on Appeal
The District strenuously disagrees with the district court's findings
that Rachel was receiving academic and non-academic benefits in a
regular class and did not have a detrimental effect on the teacher or
other students. It argues that the court's findings were contrary to the
evidence of the state Diagnostic Center and that the court should not
have been persuaded by the testimony of Rachel's teacher, particularly
her testimony that Rachel would need only a part-time aide in the
future. The district court, however, conducted a full evidentiary
hearing and made a thorough analysis. The court found the Hollands'
evidence to be more persuasive. Moreover, the court asked Rachel's
teacher extensive questions regarding Rachel's need for a part-time
aide. We will not disturb the findings of the district court.
The District is also not persuasive on the issue of cost. The
District now claims that it will lose up to $190,764 in state special
education funding if Rachel is not enrolled in a special education class
at least 51% of the day. However, the District has not sought a waiver
pursuant to California Education Code 56101. This section provides that
(1) any school district may request a waiver of any provision of the
Education Code if the waiver is necessary or beneficial to the student's
IEP, and (2) the Board may grant the waiver when failure to do so would
hinder compliance with federal mandates for a free appropriate education
for children with disabilities. Cal.Educ.Code 56101(a) & (b) (Deering
Finally, the District, citing Wilson v. Marana Unified Sch. Dist.,735
F.2d 1178 (9th Cir. 1984), argues that Rachel must receive her academic
and functional curriculum in special education from a specially
credentialed teacher. Wilson does not stand for this proposition.
Rather, the court in Wilson stated:
The school district argues that under state law a child who qualifies
for special education must be taught by a teacher who is certificated in
that child's particular area of disability. We do not agree and do not
reach a decision on that broad assertion. We hold only, under our
standard of review, that the school district's decision was a reasonable
one under the circumstances of this case.
735 F.2d at 1180 (emphasis in original). More importantly, the
District's proposition that Rachel must be taught by a special education
teacher runs directly counter to the congressional preference that
children with disabilities be educated in regular classes with children
who are not disabled. See 20 U.S.C. 1412(5)(B).
We affirm the judgment of the district court. While we cannot
determine what the appropriate placement is for Rachel at the present
time, we hold that the determination of the present and future
appropriate placement for Rachel should be based on the principles set
forth in this opinion and the opinion of the district court.
[Footnote 1] The district court's opinion is
reported in Board of Educ. v. Holland, 786 F.Supp. 874 (E.D.Cal. 1992).
[Footnote 2] An IEP is prepared for each
child eligible for special education at a meeting between a
representative from the school district, the child's teacher, and the
child's parents. Board of Educ. v. Rowley, 458 U.S. 176, 182, 102 S.Ct.
3034, 3038, 73 L.Ed.2d 690 (1982). The purpose of the IEP is to tailor
the child's education to her individual needs. Id. at 181, 102 S.Ct. at
[Footnote 3] The 1990 IEP objectives
include: speaking in 4-or 5-word sentences; repeating instructions of
complex tasks; initiating and terminating conversations; stating her
name, address and phone number; participating in a safety program with
classmates; developing a 24-word sight vocabulary; counting to 25;
printing her first and last names and the alphabet; playing
cooperatively; participating in lunch without supervision; and
identifying upper and lower case letters and the sounds associated with
[Footnote 4] The Hollands' experts
testified Rachel had made significant strides at the Shalom School and
suggested that her motivation stemmed from her regular classroom
placement. They stated Rachel was learning language and other skills
from modeling the behavior of the other students. The District's experts
from the state Diagnostic Center, testified that Rachel had made little
progress toward her IEP goals and derived little benefit from regular
class placement. They also suggested supplementary aids would be
[Footnote 5] First, the court must
determine "whether education in the regular classroom, with the use of
supplemental aids and services, can be achieved satisfactorily. . . ."
Daniel R.R., 874 F.2d at 1048. If the court finds that education cannot
be achieved satisfactorily in the regular classroom, then it must decide
"whether the school has mainstreamed the child to the maximum extent
Factors the courts consider in applying the first prong of this test
are (1) the steps the school district has taken to accommodate the child
in a regular classroom; (2) whether the child will receive an
educational benefit from regular education; (3) the child's overall
educational experience in regular education; and (4) the effect the
disabled child's presence has on the regular classroom. Daniel R.R., 874
F.2d at 1048-49; see also Oberti, 995 F.2d at 1215-1217; Greer, 950 F.2d
at 696-97. In Greer the court added the factor of cost, stating that "if
the cost of educating a handicapped child in a regular classroom is so
great that it would significantly impact upon the education of other
children in the district, then education in a regular classroom is not
appropriate."950 F.2d at 697.
Regarding the second factor, the Oberti and Greer courts compared the
educational benefits received in a regular classroom with the benefits
received in a special education class. Oberti, 995 F.2d at 1216; Greer,
950 F.2d at 697.
[Footnote 6] According to the court in
Roncker: "[W]here the segregated facility is considered superior, the
court should determine whether the services which make that placement
superior could be feasibly provided in a non-segregated setting. If they
can, the placement in the segregated school would be inappropriate under
the Act." 700 F.2d at 1063.
Courts are to (1) compare the benefits the child would receive in
special education with those she would receive in regular education; (2)
consider whether the child would be disruptive in the non-segregated
setting; and (3) consider the cost of mainstreaming. Id.