BEFORE THE STATE SUPERINTENDENT OF PUBLIC INSTRUCTION

IN THE MATTER OF the FINAL ORDER Education of S.P. Case No. DP 98-147 Ref. No. 84009 And

Salem-Keizer School District

DATE OF HEARING REQUEST: November 23, 1998

DATE OF HEARING: February 8-10, 12, 16, 1999

DATE OF ORDER: JUNE 14, 1999

DELAY/REASON: The record closed on May 24, 1999 after the parties received copies of the transcript and submitted written closing arguments.

PLACE OF HEARING: Salem, Oregon

HEARING OFFICER: Betty Smith

PARENT’S REPRESENTATIVE: C. S-D (the parent)

DISTRICT’S REPRESENTATIVE: Paul Dakopolos (attorney)

WITNESSES:

David Bagby Director of Student Support,Chehalis- Centralia (Washington) Co-operative

Linda Bonnem Special Education Coordinator, Salem-Keizer School District

Carrie Brown Counselor, McNary High School

Sandra Gruhn Education Specialist, Oregon Department of Education Robert Lee Supervisor, Curriculum and Instruction, Salem-Keizer School District

Stephen Lewis Special Education Coordinator, Salem- Keizer School District

Dr. Reynaldo Mayoral Principal, McKay High School

Lynda McCarthy Special Education Coordinator, Salem- Keizer School District

Patti McVay Supervisor (of programs for children with disabilities), Multnomah ESD

Reid Noel Teacher, Developmental Learning Center, Community Transition Program, Chemeketa Community College

S. P. Student

Kathy Rankin Teacher, Learning Resource Center, McNary High School

Karen Robinson Assistant Principal, McNary High School

C. S-D Parent

Dr. Linda Smith Principal, W. F. West High School, Washington

Dr. Lowell Smith School Psychologist, Salem-Keizer School FINAL ORDER in the Education of S.P. Page 3

District

Carol Tower Teacher, McKay High School

Carol Works Teacher, McNary High School

OBSERVER (during testimony of Ms. Gruhn): Suzy Harris, Legal Specialist, Oregon Department of Education

OBSERVER (representative of school district): Ruth Daniels, Director of Student Services, Salem-Keizer School District

ISSUES:

1. Was S.P. offered an appropriate public education in a Salem-Keizer school district high school beginning in Fall 1996?

2. Would an appropriate education for S.P. prepare her to receive a diploma that meets the Oregon Department of Education requirement of 22 prescribed credits?

FINDINGS OF FACT:

1. S.P. was born on January 19, 1979 and is now 20 years old. From August 1994 - June 1996 she attended W.F. West High School (West) in Chehalis, Washington. In summer 1996 S.P.’s family moved to Oregon, where S.P. continued her education at McNary High School (McNary) in Salem. Thereafter she attended McKay High School (McKay) in Keizer, Oregon. McNary and McKay are in the Salem-Keizer school district. In or before May 1999, S.P. transferred to another high school in the Dallas school district.

2. S.P. is eligible for special education services on the basis of mental retardation.

3. Dr. Brien Vicek, pediatric neurologist, evaluated S.P. in January 1995. He observed that IQ testing would not always reveal S.P.’s full potential and might have variable results given some of her behavior: at times she displayed anxiety and discomfort in testing situations. Based on records of earlier tests he found S.P.’s IQ was generally in the 45 range.

4. An evaluation of S.P. in May 1995 (when S.P. was 16) by the Chehalis-Centralia Cooperative Student FINAL ORDER in the Education of S.P. Page 4

Support/Special Services Program indicated she was at grade level 2.8 in reading, grade level 1.0 in math and grade level 1.8 in written language. Her abilities were found to lie in the moderately mentally retarded range, and the evaluation includes the comment, “Based on this measure(s) [of adaptive behavior] and the preponderance of information obtained in this evaluation, this student can not function adequately in the regular classroom.”

5. In July 1996, after S.P. enrolled at McNary as a high school junior, she was evaluated again. On the Wexler Adult Intelligence Scale (WAIS-R) test she received a full scale IQ score of 62, indicating that she was probably functioning within the bottom first or second percentile of her same-age peer group. On the Woodcock-Johnson Revised (WJ-R) test her scores indicated she was working at level in reading, level in math and level in written language. In testing evaluating S.P.’s adaptive behavior - her ability to function in a social environment - S.P. achieved a score consistent with her IQ of 62, indicating that her social functioning was not at a higher level than one might infer from her IQ alone.

6. Dr. Lowell Smith, Ph.D., has a master’s degree and a doctorate in school psychology. He has been licensed as a school psychologist for approximately 15 years. He has been employed at the Salem- Keizer school district since around 1990. His work typically involves evaluating students, including administering intelligence tests and analyzing the results.

7. Dr. Smith did not anticipate that S.P.’s intelligence was likely to improve with the passage of time. Based on S.P.’s IQ and WJ-R scores, Dr. Smith saw no way S.P. could meaningfully participate in instruction in a regular education classroom at the high school junior level in a math, science, history or other substantive course. He felt that enrolling S.P. in high school classes and requiring that she repeat the classes until she could pass (which had been suggested by the parent) was not a realistic plan. There were some skills S.P. could not reasonably be expected to acquire, and putting her in a position where she was unable to complete the tasks successfully would be stressful and likely to affect her self- esteem. Based upon S.P.’s age and, more significantly, her academic achievement at the time she entered the Salem-Keizer school district, Dr. Smith concluded S.P.’s chances of succeeding in the traditional high school curriculum were “extremely remote.”

8. The Oregon Department of Education (ODE) is required by law to develop a curriculum leading to high school graduation with a diploma. ODE mandates that school districts educate students to achieve at least the 22 credits, in specified subject areas, required for a diploma. Each district school board may determine the curriculum that will lead to a diploma and graduation, but that curriculum must meet (or exceed) state standards.

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A credit represents 130 clock hours of study in a particular subject area. Generally a student acquires one credit by taking a class for a year. In the Salem-Keizer school district, depending upon a school’s scheduling policy, a student would typically take six or eight credit classes each day.

9. The Salem-Keizer school district offers three documents signifying completion of high school - the standard diploma, the alternate diploma (only at South Salem High School), and the certificate, or certificate of attainment.

10. To receive a standard diploma students in the Salem-Keizer school district must meet attendance requirements, the ODE requirement of passing at least 22 specified credits with a minimum grade of D, and, by mandate of the school district, also pass tests indicating competence in four areas: reading, speaking, writing and mathematics. The competency tests were designed to require abilities at the level.

11. An alternate diploma is an official document of the school district given to a student to designate completion of the minimum alternate diploma requirements of credits, competencies and attendance for graduation. Twenty-two credits are required, many of them in the same academic areas as the standard diploma and at the same academic level. Alternate competence examinations are being designed for students working toward the alternate diploma, which has a vocational emphasis.

12. A certificate is an official document of the Salem-Keizer school district designating (in an accompanying transcript) those requirements of credits, competencies, and attendance completed by a student, which is awarded to a student who has not completed all of the requirements for graduation with a diploma and who has chosen to terminate his/her formal school experience. 13. For each course a school district offers it must keep on file a “planned course statement.” In the courses offered to meet the diploma requirement of 22 credits, the statement must show that the course content meets the essential learning skills and common curriculum goals defined by the State for the different grade levels.

14. It is possible for a school to modify the way education is provided to a particular student to meet the student’s need for accommodation. For example, a student may be allowed to complete 10 problems rather than 20, or have an extension or an incomplete in a course if more time is necessary to do the work. It is not possible for the school district to modify the curriculum goals of a regular, academic high school class to enable a student functioning at the second grade level to get diploma credit for it. To get such credit a student must attain those indicators of success which meet the common curriculum goals by grade level.

15. S.P. was in the in the 1996 - 97 school year. S.P’s first Oregon Individual Education Program (IEP), prepared on September 26, 1996 at McNary, called for three classes which provided FINAL ORDER in the Education of S.P. Page 6

credit toward a diploma (Pottery, Family Meals and Health), two classes in the Learning Resource Center (LRC) (Career Experience and Personal Communication Skills), two additional periods in the LRC, and Adaptive Physical Education. S.P. received a grade of “P” (pass) in each course. Typically a student receives P grades if he or she is working toward a certificate of attainment. The grade means that there are major modifications in the expectations and rigors of the class.

16. In all of the LRC classes the objective is to work on the student’s IEP goals and objectives, including succeeding in his or her academic curriculum. In some LRC classes S.P. worked on reading and writing, and she received help with her assignments for her regular classes. In other LRC classes S.P. received instruction in subjects such as math and careers.

17. Lynda McCarthy is one of three special education coordinators for the Salem-Keizer school district. She has held that position for four years. Prior to that she worked as a counselor and as special services director for a smaller school district, and later for five consolidated districts. She has been involved in special education for approximately 19 years. She has master’s degrees in counseling and administration. Ms. McCarthy believed S.P.’s September 1996 placement was good for S.P. because it gave her some mainstream classes but with a vocational focus, and also provided support through the LRC and LRC classes.

18. S.P.’s September 1996 IEP was unclear about what document S.P. would receive at graduation. The parent agreed on October 14, 1996 that S.P. would work toward a certificate of attainment. In January 1997 S.P.’s graduation objective was changed, at the parent’s request, to the diploma program, and this was noted on the IEP.

19. In her second semester at McNary, January - June 1997, S.P. took Career Experience II and two LRC classes, in which she was graded “P.” She also took Keyboarding, American Government, Consumer Economics, Family Relations, and Health II. These courses were selected by the parent. S.P. failed all of them. S.P.’s grades reveal she was on the diploma track and did not meet the academic requirements of her classes. Her grades also indicate that her placement during the second semester was inappropriate and that changes needed to be made in order for S.P. to be successful.

20. Kathy Rankin has been the LRC teacher at McNary for 13 years. Before that she held a similar position at Fairview Training Center for approximately 13 years. She has taught several hundred students who were eligible for special education due to mental retardation. She is the teacher at McNary with whom S.P. had the most contact.

21. When the parent insisted, in the second semester of the 1996 - 97 school year, that S.P. work toward a diploma, Ms. Rankin believed S.P. deserved a chance to try to achieve that goal, although FINAL ORDER in the Education of S.P. Page 7

professionally and personally Ms. Rankin did not think S.P. could meet the diploma course requirements. After the first few weeks of the semester Ms. Rankin observed that S.P. was unable to keep up with the assignments required for her courses. As the semester went on Ms. Rankin saw that S.P. became increasingly frustrated and about once a week would find reasons to leave her classes and return to the LRC. Although Ms. Rankin and others shared with the parent their concerns that S.P. was upset, crying and frustrated in her diploma track classes the parent insisted that S.P. remain in those classes. The parent made suggestions as to what Ms. Rankin should do to get S.P. to return to her classes and Ms. Rankin attempted to follow those suggestions. 22. During that second semester the teachers tried to make as many allowances as possible for S.P. that would not detract from the course requirements. Aides or peers would assist S.P. in her classes. But by the end of the semester S.P.’s teachers were reporting to Ms. Rankin that S.P. “just wasn’t able to make it at all.” She was not meeting the course requirements.

23. In the 1996 - 97 school year Ms. McCarthy also heard reports from other staff members that S.P. was having problems with the regular classes she was in: S.P. did not submit homework, fell asleep in class, wanted to leave the classroom or call her mother during class periods, and at times behaved inappropriately when asked to participate in class activities.

24. On September 24, 1997, the IEP team, including S.P. and the parent, met to review S.P.’s IEP goals and objectives and decide whether they were appropriate for her, and also to determine whether the certificate or diploma track was appropriate for S.P. S.P.’s teachers expressed concern about whether her current (academic) program was a good placement for her. The teachers felt she was not achieving much success in that program. She had trouble paying attention and following the curriculum, even with adaptations that were made in the classroom. The teachers wanted to alter the program to make it appropriate for S.P. The IEP team believed that S.P. should be working toward a certificate of attainment.

25. At the September 24, 1997 IEP meeting an IEP was developed for S.P. that indicated S.P. would continue on the diploma track, because the parent remained adamant that that was the only arrangement she would accept. The parent insisted on the diploma program because she believed the certificate had no educational value. The participants agreed to reconvene to discuss the diploma issue and what was working and not working for S.P.

26. In the Fall 1997 semester, the first semester of her year, S.P. took six courses in the Learning Resource Center and Pottery I (for the second time at McNary). She also took one substantive course (for the second time), American Government. The parent believed S.P. could be more successful if she only had one substantive course. Nevertheless, S.P. failed American Government for the second time. She got a “C” in Pottery and passed Functional Reading Skills, Career Experience, LRC and Survival Skills.

FINAL ORDER in the Education of S.P. Page 8

27. Carol Works has been a teacher of history and government for 23 years, including seven years at McNary. She has a degree in history and social sciences and a master’s degree in education. She taught S.P.’s American Government class in the Fall 1997 semester. Ms. Works was aware that S.P. was on an IEP and had a lot of contact with her. She made a number of accommodations to help S.P. do her class work, including having a peer tutor sitting with her to ascertain that she was understanding directions; providing a student teacher tutor or an instructional aide from the LRC at times; giving her extra time on assignments; allowing her to take tests in the LRC; and reducing the number of test items.

In Ms. Works’ class there is a lot of experiential learning, but S.P. was not participating in the classroom experience and was not demonstrating learning. She would not work in group settings or in a cooperative manner. On different occasions she would not pass papers, turn her desk around to join with groups, make signs or listen to speeches. Although the other students were pretty accepting of S.P., as the semester went on S.P. seemed increasingly stressed, frustrated and disruptive in class. She wanted to come in, get her work, and take it to the LRC. She never remained in the classroom for the full 90 minutes of class, and she did not do her homework. Ms. Works talked with the teacher of S.P.’s American Government class in the previous semester and he said S.P. had a lot of trouble with his class and wanted to sleep through it.

28. The parent requested that, in addition to all of the accommodations made by Ms. Works, Ms. Works deal with S.P.’s disruptions by stopping the class, saying certain things, and waiting a certain amount of time. Ms. Works was unable to implement this request because it would disrupt the instruction of the other students for approximately two minutes. She tried to make an alternate, equivalent plan, but it was unsuccessful. There were no other accommodations suggested to her that she failed to implement.

29. When S.P. entered McNary the parent represented that S.P. had been on the diploma track at West. This representation was one reason some of S.P.’s initial placement at McNary was in classes on the diploma track. Also, McNary initially gave S.P. diploma credit for academic classes she had completed at West, and determined she would need 6.5 additional credits to graduate with a diploma.

30. The Chehalis school district, including West, had two graduation plans, A and B, each of which led to a regular high school diploma. At West from 1994 - 96 S.P. was pursuing graduation Plan B, for students with disabilities of a magnitude that would not allow them to be successful in the regular class environment or proceed along the normal graduation track. Students following Plan B were required to display competence in three areas: personal management, vocational skills, and leisure/recreational skills. Usually Plan B students went from West to the Visions program, a community based adult program for 18- to 21-year-old students. Upon completion of the goals and objectives identified under Plan B, or upon reaching age 21 (typically these events occurred simultaneously), the students received a regular diploma. FINAL ORDER in the Education of S.P. Page 9

31. In 1994 - 95 and the first semester of the 1995 - 96 school year at West, S.P. achieved grades ranging from A to C in such academic subjects as IEP math, IEP science and IEP communications. The Plan B academic courses S.P. passed at West would not meet the diploma requirements established by the Oregon Department of Education.

32. In or around Fall 1997 Ms. McCarthy reviewed S.P.’s transcript from West and formed the impression that S.P. had not been on a regular diploma track, as it was obvious from the transcript that many of S.P.’s classes were modified for an IEP special education program. After receiving additional information, Ms. McCarthy concluded that Plan B at West resembled the program leading toward a certificate in the Salem-Keizer school district, although upon graduation a Plan B student would receive a diploma.

33. Karen Robinson has been the assistant principal at McNary High School since Fall 1997. Before that she was a teacher at McNary with a master’s degree and a handicapped learner endorsement. She is currently taking classes to obtain her standard administrative certification.

34. On December 2, 1997, Ms. McCarthy, Ms. Robinson, several teachers and a program assistant met with the parent and S.P. to develop or review S.P.’s IEP and discuss whether S.P. should be working toward a diploma or a certificate. Ms. McCarthy explained that, based on what she had learned about S.P.’s education at West, S.P.’s academic credits were not in the regular curriculum and could not be processed by the Salem-Keizer school district as credits toward meeting the Oregon diploma requirements. Consequently S.P. still needed to complete 10 credits to earn a diploma, rather than 6.5 as previously determined.

The parent believed S.P. could take classes over and over again and would eventually pass them. The other members of the team considered this inappropriate because some classes, such as U.S. History, could not be modified to the point where S.P. could obtain information. S.P. was at the meeting on December 2. She said she did not want to go to History or Health class any more, but wanted to stay in the LRC with Ms. Rankin.

The parent stated that S.P. learned better in classes that were more “hands on,” and the team tried to put her into such classes. The school personnel indicated that if S.P. was working toward a certificate she could have an individualized program appropriate to her level of achievement. The team decided to try to develop a specific program for S.P. leading to a certificate, so the parent could see what that might be.

FINAL ORDER in the Education of S.P. Page 10

The parent wrote down five areas on which she thought S.P. should focus. She was very upset and angry about the idea that S.P. might ultimately receive a certificate of attainment, rather than a diploma, upon leaving high school.

35. Carol Works, S.P.’s American Government teacher, attended the meeting on December 2. Her class had been selected for S.P. at least in part because she had a “hands on” approach to her subject. She thought that perhaps S.P. was feeling stress because she was unable to meet the requirements for course credit. She thought it would be desirable if S.P. were working toward a certificate of attainment, so that she could adjust the course requirements to accommodate S.P.’s abilities.

36. On January 14, 1998, Ms. McCarthy, Ms. Rankin, Ms. Robinson and Ms. Leigh Weir (S.P.’s counselor at Marion County Mental Retardation/Developmental Disability Services) met with S.P. and the parent to discuss S.P.’s curriculum and whether her high school education should be directed toward receiving a certificate or a diploma. At that time S.P. was almost 19 years old and still needed 10 credits to graduate. The team explained that S.P. could not meet the diploma requirements at McNary (by age 21) although she could earn a certificate of attainment. The parent considered this unsatisfactory and mentioned two other possibilities - the alternate diploma at South and the teen parent program at Barbara Roberts High School. S.P. is not a teen parent. Although there are some other programs available for students at Barbara Roberts, they all lead to a diploma.

The parent indicated she wanted to transfer S.P. to South, and it was decided that the alternate diploma program would be investigated. Ms. Rankin had prepared a plan for addressing the five areas upon which the parent had indicated, on December 2, 1997, that she wished to focus. The parent was no longer interested in discussing that subject.

37. A meeting was held on March 3, 1998 at which representatives from South explained to the parent and S.P. the alternate diploma program and the entrance requirements. S.P. said she wanted to remain at McNary. The parent favored a transfer to South.

On April 24, 1998, the South team met to discuss whether S.P. should be accepted in the alternate diploma program. After reviewing extensive information about S.P., the team decided unanimously that 1) S.P. would not benefit from the alternate diploma program and would be unable to complete the requirements before graduating; 2) S.P. did not have the ability and academic achievement level to complete the requirements for the regular or alternate diploma; and 3) mainstream courses, with modifications and adaptations at McNary, were not successful and contributed to S.P.’s frustration level and inappropriate behavior. At a meeting early in May this information was discussed with the McNary team.

By letter of June 8, 1998 Debbie Faber, Assistant Principal at South, informed the parent that S.P.’s FINAL ORDER in the Education of S.P. Page 11

application to enter the alternate diploma program at South was denied because of the high probability S.P. could not successfully meet the requirements of the standard academic curriculum. Ms. Faber suggested the IEP team consider a more structured developmentally appropriate life skills curriculum for S.P. at a development learning center or the Salem-Keizer Transition Program.

38. After the January 14, 1998 meeting (see Finding of Fact no. 36, supra) Ms. McCarthy spoke with Ms. Weir about what would be best for S.P. Ms. Weir had worked with S.P. since S.P. moved to Oregon. Ms. Weir felt that the diploma was not an option she could support; she favored the certificate. She also felt strongly that S.P. should be in a community transition program.

39. A community transition program provides services to students who are 18 to 21 years old, teaching vocational and life skills such as budgeting, interviewing, living independently, using the bus system, keeping safe, social and sexual awareness, and identifying who is a good person and who is not. Ms. Weir thought S.P. should participate in the community transition program run by Reid Noel at Chemeketa Community College. Ms. McCarthy concurred that this would be the best program for S.P.

40. Another meeting was held on April 10, 1998 for the IEP team to determine whether S.P. would proceed at McNary toward a certificate or a diploma. In addition to S.P. and the parent, participants included Ms. McCarthy, Ms. Robinson and Ms. Weir. S.P.’s April 10, 1998 IEP stated that S.P. would receive specially designed instruction in the LRC in reading, math and vocational education, and transition services. At the conclusion of the meeting the majority of the IEP team revised S.P.’s IEP to indicate that at McNary S.P. would work toward a certificate of attainment. The parent was angry and said she would withdraw S.P. from McNary. She refused to sign the IEP and left before the meeting ended.

41. Ms. Robinson believed the April 10, 1998 IEP offered an appropriate placement for S.P., designed to provide S.P. with educational benefit.

42. After the meeting on April 10, 1998 S.P. stopped attending McNary High School. Since approximately January 1998 S.P. had been living in a group home in the McKay attendance area, but she did not immediately enroll in McKay or any other high school.

43. In April 1998, in connection with S.P.’s application for the alternate diploma program or the parent’s request for mediation, a number of S.P.’s teachers at McNary were asked to evaluate her success in their classes. Comments included the following: “She was able to pass only with the help of an instructional aide or a peer helper” (Pottery); “She is not able to do the academic portion without the assistance of an aide. The aide would need to give constant input, assistance and reminders of the task” (Cooking); “[S.P.] is a senior in high school. She has elementary level reading and writing skills. She FINAL ORDER in the Education of S.P. Page 12

often refuses to do work in the class” (Study Hall); “I had [S.P.] in my Consumer Econ. Class last year. She was not able to do the work or pass the tests in this class;” “I allow [S.P.] to use her written notes to try to complete her quizzes, other students are not given this opportunity. She usually will put her head down, say that it is too hard and then sleep” (Foods - Ms. Sanford); “[S.P.] does not participate in any activity that is assigned. . . . She has not completed a single assignment or lab” (Biology).

44. On April 29, 1998, there was a mediation session, requested by the parent, to attempt to resolve some of the issues relating to the education of S.P. Ms. McCarthy, Ms. Robinson, Ms. Daniels, the parent and S.P. participated in the mediation, with several others.

45. The educators were trying to get S.P. back into a school program, and it was agreed at the mediation session that S.P. would begin attending the Chemeketa Community Transition Program as soon as possible (which she did). It was also agreed that the school district would bring in an independent transition specialist - preferably Patti McVay - before June 9 to help plan for S.P.’s education in the Fall. This occurred. The mediation agreement also stated the Salem-Keizer school district would consider, among other options, S.P. attending one academic class at South beginning in Fall 1998. This did not happen because, after the consultation with Ms. McVay, a program was developed for S.P. to take an academic class at McKay rather than South. There was also agreement that a new IEP for S.P. would be developed before the next school year. The IEP was developed in October or November 1998. The issue of certificate versus diploma was again discussed, but was not resolved.

46. Patti McVay is employed by the Multnomah Education Service District as the supervisor of a program that supports children with disabilities in a variety of settings. She has worked in the area of special education for approximately 13 years, including five years as an educational assistant at McKay with Reid Noel. Ms. McVay’s involvement with S.P. was to assist the IEP team in developing a transition plan. Ms. McVay believed it would be in S.P.’s best interest to have her education, until she turns 21, focus on her connections with other people, including her social and communication skills and community and vocational activities. Ms. McVay thinks it is desirable for students to be with others who are their same age, and as S.P. is 20 years old Ms. McVay felt that to have age appropriate peers it was important for her to be at Chemeketa.

47. Beginning around June 1998 Ms. McVay observed S.P. at Chemeketa and gathered information from the parent, S.P. and school personnel. In Fall 1998 it was agreed that S.P. would take two courses at McKay - Keyboarding and Cooking - and participate in the transition program at Chemeketa. The parent, S.P., Mr. Noel, Ms. McVay and others attended a meeting on October 14, 1998 to evaluate S.P.’s progress and see what other action might be necessary. It was reported that S.P. had significant difficulty getting to McKay, and was also having some trouble getting to Chemeketa on time. The participants arranged for the Salem-Keizer school district to pick S.P. up at her home to go to McKay and then transport her from McKay to Chemeketa. FINAL ORDER in the Education of S.P. Page 13

48. At a meeting on November 5, 1998 an IEP was developed for S.P. reflecting the decision that she would take classes at McKay and attend the Chemeketa transition program. Mr. Noel believed the IEP goals appropriate for S.P. and that S.P. benefitted from the education described on the IEP.

49. The November 1998 IEP again indicated S.P. would be working toward a certificate of attainment. The parent did not agree with this objective. One of the IEP team participants, Steve Lewis, is a special education coordinator with the Salem-Keizer school district who is responsible for McKay High School. Mr. Lewis has held that position for seven years. Previously he worked in special education for 18 years, including another 13 years in a position similar to special education coordinator. Mr. Lewis thought a community transition program would be a good program for S.P. because it would allow her develop skills she needed to be an adult in the community. These skills included being on time, being prepared for work, being dressed appropriately, having proper hygiene, following a calendar and a schedule, and planning.

50. Mr. Lewis did not think to have S.P. take academic classes at McKay again and again until she achieved a grade of at least D would be appropriate for S.P. Addressing the parent’s concern that S.P. be as competitive as possible in the job market, he observed that what would make her most successful would be the ability to practice worker behaviors, especially as “[s]he’s not somebody that catches it the first time around, so she would need to have a variety of experiences and feedback around her behaviors.” He thought S.P. would get this kind of experience in Reid Noel’s program at Chemeketa.

51. Mr. Lewis believed S.P. would not be able to meet the requirements for a standard or alternate high school diploma in the Salem-Keizer school district.

52. Carol Tower was S.P.’s Keyboarding and Foods teacher at McKay in the first semester of the 1998 - 99 school year. S.P. attended the classes with an adult aide who worked with her. Ms. Tower believed it would have been impossible for S.P. to participate in the classes without the aide. In the Foods class students must work together in groups on each cooking project. S.P. would have been unable to complete her jobs without someone really directing her, keeping her on task, helping her with measuring, bringing her the right equipment and reading the recipe.

In the Foods class S.P. sometimes did not want to do her assigned job, and she would argue with the other students about trading jobs, or ask over and over again for someone else’s job. The main class objectives were making healthy nutritional choices and learning measuring and food groups, putting different foods together, reading recipes and following directions, and preparing foods from all the different food groups. It involved some book learning as well as cooking. Ms. Tower gave S.P. the grade “Pass” based on her lab work, which was one-third of the grade for the class. S.P. did less than half of the “seat work.” She did not pass any of the written tests. She did FINAL ORDER in the Education of S.P. Page 14

not do any of the weekly homework assignments . 53. In Keyboarding S.P.’s aide would lay the material out, spell out the longer words, and give S.P. constant directions. Ms. Tower tried to provide material for S.P. that related to what she was doing with Mr. Noel in the transition program, or to the Foods class, and S.P. worked better when she was interested in the material. S.P. only used her two forefingers for typing, and Ms. Tower thought she might have some fine motor difficulty. The main objective in Keyboarding is to know where all the keys are and be able to reach them. S.P. accomplished about one third of the classroom goals Ms. Tower expected of the students in the class, and she failed the class. Sometimes S.P. became frustrated and wanted to give up and leave the class, and her aide or the teacher would try to redirect her attention. 54. Reid Noel is employed as a developmental learning center teacher in a community transition program for the Salem public schools. He has been in the special education area since 1974 and has been employed by the Salem public schools since 1977 in various capacities relating to special education. He currently works with young adults, ages 18 to 21, with developmental disabilities who have completed or are currently completing their high school programs. He assists his students to be “optimally prepared” to assume productive lives in the community in the areas of work, residential living, recreation and leisure, and skills. He wants each student to have a full day program, where he or she is actively involved in some meaningful activity in the community. Most of his students are receiving Social Security benefits, but employment is often a goal to supplement that income.

55. Mr. Noel began working with S.P. in late spring 1998, when S.P. was placed in the Chemeketa transition program on a trial basis. He believed S.P. could not accomplish the basic academic requirements to get a high school diploma, and could not pass the competency tests unless someone told her the answers on at least some of the questions.

56. On November 23, 1998, the parent requested a due process hearing. She described what she saw as the problem with S.P.’s education as follows:

“24J [the Salem-Keizer school district] is forcing [S.P.] to abandon her diploma. [S.P.] is having difficulty earning the last 6 remaining credits required for her regular diploma. I have asked for specially designed instruction and alternative educational options so that she can earn either a regular or a modified diploma. If the district would allow [S.P.] to focus on the subjects she needs credit in, she could complete these classes. She could concurrently work on transition goals, once a plan is developed.”

Her proposed solution to this problem was the following:

“Provide [S.P.] instruction in an individualized program with high expectations for her performance in math, social studies, writing, science and economics, taking one academic course each semester. FINAL ORDER in the Education of S.P. Page 15

Academics could be in the mornings and transition plan activities in the afternoons.”

As of the date of the hearing request S.P. needed to earn 10 credits to graduate. She would be 21 years old on January 19, 2001 and therefore could expect to be in high school for no more than five terms (from the Spring semester of the 1998 - 99 school year to the Spring semester of the 2000 - 2001 school year). Even if S.P. had the ability to complete the program proposed by the parent - which she does not - she would not remain in school long enough to finish the necessary credits if she took one academic course each semester.

57. At an IEP meeting on January 12, 1999 class placement for S.P. for the Spring semester was discussed. S.P. began the semester with three classes at McKay - Horticulture, LRC (basic budgeting and other skills) and Keyboarding. She also participated in the transition program at Chemeketa.

58. Mr. Noel hoped that S.P. would graduate in June 1999 and participate full-time in the transition program in the 1999 - 2000 school year.

59. The parent believes that in order to get an entry-level job in the kind of employment S.P. wants, she is going to need a diploma. She thinks that without a diploma S.P. would automatically be ineligible for certain jobs. Mr. Noel does not think S.P.’s employability would be affected by whether her high school education ended with a certificate of attainment or a diploma. He observed that a diploma “only opens the door,” but someone who employed S.P. would have to evaluate her for her actual skills. S.P. would not have more to offer because she had a diploma, and if a person, for example, says that she has a diploma but could not count change, an employer might feel misled. He did not think his ability to help S.P. find employment would be affected by her having, or not having, a diploma. He does not support the parent’s goal of having S.P. receive a diploma.

60. On January 13, 1999, the parent wrote to me:

“Were [S.P.] enrolled in another school district, she would be allowed and expected to complete state- mandated diploma requirements. Those requirements are easily within her reach, but Salem-Keizer’s position is that their embellishment of the state’s diploma requirements renders the diploma unreachable to [S.P.].”

61. The parent complained that there were no standards for classes leading to the certificate of attainment track, and that S.P. was puzzled that she did not get homework in those classes (other than “word finds”) in her first semester at McNary. It is not true that there are no standards. For example, Ms. Tower explained her goals for the Keyboarding class and the fact that S.P. failed the class because she did not meet the goals. Ms. Tower also related that S.P. had weekly homework assignments in the FINAL ORDER in the Education of S.P. Page 16

Foods class but did not do any of them. Similarly, S.P. did not do the homework required by Ms. Works in American Government.

62. When S.P. entered McKay, the transcript of her education at West still had not been changed to reflect the information provided in late 1997 to Ms. McCarthy. After McNary provided additional information to McKay, S.P.’s transcript was corrected to reflect the current evaluation of the Plan B courses S.P. had taken at West.

63. In the opinion of Ms. Robinson, the assistant principal, it would be inappropriate for S.P. to remain on the diploma track and keep repeating her academic classes in the hope that eventually she would be able to achieve passing grades. Ms. Robinson thought that would make no sense and do a disservice to S.P. because while she was repeating those courses she would lose the opportunity to work on subjects appropriate for her ability, and be successful in high school.

64. In February 1999 S.P. still had to earn 10 credits (of the 22 required credits) to graduate with a diploma. Robert Lee is the supervisor of curriculum and instruction at the Salem-Keizer school district. He has held that position for two years. He has a master’s degree from the Oregon College of Education and has been a teacher and school administrator for almost 30 years. Mr. Lee did not believe it would be possible for a student functioning at second or level to complete the diploma requirements.

65. Ms. Rankin, the teacher who had the most contact with S.P., never felt S.P. should be on the diploma track. She did not believe S.P. could have passed classes in the regular (diploma) curriculum in language arts, math, science or social studies.

66. Ms. Rankin’s students who are working toward a certificate of attainment typically graduate with their class, at around age 18, and then go into the transition program or work with the Vocational Rehabilitation Division. Ms. Rankin thought S.P. should be in Reid Noel’s program. She though the best place for S.P. to be educated next year would be in that program because she needs as much vocational and social training as possible.

67. The parent believes S.P. has not received a free appropriate public education since she entered the school district in September 1996, because the district “would either teach her appropriately, or provide her an appropriate outcome; but not both.” She stated, “I’m saying what Sarah needs is a diploma that she can reasonably be expected to achieve . . . .”

68. The parent believes education for S.P. would be most effective if a “hands on” approach were used, if FINAL ORDER in the Education of S.P. Page 17

her questions - no matter how “off the wall” - were answered, and perhaps if her textbooks were offered to her on tape. She believes S.P. works better when there are reasonable expectations of her.

69. When asked during the hearing if she knew what a diploma was, S.P. replied, “What is it, I don’t know,” and another time, “What is it? Do you know, Mom?” She thought it might be a gift certificate. Nevertheless, S.P. believes she cannot leave school until she gets a diploma. S.P. would prefer studying at Chemeketa Community College next year to taking classes at McKay.

CONCLUSIONS AND REASONS:

Ruling on Motion to Dismiss

The District, in its closing argument, in effect moves to dismiss the hearing request, alleging that the parent does not have standing to request a hearing on behalf of a student who has reached the age of majority. That position is legally incorrect, as was determined in pre-hearing proceedings. See Exhibit C4. The motion is denied.

Background

Congress enacted the Individuals with Disabilities Education Act (IDEA) after finding that the special education needs of children with disabilities were not being fully met. One purpose of the Act is to assure that all children with disabilities have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living. 20 USC §1400. The Act authorizes federal financial assistance for states which meet its requirements. To qualify for assistance from the federal government under the Act, a State must assure all children with disabilities the right to a free appropriate public education (FAPE). 20 USC §1412(1); 34 CFR §§300.110, 300.121.

“Free appropriate public education” means special education and related services that have been provided at public expense, under public supervision and direction, and without charge; meet the standards of the State educational agency; include an appropriate preschool, elementary, or secondary school education in the State involved; and are provided in conformity with the child’s required individualized education program. 20 USC §1401(8). The scope of the state’s responsibility to provide FAPE was delineated by the U.S. Supreme Court in Board of Education of the Hendrick Hudson Central School District Bd. Of Ed. of Westchester County, et al v. Rowley, 458 US 176, 73 L Ed 690, 102 S Ct 3034 (1982). The Court concluded “that the ‘basic floor of opportunity’ provided by the Act consists of access to specialized FINAL ORDER in the Education of S.P. Page 18

instruction and related services which are individually designed to provide educational benefit to the handicapped child.” 458 US at 201.

Although the furnishing of every special service necessary to maximize each handicapped child’s potential is further than the Congress intended to go, Rowley, 458 US at 198, the IDEA calls for schools to provide more than a trivial educational benefit. Congress intended to afford children with special needs an education that would confer meaningful benefit. Polk v. Central Susquehanna Intermediate Unit 16, 853 F2d 171 (3rd Cir 1988), cert den 488 US 1030 (1989).

The parent contends S.P. did not receive an appropriate education in the Salem-Keizer school district. The sole reason she cites is that S.P.’s education was not preparing her to receive a diploma upon graduation. Oregon Graduation Requirements: Diplomas and Alternate Documents

The Oregon State Board of Education is required to establish state standards for public and public elementary and secondary schools. ORS (Oregon Revised Statute) 326.051(1)(a). The Department of Education shall function under the direction and control of the State Board of Education. All administrative functions of the State Board of Education shall be exercised through the Department of Education, and the department shall exercise all administrative functions of the state relating to supervision, management and control of schools and community colleges not conferred by law on some other agency. ORS 326.111(1), (3).

The Oregon Department of Education has, accordingly, promulgated OAR (Oregon Administrative Rule) 581-022-1130, which sets out the following diploma requirements:

“Each district school board with jurisdiction over high school programs shall award diplomas to all students who fulfill all school district requirements as described in the following sections and in district school board policies. A school district may award an alternate document to a student who has met some but not all of the graduation requirements:

(1) Unit of Credit Requirements:

(a) Each student shall earn a minimum of 22 units of credit to include at least:

(A) Language Arts - 3 (shall include the equivalent of one unit in Written Composition); (B) Mathematics - 2; (C) Science - 2; (D) Social Sciences - 3 (including history, civics, geography and economics [including personal finance]); (E) Health Education - 1; FINAL ORDER in the Education of S.P. Page 19

(F) Physical Education - 1; (G) Applied Arts, Fine Arts or Second Language - 1 (one unit shall be earned in any one or a combination). * * * (c) A district school board may increase the number of units required in specific areas, and may increase or decrease the number of elective units; however, the total units of credit required for graduation shall not be less than 22; * * * (e) Course syllabi shall be written for courses in grades 9 through 12 and shall be available to students, staff, parents, the district school board and other interested individuals.

(2) Attendance Requirements. . . .”

(Emphasis supplied.)

The Salem-Keizer School District

The district school board shall see that the courses of study prescribed by law and by the rules of the State Board of Education are carried out. ORS 336.035. The Salem-Keizer school district has incorporated the minimum requirements in OAR 581-22-1130 into its policy (IHFA) and administrative rule (IHFA-R). IHFA 1.01 and 1.02 provide that each student, including each handicapped student, is required to complete a minimum of 22 units of credit, where one unit of credit equals a minimum of 130 hours of instruction in a planned offering. IFHA-R 1.03 specifies the subjects to be completed, in accordance with OAR 581-22- 1130, and a second, similar list of subjects to be completed for the alternate diploma.

For each course the curriculum department must develop a “planned course statement” including a course description, prerequisites, and District curriculum standards, and a description of the specific course content in the materials used for the class. IHFA-R 8.01, 8.02. Students in the Salem-Keizer school district are also required to pass competence tests in reading, writing, speaking and mathematics. IFHA-R 7.02. The special education department shall enact procedures and alternative means to verify the competence of a disabled student, but such procedures shall not reduce the District standard of performance. IHFA-R 7.03.01, 7.03.02.

With regard to requirements for students with disabilities, section 1.04.04 of IHFA explains:

“A handicapped student shall earn credits in the same areas as other students, subject to the following conditions:

FINAL ORDER in the Education of S.P. Page 20

1.04.04.01 Such credit shall be earned within the regular curriculum and classes whenever possible.

1.04.04.02 Special education instruction may be provided to support the student’s attainment of the regular graduation requirements, or it may provide a totally special curriculum designed to meet the student’s unique needs as prescribed on the individiualized education program.

1.04.04.03 Specialized individualized education program credits will result in the granting of a certificate of attainment rather than a diploma.

1.04.04.04 A handicapped student may earn elective credit for special curricular work as specified on the individualized education program.

1.04.04.05 A handicapped student may earn a required credit for work completed in a special education program which duplicates course work from the regular curriculum, subject to the following conditions:

1.04.04.05.01 Special materials and methods may be used in such a course.

1.04.04.05.02 The course objectives must be at the same level as the objectives for the course it duplicates. . . .”

IHFA-R indicates three documents which a student may receive upon graduating from high school in the Salem-Keizer school district:

“10.01 Definitions

10.01.01 Diploma: an official document of the District given to a student to designate completion of the minimum requirements of credits, competencies and attendance for graduation.

10.01.02 Alternate diploma: an official document of the district given to a student to designate completion of the minimum alternate diploma requirements of credits, competencies and attendance for graduation.

10.01.03 Certificate: an official document of the District designating those requirements of credits, competencies, and attendance completed by a student, which is awarded to a student who has not completed all the requirements for graduation and who has chosen to terminate his/her formal school experience.” FINAL ORDER in the Education of S.P. Page 21

S. P.

The Salem-Keizer school district has offered S.P. an appropriate education by determining that her graduation goal should properly be the certificate of attainment.

The parent adamantly insists that S.P. should have remained on the diploma track in high school, because the parent thinks the certificate of attainment has no standards, no value, and would hamper S.P.’s efforts to find employment. The parent believes S.P. can earn a standard diploma. The record demonstrates in abundant detail, however, that S.P. is incapable of satisfying the legal requirement of completing 22 credits at the level established by the ODE in order to be awarded a diploma. Comments by her teachers indicate she was unable to do the work required for her academic classes in the Salem-Keizer school district, and she failed all of those classes. There is no evidence at all that S.P. could meet the academic requirements for a diploma which have been established by the ODE by administrative rule and adopted by the Salem- Keizer school district. There is no evidence at all that an educational program requiring that S.P. work toward graduation with a diploma would provide her with any educational benefit. To the contrary the evidence is overwhelming that forcing S.P. to enroll in academic courses for diploma credit, in which she had little or no possibility of success, caused her - understandably - to become upset, stressed, angry, frustrated and disruptive.

The parent proposes two possible solutions to this seemingly insurmountable obstacle. The first is to modify the diploma course content so that S.P. can achieve passing grades. The content is, however, mandated by the ODE. High school courses which are redesigned to accommodate a student functioning at the level of a second or third grader, such as S.P., would not meet the legal diploma requirements.

The parent’s second solution is, in effect, to redefine “diploma” to mean something S.P. can achieve. In the case of the “regular,” standard diploma that is impossible. The standards are established by the ODE and school districts must offer an education that meets those standards in order for their students to graduate with diplomas.

School districts also have the option of offering an “alternate document” to students who have not met all of the requirements for graduation. OAR 581-022-1130. The Salem-Keizer school district has taken advantage of this option by offering an alternate diploma and a certificate of attainment. The alternate diploma requires the completion of many standard academic courses and is beyond S.P.’s abilities. The certificate of attainment acknowledges that a student has attended high school and completed specialized individual education program classes, although he or she has not met the diploma requirements.

The parent objected that the certificate of attainment had “no standards,” and asserted that S.P. should be in a program with high standards, yet she also objected to the standards of the courses that S.P. could not achieve. The parent complained that S.P. did not receive meaningful homework when she began her junior year at McNary, but when S.P. received homework she usually did not do it. The parent claimed that S.P. FINAL ORDER in the Education of S.P. Page 22

could meet the diploma requirements if allowed to take one required diploma credit course each semester, but in the semester when she had such a program S.P. did not pass the diploma course (American Government), although she was taking it for the second time. Also, given her age, it would be impossible for her to complete the 10 credits she still needs to attain a diploma before leaving school at age 21.

The Salem-Keizer school district could have chosen to call the certificate of attainment a “modified diploma.” That would probably satisfy the parent. The school district is not, however, required to use that label, or any label including the word “diploma,” for a document which does not signify completion of the legally mandated diploma requirements. There is no guaranteed right for every student with a disability to receive a diploma of graduation from high school. OSEP, Letter to Anonymous, 22 IDELR 456 (November 1, 1994).

The many educators who testified were unanimous in their belief that S.P. should be in special education classes, or a transition program, directed toward preparing her for adult life in the community, and their testimony convincingly indicates this is the appropriate placement for S.P. Consistent with this assessment, S.P. testified that she would prefer participating in the transition program at Chemeketa next year to taking more classes at McKay. Although the educators at McNary initially tried to accommodate the parent’s desire to place S.P. in a diploma program, they eventually concluded, correctly, that an appropriate education for S.P. would lead to a certificate of attainment.

ORDER:

The Salem-Keizer school district offered S.P. an appropriate public education.

It would not be an appropriate education for S.P. for the Salem-Keizer school district to require that she work toward completing the 22 credits prescribed by ODE to receive a diploma.

______Betty Smith, Hearing Officer

BS:gc

NOTICE TO ALL PARTIES: If you are dissatisfied with this Order you may, within 120 days after the mailing date on this Order, commence a nonjury civil action in any state court of competent jurisdiction, ORS 343.175, or in the United States District Court, 20 U.S.C. § 1415(e)(2). Failure to request review within the time allowed will result in LOSS OF YOUR RIGHT TO APPEAL FROM FINAL ORDER in the Education of S.P. Page 23

THIS ORDER.

ENTERED at Salem, Oregon this 15th day of June, 1999 with copies mailed to:

Judie Lane, Oregon Department of Education, Public Service Building, 255 Capitol Street NE, Salem, Oregon 97310-0203.

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing FINAL ORDER in Case No. DP98-147 on the foregoing parties on this 15th day of June, 1999 by depositing a copy of said document in a sealed envelope in the United States Mail at Salem, Oregon, with the postage thereon fully prepaid, and addressed to:

Carol Simila-Dickinson 3301 Buff Avenue SE Salem, OR 97302

Paul Dakapolol, Attorney PO Box 749 Salem, OR 97308

Homer H. Kearns Salem-Keizer S.D.

PO Box 12024 Salem, OR 97309-0024

Gladys Chervenak