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09/11/97 PEOPLE STATE ILLINOIS EX. REL. DEPARTMENT

September 11, 1997

THE PEOPLE OF THE STATE OF ILLINOIS EX. REL. THE DEPARTMENT OF REHABILITATION SERVICES AND THE ILLINOIS SCHOOL FOR THE DEAF, PLAINTIFFS-APPELLANTS,
v.
JOHN F. CONAGHAN, THE ILLINOIS STATE BOARD OF EDUCATION, AND PEKIN COMMUNITY HIGH SCHOOL DISTRICT 303, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 96MR78. Honorable Donald M. Cadagin, Judge Presiding.

As Corrected October 9, 1997.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Knecht delivered the opinion of the court. Garman and Cook, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

John Conaghan (John) was born in September 1977. He has multiple disabilities, including a severe hearing impairment, a behavior disorder, and he is developmentally disabled. For most of his life, John has been educated in his home school district and in various private facilities. In September 1994, John and Margy Conaghan, John's parents, applied to enroll John at the Illinois School for the Deaf (ISD). ISD denied John admission in January 1995, despite the fact Pekin Community High School District 303 (Pekin), the Conaghans' local school district, supported the placement. ISD denied John's admission because (1) his hearing loss was not his primary handicap, and (2) even if it were, ISD could not meet his needs because of the severity of his other handicaps. An administrative hearing officer upheld ISD's admission decision when the Conaghans sought administrative review, but after receiving additional testimony and evidence, a level II officer reversed the level I decision and ordered ISD to admit John. ISD and the Department of Rehabilitation Services (DORS) appealed the level II decision to the circuit court of Sangamon County, which affirmed. This appeal followed. We affirm.

I. BACKGROUND

A. Level I Hearing

The level I hearing (see 89 Ill. Adm. Code ยง 800.20 (1996)) was originally set in June 1995. It was continued to allow for an independent examination of John. The independent examiner, Jeanne Karlecke, testified for the parents at the level I hearing in August 1995. Her testimony, as well as that of Mickey Jones, the director of the evaluation center at ISD, dealt primarily with John's ability to benefit from being placed in an environment where sign language was constantly used.

Karlecke, a school psychologist at the Wisconsin School for the Deaf (Wisconsin), observed John for four days in July 1995. She also reviewed the records kept on John at Heartspring, a facility for mentally handicapped and behavior-disordered children in Kansas at which he was then residing, and before. She believed John's hearing impairment was his primary disability. She noted he could not be taught anything, including behavior modification, until he could communicate. She believed language development was the most important thing for John, and he would only develop a language base in an environment in which sign language was always used, 24 hours a day. She agreed John would have to be in a self-contained classroom and would, at least-initially, need a one-on-one aide 24 hours a day.

Karlecke did not know the Illinois definition of a "primary disability" (Wisconsin does not classify disabilities as primary or secondary), but used the term to refer to that which was "preventing John from making progress academically and educationally." Two witnesses familiar with Illinois special education laws defined it as the disability that "impacts the individual most educationally" (Judy Pierce, director of the Illinois Service Resource Center) and that "has the greatest adverse effect on the child's educational performance" (Michelle Windle, director of special education at Pekin). When asked "deafness is always primary, is that correct?," Karlecke answered in the affirmative. However, this was in the context of a series of hypothetical questions about a student who was both deaf and blind. Soon after she clarified: "I don't say that deafness is always the primary responsibility, [sic) because *** we have children who are deaf, who are emotionally disturbed and the emotionally disturbed is [sic] their primary handicap and we know it is their primary handicap. *** It depends on the child individually." She believed a deaf child could have a behavior disorder that is his or her primary disabling condition, i.e., it depends on "the whole situation, what is causing the behavior problems. When there is a lack of early communication, you have to question which is the primary handicap."

On cross-examination, Karlecke was asked how she reconciled her testimony deafness was John's primary handicap with the fact nearly all of the specific recommendations in her written report related to John's behaviors. She reiterated her behavioral recommendations all required language to implement. No progress could be made in any arena, including behavior modification, until John could communicate. She noted John's reports all indicated his behavior worsened when a new person entered his environment, but it did not with her. She attributed this to her ability to communicate with him.

She recognized Illinois had previously diagnosed John's primary handicap as his behavior disorder, but she disagreed. She also did not believe he had pervasive developmental disorder (PDD). She agreed John would probably never be able to use "how" and "why" questions, but thought he had the capacity for much fuller communication than his current language skills allowed him. In her opinion his signing improved measurably during the four days she was present.

Jones, by contrast, testified she believed the change Karlecke observed in John's signing was not really learning, but simply "echoing" of her signs. He disagreed with Karlecke's opinion John's communication would improve if he were placed in a 24-hour signing environment; he believed John had PPD, a neurological disorder that would preclude him from developing language even in an environment where he had access to it. He based this in part on the fact John did not speak well.

John is not totally deaf; in his better ear he only has a severe hearing loss. Jones believed this meant John "would have a whole lot of residual hearing that could be used for the development of spoken English" with adequate amplification, and his limited speech ability indicated John had a language disorder in addition to his deafness. He testified an assessment done several years earlier at "CID" had rated John's receptive scores for speech and sign language the same. The 1982 evaluation by the St. Louis Central Institute for the Deaf (Institute) is contained in the record. The Institute noted John's hearing aid would increase loudness, but would "not provide him with normal hearing. We would expect him to experience difficulty with the clearness of speech, even with his hearing aid, due to the sensorineural nature of his hearing loss." The same report concluded "although his sign language skills are delayed, John exhibits the ability to learn to express himself in sign."

Jones noted a November 1992 report by Alex Slappey observed John had previously been diagnosed with PDD (i.e., Jones did not actually diagnose John with PDD, nor did Slappey, although both believed his behaviors were consistent with it). PDD is a neurologically based disorder and is qualitatively different from normal deafness. Jones explained most deafness resulted from a problem with the inner ear. A person with this type of deafness could learn American Sign Language (ASL) in the same amount of time it would take a hearing child to learn spoken language.

In persons with PDD, on the other hand, a problem with the brain itself blocks language development. Jones's belief that John suffered from PDD led him to conclude John would not be able to acquire language even if it were made available to him through a 24-hour signing environment. He admitted he was not a neurologist, nor had he seen any medical report from a neurologist stating John had any neurological condition that would prevent him from acquiring language. The only neurologist's report in the record before this court diagnosed John with "bilateral sensorineural hearing loss, and behavioral problems resultant." This 1988 report, by William Svoboda, made no mention of PDD.

Jones differentiates between language and vocabulary, and it is the former, "a knowledge of rules," that he believed John would never acquire. He believed language acquisition began at birth, and "the longer that you wait, the more the less fluent the person is in using the rules in the language." The only time he ever believed John had been in an environment where he could have begun to learn the rules of a language was one year when he attended the Sterling School (Sterling), when he was three years old. John's father had previously testified when John was attending Sterling he "made -- he was developing a language base. I mean actually talking. He would say juice, toast, dad; and it was a totally deaf environment." He testified he and his wife had been trying to get John back into a full-time deaf education program since he left Sterling, but had never been able to because of his behaviors. He had been asked to leave Sterling because he was fascinated with lights and liked to turn the classroom lights on and off. Karlecke believed the level of signing at Heartspring was generally very poor; she gave the example John's teacher signed "today" by putting together the sign for "to," as in going "to" something, and "day." John's aides told her they learned some sign language from John.

The question of John's ability to benefit from a full signing environment was not the only reason given for the denial of admission. Another issue was whether ISD could appropriately program for John's other disabilities. ISD was especially concerned with four incidents during the summer of 1995 in which John inappropriately touched female students, either attempting to touch their breasts or put his hand into their shorts. There was also a report of John inappropriately touching an aide in November 1993, trying to lift her shirt and remove her pants.

When Karlecke was questioned specifically about these occurrences, she stated she did not believe John was dangerous; as long as he had a one-on-one aide, he would not present a danger to others. She noted the incidents occurred during group activities, where the aides did not go along one-on-one, and John stopped when he was told to stop by whatever adult was present. She had ...


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