
NO.  4-96-0738



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS	)	Appeal from

ex rel. THE DEPARTMENT OF REHABILI-	)	Circuit Court of

TATION SERVICES and THE ILLINOIS	 	)	Sangamon County

SCHOOL FOR THE DEAF,				)	No. 96MR78

Plaintiffs-Appellants,		)

v.						)

JOHN F. CONAGHAN, THE ILLINOIS STATE	)

BOARD OF EDUCATION, and PEKIN 		)	Honorable

COMMUNITY HIGH SCHOOL DISTRICT 303,	)	Donald M. Cadigan,

Defendants-Appellees.		)	Judge Presiding.

_________________________________________________________________



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 §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 "[d]eafness 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 "[a]lthough 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 "[b]i­lat­eral 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 earlier noted the aides would, as a group, watch the students as a group during school-time activi­ties.

Brad Johnson is the student services case manager at Heartspring.  Johnson said John was always accom­pa­nied by an aide, although different people were with him at different times during the day.  The majority of students at Heartspring had one-to-one aides.  He testi­fied Heartspring had a sex-educa­tion pro­gram (called the "Circle Program"), the purpose of which was to help students recog­nize the appropri­ate level of physical con­tact with others.  John was enrolled in the Circle Program.  Johnson noted John's inappro­priate touch­ing dropped after the four inci­dents noted above, and the behavior generally increased in the spring, when students began wearing shorts, and during swimming activities.  He testified John's inappropri­ate behaviors had generally decreased a great deal in the preceding two years.

He noted as John's ability to commu­ni­cate in­creased, his mal­adap­tive behavior decreased.  He believed John's behav­ior and communication "go hand-in-hand."  Most aides did not have any signing ability when they began their Heartspring employment, although they did have to take one course in it, which met for a total of eight hours over the course of two months.  The educa­tional staff were not even require­d to take this course.  He did not believe Heartspring was provid­ing John an "appropriate level of sign language environ­ment," although the communication was appro­priate for John's then-current individualized education pro­gram.  He testified Heartspring was a 12-month pro­gram, and he believed John did need to be in school during the summer.  

Michelle Windle agreed John needed activities during the summer, but was not sure a summer school program 
per
 
se
 was necessary.  She testified John was in a trainable mentally handi­capped (TMH) pro­gram at Pekin for almost the complete school year 1992-93, and during that time she was aware of no incidents of inappropri­ate touching of other stu­dents, although he might occa­sionally grab a teacher or aide too roughly and leave a mark.  She heard no reports of any ag­gres­sion at home, and at school the only bad behaviors were kick­ing walls, which the teacher solved by taking his shoes when he did it.  She thought John's aggres­sive behav­iors esca­lated after he left Pekin because he had a difficult time adjusting to changes in his envi­ronment.  He left Pekin because his parents wanted him to have after-school activi­ties, which Pekin did not offer; they believed he would have more interaction with other people in a 24-hour-a-day pro­gram.  She made appli­ca­tions to 10 or 12 differ­ent facili­ties for John be­fore Heartspring accept­ed him.  Some facilities were unable to pro­gram for all of his needs, while others were willing to accept him but were full.  She thought Heartspring was meeting John's behavior management needs, but not his communica­tion or aca­dem­ic needs.  She stated Pekin was willing to pay for a 24-hour-a-day, 7-day-a-week, one-on-one assistant for John at ISD.  She thought ISD was an appro­priate placement for John because he needed a 24-hour sign­ing environ­ment to develop his sign vocabu­lary and com­munica­tion skills.  	

Jess Chapman, director of admissions and records at ISD, did not believe ISD could program for John because the envi­ronment was not secure enough for him.  He thought John's behav­ior would put him at risk for himself and trying to place John at ISD would "set him up for an awful lot of failure."  His con­cerns were greatest after the school day, because John's time would be less structured, but his opinion was not changed by the possibil­ity of having a one-on-one aide or by Karlecke's report.  He knew of the self-con­tained class­room at ISD, but knew very little about it.  

Charles Nash is the ISD director of student life.  He was involved with John's admission deci­sion regarding the possi­bility of programming for him in the dormitory.  He did not think the other students would accept John's behaviors (especially mastur­ba­tion and inappro­priate touching) in the dorm setting and believed "the behaviors that he was exhibiting would really be det­ri­men­tal to his well being."  He believed no one else was func­tion­ing on his level, so he would have no true peers at ISD.  Nei­ther Karlecke's report nor the possibility of a 24-hour aide changed his opinion, because John's behaviors had not entirely stopped at Heartspring despite the 24-hour aide.  He also noted there were strict poli­cies regarding sexual inter­ac­tion between students and rules requir­ing report­ing to the Department of Chil­dren and Family Services (DCFS) of inappropri­ate sexual con­duct. 

Cathryn Vincent, the social work administrator at ISD, also did not believe John should be admitted to ISD, because he could not function at the appropriate emotional, academic, or intellec­tual level.  Vincent testified she was required to report any allegation of abuse or neglect to DCFS, and if DCFS found the report "indicat­ed," it could require ISD to remove the student from the school.  She reviewed the Heartspring reports relat­ing to sexually inap­propriate touching and believed she would have had to report the incidents had they occurred at ISD.

Joan Forney, superintendent of ISD, felt John's primary need was a very struc­tured, consistently enforced, behav­ior-man­agement plan, which ISD could not provide.  She thought the ISD system for controlling vio­lence (crisis prevention inter­vention (CPI)) would be inade­quate to control John, based on the be­hav­iors his records revealed.  She confirmed ISD had no time-out room and no doors.  She noted 34% of the stu­dents at ISD had second­ary handi­caps, but even when asked to assume John's primary disabili­ty was hearing impairment, which she did not believe, she felt ISD could not program for him.  Especially troublesome were the DCFS reporting require­ments--she felt ISD would have had to report several of the inci­dents in which John had been in­volved at Heartspring, and in her experi­ence when DCFS conducted an investigation the school either had to guarantee DCFS it would not happen again or remove the child from the school.  She also noted since John was now over 16 the incidents could be criminal matters.  She felt a one-on-one aide would not amelio­rate the problems because the incidents at Heartspring occurred in the presence of adults.  

She also noted just getting aides could be very diffi­cult.  There was another student at ISD who re­quired one-on-one aides for personal care and ISD had not been able to hire aides who could sign; the personnel were simply not avail­able.  She believed the recommen­dations Karlecke made in her report would be an "overbur­densome change" in ISD's program.  

Charles "Steve" Tavender, the ISD high school princi­pal, also felt ISD could not appropri­ately program for John, for several reasons.  First, John's history of eloping:  the physical layout of the school would be a prob­lem, as neither the class­rooms nor janitor closets have doors and there are at least four readily acces­si­ble exits from the high school.  With respect to academics, he under­stood John needed a program emphasizing daily living skills, on the order of grooming or toilet training; such a program was not available in the high school, because the stu­dents were all academically oriented and took at least one voca­tional class per year.  He presumed John would be in the semi-self-con­tained classroom, but he testified none of the students currently therein had any behav­ior problems.  There were no other stu­dents with the same complexity of disabil­ities as John in the high school.  Karlecke's report did not change his opin­ion, be­cause he believed it contained a lot of contra­dictions and most of John's behaviors still existed.  

The level I order kept John at Heartspring, but re­quired all of his aides henceforth to be fluent in ASL.

B.  Level II Hearing

The Conaghans filed for level II administrative review (see 89 Ill. Adm. Code §800.190 (1996)).  The level II hearing was held on No­vem­ber 29, 1995.  Four witnesses testi­fied.  Only one (Forney) had tes­ti­fied at the level I hear­ing.  It was also brought to the level II officer's attention that a multidisci­plinary conference (MDC) in No­vember 1995 had reor­dered John's dis­abil­i­ties, label­ing his hear­ing impairment primary and his behavior disorder and mental hand­icap secondary.

At the time of the hearing, Andrea Simeone had been the teacher in ISD's "semi-self-con­tained" classroom for three months.  Before coming to ISD Simeone had worked for the Illi­nois Center for Deafness (Center) for 10 years.  The Center--or at least the part of it with which Simeone had been involved--was "a small private school not-for-profit specifically designed for students who are hear­ing-im­paired but have addition­al diagno­ses of behavior disorders, emotional disturbance or mental illness."  For about six of her years at the Center she was a classroom teach­er and had taught stu­dents with schizophren­ia, manic de­pres­sion, and psychotic major depres­sion, and "[m]any of them were aggressive or had aggressive tendencies.  I don't know what the word is now, but defiant, defiant behaviors."  

The ISD semi-self-contained class con­tained five deaf stu­dents with second­ary dis­abil­i­ties.  Four were educable mental­ly handicapped (EMH) and one was TMH; one (the record does not re­flect wheth­er it was the TMH student or one of the EMH stu­dents) was also be­havior disor­dered, although he had not recent­ly been ex­hibiting many inappro­priate behav­iors.  Simeone testified none of the students were aggres­sive or exhibit­ed sexually inap­pro­priate behav­ior; she had only had to use "time-out" about three times in the last year.  

Kathleen Lowman, direc­tor of educa­tion at Heartspring, testified by teleconference.  She had been in this position only since July 1995, but she had read John's records and observed him person­ally to some extent (six or seven times, for about five minutes each time).  Heartspring was not a locked facil­ity, but she was not aware of John ever trying to leave Heartspring's grounds.  She stated whether John's hearing impair­ment was prima­ry or sec­ondary would not change how Heartspring pro­grammed for him.  Heartspring had not hired any deaf educa­tors or teach­ers certi­fied in deaf education since the level I hear­ing, nor had it been able to find anyone trained in ASL for the staff.  They had changed John's one-on-one aide to Cheryl O'Brien, the most profi­cient signer on staff, and Lowman observed John seemed very in­ter­ested and in tune with her.

O'Brien also testified by telephone.  She became John's one-on-one aide in October 1995 and was with him every day from 8:30 a.m. to 3:30 p.m.  She thought John's expres­sive language skills were not as good as his recep­tive skills, al­though she had been able to motivate him to sign to her in up to five-word sen­tences.  For the most part she was very able to understand John's wants.  She had not ob­served him exhibit any aggres­sive behav­iors in the four weeks she had been working with him.  

Finally, Forney testified briefly about living arrange­ments that might be available to John as an alternative to the ISD dormitories.  She noted her discus­sion of the possibili­ties did not mean she thought ISD could program for John effec­tively; she still had the con­cerns she raised at the level I hearing.

The level II hearing officer reversed the level I deci­sion and ordered John placed at ISD and re­quired him to have a one-on-one aide 24 hours a day, at Pekin's expense.  It spec­i­fied John's aides and teachers were required to be fluent in sign lan­guage.  Final­ly, it re­quired "AN ALTERNATE RESIDENTIAL PLACE­MENT TO MEET THE STUDENT'S NEEDS AND THAT OF ISD'S SECURITY CON­CERNS SHALL BE PROVIDED."

C.  Circuit Court Review

ISD and DORS filed an action (see 89 Ill. Adm. Code §800.20 (1996)) under section 3-110 of the Admin­is­tra­tive Review Law (735 ILCS 5/3-110 (West 1994)) in the circuit court of Sangamon Coun­ty.  The argu­ments were not tran­scribed.  By dock­et entry the court found the level II re­sult was "neither con­trary to law nor against the manifest weight of the evidence and is according­ly affirmed."  

II.  ANALYSIS

A.  Alleged Errors of Law

ISD first argues the level II officer erred in the issues she addressed.  ISD asserts the only proper issue was whether its denial of admission failed to comply with DORS' regu­lations, and it contends the officer should not have ad­dressed the ques­tions of whether ISD was an appro­pri­ate place­ment, wheth­er Heartspring was an appropri­ate placement, whether John had a right to a deaf education and whether Pekin had failed to provide John a free appropriate public education.  It correct­ly notes this question of law is subject to 
de
 
novo
 review.  See 
Illini Country Club v. Proper­ty Tax Appeal Board
, 263 Ill. App. 3d 410, 416, 635 N.E.2d 1347, 1353 (1994), 
appeal denied
, 158 Ill. 2d 551, 645 N.E.2d 1358 (1994).

However, even if the only issue properly before the officer was whether ISD violated DORS' rules, those rules require ISD to accept all chil­dren with a primary dis­abil­i­ty of hearing impair­ment for whom it can create an appro­pri­ate program.  ISD must admit Illinois residents between 3 and 21 years old who have been diag­nosed as having a hearing impairment, "in­clud­ing those with secondary disabili­ties," in accordance with section 765.10(d) of title 89 of the Illinois Administrative Code (89 Ill. Adm. Code §765.10(d) (1996)), if space is avail­able "and it has been de­ter­mined, through an appli­cation and evalua­tion pro­cess, that ISD can pro­vide an ap­propri­ate pro­gram."  89 Ill. Adm. Code §755.30 (1996).  Behav­ior disor­ders and mental handi­caps are among the secondary dis­abili­ties for which ISD must program if it "appro­priately" can.  See 89 Ill. Adm. Code §§765.10(d)(3), (d)(4), (d)(6) (1996)).  Thus ISD violated DORS' rules by re­fus­ing to admit John if his primary dis­ability is hearing im­pair­ment and it can appropriately program for him.

The level II officer noted John's hearing impairment was his primary dis­abili­ty ac­cording to the Novem­ber 1995 MDC conference and found "very little modifi­ca­tion" would be required for ISD to meet John's needs.  After considering the separate issues of secu­rity, resi­den­tial issues 
and ISD's abil­i­ty to pro­gram for him
, the officer found ISD was the "appropriate place­ment" for John.  The con­clu­sions John's hear­ing loss was his pri­ma­ry dis­abil­ity and ISD could appropri­ately pro­gram for John lead to a legal determination ISD violated the above rules by not ad­mit­ting him.  Ordering ISD to admit John was an appropri­ate reme­dy.  Even if the other issues were not proper­ly before the offi­cer, she did not order addi­tional re­lief against ISD based on any of those issues.  An error of law is not grounds for rever­sal where the judgment is correct.  
Ehredt v. Forest Hospi­tal, Inc.
, 142 Ill. App. 3d 1009, 1012, 492 N.E.2d 532, 535 (1986).  

B.  Sufficiency of the Evidence



The other arguments ISD presents take issue with cer­tain factual conclusions the hearing officer reached.  The fac­tual findings in a final administrative order are 
prima
 
facie
 true and correct.  735 ILCS 5/3-110 (West 1994).  Rever­sal of an agency's factual conclusions is warranted only if against the mani­fest weight of the evidence, meaning "unrea­son­able, arbi­trary, and not based upon any of the evi­dence."  
Illini Country Club
, 263 Ill. App. 3d at 417, 635 N.E.2d at 1353.

1.  
The Finding John's Hearing Impairment

is his Primary Disability



ISD first argues the level II officer erred in con­clud­ing John's hearing impair­ment is his primary disability.  It asserts she "ig­nored" the fact John's primary dis­abil­i­ty had always previously been diagnosed behav­ior disorder or mental handicap, and notes Karlecke "acknowledged that the most recent [MDC] governing John's [individualized education plan] found his primary dis­abil­i­ty to be behav­ior disor­der."  

This was true when Karlecke testi­fied, but the No­vem­ber 1995 MDC reordered John's disabili­ties so his prima­ry dis­ability was hearing impair­ment.  The level II officer noted the Novem­ber 1995 MDC and its results in her findings of fact.  All persons required to attend the MDC (see 23 Ill. Adm. Code §226.560(b) (1996)) were present.  

John does not question whether ISD may challenge the hearing officer's conclusion regarding primary disability when it was based on an MDC.  Assum­ing for purposes of this appeal it may do so, we neverthe­less do not find the result against the mani­fest weight of the evidence.  Experts testi­fied on both sides of the issue, and the hearing officer was entitled to give credence to whomever she found more believable.  John's previ­ous diagno­ses were brought to her atten­tion and given the weight she thought appro­pri­ate.  The evidence is simply not so one-sided as to lead this court to reverse the level II officer's conclusion John's pri­mary disability was his hearing impairment.

2.  
The Finding John's Inappropriate

Behaviors Have Decreased



ISD argues the testimony of Lowman, O'Brien and Karlecke is insufficient to support a conclusion John's behav­iors had de­creased because they had only observed John for very short peri­ods of time.  We disagree.  First, the brevity of their con­tact with John would not necessarily lead to reversal even if their testi­mony was the only support for the hearing officer's conclu­sion.  Part of the Conaghan's argument is John's behaviors are the re­sult of his inability to communicate, and O'Brien and Karlecke are prac­tically the only persons in John's educational environ­ment in recent times with the ability to sign.  

Nor was this the only evidence before the officer.  Johnson testified John's be­hav­iors had de­creased great­ly over the pre­ceding two years, and charts track­ing John's behav­iors on a week-to-week basis from May 1993 through July 1995 were adduced.  Windle tes­tified John's behaviors had been very in­frequent during the 1992-93 school year during which he had been at Pekin, where there had been a fluent signer teach­ing him.  There was suffi­cient evi­dence to support the officer's conclu­sion.

3.  
The Finding ISD is an Appropriate Placement for John



ISD finally argues it is simply not an appropriate place­ment for John.  We affirm, based primarily on the revised MDC, Andrea Simeone's testi­mo­ny and Pekin's provision of an aide 24 hours a day.

Simeone had been teaching severely disabled deaf stu­dents for six years before she came to ISD.  The ISD "semi-self-con­tained" class­room already con­tained five stu­dents with mental handi­caps, one diagnosed as behavior disor­dered.  The level II offi­cer characterized Simeone as a "teach­er who is a deaf educa­tor and someone familiar with behavior[-]disor­dered chil­dren."  The fact she was teach­ing at ISD was one of the rea­sons the offi­cer found "ISD DOES NOT REQUIRE MODIFI­CATION TO MEET STUDENT'S EDUCA­TIONAL NEEDS[.]"  We reject ISD's argu­ment re­gard­ing her "quali­fi­ca­tion to teach special education students with behavior disor­ders."  Not only did she teach se­vere­ly dis­or­dered chil­dren dur­ing the six years she taught at the Cen­ter, ISD has em­ployed her to teach deaf stu­dents with, ac­cord­ing to her own tes­ti­mony, all of the second­ary handi­caps with which John has been diagnosed (EMH, TMH and behavior disor­der).  At least one student in her class at ISD was both behav­ior disor­dered and mentally handi­capped.  We cannot overturn the hear­ing officer's con­clu­sion Simeone is capable of deal­ing with such students.

ISD also argues a 24-hour aide will not suf­fice to protect John--or the other students--because he mis­be­haved at Heartspring despite his 24-hour aide.  This argu­ment is not with­out logic, but it overlooks certain facts.  First, as noted, both Karlecke and O'Brien testi­fied John was not aggres­sive when they signed to him, and so far as the record reveals they were the only two people in John's education­al set­ting in the last few years who were conversant in sign.  Since the aide at ISD must be fluent in sign, there is some ra­tional basis for believing John might be less likely to act inap­propri­ately.  Regard­ing the aide's ability to prevent John from acting out if he attempted to do so, it is worth noting 
all
 of the stu­dents at Heartspring were mental­ly handi­capped or behav­ior disor­dered.  Karlecke noted the aides would, as a group, watch the children as a group.  It is reason­able to infer a sin­gle aide might be more alert to the ac­tiv­i­ties of a single student than a group of aides would be to the ac­tiv­i­ties of one student in a large group.

III.  CONCLUSION

Both parties raise legitimate concerns for the welfare of innocent parties, which makes this a difficult case.  John and Pekin raise the disturbing specter of a young man who is being deprived of what may be his last best chance to learn to commu­nicate.  ISD has a duty to pro­tect all of its stu­dents.  There is  poten­tial for harm--includ­ing ad­verse con­sequences for John--if John engag­ed in sexu­al­ly inap­propri­ate behavior, and he could pos­si­bly have a disrup­tive effect on the school as a whole even with­out doing so.

We are not experts in this field.  The level II offi­cer, who is, had before her over 2,000 pages of documents and testimony.  Contained therein is evidence supporting her deci­sion, as well as evidence that might arguably support the oppo­site conclu­sion.  Our task is not to implement the result at which we might have ar­rived were we in the hearing officer's place.  Rath­er, we are to deter­mine whether the hearing officer's order was within the bounds of the law and evidence.  We find it was and affirm.

Affirmed.

GARMAN and COOK, JJ., concur.

