text:
Page:Dictionary of National Biography volume 23.djvu/52

  GREEN, HENRY (1801–1873), author, was born near Penshurst, Kent, on 23 June 1801. His father, a successful paper-maker, had intended his son for his own business. Literary tastes, however, and the influence of the Rev. George Harris, under whose care he was placed, induced him to devote himself to the ministry. He entered Glasgow University in November 1822, and after a distinguished career there took his M.A. degree in April 1825. In January 1827 he became minister of the old presbyterian chapel, Knutsford, Cheshire, which office he resigned in June 1872. During part of his pastorate he conducted a large private school, and published several handbooks to Euclid. He died on 9 Aug. 1873 at Knutsford, and he was buried in the yard of the old chapel. He married Mary, daughter of John Brandreth, who died 14 June 1871. Five of his six children survived him. His only son, Philip Henry, after a distinguished career at the bar, was appointed to an Indian judgeship. He was killed in the hotel at Casamicciola, Ischia, during the earthquake on 28 July 1883.

The following is a list of Green's chief writings: 1. 'Sir I. Newton's Views on Points of Trinitarian Doctrine; his Articles of Faith, and the general coincidence of his Opinions with those of J. Locke, &c.,' Manchester, 1856, 12mo. 2. 'The Cat in Chancery,' a volume of satirical verse, Manchester, 1858, published anonymously. 3. 'Knutsford and its Traditions and History, with Reminiscences, Anecdotes, and Notices of the Neighbourhood,' 1859. This accurate and interesting work was reprinted in 1887. 4. 'A Ramble to Ludchurch,' a poem, 1871, 8vo, and a number of sermons and contributions to antiquarian societies. During the last few years of his life he occupied himself much with the study of the early emblem writers, and published a facsimile reprint of 'Whitney's Choice of Emblems, with Notes and Dissertations,' 1866, 4to; 'Shakespeare and the Emblem Writers, with a View of the Emblem Literature down to A.D. 1616,' 1870. He was one of the founders and a member of the council of the Holbein Society, for which he edited six works. He was also the author of some pamphlets in defence of the church of England (in which he was born and brought up till his sixteenth year) against the efforts of the Liberation Society.

[Brit. Mus. Cat.; Unitarian Herald, 22 Aug. 1873; private information.]  GREEN, HUGH, alias (1584?–1642), catholic martyr, born about 1584, was the son of a 'citizen and goldsmith in the parish of St. Giles, London.' Both his parents were protestants, and he was educated at Peterhouse, Cambridge, where he graduated B.A. Subsequently he travelled on the continent, and became a Roman catholic. He was received into the English College at Douay in 1609, and on 7 July 1610 he took the college oath, and was admitted an alumnus. He was confirmed at Cambray on 25 Sept. 1611, advanced to minor orders, and ordained sub-deacon at Arras on the following 17 Dec., deacon on 18 March, and priest on 14 June 1612. He left the college on 6 Aug. 1612, with the intention of joining the order of Capuchins, but ultimately proceeded to the English mission. Here for nearly thirty years he exercised his functions in various places under the name of Ferdinand Brooks. When Charles I in 1642 issued the proclamation commanding all priests to depart the realm within a stated time, Green, who was then at Chideock Castle, Dorsetshire, as chaplain to Lady Arundell, resolved to withdraw to the continent. Lady Arundell besought him to stay at Chideock, pointing out that the day fixed in the proclamation had already expired. Green, however, thinking there was yet time, proceeded to Lyme, and was boarding a vessel bound for France, when he was seized by a custom-house officer, carried before a justice of the peace, and by him committed to Dorchester gaol. On 17 Aug. 1642, after five months' close confinement, he was tried and sentenced to death by Chief-justice Foster. Two days later he was executed on a hill outside Dorchester under circumstances of the most terrible cruelty, being then in the fifty-seventh year of his age. A pious lady, Mrs. Elizabeth Willoughby, who attended him at the scaffold, wrote a minute narrative of his death, published in Jean Chifflet's 'Palmæ Cleri Anglicani,' 12mo, Brussels, 1645, p. 75.

[Gillow's Bibl. Dict. of English Catholics, iii. 18-24; De Marsys, De la Mort glorieuse de plusieurs Prestres, 1645, pp. 86-93; Challoner's Missionary Priests, 1741-2, ii. 215; Dodd's Church Hist. 1737, iii. 86.]   GREEN, JAMES (fl. 1743), organist at Hull, published in 1724 'A Book of Psalmody; containing chanting tunes … and the Reading Psalms with thirteen Anthems and a great variety of Psalm tunes in four parts … [London], and sold by the booksellers at Hull, Lincoln, Lowth, and Gainsborough.' The volume opens with instructions. It reached its eleventh edition


text:
Page:Dictionary of National Biography volume 23.djvu/53

in 1751. A hymn for two voices, 'When all Thy Mercies,' published about 1790, and four catches in Warren's 'Collection,' are ascribed to James Green, who is not to be confounded with Henry Green, the blind organist (d. 1741).

[Baptie's Handbook, p. 86; Brown's Dict. p. 288; Grove's Dict. i. 624; Pohl's Mozart in London, pp. 21, 36.]  GREEN, JAMES (1771–1834), portrait-painter, born at Leytonstone in Essex, 13 March 1771, was son of a builder. He was apprenticed to Thomas Martyn, a draughtsman of natural history, who resided at 10 Great Marlborough Street. Here Green remained several years, and showed great talent in the imitation of shells and insects. Having higher aims in art, he made secret efforts to study, and at the expiration of his apprenticeship, entered the schools of the Royal Academy. He attracted the notice of Sir Joshua Reynolds, P.R.A., and copied many of his pictures. In 1792 he first exhibited at the Royal Academy, sending views of Oxford Market and Chapel; in 1793 he exhibited several views of Tunbridge Wells, and some portraits. He gradually attained a good reputation for his portraits in water-colour, the result of industry and careful observation rather than of great natural gifts. His execution was more elegant than powerful, but his portraits are not devoid of dignity. Many of them have been engraved, including those of Benjamin West, P.R.A., Sir R. Birnie, both engraved in mezzotint by W. Say; George Cook, the actor, as Iago, engraved in mezzotint by James Ward; Joseph Charles Horsley (the stolen child), engraved by R. Cooper. In the National Portrait Gallery there are portraits by him of Thomas Stothard, R.A., and Sir John Ross, the latter being Green's last work. The portrait of Stothard was sold at S. Rogers's sale in May 1856, as by G. H. Harlow, although it is signed 'James Green, 1830.' It was exhibited at the Royal Academy in 1830, and was lent to the Manchester Exhibition in 1857 by its owner, Mr. J. H. Anderdon, who eventually presented it to the National Portrait Gallery. It was engraved by E. Scriven for 'The Library of the Fine Arts,' April 1833. Green also painted large subject pictures in oil, including 'Zadig and Astarte,' exhibited 1826, and engraved in the 'Literary Souvenir,' 1828; 'Béarnaise Woman and Canary,' engraved in the 'Literary Souvenir,' 1827, and 'Belinda.' His picture of 'The Loves conducted by the Graces to the Temple of Hymen' was painted in water-colour. Green also was a frequent exhibitor at the British Institution, and in 1808 was awarded a premium of 60l. He was a member of the Associated Society of Artists in Water-Colours. Many of his pictures were commissions, notably from Mr. Francis Chaplin of Riseholme, Lincolnshire. He resided for many years in South Crescent, Bedford Square, and died at Bath on 27 March 1834. He was buried in Wolcot Church.

In 1805 Green married Mary, second daughter of William Byrne [q. v.], the landscape-engraver. She was a pupil of Arlaud, and was a well-known miniature-painter, exhibiting at the Royal Academy from 1795 to 1835. On her husband's death she retired from her profession, and died 22 Oct. 1845, being buried at Kensal Green. Her copies after Reynolds and Gainsborough were much valued. By her James Green was father of Benjamin Richard Green [q. v.] and of one daughter.

[Arnold's Library of the Fine Arts, May 1834; Redgrave's Dict. of Artists; Graves's Dict. of Artists, 1760-1880; exhibition catalogues.]  GREEN, JANE (d. 1791), actress. [See under Hippisley, John (d.1748) (DNB00).]  GREEN, JOHN (1706?–1779), bishop of Lincoln, was born at or near Hull (perhaps at Beverley) about 1706, and received his early education at a private school. He was then sent as a sizar to St. John's College, Cambridge, where he graduated B.A. with distinction, and obtained a fellowship (1730). He proceeded M.A. in 1731, B.D. 1739, and D.D. 1749. On leaving Cambridge he became assistant-master, under Mr. Hunter, in the Lichfield grammar school, where he made the acquaintance of Johnson and Garrick. His first clerical appointment was to the vicarage of Hingeston, Cornwall. He then became known to Charles, duke of Somerset, the chancellor of the university of Cambridge, who appointed him his domestic chaplain. In 1747 the duke gave him the rectory of Borough Green, near Newmarket. Green appears, however, to have resided at college, where he filled the office of bursar. In 1748, on the death of Dr. Whalley, he was appointed regius professor of divinity, and soon afterwards royal chaplain. The favour of the Duke of Somerset seems to have recommended Green to the patronage of the Duke of Newcastle, who succeeded him in the chancellorship of Cambridge. In 1749 Green, after an action at law, obtained the living of Barrow in Suffolk, as senior fellow in orders of the college. In 1750, on the death of Dean Castle, master of Corpus Christi College, the fellows of that society being in a difficulty about the election of a master, referred the matter to Archbishop Herring. Herring, at the request of the Duke of Newcastle, nominated Green, who was then elected

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
User talk:24.217.81.28

Please do not add nonsense to Wikisource; it is considered vandalism. If you would like to experiment, use the sandbox. Thank you. -- George Orwell III (talk) 20:19, 3 November 2010 (UTC)

title: User talk:24.217.81.28


text:
Page:Dictionary of National Biography volume 23.djvu/54

 by the fellows. Green took an active but anonymous part in advocating the new regulations proposed by the chancellor of the university. He published his views in a pamphlet entitled 'The Academic, or a Disputation on the State of the University of Cambridge.' On 22 March 1751 he preached the sermon on the consecration of Dr. Keene to the see of Chester, which was afterwards printed. In October 1756 Green was promoted to the deanery of Lincoln, and resigned his professorship of divinity. He thus became eligible for the office of vice-chancellor of Cambridge, to which he was chosen in November following. Green now became one of the numerous writers against the rising sect of the methodists. He published two letters against the 'Principles and Practice of the Methodists' without his name, the first addressed to [q. v.], the second to George Whitefield (1761). He had prepared a third letter on the same subject, but the publication of this was prevented by Archbishop Seeker, who probably considered his attacks too severe. Being on a visit to the primate, Green was desired by the archbishop to proceed no further in the controversy, as 'he looked upon the methodists to be a well-meaning set of people.' On the translation of Bishop Thomas to the see of Salisbury, Green, by the influence of his constant patron, the Duke of Newcastle, was promoted to the bishopric of Lincoln (1761). This vacated his other church preferments, but he still retained the mastership of his college. In 1762 Green visited the diocese of Canterbury as proxy for Archbishop Seeker. In 1763 he preached the 30 Jan. sermon before the House of Lords, which, as usual, was printed. In the following year he resigned his mastership at Cambridge. Lord Hardwicke, son of the famous lawyer, was greatly helped in his contest for the stewardship of Cambridge by Green. The bishop had been associated with him as a contributor to the 'Athenian Letters,' supposed to be written by a Persian residing at Athens during the Peloponnesian war (London, 1781). These were republished in a complete form in 1798 (2 vols.)

Green established a considerable literary reputation. The conversaziones of the Royal Society, which used to be held at the house of Lord Willoughby, were transferred to Green's house in Scotland Yard in 1765. His interest at court also continued to be good, as in 1771, on a representation that the revenues of his diocese were too small for his wants, he attained a residentiary canonry at St. Paul's, to be held in commendam. The bishop now removed to his residentiary house in Amen Court, and he also had a house at Edmonton. He does not appear to have resided much in his diocese. In 1772 he distinguished himself in the House of Lords by being the only bishop to vote in favour of the bill for the relief of protestant dissenters, who, as the law then stood, were required to subscribe the doctrinal articles of the church of England. The bill was rejected by 102 to 27, but seven years afterwards was carried. Green died suddenly at Bath on 25 April 1779. He appears to have enjoyed a high position in society, but was not remarkable as a theologian, nor as an active administrator of his diocese.

 GREEN, JOHN (fl. 1842–1866). [See .]

 GREEN, JOHN RICHARDS. [See .]

 GREEN, JOHN RICHARD (1837–1883), historian, was the elder son of Richard Green, a citizen of Oxford, and was born in 1837. He was sent to Magdalen College school at the age of eight, and both at home and at school was trained in the strictest tory and high church views. His father died when he was twelve, leaving him to the guardianship of an uncle, which lasted till he was sixteen. The father had by careful exertions left provision for his son's education, an act which the son never ceased to record with grateful affection. From the time when he could read he was scarcely ever without a book in his hands, though his want of verbal memory made school lessons very trying to him. Of an emotional and religious temperament, he was as a boy a fervent and enthusiastic high churchman, and became eagerly interested in the old customs which survived in Magdalen College. He gathered all the information that he could about the meaning of the old-world ways which were left in Oxford, and used to tell in later days how he was awestruck by the venerable look of Dr. Routh, the president of Magdalen, who as a boy had seen Dr. Johnson at Oxford. At the age of fourteen Green wrote an essay on Charles I, in which he incurred the displeasure of his teachers by coming to his own conclusion that Charles I was in the wrong. A few months later he reached the head of the school, and the authorities advised his removal. He was sent to private tutors, first to Dr. Ridgway in Lancashire, and then to Mr. C. D. Yonge at Leamington. He had just reached sixteen when Mr. Yonge sent him up, as a trial of his power, to compete for an open scholarship at Jesus


text:
Page:Dictionary of National Biography volume 23.djvu/55

College. Green was elected (1854), but was too young to come into residence at once. At that time Jesus was almost entirely a Welsh college, and its undergraduates were scarcely known outside its walls. Green had gained a scholarship, and his tutor was content his guardian was dead, and he had no home, and not a single adviser. He went to college friendless, and he continued as an undergraduate to live a solitary life. He was not understood by the authorities of his college, who could not sympathise with his preference for Matthew Paris over the classics. The study of modern history had not at that time taken root in Oxford, and Green did not make much use of such teaching as there was. He lived much by himself, wandering about among the antiquities of Oxford and its neighbourhood, recalling for himself the memories of the past, and exercising his imagination in combining them. He ended his academic career in 1859 without distinction, and without any training save such as had come to him from the place itself. Already as an undergraduate he had found out his subject, and had devised a method. A series of papers which he contributed to the 'Oxford Chronicle' on 'Oxford in the Eighteenth Century' showed the same power of historical imagination which marked his later work. After taking his degree Green left Oxford for a clerical life. He was ordained deacon in 1860, and went as a curate to St. Barnabas, King Square, Goswell Road, London. In 1863 he was put in sole charge of the parish of Holy Trinity, Hoxton, and in 1866 was appointed by Bishop Tait incumbent of St. Philip's, Stepney. As a clergyman Green worked hard and successfully. His quickness, readiness, good sense, kindliness, and humour made him personally popular. He preached extempore, but took the utmost pains with the composition of his sermons, which were clear, forcible, and thoughtful, yet adapted to those whom he addressed. His opinions in politics and theology had gradually become those of a pronounced liberal, and he could speak to his people with sympathy and fervour. He threw himself ardently into all plans which could promote their social well-being, and he was unsparing of himself. A paper on Edward Denison the younger [q. v.] in his 'Stray Studies' gives some insight into his clerical life.

While he worked hard as a clergyman, he also continued to find some time for study. Such money as he could possibly spare he spent on books, and such time as he could save he spent in the British Museum. Whenever he needed a holiday he devoted it to archæological excursions to various parts of England. He began to be known to some historical students, Mr. E. A. Freeman, Mr. James Bryce, and Mr. Stubbs, now (1890) bishop of Oxford. In 1862 he began to contribute articles, light sketches of social subjects, admirable studies of historic towns which he had visited, historical reviews, short critical essays on historical questions, to the 'Saturday Review.' But his head was full of plans for a book, and the subject which chiefly attracted him was the period of the Angevin kings. He read the chronicles, and read largely historical literature of every kind, working out for himself points that interested him. To him English towns had an individual life which he delighted to trace in its details, and his quick eye for local features enabled him to read history in every landscape. His intellectual activity was enormous, and his knowledge always had an immediate application to actual life and its political and social problems. The strain of these manifold occupations told upon Green's health, which had never been robust. His lungs were affected, and he had to abandon clerical work in 1869, and confine himself to the congenial duty of librarian at Lambeth. Moreover, his views on theological questions had become more decidedly liberal, and he no longer felt that he had a calling for clerical life. From this time forward he had to be very careful of his health, and his winters were generally spent in the Riviera. The consciousness of uncertain health prompted him to gather his knowledge together into a clear and popular form. He projected his 'Short History of the English People,' and worked at it with patient energy. It was twice rewritten, and was only published at last owing to the urgent advice of his friends. This book, which appeared at the end of 1874, fused together the materials for English history, and presented them with a fulness and a unity which had never been attempted before. Its object was to lay hold of the great features of social development, and show the progress of popular life. What Macaulay had done for a period of English history, Green did for it as a whole. From a mass of scattered details he constructed a series of pictures which were full of life. Subjects which before had been treated independently—constitutional history, social history, literary history, economic history, and the like—were all brought together by his method, and were made to contribute their share in filling up the record of the progress of the nation; and he was the first to show how important an element in history the study of the 'geography' of towns might be made. The writer's profound admiration for the conception of liberty which Englishmen had worked out


text:
Page:Folk-lore - A Quarterly Review. Volume 5, 1894.djvu/70

 62 Again, at Mazatlan in Mexico, the funeral of a child is very revolting. The corpse of the child, dressed in great state, is placed erect on a board, by means of a pole, and, thus standing, is carried on men's shoulders through the streets, giving at every step a nod with his head, which is most disgusting to behold. A band of musicians leads the train; then follow the priest, the mourners, and several men, who throw up rockets and crackers. In some parts of Mexico deceased children are actually attired as angels, with a pair of goose or pelican wings, suspended by a rope between two trees, and thus swung in the air, while the friends and relations dance around it like a herd of savages. But this realism in angelic representation is not one whit more gross, in my humble opinion, than that represented in the beautiful paintings of the President of the Royal Academy, who is content to imagine that birds' wings growing out of human shoulder-blades is the best representation of the angelic that art can give us.

I will finally refer to one other curious piece of evidence under this head. In the Caucasus, among the Armenian Christians, in case of necessity—for instance, if a person is at the point of death and there is no human being near — confession may be made to a tree or stone, and in place of the consecrated elements the dying man may take earth into his mouth. Stone worship is a cult of surprising vigour


text:
Page:Dictionary of National Biography volume 23.djvu/56

for themselves, his full sympathy with the objects of popular aspiration, and the lofty tone of hopefulness for the future which ran through the book, gave it a moral and political value, besides its literary and historical merits. The book was immediately popular; its treatment was new, its tone fresh and vigorous, its style attractive, its arrangement clear; above all, it never halted, but carried on the reader with unabated enthusiasm. Green was in fact not only a scholar, but an artist; he had a passion for fine form, and he never rested till he found it. The book from first to last was the building up of one great conception, ordered in all its parts, and instinct with emotion.

The ' History ' had a success such as few books on a serious subject have had in English literature. The first edition was exhausted immediately; five fresh issues were called for in 1875, and one or two issues have marked every subsequent year. But Green did not rest content with his success. While none acknowledged more cheerfully the excellence of the work of other historians, none clung more firmly to his own method, or defended it more gently, with an admirable and singular mixture of self-confidence and humility. He knew that there were some mistakes in detail in his book, and that some subjects had been passed over briefly so as to keep the volume within its limits. He set to work to expand his book into a fuller form, so that it should contain more facts, and give detailed information in support of general views. This larger work, which appeared in four vols. in 1877-80, did not deviate from the point of view already taken, and kept the title, 'A History of the English People.' Green's health was now decidedly better, and he could form new plans of life and work. In June 1877 he married Alice, daughter of Edward A. Stopford, LL.D., archdeacon of Meath. His wife entered warmly into all his pursuits, acted as his amanuensis, taught him to husband his resources of health and strength, and encouraged him to begin his labours on a still larger and completer scale. Having written the history of England for the people of England, he resolved to write it again for scholars. Beginning with Britain as the Romans left it, he pieced together the history of the English invasion and settlement, infusing life into archæology, and bringing his knowledge of the physical features of the country to the explanation of the scanty records of early times. While he was engaged on this work an unfortunate journey to Egypt again upset his health in the spring of 1881, and The Making of England' was finished under very adverse conditions. This book, published in 1882, brought down English history to the consolidation of the kingdoms under Egbert, and showed Green's qualities as a critical historian. His rare power of dealing with fragmentary evidence, his quick eye for what was essential, his firm hold of the main points, his ripe knowledge of all that could illustrate his subject, above all, his feeling for reality, and his insight into probabilities, enabled him to give life and movement to the earliest period of our national life. Apart from its other merits this book exercised a wide influence, which is still growing, as an example of the methods by which archæology can be turned into history. It gave a stimulus to the pursuit of local archæology, and showed archæologists the full importance of their work. It established Green's title to a high place among critical historians, and showed in a marked degree all the qualities which are required for the best historical work. It proved not merely that the merits of the 'Short History' were those of literary style and brilliancy of presentation, but that the whole book was the fruit of patient research and thorough knowledge, which only needed longer time and a larger scale to establish its conclusions. Time, however, was not granted to him. His health grew worse, but he eagerly used every moment that he could to carry on his work. In the autumn of 1882 he had to leave England for Mentone, where he struggled against increasing weakness of body to finish his next volume on 'The Conquest of England,' which was to carry down the history to the coming of the Normans. He worked on steadfastly till a few days before his death on 7 March 1883. He left behind him materials which enabled Mrs. Green to publish the book at the end of the year.

Besides the books mentioned above Green reprinted in 1876 some of his early papers, under the title of 'Stray Studies in England and Italy,' a book which contains much that illustrates his sympathetic and genial character, as well as his knowledge of men and his interest in places and scenes. In 1879 he issued 'Readings from English History,' a series of selections for the use of teachers who wished to interest their pupils in points of detail. In 1880 he wrote, with Mrs. Green, a 'Short Geography of the British Isles,' which contained the substance of much that he had learned in his rambles in England. In 1881 he edited 'Addison's Select Essays.’

Green possessed in a very marked degree the qualities which make a man attractive in society. He was a brilliant talker, with a command of epigram, a fertility of illustration, a lightness of touch, a ready sympathy,


text:
Oberti v. Board of Education

On Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 91-2818).

FRANK L. LASKI (Argued), PENELOPE A. BOYD, Public Interest Law Center of Philadelphia, 125 S. 9th Street, Suite 700, Philadelphia, PA 19107, Attorneys for Appellees.

THOMAS J. MURPHY (Argued), Executive Center of Greentree, 1 Eves Drive, Suite 111, Marlton, New Jersey 08053, Attorney for Appellants.

Before: BECKER, GREENBERG, and WEIS, Circuit Judges.

title: Oberti v. Board of Education


text:
Oberti v. Board of Education/Opinion of the Court

[p1206] OPINION OF THE COURT

BECKER, Circuit Judge.

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 (formerly the "Education for All Handicapped Children Act"), provides that states receiving funding under the Act must ensure that children with disabilities are educated in regular classrooms with nondisabled children "to the maximum extent appropriate." 20 U.S.C. § 1412(5)(B). Plaintiff-appellee Rafael Oberti is an eight year old child with Down's syndrome who was removed from the regular classroom by defendant-appellant Clementon School District Board of Education (the "School District") and placed in a segregated special education class. In this appeal, we are asked by the School District to review the district court's decision in favor of Rafael and his co-plaintiff parents Carlos and [p1207]  Jeanne Oberti concerning Rafael's right under IDEA to be educated in a regular classroom with nondisabled classmates. This court has not previously had occasion to interpret or apply the "mainstreaming" requirement of IDEA.

We construe IDEA's mainstreaming requirement to prohibit a school from placing a child with disabilities outside of a regular classroom if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. In addition, if placement outside of a regular classroom is necessary for the child to receive educational benefit, the school may still be violating IDEA if it has not made sufficient efforts to include the child in school programs with nondisabled children whenever possible. We also hold that the school bears the burden of proving compliance with the mainstreaming requirement of IDEA, regardless of which party (the child and parents or the school) brought the claim under IDEA before the district court.

Although our interpretation of IDEA's mainstreaming requirement differs somewhat from that of the district court, we will affirm the decision of the district court that the School District has failed to comply with IDEA. More precisely, we will affirm the district court's order that the School District design an appropriate education plan for Rafael Oberti in accordance with IDEA, and we will remand for further proceedings consistent with this opinion. We do not reach the question, decided by the district court in favor of Rafael and his parents Carlos and Jeanne Oberti, whether § 504 of the Rehabilitation Act also supports relief, since, in view of our decision under IDEA, resolution of that issue is not necessary to the result.

A. Rafael Oberti's educational history
Rafael is an eight year old child with Down's syndrome, a genetic defect that severely impairs his intellectual functioning and his ability to communicate. Now and throughout the period in question, Rafael and his parents have lived within the Clementon School District, in southern New Jersey. Prior to his entry into kindergarten, Rafael was evaluated in accordance with federal and state law by the School District's Child Study Team (the "Team"). See 20 U.S.C. § 1412(c); N.J.A.C. 6:28-3.1 - 6:28-3.4. Based on its evaluation, the Team recommended to Rafael's parents that he be placed in a segregated special education class located in another school district for the 1989-90 school year. The Obertis visited a number of special classes recommended by the School District and found them all unacceptable. Thereafter the Obertis and the School District came to an agreement that Rafael would attend a "developmental" kindergarten class (for children not fully ready for kindergarten) at the Clementon Elementary School (Rafael's neighborhood school) in the mornings, [p1208]  and a special education class in another school district in the afternoons.

The Individualized Education Plan (IEP) developed by the School District for Rafael for the 1989-90 school year, see 20 U.S.C. §§ 1401(19), 1414(a)(5); N.J.A.C. 6:28-3.6; infra n.16, assigned all of Rafael's academic goals to the afternoon special education class. In contrast, the only goals for Rafael in the morning kindergarten class were to observe, model and socialize with nondisabled children.

While Rafael's progress reports for the developmental kindergarten class show that he made academic and social progress in that class during the year, Rafael experienced a number of serious behavioral problems there, including repeated toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting and spitting on other children. On several occasions Rafael struck at and hit the teacher and the teacher's aide.

These problems disrupted the class and frustrated the teacher, who consulted the school psychologist and other members of the Child Study Team to discuss possible approaches to managing Rafael's behavior problems. The teacher made some attempts to modify the curriculum for Rafael, but Rafael's IEP provided no plan for addressing Rafael's behavior problems. Neither did the IEP provide for special education consultation for the kindergarten teacher, or for communication between the kindergarten teacher and the special education teacher. In March of 1990, the School District finally obtained the assistance of an additional aide, which had been requested by the parents much earlier in the school year, but the presence of the extra aide in the kindergarten class did little to resolve the behavior problems. According to Rafael's progress reports for the afternoon special education class, and as the district court found, Rafael did not experience similar behavior problems in that class.

At the end of the 1989-90 school year, the Child Study Team proposed to place Rafael for the following year in a segregated special education class for children classified as "educable mentally retarded." Since no such special education class existed within the Clementon School District, Rafael would have to travel to a different district. The Team's decision was based both on the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class and on the Team's belief that Rafael's disabilities precluded him from benefiting from education in a regular classroom at that time.

The Obertis objected to a segregated placement and requested that Rafael be placed in the regular kindergarten class in the Clementon Elementary School. The School District refused, and the Obertis sought relief by filing a request for a due process hearing. The parties then agreed to mediate their dispute, pursuant to New Jersey regulations, as an alternative to a due process hearing. See N.J.A.C. 6:28-2.6. Through mediation, the Obertis and the School District came to an agreement that for the 1990-91 school year Rafael would attend a special education class for students labeled "multiply handicapped" in a public elementary school in the Winslow Township School District ("Winslow"), approximately 45 minutes by bus from Rafael's home. As part of the agreement, the School District promised to explore mainstreaming possibilities at the Winslow school and to consider a future placement for Rafael in a regular classroom in the Clementon Elementary School.

The special education class in Winslow that Rafael attended during the 1990-91 school year was taught by an instructor and an [p1209]  instructional aide and included nine children. Although Rafael initially exhibited some of the same behavioral problems he had experienced in the Clementon kindergarten class, his behavior gradually improved: he became toilet trained and his disruptiveness abated. Rafael also made academic progress. However, by December of 1990, Rafael's parents found that the School District was making no plans to mainstream Rafael. The Obertis also learned that Rafael had no meaningful contact with nondisabled students at the Winslow school.

B. The due process hearing
In January of 1991, the Obertis brought another due process complaint, renewing their request under IDEA that Rafael be placed in a regular class in his neighborhood elementary school. A three-day due process hearing was held in February of 1991 before an Administrative Law Judge (ALJ) of the New Jersey Office of Administrative Law. See N.J.A.C. 6:28-2.7(e)4.iv; supra n.3. On March 15, 1991, the ALJ affirmed the School District's decision that the segregated special education class in Winslow was the "least restrictive environment" for Rafael. Based on the testimony of Rafael's kindergarten teacher and other witnesses for the School District who described Rafael's disruptive behavior in the developmental kindergarten class, the ALJ found that Rafael's behavior problems in that class were extensive and that he had achieved no meaningful educational benefit in the class. The School District presented eight witnesses before the ALJ. Melinda Reardon, the teacher of the developmental kindergarten class, testified to Rafael's behavioral problems that disrupted the class throughout the year, including repeated toileting accidents, touching and hitting other children, throwing objects, not following instructions, and running and hiding from the teacher and the aides. She also testified that throughout the year she had great difficulty communicating with Rafael, and that she had consulted with the school psychologist to come up with methods of controlling Rafael's behavior. Karen Lightman, the speech therapist at the Clementon Elementary School, testified that Rafael regularly disrupted her small-group speech therapy sessions during the 1989-90 school year. She testified that Rafael slapped her on one occasion, refused to follow instructions, threw paper, and touched other students. She stated that these behaviors disrupted the session and took away therapy time from the other students. William Sherman, the superintendent of Schools for the School District and acting principal of the Clementon Elementary School in May and June of 1990 testified that he was called to Rafael's kindergarten class several times by the teacher to help her address Rafael's disciplinary problems. Valeria Costino, an instructional aide for that class, corroborated the testimony of the teacher and the acting principal regarding Rafael's behavior problems.

Peggy McDevit, the Clementon Elementary School psychologist, a member of the Child Study Team, and a qualified expert in child placement and child psychology, testified that she had observed Rafael engaging in disruptive behavior in the kindergarten class and that, in her opinion, placement in a regular classroom would not be feasible for Rafael at that time because of his behavior problems. David Hinlicky, the principal of the Clementon Elementary School, described a visit he paid to a summer school class Rafael attended in 1991 in which he observed Rafael misbehaving and disrupting the class.

In contrast, Nancy Leetch, Rafael's speech therapist at Winslow, and Lisa Mansfield, the special education teacher at Winslow, both testified that Rafael had made significant academic and social progress in the Winslow special education class. The ALJ concluded that Rafael was not ready for mainstreaming.

In reaching this conclusion, the ALJ discounted the testimony of the Obertis' two expert witnesses. Dr. Gail McGregor, a professor of education at Temple University and an expert in the education of children with disabilities, testified that Rafael could be educated [p1210]  satisfactorily in a regular class at the Clementon Elementary School with supplementary aids and services, and that Rafael would learn important skills in a regular classroom that could not be learned in a segregated setting. The ALJ disregarded Dr. McGregor's testimony because, unlike the School District's witnesses, she did not have daily experience with Rafael. Likewise, the ALJ discounted the testimony of the Obertis' other expert witness, Thomas Nolan, a teacher and special education specialist who had taught a child with Down's syndrome in a regular classroom, because he too had not had day-to-day experience with Rafael. The ALJ thus concluded that the Winlsow placement was in compliance with IDEA.

C. The proceedings before the district court
Seeking independent review of the ALJ's decision pursuant to 20 U.S.C. § 1415(e)(2), the Obertis filed this civil action in the United States District Court for the District of New Jersey. In addition to the IDEA claim, the Obertis pleaded a claim of unlawful discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 729. Soon thereafter, the court denied both parties' motions for summary judgment, finding "genuine issues of material fact . . . about the feasibility of including Rafael in a regular classroom setting now." Oberti v. Board of Educ. of Clementon School Dist., 789 F. Supp. 1322, 1336 (D.N.J. 1992) (Oberti I).

In May of 1992, the district court held a three-day bench trial, receiving new evidence from both parties to supplement the state agency record. See 20 U.S.C. § 1415(e)(2). The Obertis presented the testimony of two additional experts who had not testified in the administrative proceedings: Dr. Lou Brown, a professor of special education at the University of Wisconsin, and Amy Goldman, [p1211]  an expert in communication with children with developmental disabilities.

Dr. Brown, who over the past twenty years has been a consultant to hundreds of school districts throughout the country regarding the education of severely disabled children, interviewed and evaluated Rafael on two occasions, and reviewed Rafael's educational records, as well as a set of videotapes showing Rafael at age seven working with his mother, being taught by a language professional, and participating in a Sunday school class with nondisabled children. Dr. Brown testified that he saw no reason why Rafael could not be educated at that time in a regular classroom with appropriate supplementary aids and services. He told the court that if such aids and services were provided, he had no reason to believe that Rafael would be disruptive at that time (more than two years after the experience in the Clementon kindergarten class). He also stated that integrating Rafael in a regular class at his local school would enable Rafael to develop social relationships with nondisabled students and to learn by imitating appropriate role models, important benefits which could not be realized in a segregated, special education setting.

Dr. Brown outlined a number of commonly applied strategies which could be used, in combination, by the School District to integrate Rafael in a regular classroom, including: (1) modifying some of the curriculum to accommodate Rafael's different level of ability; (2) modifying only Rafael's program so that he would perform a similar activity or exercise to that performed by the whole class, but at a level appropriate to his ability; (3) "parallel instruction," i.e., having Rafael work separately within the classroom on an activity beneficial to him while the rest of the class worked on an activity that Rafael could not benefit from; and (4) removing Rafael from the classroom to receive some special instruction or services in a resource room, completely apart from the class. Dr. Brown explained that with proper training, a regular teacher would be able to apply these techniques and that, in spite of Rafael's severe intellectual disability, a regular teacher with proper training would be able to communicate effectively with Rafael. Dr. Brown also testified that many of the special educational techniques applied in the segregated Winslow class could be provided for Rafael within a regular classroom.

Based on her evaluation of Rafael and her expertise in developing communication skills for disabled children, Amy Goldman testified that the speech and language therapy Rafael needs could be most effectively provided within a regular classroom; otherwise, she explained, a child with Rafael's disabilities would have great difficulty importing the language skills taught in a separate speech therapy session into the regular class environment, where those skills are most needed. She testified that language and speech therapy could easily be provided by a therapist inside the regular class during ongoing instruction if the therapist were able to collaborate ahead of time with the instructor regarding the upcoming lesson plans.

In addition, Dr. McGregor reaffirmed her prior opinion in the administrative proceedings that placement in a regular classroom was not only feasible but preferable for Rafael, see supra n.9. Further, she testified that, given the resources and expertise available to public schools in New Jersey, the School District should be able to design an inclusive program for Rafael with assistance from professionals who have experience integrating children with disabilities in regular classes.

The Obertis also offered the videotape evidence that had been reviewed by Dr. Brown, the testimony of Jeanne Oberti, and the testimony of Joanne McKeon, the mother of a nine year old child with Down's Syndrome who had been successfully mainstreamed in a regular classroom.

[p1212] To counter the Obertis' experts, the School District offered Dr. Stanley Urban, a professor of special education at Glassboro State College. After observing Rafael in a special class for perceptually impaired children at the St. Luke's School (a private school that Rafael attended for two months in the fall of 1991), observing Rafael for two hours in his home, reviewing the programs available at the Clementon Elementary School, reviewing Rafael's education records, and reviewing the written evaluations of the Obertis' experts, Dr. Urban testified that in his opinion Rafael could not be educated satisfactorily in a regular classroom, and that the special education program at Winslow was appropriate for Rafael.

More specifically, Dr. Urban testified that Rafael's behavior problems could not be managed in a regular class, that a regular teacher would not be able to communicate with a child of Rafael's ability level, and that it would be difficult if not impossible to adapt a first grade-level curriculum to accommodate Rafael without adversely affecting the education of the other children in the class. Dr. Urban, however, also stated that if Rafael did not have serious behavior problems, integration in a regular classroom might be feasible.

The School District presented several additional witnesses, including the teacher and teacher's aide of a non-academic summer school class for elementary school children which Rafael attended in the summer of 1991, and the teacher of the St. Luke's class, which Rafael attended for two months in the fall of 1991. These witnesses recounted examples of Rafael's disruptive behavior, including pushing and hitting other children, disobeying and running away from the instructors, and throwing books.

In August of 1992, after reviewing all of this new evidence along with the evidence that had been adduced at the administrative proceedings, the district court issued its decision, finding that the School District had failed to establish by a preponderance of the evidence that Rafael could not at that time be educated in a regular classroom with supplementary aids and services. The court therefore concluded that the School District had violated IDEA. Oberti v. Board of Educ. of Clementon School Dist., 801 F. Supp. 1392 (D.N.J. 1992) (Oberti II).

In particular, the court was persuaded by the Obertis' experts that many of the special education techniques used in the Winslow class could be implemented in a regular classroom. Id. at 1397. The court also found that the School District did not make reasonable efforts to include Rafael in a regular classroom with supplementary aids and services (e.g., an itinerant teacher trained in aiding students with mental retardation, a behavior management program, modification of the regular curriculum to accommodate Rafael, and special education training and consultation for the regular teacher); that Rafael's behavior problems during the 1989-90 school year in the developmental kindergarten class were largely the result of the School District's failure to provide adequate supplementary aids and services; and that the record did not support the School District's contention that Rafael would present similar behavior problems at that time (more than two years after the kindergarten class) if included in a regular classroom setting with adequate aids and services. Id. at 1397, 1403. The court declined to defer to the findings of the ALJ because it found that "they were largely and improperly based upon Rafael's behavior problems in the developmental kindergarten as well as upon his intellectual limitations, without proper consideration of the inadequate level of supplementary aids and services provided by the School District." Id. at 1404.

In addition to finding a violation of IDEA, the court concluded that by refusing to include Rafael in a regular classroom, the School District was discriminating against Rafael in violation of § 504 of the Rehabilitation Act. Id. at 1406-07. Accordingly, the court ordered the School District "to develop an inclusive plan for Rafael Oberti for the 1992-93 school year consistent with the requirements" of IDEA and § 504 of the Rehabilitation Act. This appeal followed. We [p1213]  have jurisdiction under 28 U.S.C. § 1291. The order of the district court has been stayed pending appeal. See 20 U.S.C. § 1415(e)(3).

II. THE MAINSTREAMING REQUIREMENT OF IDEA
The Education for All Handicapped Children Act (IDEA's predecessor statute) was enacted in 1975 in response to a Congressional finding that "more than half of the children with disabilities in the United States do not receive appropriate educational services." 20 U.S.C. § 1400(b)(3); see also S. Rep. No. 168, 94th Cong., 1st Sess. 8 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1432. The Act provides federal funds to participating states for the education of children with disabilities. As a condition of receiving these funds, states must have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1).

In ''Board of Educ. v. Rowley'', 458 U.S. 176, 188-89, 102 S.C.t. 3034, 3042, 73 L. Ed. 2d 690 (1982), the Supreme Court held that a "free appropriate public education" under the Act "consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." This court in turn interpreted Rowley to require the state to offer children with disabilities individualized education programs that provide more than a trivial or de minimis educational benefit. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 180-85 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.C.t. 838, 102 L. Ed. 2d 970 (1989).

In addition to the free appropriate education requirement, IDEA provides that states must establish

"procedures to assure that, to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily . . .."

20 U.S.C. § 1412(5)(B). As numerous courts have recognized, this provision sets [p1214]  forth a "strong congressional preference" for integrating children with disabilities in regular classrooms. See, e.g., Devries v. Fairfax County School Bd., 882 F.2d 876, 878 (4th Cir. 1989); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989); A.W. v. Northwest R-1 School Dist., 813 F.2d 158, 162 (8th Cir. 1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.C.t. 196, 78 L. Ed. 2d 171 (1983); Board of Educ. Sacramento City Unified School Dist. v. Holland, 786 F. Supp. 874, 878 (E.D. Cal. 1992).

One of our principal tasks in this case is to provide standards for determining when a school's decision to remove a child with disabilities from the regular classroom and to place the child in a segregated environment violates IDEA's presumption in favor of mainstreaming. This issue is particularly difficult in light of the apparent tension within the Act between the strong preference for mainstreaming, 20 U.S.C. § 1412(5)(B), and the requirement that schools provide individualized programs tailored to the specific needs of each disabled child, 20 U.S.C. §§ 1401, 1414(a)(5). See Daniel R.R., 874 F.2d at 1044; Greer v. Rome City School Dist., 950 F.2d 688, 695 (11th Cir. 1991).

The key to resolving this tension appears to lie in the school's proper use of "supplementary aids and services," 20 U.S.C. § 1412(5)(B), which may enable the school to educate a child with disabilities for a majority of the time within a regular classroom, while at the same time addressing that child's unique educational needs. We recognize, however, that "regular classes . . . will not provide an education that accounts for each child's particular needs in every case." Daniel R.R., 874 F.2d at 1044; see also Devries, 882 F.2d at 878-80 (holding that 17 year old autistic student could not benefit from "monitoring" regular high school academic classes and was appropriately placed at county vocational center).

We also recognize that "in assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States." Rowley, 458 U.S. at 207, 102 S.C.t. at 3051. We are mindful that the Act leaves questions of educational policy to state and local officials. Id. On the other hand, as the Supreme Court recognized in Rowley, the Act specifically "requires participating States to educate handicapped children with nonhandicapped children whenever possible." Rowley, 458 U.S. at 202, 102 S.C.t. at 3049; see also Honig v. Doe, 484 U.S. 305, 311, 108 S.C.t. 592, 597, 98 L. Ed. 2d 686 (1988). It is our duty to enforce that statutory requirement. See Polk, 853 F.2d at 184 ("We do not read the Supreme Court's salutary warnings against interference with educational methodology as an invitation to abdicate our obligation to enforce the statutory provisions [of the Act]."). In its Fourteenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Act (1992), the U.S. Department of Education (DOE) reported that nearly two-thirds of the state plans submitted for DOE approval in 1991 under the Act were not in compliance with the mainstreaming requirements of IDEA. Specifically, nearly two-thirds of the state plans reviewed by the DOE "failed to include . . . an adequate description of how the [state educational agency] makes arrangements with public and private institutions to ensure that the least restrictive environment (LRE) requirements [of IDEA] are effectively implemented." Id. at 119. Half of the states reviewed "did not ensure that their public agencies removed children with disabilities from the regular educational environment only when the nature or severity of the disability was such that education in regular classes with the use of supplementary aids and services could not be achieved satisfactorily." Id. at 136. Further, over half of the state plans reviewed "did not include . . . procedures to ensure that in providing or arranging for nonacademic or extra-curricular services and activities, each public agency will ensure that each child with a disability participates with children who do not have disabilities to the maximum extent appropriate to the needs of that child." Id. at 119.

The statistics reported in the Fourteenth Annual Report also reflect a wide variation in the percentage of disabled children who are mainstreamed in regular classes among the different states. For the 1989-90 school year, the DOE reported that among all the states, 26% of children with mental retardation between the ages of 6 and 21 were placed in regular classes for at least 40% of the school day. Id. at 25. But in New Jersey, which has one of the lowest mainstreaming rates, only 2.35% of children with mental retardation within that age group were mainstreamed, while in Massachusetts, a state with one of the highest mainstreaming rates, 74.97% of children with mental retardation were placed in regular classes. Id. at A-62; see also Alan Gartner & Dorothy Kerzner Lipsky, Beyond Special Education: Toward a Quality System for All Students, 57 Harv. Educ. Rev. 367, 374-76 (1987) (children with similar disabilities are provided widely divergent degrees of mainstreaming depending on where they reside).

[p1215] In Daniel R.R., the Fifth Circuit derived from the language of 20 U.S.C. § 1412(5)(B) a two-part test for determining whether a school is in compliance with IDEA's mainstreaming requirement. First, the court must determine "whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily." 874 F.2d at 1048. Second, if the court finds that placement outside of a regular classroom is necessary for the child to benefit educationally, then the court must decide "whether the school has mainstreamed the child to the maximum extent appropriate," i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible. Id. We think this two-part test, which closely tracks the language of § 1412(5)(B), is faithful to IDEA's directive that children with disabilities be educated with nondisabled children "to the maximum extent appropriate," 20 U.S.C. § 1412(5)(B), and to the Act's requirement that schools provide individualized programs to account for each child's specific needs, 20 U.S.C. §§ 1401, 1414(a)(5). See Greer, 950 F.2d at 696 (adopting the Daniel R.R. test); Liscio v. Woodland Hills School Dist., 734 F. Supp. 689 (W.D. Pa. 1989) (same).

The district court in this case adopted the somewhat different test set forth by the Sixth Circuit in Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983), the first federal court of appeals case to interpret IDEA's mainstreaming requirement. See Oberti II, 801 F. Supp. at 1401. In Roncker, the court stated:

"In a case where the segregated facility is considered superior [academically], the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act."

700 F.2d at 1063; see also A.W. v. Northwest R-1 School Dist., 813 F.2d 158, 163 (8th Cir. 1987) (adopting Roncker test). We believe, however, that the two-part Daniel R.R. test is the better standard because the Roncker test fails to make clear that even if placement in the regular classroom cannot be achieved satisfactorily for the major portion of a particular child's education program, the school is still required to include that child in school programs with nondisabled children (specific academic classes, other classes such as music and art, lunch, recess, etc.) whenever possible. We therefore adopt the two-part Daniel R.R. test rather than the standard espoused in Roncker.

In applying the first part of the Daniel R.R. test, i.e., whether the child can be [p1216]  educated satisfactorily in a regular classroom with supplementary aids and services, the court should consider several factors. First, the court should look at the steps that the school has taken to try to include the child in a regular classroom. See Greer, 950 F.2d at 696; Daniel R.R., 874 F.2d at 1048. As we have explained, the Act and its regulations require schools to provide supplementary aids and services to enable children with disabilities to learn whenever possible in a regular classroom. See 20 U.S.C. §§ 1401(17), 1412(5)(B); 34 C.F.R. § 300.551(b)(2). The regulations specifically require school districts to provide "a continuum of placements . . . to meet the needs of handicapped children." 34 C.F.R. § 300.551(a). The continuum must "make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement." 34 C.F.R. § 300.551(b).

Accordingly, the school "must consider the whole range of supplemental aids and services, including resource rooms and itinerant instruction," Greer, 950 F.2d at 696, speech and language therapy, special education training for the regular teacher, behavior modification programs, or any other available aids or services appropriate to the child's particular disabilities. The school must also make efforts to modify the regular education program to accommodate a disabled child. See 34 C.F.R. Part 300, App. C. Question 48. If the school has given no serious consideration to including the child in a regular class with such supplementary aids and services and to modifying the regular curriculum to accommodate the child, then it has most likely violated the Act's mainstreaming directive. "The Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad." Daniel R.R., 874 F.2d at 1048; see also Greer, 950 F.2d at 696.

A second factor courts should consider in determining whether a child with disabilities can be included in a regular classroom is the comparison between the educational benefits the child will receive in a regular classroom (with supplementary aids and services) and the benefits the child will receive in the segregated, special education classroom. The court will have to rely heavily in this regard on the testimony of educational experts. Nevertheless, in making this comparison the court must pay special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment, i.e., the development of social and communication skills from interaction with nondisabled peers. See Daniel R.R., 874 F.2d at 1049 ("a child may be able to absorb only a minimal amount of the regular education program, but may benefit enormously from the language models that his nonhandicapped peers provide"); Greer, 950 F.2d at 697 (language and role modeling from association with nondisabled peers are essential benefits of mainstreaming); Holland, 786 F. Supp. at 882 (benefits obtained by child with mental retardation as result of placement in a regular classroom include development of social and communications skills and generally improved self-esteem). As IDEA's mainstreaming directive makes clear, Congress understood that a fundamental value of the right to public education for children with disabilities is the right to associate with nondisabled [p1217]  peers.

Thus, a determination that a child with disabilities might make greater academic progress in a segregated, special education class may not warrant excluding that child from a regular classroom environment. We emphasize that the Act does not require states to offer the same educational experience to a child with disabilities as is generally provided for nondisabled children. See Rowley, 458 U.S. at 189, 202, 102 S.C.t. at 3042, 3048-49. To the contrary, states must address the unique needs of a disabled child, recognizing that that child may benefit differently from education in the regular classroom than other students. See Daniel R.R., 874 F.2d at 1047. In short, the fact that a child with disabilities will learn differently from his or her education within a regular classroom does not justify exclusion from that environment.

A third factor the court should consider in determining whether a child with disabilities can be educated satisfactorily in a regular classroom is the possible negative effect the child's inclusion may have on the education of the other children in the regular classroom. While inclusion of children with disabilities in regular classrooms may benefit the class as a whole, see supra n.24, a child with disabilities may be "so disruptive in a regular classroom that the education of other students is significantly impaired." 34 C.F.R. § 300.552 comment (citing 34 C.F.R. part 104 -- Appendix, Para. 24); see Greer, 950 F.2d at 697; Daniel R.R., 874 F.2d at 1048-49. Moreover, if a child is causing excessive disruption of the class, the child may not be benefiting educationally in that environment. Accordingly, if the child has behavioral problems, the court should consider the degree to which these problems may disrupt the class. In addition, the court should consider whether the child's disabilities will demand so much of the teacher's attention that the teacher will be required to ignore the other students. See Daniel R.R., 874 F.2d at 1049.

We emphasize, however, that in considering the possible negative effect of the child's presence on the other students, the court must keep in mind the school's obligation under the Act to provide supplementary aids and services to accommodate the child's disabilities. See Greer, 950 F.2d at 697. An adequate individualized program with such aids and services may prevent disruption that would otherwise occur. See id.. With respect to the concerns of nondisabled children in the regular classroom, we note that the comment to 34 C.F.R. § 300.552 (citing 34 C.F.R. part 104 - Appendix, Para. 24) reads: "It should be stressed that, where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore, regular placements would not be appropriate to his or her needs. . . ." On the other hand, "a handicapped child who merely requires more teacher attention than most other children is not likely to be so disruptive as to significantly impair the education of other children." Greer, 950 F.2d at 697.

In sum, in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational [p1218]  benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test -- whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. See Daniel R.R., 874 F.2d at 1048, 1050. IDEA and its regulations "do not contemplate an all-or-nothing educational system in which handicapped children attend either regular or special education." Id. at 1050. The regulations under IDEA require schools to provide a "continuum of alternative placements . . . to meet the needs of handicapped children." 34 C.F.R. § 300.551(a). As the Fifth Circuit stated:

"the school must take intermediate steps wherever appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and, it may be hoped, from school year to school year as the child develops."

Daniel R.R., 874 F.2d at 1050. Thus, even if a child with disabilities cannot be educated satisfactorily in a regular classroom, that child must still be included in school programs with nondisabled students wherever possible.

III. BURDEN OF PROOF UNDER IDEA's
MAINSTREAMING REQUIREMENT

Before we apply the two-part analysis discussed above to the facts in this case, we must address the School District's argument that the district court improperly placed the burden of proof under the Act on it. In the School District's view, while it may have had the initial burden at the state administrative level of justifying its educational placement, once the agency decided in its favor, the burden should have shifted to the parents who challenged the agency decision in the district court. Courts must place the burden on the party seeking to reverse the agency decision, the School District argues, in order to effectuate IDEA's requirement that "due weight shall be given to [the state administrative] proceedings," Rowley, 458 U.S. at 206, 102 S.C.t. at 3051 (interpreting 20 U.S.C. § 1415(e)). We disagree.

IDEA instructs district courts and state trial courts reviewing the decisions of state educational agencies to "receive the records of the administrative proceedings, . . . hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, . . . grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). As construed by the Supreme Court in Rowley, § 1415(e)(2) requires courts to give "due weight" to the agency proceedings. Rowley, 458 U.S. at 206, 102 S.C.t. at 3051. However, neither Rowley nor the Act itself specifically addresses which party bears the burden of proof at the district court level, an issue which we believe is quite different from the district court's obligation to afford due weight to the administrative proceedings.

The School District points to several cases that hold, either directly or implicitly, that even if the school district bears the burden of proving compliance with IDEA in the state administrative proceedings, the burden of proof shifts to the party challenging the agency decision at the district court level. See Roland M. v. Concord School Comm., 910 F.2d 983, 991 (1st Cir. 1990), cert. denied, [p1219] 111 S.C.t. 1122, 113 L. Ed. 2d 230 (1991); Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884, 887 (D.C. Cir. 1988); ''see also Briggs v. Bd. of Educ.'', 882 F.2d 688, 692 (2d Cir. 1989) (placing burden on parents challenging state agency decision to prove that their child's educational needs could be met in a less segregated setting). We find these cases unpersuasive.

In reviewing the decision of a state agency under IDEA, the district court "must make an independent determination based on a preponderance of the evidence." ''Geis v. Bd. of Educ.,'' 774 F.2d 575, 583 (3d Cir. 1985). Given that the district court must independently review the evidence adduced at the administrative proceedings and can receive new evidence, we see no reason to shift the ultimate burden of proof to the party who happened to have lost before the state agency, especially since the loss at the administrative level may have been due to incomplete or insufficient evidence or to an incorrect application of the Act. The purpose of the "due weight" obligation is to prevent the court from imposing its own view of preferable educational methods on the states. See Rowley, 458 U.S. at 207, 102 S.C.t. at 3051. Accordingly, the due weight is owed to the administrative proceedings, not to the party who happened to prevail in those proceedings. Moreover, the amount of deference to be afforded the administrative proceedings "is an issue left to the discretion of the district court. . . . The district court must consider the administrative findings of fact, but is free to accept or reject them." ''Jefferson County Bd. of Educ. v. Breen'', 853 F.2d 853, 857 (11th Cir. 1988). The district court can give due weight to the agency proceedings (i.e., refrain from imposing its own notions of educational policy on the states), while the ultimate burden of proof remains on the school.

Underlying the Act is "an abiding concern for the welfare of handicapped children and their parents." Lascari, 560 A.2d at 1188; see 20 U.S.C. § 1400(c). Requiring parents to prove at the district court level that the school has failed to comply with the Act would undermine the Act's express purpose "to assure that the rights of children with disabilities and their parents are protected," 20 U.S.C. § 1400(c), and would diminish the effect of the provision that enables parents and guardians to obtain judicial enforcement of the Act's substantive and procedural requirements, see 20 U.S.C. § 1415(e). In practical terms, the school has an advantage when a dispute arises under the Act: the school has better access to the relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child's education), and greater overall educational expertise than the parents. See Lascari, 560 A.2d at 1188 (placing burden of proof on school is "consistent with the proposition that the burdens of persuasion and production should be placed on the party better able to meet those burdens."); Engel, Law, Culture, and Children with Disabilities, 1991 Duke L.J. at 187-94 (arguing that parents are generally at a disadvantage vis-a-vis the school when disputes arise under IDEA because parents generally lack specialized training and because their views are often treated as "inherently suspect" due to the attachment to their child).

In light of the statutory purpose of IDEA and these practical considerations, we believe that when IDEA's mainstreaming requirement is specifically at issue,

it is appropriate to place the burden of proving compliance with IDEA on the school. Indeed, the Act's strong presumption in favor of mainstreaming, 20 U.S.C. § 1422(5)(B), would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom. See supra Part II. We therefore hold that the district court correctly placed [p1220]  the burden on the School District to prove that the segregated placement proposed for Rafael was in compliance with the mainstreaming requirement of IDEA.

IV. DID THE SCHOOL DISTRICT COMPLY WITH IDEA?
We now reach the dispositive question in this case: whether the district court erred in holding that the School District failed to comply with IDEA's mainstreaming requirement. Initially, applying the first part of the two-part test set forth above, supra Part II, we consider whether the School District has met its burden of proving that Rafael could not be educated satisfactorily in a regular classroom with supplementary aids and services.

A. Standard of review
Our deferential standard of review over the district court's fact finding is essential to our decision here. We accept the district court's findings of fact unless they are clearly erroneous. See David D. v. Dartmouth School Comm., 775 F.2d 411, 415 (1st Cir. 1985), cert. denied, 475 U.S. 1140, 106 S.C.t. 1790, 90 L. Ed. 2d 336 (1986); Fed.R.Civ.P. 52(a). A finding of fact is clearly erroneous when, after reviewing the evidence, the court of appeals is "left with a definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.C.t. 1504, 1511, 84 L. Ed. 2d 518 (1985). Thus, even if we might have come to different factual conclusions based on this record, we defer to the findings of the district court unless we are convinced that the record cannot support those findings.

We also consider, in reviewing the district court's fact findings in an IDEA case, whether the court has abused its discretion in failing to afford "due weight" to the agency proceedings. See 20 U.S.C. § 1415 (e)(2); Rowley, 458 U.S. at 206, 102 S.C.t. at 3051; Breen, 853 F.2d at 857. As discussed above, see supra Part III, the district court makes fact findings in an IDEA case not only on the administrative record, but also on any new evidence presented by the parties. The district court must give due weight to the administrative proceedings (so as not to impose the court's own view of preferable educational policy on the states), see Rowley, 458 U.S. at 206, 102 S.C.t. at 3051, but the court is free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the Act. Accordingly, we review the district court's decisions regarding whether to adopt the agency fact findings under the deferential, clearly erroneous standard. See Breen, 853 F.2d at 857.

B. Application of the Daniel R.R. test
In Part II of this opinion, we outlined three factors that should be considered by a court in determining whether a child with disabilities can be educated satisfactorily in a regular classroom (the first part of the Daniel R.R. test): (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom with supplementary aids and services; (2) a comparison of the educational benefits available in a regular class and the benefits provided in a special education class; and (3) the possible negative effects of inclusion on the other students in the class. We now consider each of these factors, looking to the relevant fact findings of the district court to determine whether those findings are clearly erroneous, and if not, whether they support the district court's ultimate legal conclusion that the School District violated the mainstreaming requirement of IDEA.

As to the first factor, the district court found that the School District made only negligible efforts to include Rafael in a regular classroom. Specifically, the court found that during the 1989-90 school year, the only period during which the School District mainstreamed Rafael in a regular classroom, the School District placed Rafael in the developmental kindergarten class "without a curriculum plan, without a behavior management plan, and without providing adequate special education support to the teacher." Oberti II, 801 F. Supp. at 1402; see also id. at 1396, 1398. Further, the court found that the School District has since refused to include Rafael in a regular classroom largely [p1221]  based on the behavioral problems experienced by Rafael in the kindergarten class during the 1989-90 school year. Id. at 1396, 1403. For the 1990-91 year, the court found that Rafael was placed in a segregated class with "no meaningful mainstreaming opportunities," id. at 1397, and that "the School District's consideration of less restrictive alternatives for the 1990-91 school year was perfunctory." Id. at 1396.

There is very little evidence in the record that conflicts with these findings. The School District produced some evidence that the kindergarten teacher and the school psychologist attempted to modify the curriculum in that class and to come up with methods of controlling Rafael's behavior problems. See supra n.7. However, the record reflects that the School District had access to information and expertise about specific methods and services to enable children with disabilities like Rafael to be included in a regular classroom, see supra typescript at 15, but that the School District did not provide such supplementary aids and services for Rafael in the kindergarten class.

Rafael's IEP for the 1989-90 school year included no provisions for supplementary aids and services in the kindergarten class aside from stating that there will be "modification of regular class expectations" to reflect Rafael's disability. The only goal provided for the regular kindergarten teacher was to "facilitate Rafael's adjustment to the kindergarten classroom." After reviewing this IEP along with the rest of Rafael's education records, Dr. McGregor testified that no supplementary aids and services were provided for Rafael in the 1989-90 kindergarten class. See supra n.9.

Moreover, there is no evidence in the record that the School District gave any serious consideration to including Rafael in a regular classroom with supplementary aids and services after the 1989-90 school year; and the School District does not appear to dispute this fact. Further, Nancy Leech, the Winslow speech therapist (and one of the School District's witnesses) admitted that Rafael had not been included in any school programs with nondisabled children at Winslow, apart from attending lunch and school assemblies.

In view of the foregoing, the district court's finding that the School District has not taken meaningful steps to try to include Rafael in a regular classroom with supplementary aids and services is not clearly erroneous. We also note that the district court did not fail to give "due weight" to the agency proceedings on this issue since the ALJ did not even consider whether the School District had made efforts to include Rafael in a regular classroom with supplementary aids and services, as is required by IDEA. See Greer, 950 F.2d at 698 (school district's determination that child with Down's syndrome would receive more benefit in a segregated special education class "is due no deference because school officials failed to consider what benefits she would receive from education in a regular classroom with appropriate supplemental aids and services." (emphasis in original). Accordingly, the School District's failure to give adequate consideration to including Rafael in a regular classroom with supplementary aids and services supports the district court's legal conclusion that the School District violated IDEA.

As to the second factor -- a comparison of the educational benefits of the segregated placement in Winslow with the benefits Rafael could obtain from placement in a regular classroom -- the district court found that "various experts who testified on Rafael's behalf have convincingly refuted the School District's assertion that such services could not be delivered within the matrix of a regular education class without disrupting the class or converting it into a special education class." Oberti II, 801 F. Supp. at 1403 n.17. The court also found that Rafael would benefit academically and socially from inclusion in a regular classroom. Id. at 1404. Moreover, the district court found, based on expert testimony, that "nondisabled children in the [p1222]  class will likewise benefit" from the inclusion of Rafael in a regular classroom. Id. at 1404; see also supra n.24.

The School District points to some evidence in the record that conflicts with these findings. Specifically, Dr. Urban testified for the School District that, in his opinion, a regular teacher would not be able to communicate with Rafael and that a regular curriculum would have to be modified beyond recognition to accommodate Rafael. See supra Part I.C. However, the Obertis' experts, Drs. Brown and McGregor, described various commonly applied methods that could be used to educate Rafael in a regular classroom and testified that, although Rafael has severe intellectual disabilities, a regular teacher with appropriate training would be able to communicate effectively with Rafael. See supra Parts I.B & C. They testified that many of the special education techniques used in the segregated Winslow class could be imported successfully into a regular classroom and that the regular teacher could be trained to apply these techniques. Id. Further, the Obertis' experts testified at length that inclusion in a classroom with nondisabled students would benefit Rafael substantially. Id. In addition, Amy Goldman testified that speech and language therapy not only could be provided in a regular classroom, but would be more effective for Rafael in an integrated setting. See supra Part I.C.

In short, the parties' experts disagreed on the respective benefits of a segregated versus an integrated placement for Rafael, and the district court was in a better position than we are to evaluate their testimony. We therefore defer to that court's findings, which, at all events, are not clearly erroneous. We note also that the district court did not fail to give due weight to the agency proceedings on this factor since the court's findings were based largely on new expert testimony that was not before the ALJ. Additionally, we agree with the district court's legal conclusion that, although including Rafael in a regular classroom would require the School District to modify the curriculum, the need for such modification is "not a legitimate basis upon which to justify excluding a child" from the regular classroom unless the education of other students is significantly impaired. Oberti II, 801 F. Supp. at 1403; see also 34 C.F.R. Part 300, App. C Question 48 (school must set forth in the IEP any modifications of the regular education program necessary to accommodate a disabled child). Thus, a comparison of the educational benefits of a segregated versus an integrated placement for Rafael supports the district court's conclusion that the School District's selection of a segregated placement did not comply with IDEA.

As to the third factor -- the potentially disruptive effect of Rafael's presence on the other children in a regular classroom -- the record again contains conflicting evidence. The School District presented numerous witnesses before both the ALJ and the district court who testified to Rafael's extremely disruptive behavior in the 1989-90 kindergarten class and in several other teaching environments. See supra Parts I.B & C. In contrast, the Obertis' experts Drs. McGregor and Brown evaluated Rafael and testified that in their opinion he would not at that point in time (nearly two years after Rafael's experience in the kindergarten class) cause any significant disruption in a regular classroom if provided with adequate supplementary aids and services, such as the assistance of an itinerant instructor with special education training, special education training for the regular teacher, modification of some of the academic curriculum to accommodate Rafael's disabilities, parallel instruction to allow him to learn at his academic level, and use of a resource room.

After evaluating the evidence on both sides, the district court found that "there is nothing in the record which would suggest that at this point in time Rafael would present similar behavior problems if provided with an adequate level of supplementary aids and related services within the matrix of a regular education class. In fact, the record supports the opposite conclusion." Oberti II, 801 F. Supp. at 1403 (emphasis added). The court found that the behavioral problems Rafael experienced during the 1989-90 school year in the developmental kindergarten class "were exacerbated and remained uncontained due to the inadequate level of services provided [p1223]  there," that Rafael's behavioral problems were diminished in settings where an adequate level of supplementary aids and services were provided, and that both the School District and the ALJ "improperly justified Rafael's exclusion from less restrictive placements in subsequent years based upon those behavior problems." Id..

Although the School District presented ample evidence of Rafael's disruptive behavior in the 1989-90 kindergarten class, the Obertis' evidence supports the district court's finding that Rafael would not have had such severe behavior problems had he been provided with adequate supplementary aids and services in that kindergarten class, and that Rafael (who at the time of the district court trial was two years older than when he attended the kindergarten class) would most likely not present such problems if he were included in a regular class at that time. We therefore conclude that the district court's findings on this issue are not clearly erroneous, and, accordingly, that consideration of the possible negative effects of Rafael's presence on the regular classroom environment does not support the School District's decision to exclude him from the regular classroom.

We also conclude that the district court did not abuse its discretion in deciding not to defer to the findings of the ALJ on the issue of whether Rafael would significantly disrupt a regular classroom. As the court noted, the ALJ's findings "were largely and improperly based upon Rafael's behavior problems in the developmental kindergarten, as well as upon his intellectual limitations, without proper consideration of the inadequate level of supplementary aids and services provided by the School District." Oberti II, 801 F. Supp. at 1404 (emphasis added).

For all of these reasons, we agree with the district court's conclusion that the School District did not meet its burden of proving by a preponderance of the evidence that Rafael could not be educated satisfactorily in a regular classroom with supplementary aids and services. We will therefore affirm the district court's decision that the School District has violated the mainstreaming requirement of IDEA. Because we have come to this conclusion based on application of the first part of the Daniel R.R. two-part test, we need not apply the second part of the test (whether the child has been included in programs with nondisabled children whenever possible). We note, however, that in [p1224]  the event that the Child Study Team were to determine in designing an IEP for Rafael in the future that education in a regular classroom with supplementary aids and services could not be achieved satisfactorily at that time and therefore would not be required under IDEA, the Team would then have to satisfy the second part of the Daniel R.R. test, ensuring that Rafael is included in regular school programs with nondisabled students whenever possible.

Finally, in affirming the district court's order that the School District develop a more inclusive program for Rafael in compliance with IDEA for the upcoming school year, we emphasize that neither this court nor the district court is mandating a specific IEP for Rafael. The development of Rafael's IEP, and the specific nature of his placement, is, of course, the job of the Child Study Team.

The order of the district court will be affirmed.


text: Talk:Densmore v. Scofield

title: Talk:Densmore v. Scofield


text:
Densmore v. Scofield/Opinion of the Court

This is an appeal from a decree dismissing the complainant's bill, brought upon a reissued patent issued to James Densmore and Amos Densmore May 29, 1866. The summation and claims, as set forth in the reissue, are as follows:-- 'The nature of our invention consists in combining two  large, light, tight, firm, stout tanks with an ordinary   railway car, making the tank practically a part of the   car, so as to carry the desired substance in bulk in the   car itself, or in a permanent fixture or part thereof,   instead of in barrels, casks, hogsheads, tierces, or   other movable vessels or packages, as is now universally   done on railway cars, and thereby save carrying the   weight of the barrels, casks, hogsheads, tierces, or   other movable vessels or packages.

'What we claim as our invention, and desire to secure by     letters-patent, are,--

'First, The two tanks B, B (or their equivalent), when     constructed and operating in combination with an ordinary      railway car, substantially as and for the purposes set forth.

'Second, The two tanks B, B (or their equivalent), when set     directly (or nearly so) over the car trucks, and when      constructed and operating in combination with an ordinary      railway car, substantially as and for the purposes set forth.

'Third, The frames C, C, C, C, the bolts 1, 2, 3, and 4, and     the cleats H, H, H, H, when constructed and operating in      combination with tanks B, B, the man-holes and manheads D, D,      and the faucets E, E, and the runway G, when constructed and      arranged in combination with tanks B, B, and an ordinary      railway car, substantially as and for the purposes set forth      and described.'

The bill alleges infringement, and prays for an account of profits and a decree for a perpetual injunction, and for such further relief as may be deemed proper.

Among other defences, the answer denies infringement, and sets up that the reissued patent is too broad, and is, therefore, void.

We pass by these topics, because we deem it proper to dispose of the case upon a more radical and comprehensive objection.

A witness, called by the appellees, testified that he was largely engaged in shipping petroleum, from 1861 to 1872. His language is:--

'In 1863, and prior to this and after, I shipped large     quantities of it in old whaling casks holding from one and a      half to eight and ten barrels each. I shipped a great many     thousands of barrels in said casks, which were sent forward,      returned empty, refilled, and forwarded again.

'I attach two leaves of my shipping-book, showing some  shipments in casks and return casks in 1863; they are   correct.

'My practice was to spike down cleats to prevent the casks     from shifting. In nearly every shipment there were small and     large casks as above. The casks would go to and fro on the     railroad many times, carrying oil, and returning in the same      cars empty to be filled and shipped again by me.'

Another witness testifies 'that he has been general freight agent on the Lake Shore and Southern Michigan Railway and its predecessors for about twenty years. That all this time he has been familiar with the practice and usage in railways as to loading, and that it has always been their practice or usage to place or distribute loads so that they should rest, as far as possible, over the trucks.'

A third witness, speaking of wooden tanks like those of the complainants, says:--

'During the year 1871, their use was discontinued, because of     the large percentage of leakage, and their consequent      liability to be burned up; and, in case of accident on the      railroad, if a tank was thrown off a car and it was      destroyed, a fire was almost certain to result from the      accident. A single iron tank built in boiler shape, and     nearly as long as a car, and placed horizontally on the car,      was substituted then.

'Q. 'State whether they use that description of tank down to     the present time.'

'A. 'That kind of tank car is still in use, and is giving     universal satisfaction because of being tight, little or no      leakage, and the liabilities to fire are less; and, in case      of accident, the tank is of sufficient strength to even be      thrown off a car without injury.'

'Q. 'State whether or not tanks of the kind described in the     defendants' patent have gone into disuse in the carrying of      petroleum generally.'

'A. 'So far as I know, they have.'

'Q. 'In loading freight cars, what has always been the     practice and custom in reference to loading over the trucks      where the weight can be thus distributed?'

'A. 'It is the universal custom, so far as is possible, to     place the weight over the trucks."

These witnesses are unimpeached and uncontradicted.

This testimony leaves nothing of the substance of the plaintiffs' alleged invention. No one, we apprehend, would seriously contend for a moment that what is left is sufficient to constitute the basis of a valid patent. Brown v. Piper, 91 U.S. 37, and the authorities there cited. But, irrespective of this testimony, and of any testimony, upon looking this reissue in the face, and examining its several claims by their own light, we find nothing that brings any of them within the sphere of what is properly patentable. There is no novelty and no utility. It does not appear (to use the language of appellants' brief) that there was 'a flash of thought' by which such a result as to either was reached, or that there was any exercise of the inventive faculty, more or less thoughtful, whereby anything entitled to the protection of a patent was produced. It strikes us that the entirety and all the particulars of the summary and the claims are frivolous, and nothing more.

Patents rightfully issued are property, and are surrounded by the same rights and sanctions which attend all other property. Patentees as a class are public benefactors, and their rights should be protected. But the public has rights also. The rights of both should be upheld and enforced by an equally firm hand, wherever they come under judicial consideration.

Decree affirmed.


text: Talk:Densmore v. Scofield/Opinion of the Court