                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2005

Falzett v. Pocono Mt Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2356




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                                                   NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                  Nos. 04-2356, 04-2501


            FRANK P. FALZETT, Individually
                 and as parent and natural
             guardian of Tiber Falzett, a minor;
            BRANDE FALZETT, Individually
                 and as parent and natural
             guardian of Tiber Falzett, a minor

                              v.

        POCONO MOUNTAIN SCHOOL DISTRICT

               Frank P. Falzett; Brande Falzett,

                                                   Appellants in 04-2356

              Pocono Mountain School District,

                                                   Appellant in 04-2501


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                (D.C. Civil No. 02-cv-00950)
     District Court Judge: Honorable A. Richard Caputo


             Submitted pursuant to LAR 34.1(a)
                    September 26, 2005
                Before: ALITO, AMBRO, and LOURIE,* Circuit Judges.

                                 (Filed: October 11, 2005)




                               OPINION OF THE COURT


PER CURIAM:

              Plaintiffs’ son Tiber Falzett contracted an illness that left him homebound

for his seventh and eighth grade years of school. He applied for homebound instruction

from the Pocono Mountain School District, which provided some but not all of the

instruction. Plaintiffs hired private tutors, and Tiber finished both years with good

grades. After an administrative hearing, Plaintiffs sued Pocono under the IDEA and other

statutes, alleging that Tiber was denied a free appropriate public education (“FAPE”).

The District Court granted judgment to Pocono, concluding that even though Tiber had a

disability under the IDEA, Pocono provided Tiber with a FAPE. Plaintiffs appeal, and

Pocono cross-appeals. Because the District Court did not clearly err in finding that

Pocono provided a FAPE to Tiber, we affirm solely on that basis.

                                             I.

              The following facts are consistent with the findings of the administrative

bodies and the District Court. Tiber developed an illness that left him unable to attend



       *
              Honorable Alan D. Lourie, Circuit Judge of the United States Court of
              Appeals for the Federal Circuit, sitting by designation.

                                             2
school due to chronic sickness and fatigue. In October 1997, Tiber’s parents withdrew

him from private school, enrolled him in the Pocono Mountain School District, and

requested homebound instruction. Pocono began providing five hours of home

instruction per week in January 1998. App. at 439A ¶¶ 7–8. Tiber completed seventh

grade, earning straight A’s and receiving distinguished academic honors. App. at 439A

¶ 9. Plaintiffs argue that Tiber’s grades were inflated because he was not given the

complete curriculum, but the District Court and the administrative bodies found to the

contrary. App. at 17A; 456A.

             In September 1998, Tiber tried to attend school but was still too infirm.

Tiber’s parents again requested homebound instruction, which began in early October

1998. App. at 439A ¶ 11; 440 ¶ 14. During eighth grade Ms. Weaver taught Tiber

French from December through the end of the school year. App. at 96A–97A. In Tiber’s

other four subjects, however, Pocono had difficulty finding a regular home instructor.

App. at 270A. During November and December 1998, Tiber’s homebound instructor Ms.

Kent attended “sporadic[ally]” due to her busy schedule. App. at 87A. Pocono failed to

promptly relay Tiber’s assignments from his school instructors to his home instructor,

such that on November 18, 1998, Tiber’s parents received a set of science assignments

that were due on the same day. App. at 84A–86A. Tiber’s parents eventually hired

private tutors to supplement Pocono’s instruction. App. at 95A. In January 1999, Ms.

Kent withdrew, and Pocono’s next instructor Mr. Miller never showed up. App. at 91A.



                                            3
Pocono’s instructor Ms. Wrisley missed many days for personal reasons, and the last day

Pocono provided any instruction was on March 19, 1999. App. at 443A ¶ 38. Pocono

offered to make up the 55 missed hours during the summer of 1999, but Tiber’s parents

refused. App. at 443A–444A ¶¶ 39, 41–47. Some of those hours had been missed

because Plaintiffs had refused to accept a particular instructor, and others were missed

because Plaintiffs would not accommodate District instructors when Tiber’s privately

hired tutors were scheduled to teach. App at 19A.

              Tiber scored straight A’s for his eighth grade year. App. at 444A ¶ 45.

Tiber also won the school’s geography bee in January 1999, qualified for the state

geography bee, and qualified for the Junior National Honor Society. App. at 445A

¶ 57–59. In January 1999 Tiber took the SSAT and scored in the following national

percentiles: verbal 97th, math 76th, reading 91st. App. at 445A ¶ 58. Prior to his

seventh and eighth grades, Tiber’s national percentiles in subjects other than math were in

the mid to high 90’s, and in math he had scored in the mid 50’s. App. at 18A.

              Plaintiffs initiated an administrative hearing to obtain reimbursement for the

tutors hired for Tiber’s eighth grade year and for Tiber’s high school tuition. The hearing

officer concluded that Tiber was not disabled for purposes of IDEA because his

impairment did not implicate “special education” and had no adverse effect on his

educational performance. App. at 448A. The administrative appeals panel affirmed.

App. at 452A–458A. The District Court disagreed with the conclusion that Tiber did not



                                             4
have a disability under the IDEA, but agreed with the administrative factual findings and

found that Tiber was provided a “meaningful” educational benefit and therefore a FAPE.

Accordingly, the District Court granted Pocono judgment on Plaintiffs’ IDEA claim, and

on Plaintiffs’ dependent claims under 42 U.S.C. § 1983, the ADA, and the Rehabilitation

Act. Plaintiffs appeal, and Pocono cross-appeals the holding that Tiber had a disability.

                                              II.

              The District Court rightly conducted a “modified de novo” review of

Tiber’s IDEA claim. S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d

260, 263 (3d Cir. 2003). Under the IDEA, the District Court “(i) shall receive the records

of the administrative proceedings; (ii) shall hear additional evidence at the request of a

party; and (iii) basing its decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C) (emphasis

added). “‘[F]actual findings from the administrative proceedings are to be considered

prima facie correct,’ and ‘[i]f a reviewing court fails to adhere to them, it is obliged to

explain why.’” Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d

Cir. 2004) (quoting S.H., 336 F.3d at 271 (3d Cir. 2003)). On appeal, this Court

“exercise[s] plenary review with respect to the question whether the District Court

applied the correct legal standards under the IDEA, but [] reviews the District Court's

factual findings for clear error.” Id. (citations omitted).

              Whether Pocono provided Tiber with a FAPE is a question of fact. See



                                               5
S.H., 336 F.3d at 264, 271 (“[An IEP] is the primary vehicle for providing students with

the required free and appropriate education. . . . The issue of whether an IEP is

appropriate is a question of fact.”); see also T.R. v. Kingwood Tp. Bd. of Educ., 205 F.3d

572, 578 (3d Cir. 2000) (deferring to the District Court’s factual finding that the school

provided a FAPE). A FAPE “need not maximize the potential of a disabled student, [but]

it must provide ‘meaningful’ access to education, and confer ‘some educational benefit’

upon the child for whom it is designed.” Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238,

247 (3d Cir. 1999) (internal citations omitted) (quoting Board of Education v. Rowley,

458 U.S. 176, 192, 200 (1982)). No bright-line rule specifies the degree of educational

benefit that satisfies the IDEA, but the Court must consider the particular child’s

potential. Id. The student’s grades, while not dispositive, can indicate whether he

received meaningful educational benefit. Rowley, 458 U.S. at 203.

                                             III.

              Assuming, without deciding, that Tiber had a disability and was entitled to a

FAPE under the IDEA, the District Court did not clearly err in finding that Pocono

fulfilled its duty. Plaintiffs do not challenge Pocono’s “plan” for instructing Tiber (five

hours of home instruction per week), nor do they allege that when such instruction

occurred it was inadequate. Plaintiffs merely assert that Pocono failed to provide hours,

failed to relay assignments on time, and failed to complete portions of the curriculum. Yet

substantial evidence exists in the record to support the finding that Pocono provided Tiber



                                              6
with meaningful educational benefit despite some failures.

              Tiber’s grades and test scores, while not the only relevant factors, indicate

that Tiber maintained his high academic abilities. The District Court agreed with the

administrative finding that Tiber’s straight A’s during seventh grade accurately reflected

his performance and were not inflated. Tiber’s January 1999 SSAT scores, far from

indicating that Tiber was falling behind, were better than his previous scores, particularly

in math. As the District Court noted, Tiber took this test after a year and a half of

Pocono’s instruction. Although the hours provided by Pocono broke down substantially

at the end of Tiber’s eighth grade year, the District Court found that Tiber’s parents were

partly to blame for many missed hours, and Pocono offered to make up the hours. See

Shore, 381 F.3d at 199 (“The school has the burden of showing that a FAPE was

offered.” (emphasis added).) Tiber’s late receipt of assignments does not necessarily

indicate that he did not receive the benefit of those assignments, but could reasonably be

viewed as impacting only the manner in which Pocono was providing instruction. See

Rowley, 458 U.S. at 207 (“courts must be careful to avoid imposing their view of

preferable educational methods upon the States”). Based on this record, we are not “left

with a definite and firm conviction” that Tiber did not receive meaningful educational

benefit from Pocono. Shore, 381 F.3d at 199 (quoting Oberti v. Board of Educ. of

Borough of Clementon School Dist., 995 F.2d 1204, 1204 (3d Cir. 1993)).

                                             IV.



                                              7
              Because Pocono provided Tiber with a FAPE, the District Court correctly

granted Pocono summary judgment on Tiber’s claims under the ADA, the Rehabilitation

Act, and 42 U.S.C. § 1983. Ridgewood, 172 F.3d at 253 (“there are few differences, if

any, between IDEA’s affirmative duty and § 504’s negative prohibition”). Although

shortcomings existed in Pocono’s instruction, nothing in the record indicates that

Pocono’s failures were “by reason of [Tiber’s] disability.” 42 U.S.C. § 12132; 29 U.S.C.

§ 794(a).

                                            V.

              For the reasons given above, we affirm the decision of the District Court.1




       1
       Because the cross-appellant did not seek to alter the judgment, a cross-appeal was
unnecessary and improper. The cross-appeal is therefore dismissed.
