                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-2602
                                    _____________

                                    R.R., L.R., D.R.
                                             Appellants

                                           v.

                    MANHEIM TOWNSHIP SCHOOL DISTRICT
                             _______________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                             District Court No.2-05-cv-01283
                   District Judge: The Honorable Eduardo C. Robreno


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 27, 2011

               Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
                          and STEARNS, District Judge *

                               (Filed: February 10, 2011)


                                        OPINION


STEARNS, District Judge




      L.R through her parents appealed to the United States District Court for the Eastern

District of Pennsylvania from a decision of the Special Education Appellate Panel denying

      *
       The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
L.R. tuition reimbursement from the Manheim Township School District (School District)

for the 2002-2003 school year. L.R. asked the District Court, among other things, to reverse

the rulings of the hearing officer and the Appellate Panel, and to declare the School District

in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et

seq.;1 the Rehabilitation Act of 1973, § 504(a), 29 U.S.C. § 794(a); the Federal Civil Rights

Act, 42 U.S.C. § 1983; and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.

       In a series of four memoranda and orders, the District Court dismissed each of these

claims. The two initial orders were issued by Judge Clifford Green, who in his first order

dismissed without prejudice L.R.’s IDEA claims pertaining to her school years prior to 2002-

2003 (March 30, 2007 Order). In his second order, Judge Green dismissed L.R.’s parallel

claims under the Rehabilitation Act, the ADA, and the Civil Rights Act (May 24, 2007

Order). Both dismissals were based on the failure of L.R.’s parents to exhaust available

administrative remedies. In two subsequent orders, Judge Robreno dismissed L.R.’s 2002-

2003 school year IDEA claims        (March 26, 2008 Order), and later dismissed L.R.’s

Rehabilitation Act and ADA claims (May 13, 2010 Order).2 L.R. appeals to this Court from

the final judgment entered by the District Court on May 13, 2010.

       L.R. was born on December 8, 1988, and is now twenty-two years old. L.R. has



       1
         The IDEA, a federal special education funding statute, obligates participating
States, including Pennsylvania, to provide a free appropriate public education (FAPE)
to special needs children such as L.R. It confers jurisdiction on the federal courts to
oversee this mandate and authorizes parents to bring a private enforcement action on
behalf of a special needs child.
       2
      Judge Green died on May 31, 2007. L.R.’s case was then reassigned to Judge
Robreno.
                                              2
speech and language impediments that the parties agree constitute a disability under IDEA.

L.R. attended the Manheim schools from the first through the sixth grade. The parents agree

that L.R’s progress was “successful” through the fifth grade and that “her speech . . . did

improve dramatically as a consequence of the [School District’s providing of] articulation

therapy” during that period.

         The following year, L.R. left elementary school to begin the sixth grade. She found

the change in environment and curriculum disorienting. Her classrooms were housed in a

separate building that L.R. found “busy, noisy and confusing.” L.R.’s classroom schedule

consisted of forty-minute blocks of time, while her language therapy was limited to thirty

minutes each week.         The parents and Dr. Thomas Kelly, the family’s consulting

psychologist,3 were concerned that the accelerated schedule failed to accommodate L.R.’s

needs.       They believed that L.R.’s sixth through seventh grade IEP lacked “goals or

interventions for [L.R.’s] receptive language skills,” and that her “classroom teachers were

[unrealistically] expected to address L.R.’s language deficits.” The parents were also

concerned that L.R.’s sixth grade teachers were not committed to collaborating with Dr.

Kelly in devising curriculum and programmatic intervention for L.R.4



         3
         Dr. Kelly, a Director of Pupil Personnel in the Hendrick Hudson School
District and an adjunct professor at Columbia University’s Teachers College and
Center for Educational and Psychological Services, “worked with [L.R. and her
parents] over the years, helping them select curriculum and develop classroom-based
approaches designed to reach L.R. at her functional level.” One approach
recommended by Dr. Kelly was repetitive instruction. He believed that L.R. learned
best by staying with an academic task until she was fully able to retain it.
         4
       The hearing officer noted that the IEP team had reevaluated L.R. in the
second half of her sixth grade year. According to the hearing officer, the Evaluation
                                              3
       As the academic year progressed, L.R. became increasingly frustrated and failed

ultimately to meet her IEP goals. Believing that her “self-esteem had plummeted . . . and that

she was regressing in some academic skills,” the parents removed L.R. from the Manheim

schools and placed her at Maplebrook Academy, a private residential school in New York,

for seventh grade. Appellant’s Br. at 9. After L.R. successfully completed the seventh grade,

the parents re-enrolled her at Maplebrook for the eighth grade and sought reimbursement of

L.R.’s tuition from the School District.

       On November 19, 2002, the School District completed an IEP for L.R.’s eighth-grade

year (2002-2003), which the parents rejected. They invoked their right to a due process

hearing. A four-day hearing began on December 6, 2002. On February 4, 2003, the hearing

officer issued a twenty-one page decision in which he concluded that the School District had

offered L.R. a FAPE for the 2002-2003 school year. Consequently, he held that L.R.’s

parents were not entitled to reimbursement for her tuition and related costs.

       L.R.’s parents appealed to the Special Education Appellate Panel. The Panel

affirmed the hearing officer’s decision finding L.R.’s 2002-2003 IEP “far from optimal but

not fatally inadequate.”5 The Panel, however, ordered the School District to conduct a



Report contained teacher comments indicating that L.R. was having a good year, and
that it included “Dr. Kelly’s observations and suggestions. There was no
disagreement regarding the Evaluation Report.”
       5
        The Panel found the IEP lacking in that “[s]ome annual goals and shorter-term
objectives are not completely clear and therefore the potential exists for some
difficulty in measuring [L.R.’s] progress objectively, at times it is unclear how the
present levels of educational functioning are related to instructional goals and
objectives, and the IEP does not provide specifically designed instruction to achieve
some of her goals.”
                                              4
reevaluation of L.R. and to prepare a new IEP for the 2003-2004 school year. The School

District complied, completing the reevaluation on September 2, 2003.

       On March 21, 2005, L.R.’s parents filed this action in the District Court seeking

tuition reimbursement, monetary damages for “the loss of educational opportunities, loss of

language therapy opportunities and emotional damages [L.R.] ha[d] suffered,” attorneys’

fees, and expert witness fees. The School District moved to dismiss the non-IDEA counts

of the Complaint (Counts II through V) arguing that only Count I, the IDEA-based appeal

of the Panel decision, was ripe for adjudication. In his March 30, 2007 Order, Judge Green

granted the motion in part, dismissing without prejudice Count II, which sought monetary

damages under IDEA for the “loss of educational opportunities” during L.R.’s pre-2002-

2003 school year. Judge Green addressed the claim in pertinent part as follows.

       At no point in [the due process hearing] proceedings did Plaintiffs or the
       District raise, nor did the Hearing Officer or Special Education Appeals Panel
       address, whether L.R. should have been evaluated earlier or provided with
       critical language therapy as Plaintiffs contend. Plaintiffs maintain that they are
       not seeking compensatory education for this loss, but instead are only seeking
       monetary damages for Plaintiffs’ claimed damages in this Count. However,
       in order for this court to determine the merits of Plaintiffs’ claim the court
       must first determine whether and when the District was obligated to evaluate
       L.R.’s language needs. Were the court to pursue this line of inquiry, the court
       would also be required to determine whether the educational program offered
       during L.R.’s early years provided her with a free appropriate public education
       under which she could have made meaningful academic progress. Although
       Plaintiffs offer expert reports and opinions about L.R.’s loss of educational
       opportunity in her early years the District has not been provided with an
       opportunity, at the administrative level, to be heard on the issue and to attempt
       to rebut or resolve the claim.

March 30, 2007 Order at 8.

       The School District moved for clarification or reconsideration of the District Court’s

ruling as to the non-IDEA claims. The School District argued that the damages component

                                               5
of the claims based on events prior to L.R.’s 2002-2003 school year were also barred by the

failure to exhaust. In response, L.R.’s parents acknowledged that they had “accepted all of

the IEP’s through L.R.’s 6th grade year, even knowing that she was not receiving sufficient

language therapy but believing that the District’s willingness to collaborate with their expert

to appropriately modify the curriculum would sufficiently address L.R.’s needs.” In his May

24, 2007 Order, Judge Green, citing the IDEA’s two-year statute of limitations, reaffirmed

his earlier dismissal of the IDEA claims, and also dismissed L.R.’s Rehabilitation Act, ADA,

and § 1983 claims on exhaustion grounds. On June 4, 2007, L.R.6 petitioned the District

Court for leave to take an interlocutory appeal to the Third Circuit.7 On June 21, 2007, the

School District moved for partial summary judgment arguing that L.R. had failed to show

that her 2002-2003 IEP was deficient.

       On March 26, 2008, Judge Robreno issued an order denying L.R.’s request to take an

interlocutory appeal and allowed the School District’s motion for partial summary judgment.

After a review of Judge Green’s previous orders, Judge Robreno agreed that “to the extent

that any claim seeks relief that is ‘available’ under the IDEA, the IDEA’s administrative

remedies must be exhausted before such an action is brought.” L.R. v. Manhein Twp. Sch.




       6
        As L.R. had turned eighteen on May 16, 2007, an Amended Complaint
substituted L.R for her parents as the named plaintiff.
       7
        In seeking an interlocutory appeal, L.R. cited W.B. v. Matula, 67 F.3d 484 (3d
Cir. 1995) for the proposition that “parties do not need to exhaust their administrative
remedies for actions brought for monetary damages under § 504 and the ADA even
in an IDEA related case.” Matula was, however, abrogated by A.W. v. Jersey City
Pub. Schs., 486 F.3d 791 (3d. Cir 2007).
                                              6
Dist., 540 F. Supp. 2d 603, 611 (E.D. Pa. 2008) (citing 20 U.S.C. § 1415(l)).8 He further

found that while the composition of L.R.’s IEP team had violated IDEA (the regular

education teacher who attended the meeting had not taught L.R.), see Fuhrmann v. E.

Hanover Bd. of Educ., 993 F.2d 1031, 1036 (3d Cir. 1993), the error was harmless.

Manheim Twp. Sch. Dist., 540 F. Supp. 2d at 616. He also noted that the 2003 evaluation

had no logical bearing on the preparation of L.R.’s pre-2003 IEPs. Id. at 620.

      On April 24, 2008, L.R. appealed Judge Robreno’s March 26, 2008 Order to this

Court. On December 22, 2008, we dismissed the appeal for lack of jurisdiction because the

Order was not “final” within the meaning of 28 U.S.C. § 1291. L.R. then filed a motion in

the District Court for judgment on her remaining claims. She made two arguments: (1) that

the School District’s failure to undertake a comprehensive language evaluation of L.R.

constituted discrimination under the Rehabilitation Act and the ADA; and (2) that the IEP

prepared for the 2002-2003 school year was grossly inadequate given her needs, and

therefore constituted disability discrimination. On May 13, 2010, Judge Robreno denied



      8
          Section 1415(l) states:

      Nothing in this chapter shall be construed to restrict or limit the rights,
      procedures, and remedies available under the Constitution, the
      Americans with Disabilities Act of 1990, title V of the Rehabilitation
      Act of 1973, or other Federal laws protecting the rights of children with
      disabilities, except that before the filing of a civil action under such laws
      seeking relief that is also available under this subchapter, the
      procedures under subsections (f) and (g) of this section shall be
      exhausted to the same extent as would be required had the action been
      brought under this subchapter. (Emphasis added).



                                            7
L.R.’s motion, finding Fuhrmann “equally applicable to [claims under] § 504 and the ADA,”

and entered judgment for the School District. L.R. filed this timely appeal on June 2, 2010.

       When reviewing an administrative hearing decision under the IDEA, a District Court

is to apply a modified de novo standard. Ramsey Bd. of Educ, 435 F.3d at 389. Under that

standard, due weight must be given to administrative determinations; the factual findings of

the administrative tribunal are given a prima facie presumption of correctness. See Shore

Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3rd Cir. 2004); Mary T. v. Sch. Dist.

of Philadelphia, 575 F.3d 235, 241 (3d Cir. 2009); Lauren W. v. DeFlaminis, 480 F.3d 259,

266 (3rd Cir. 2007). There is a reason for insisting on administrative review and the

heightened level of deference accorded to its results: judicial review is “by no means an

invitation to the courts to substitute their own notions of sound educational policy for those

of the school authorities which they review.” Bd. of Educ. v. Rowley, 458 U.S. 176, 206

(1982).9 A Court of Appeals, for its part, reviews the District Court’s factual findings for

clear error and exercises plenary review over its determinations of law. Mary T., 575 F.3d

at 241-242.

       “[W]hen a public school fails to provide a FAPE and a child’s parents place the child

in an appropriate private school without the school district’s consent, a court may require the




       9
        As one of our sister Circuits has aptly observed, “[a]llowing plaintiffs to
bypass the IDEA’s administrative process en route to state or federal court disrupts
this carefully calibrated balance and shifts the burden of factfinding from the
educational specialists to the judiciary.” Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 61 (1st Cir. 2002).
                                              8
district to reimburse the parents for the cost of the private education.” 10 Forest Grove Sch.

Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009). What constitutes an “appropriate education” is

defined by the IDEA, 20 U.S.C. § 1401(18), and the interpretive case law. See Rowley, 458

U.S. at 186 n.8. Whether an IEP has made a FAPE available to a child is a question of fact.

D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564, 564 (3d Cir. 2010).

       We agree with the District Court that review is confined to issues pertaining to L.R.’s

2002-2003 IEP. The claims involving the School District’s alleged refusal “to offer objective

evaluations of L.R. over the years,” the alleged deprivation “of critical language therapy

during her early years,” an alleged loss of self-esteem and other lost opportunities, and the

continuing impact of these alleged violations, could have been raised and heard as part of

L.R.’s IDEA claim in the administrative proceedings, but were not.11 (L.R. does not dispute

that her ADA and Rehabilitation Act claims are derivative of the IDEA inquiry). While we

do not go so far as to preclude the prosecution of ADA and Rehabilitation Act claims related

to IDEA violations, we require that such claims be submitted in the first instance to the

administrative tribunal when the relief sought is essentially the same as that available under




       10
          The School District stipulates to the appropriateness of the Maplebrook
School as an alternative placement, although it disagrees that it meets the criterion of
“least restrictive environment.”
       11
        In Jersey City Pub. Schs., we held that under the IDEA “any aggrieved party
may ‘present a complaint . . . with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free
appropriate public education to such child.’” Id., 486 F.3d at 802 (emphasis added),
quoting 20 U.S.C. § 1415(b)(6).
                                              9
the IDEA.12 In other words, for an ADA or Rehabilitation Act damages claim to survive the

exhaustion doctrine, it must be based on a set of circumstances for which IDEA does not

provide or contemplate a remedy. We have similarly observed that because “IDEA provides

a comprehensive remedial scheme . . . Congress did not intend § 1983 to be available to

remedy violations of the IDEA.” Jersey City Pub. Schs., 486 F.3d at 806.

       In her appeal to this Court of the denial of tuition reimbursement (the only claim

properly before us), L.R.’s principal complaint is that the District Court erred in failing to

give deciding weight to the School District’s failure to perform a timely “comprehensive

language evaluation.” L.R. maintains that when the School District finally undertook a

comprehensive language evaluation in September 2003, it failed to implement the findings

(L.R.’s parents describe the evaluation as having “proved that L.R.’s needs were far more

intense than [the School District] had . . . programmed for . . . .”). However, based on our

own review, we agree with the District Court that L.R. failed to demonstrate that additional

testing was required prior to the preparation of 2002-2003 IEP (no matter how desirable it

might have been). Nor do we see error in the District Court’s refusal to give the 2003

language assessment any weight in reviewing the sufficiency of an IEP prepared a year

earlier. See Fuhrmann, 993 F.2d at 1040 (“Our understanding of Rowley comports with that

of the district court; that the measure and adequacy of an IEP can only be determined as of

the time it is offered to the student, and not at some later date.”).

       12
          We are mindful, as was the District Court, that our discussion in Jersey City
Pub. Schs. was focused on Matula’s § 1983 holding. We agree, however, with the
District Court’s ultimate conclusion that 20 U.S.C. § 1415(l) requires that IDEA-
related claims brought under the ADA or the Rehabilitation Act be submitted in the
first instance to administrative review.
                                               10
For the reasons stated, we will affirm the judgment of the District Court.




                                     11
