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


6-21-2005

Montgomery Twp Bd v. S.C.
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1566




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT




                                      No. 04-1566




                             MONTGOMERY TOWNSHIP
                              BOARD OF EDUCATION,

                                                     Appellant
                                            v.

                              S.C., ON BEHALF OF D.C.


                    On Appeal from the United States District Court
                               for the District of New Jersey
                                 (D.C. Civil No. 02-04916)
                    District Judge: The Honorable Stanley R. Chesler
                                      ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2005

                    Before: SLOVITER and FISHER, Circuit Judges,
                             and POLLAK,* District Judge.

                                    ______________

                              OPINION OF THE COURT


                                 (Filed: June 21, 2005)


      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge:

       This appeal concerns a claim for tuition reimbursement under the Individuals with

Disabilities Education Act (“IDEA”), 29 U.S.C. § 1400 et seq. Appellant Montgomery

Township Board of Education (“the Board”) challenges the District Court’s determination

that the Board failed to offer the free and appropriate public education required by IDEA

to appellee D.C., a student under its jurisdiction, and that the Board should therefore be

required to reimburse D.C.’s parents for the cost of his education at a private school. For

the reasons stated herein, we will affirm the judgment of the District Court.

                                             I.

       Because we write for the benefit of the parties, we will not recount the facts of the

case in great detail. Although the parties have been involved in several additional

disputes over other aspects of D.C.’s education, this appeal concerns the Board’s

proposed individualized education program (“IEP”) for D.C.’s fourth-grade year. The

Board proposed that D.C. complete fourth grade in his regular home school. Under the

proposed IEP, D.C. would be in a class of mostly regular education students, but would

receive extra attention and instruction from a special education teacher serving him and

five other special education students in the class. D.C. would follow the regular fourth

grade curriculum, with the special education teacher providing supplemental assistance at

least thirty minutes per day. Under the IEP, D.C. would also receive speech and language

therapy twice per week, and weekly group counseling and occupational therapy. Despite



                                             2
technical differences, the IEP largely duplicated services D.C. had already received in

practice in earlier years.

       D.C’s parents objected to the IEP, and unilaterally placed D.C. in a private school

for special education students, the Newgrange School. They then sought reimbursement

from the Board for D.C.’s tuition at Newgrange.

       An administrative law judge presided over a due process hearing to determine

whether D.C.’s parents were entitled to tuition reimbursement. After all the evidence had

been presented, the administrative law judge recused himself, and was replaced by a

second administrative law judge. However, the parties agreed that the second judge

should decide the case based on the paper record, without another hearing. The judge did

so, awarding tuition reimbursement to the parents based on his findings that the Board’s

IEP was not adequate under the law, and that the Newgrange School was an appropriate

placement for D.C.

       The Board filed suit in the United States District Court for the District of New

Jersey, seeking to overturn this ruling. On September 3, 2003, the District Court granted

the parents’ motion for summary judgment as to the award of tuition reimbursement,

affirming the ALJ’s finding that the IEP was inadequate. This appeal followed, after

entry of final judgment.

                                            II.

       Tuition reimbursement is available under the IDEA only where (1) a proposed IEP



                                             3
is inadequate, because it fails to offer a child the required free and appropriate public

education, and (2) the parents’ unilaterally-chosen placement is an appropriate placement

for the child. Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471

U.S. 359, 370 (1985). This appeal requires us to determine whether the District Court

erred by affirming the ALJ’s ruling that the Board’s proposed IEP for D.C.’s fourth-grade

year was inadequate.1

       This court’s decision in S.H. v. State-Operated School District of the City of

Newark, 336 F.3d 260 (3d Cir. 2003), decided while D.C.’s claims were pending in the

District Court, provides clear guidance as to the proper standard of review. It establishes,

first, that our review of the District Court’s legal analysis is plenary. Id. at 269. Second,

it makes clear that the proper legal standard for the District Court to apply was a

“modified de novo” review, in which courts give “due weight” to the administrative

findings.2 Id. at 270. Under this standard, “[f]actual findings from the administrative

proceedings are to be considered prima facie correct. If a reviewing court failed to adhere

to them, it is obliged to explain why. The court is not, however, to substitute its own

notions of sound educational policy for those of local school authorities.” Id. (quotation

       1
      The Board does not challenge the District Court’s determination that the
Newgrange School was an appropriate placement.
       2
       The Board contends that the administrative findings should receive reduced
deference here, because they were made by an ALJ who did not himself hear the
witnesses’ testimony. However, the Board consented to this arrangement at the time, and
we find its current objections unpersuasive. Likewise, we do not find it significant here
that New Jersey has adopted a single-tier system of administrative review.

                                              4
and alteration omitted). We must accept the District Court’s findings of historical fact

unless they are clearly erroneous, T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572,

576 (3d Cir. 2000), but we may correct any legal error in the District Court’s application

of the law to those facts. See Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir.

1986).

         The District Court applied the correct legal standard here, finding that, to satisfy

IDEA’s substantive requirements, an IEP must be “reasonably calculated to enable the

child to achieve meaningful educational benefit.” Board of Education v. Rowley, 458

U.S. 176, 207 (1983). An IEP need not provide the maximum possible benefit to the

child, but should provide for “significant learning.” Ridgewood Bd. of Educ. v. N.E. ex

rel. M.E., 172 F.3d 238, 247 (3d Cir. 1999).

         Although the record could support more than one view of D.C.’s situation, we find

no clear error in the District Court’s understanding of the facts. There is substantial

evidence in the record, which both the District Court and the New Jersey ALJ found

persuasive, showing that D.C. exhibited significant difficulties that received only

superficial attention, if any, in the District’s IEP. The District Court did not err in finding

that D.C.’s paper record, which derived from his performance in a setting very like that

proposed in the District’s IEP, overstated his actual progress.3 There is evidence that, in


         3
        In Rowley, the Supreme Court noted that, where a child is educated in the regular
public school classroom, “the achievement of passing marks and advancement from grade
to grade will be one important factor in determining educational benefit.” Rowley, 458

                                                5
order to boost D.C.’s self-esteem, his previous grades were based largely on his effort,

rather than his achievements, except in mathematics, an area in which he performs well.

D.C.’s third-grade teacher had also allowed a high degree of informal accommodation of

his disabilities, in the form of substantial assistance by his parents (amounting, at times, to

outright completion by them of their child’s assignments), as well as extra time to

complete assignments. D.C.’s “successful” completion of classroom tasks does not

appear probative of a “meaningful educational benefit,” under the circumstances.

Similarly, D.C.’s scores on standardized tests, while often within average ranges, do not

appear to correspond to his day-to-day academic performance, and are not inconsistent

with the District Court’s finding that D.C. needed more assistance than the Board’s IEP

provided to achieve significant learning. We also find no error in the District Court’s

conclusion that the IEP failed to consider D.C.’s non-academic difficulties, which

included depression and suicidal tendencies, as well as regular harassment and physical

abuse by his schoolmates that resulted in repeated visits to the school nurse.

       In addition, we find no error in the District Court’s conclusion that the IEP did not

provide any significant improvement over the resources that had already been provided to

D.C. as a regular education student. Several of the types of special assistance that were




U.S. at 207 n.28. However, the Court also made clear that such advancement does not
automatically prove, in all cases, that a child is receiving the required education. Id. at
203 n.25. Based on the evidence in this case that D.C.’s grades did not match his actual
educational progress, we do not find his advancement from grade to grade conclusive.

                                              6
included in the IEP, repeated strategies that had previously failed to help D.C. D.C. had

participated in the school’s “Friendship Club” before, for example, but had apparently

failed to derive any benefit from it. Likewise, he had spent a year with the school’s

“Pencil Pushers” group, a form of occupational therapy. He already had speech and

language therapy, without any significant benefit. Finally, D.C. had been assigned to a

classroom with a special education teacher in second grade. Although the special

education teacher there had not been formally assigned to assist him, the record includes

evidence that the practical result for D.C. was the same attention that he would have

received as one of the special education students formally designated as receiving special

assistance from the special education teacher.

       The District Court’s discussion of its factual findings was extensive and thorough,

and gave due weight to the ALJ’s findings. Based on the District Court’s factual

findings, we find no error in the District Court’s conclusion that, while there is conflicting

evidence as to D.C.’s educational status, the Board has failed to carry its burden of

proving that the IEP was adequate.

       The Board also argues that the District Court erred by failing to consider whether

the IEP offered education in the “least restrictive environment”. As we made clear in the

S.H. decision, a child “must be educated in the [least restrictive environment] that will

provide a meaningful education benefit.” S.H., 336 F.3d at 272 (emphasis in original). A

placement that is not calculated to provide a meaningful educational benefit is


                                              7
unacceptable, and it is irrelevant whether such a placement would be the least restrictive

choice. Thus, the District Court did not err in declining to consider whether the Board’s

proposed placement was less restrictive than other possible alternatives, once the District

Court had determined that the Board’s placement would not provide the required

meaningful educational benefit.4

                                            III.

       For the foregoing reasons, the judg ment of the District Court will be affirmed.




       4
       The Board’s discussion of the “least restrictive environment” requirement might
be more relevant to the question whether the Newgrange School – not the Board’s
proposed IEP – was an appropriate placement for D.C. However, as the Board
acknowledges, that question is not before us.

                                             8
