                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2004

Shore Regional High v. P.S.
Precedential or Non-Precedential: Precedential

Docket No. 03-3438




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Recommended Citation
"Shore Regional High v. P.S." (2004). 2004 Decisions. Paper 360.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/360


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PRECEDENTIAL                                   (Opinion Filed: August 20, 2004 )

      UNITED STATES COURT OF                MICHAELENE LOUGHLIN (argued)
              APPEALS                       Loughlin and Latimer
       FOR THE THIRD CIRCUIT                131 Main Street, Suite 235
            ____________                    Hackensack, NJ 07601

              No. 03-3438                   Counsel for Appellant
             ____________
                                            DAVID M. HAWKINS (argued)
 SHORE REGIONAL HIGH SCHOOL                 NATALIE S. SHAHINIAN
    BOARD OF EDUCATION                      CHRISTOPHER LAZAS
                                            Purcell, Ries, Shannon, Mulcahy &
                   v.                       O’Neill
                                            One Pluckemin Way
       P. S., ON BEHALF OF P.S.,            P.O. Box 754
                                            Bedminster, NJ 07921
                Appellant
                                            Counsel for Appellee
        ____________________                       ____________________


  ON APPEAL FROM THE UNITED                      OPINION OF THE COURT
    STATES DISTRICT COURT                          _____________________
   FOR THE DISTRICT OF NEW
            JERSEY

District Court Judge: Honorable Mary L.     ALITO, Circuit Judge:
                 Cooper
          (D.C. No. 01-cv-5758)                    This is an appeal from a District
         ____________________               Cou rt order overturning a state
                                            administrative law judge’s decision
         Argued: June 16, 2004              holding that a school district failed to
                                            provide a “free appropriate public
Before: ALITO, SMITH, and DuBOIS,*          education” within the meaning of the
           Circuit Judges                   Individuals with Disabilities Education
                                            Act (“IDEA”), 20 U.S.C. §§ 1400-1487,
                                            for a student who had been subjected to
                                            severe and prolonged harassment by other
  *
    The Honorable Jan E. DuBois, District   students. We hold that the District Court
Judge of the United States District Court   improperly failed to give “due weight” to
for the Eastern District of Pennsylvania,   the ALJ’s determination, and we therefore
sitting by designation.                     reverse.
                       I.                               appreciable improvement. After P.S.’s
                                                        grades slipped badly, Maple Place
       P.S. was born in 1986 and attended
                                                        evaluated him and classified him as
public schools in the Oceanport (New
                                                        eligible for special education and related
Jersey) School District from kindergarten
                                                        services based on perceptual impairment.
through eighth grade. In elementary
                                                        The Oceanport Child Study Team (“CST”)
school, P.S. was teased by other children
                                                        then developed an Individualized
who viewed him as “girlish,” but when
                                                        Education Program (“IEP”) that placed
P.S. began to attend the Maple Place
                                                        P.S. in the “resource room” for math and
Middle School in fifth grade, the bullying
                                                        gave him extra teacher attention to help
intensified. In the words of the District
                                                        with his organizational skills. The CST
Court, P.S “was the victim of relentless
                                                        manager believed that P.S.’s poor
physical and verbal harassment as well as
                                                        academic work was due to the bullying
social isolation by his classmates.” App.
                                                        rather than any cognitive deficiencies.
13.
                                                               P.S.’s classification remained
           Most of the harassment of P.S.
                                                        throughout sixth and seventh grade, and
focused on his lack of athleticism, his
                                                        his IEP was expanded to include a daily
physique, and his perceived effeminacy.
                                                        resource-center literature class and an
Bullies constantly called P.S. names such
                                                        alternative physical education class to help
as “faggot,” “gay,” “homo,” “transvestite,”
                                                        him with his physical skills and to avoid
“transsexual,” “slut,” “queer,” “loser,”
                                                        the locker room changing period, during
“big tits,” and “fat ass.” Bullies told new
                                                        which other children ridiculed his
students not to socialize with P.S.
                                                        physique. The school also permitted P.S.
Children threw rocks at P.S., and one
                                                        to change classes at special times so that
student hit him with a padlock in gym
                                                        he would not encounter other students in
class. When P.S. sat down at a cafeteria
                                                        the hallways and could thus avoid the
table, the other students moved. Despite
                                                        harassment that customarily occurred
r e p e a te d c o m pl a i n ts , th e s c h ool
                                                        there. In eighth grade, the harassment
administration failed to remedy the
                                                        became so intense that P.S. attempted
situation.
                                                        suicide. At the request of his psychiatrist,
         The constant harassment began to               who told the CST manager that P.S.’s life
cripple P.S. He became depressed, and his               and health were at stake, P.S. received
schoolwork suffered. When P.S. was in                   home schooling for six weeks.             In
fifth grade , his m oth er, on the                      February and March of that year, M aple
r e c o m m e n d a t i o n o f t h e s c h o ol        Place changed P.S.’s classification, finding
psychologist, obtained private psychiatric              him eligible for special education on the
counseling for him. The psychiatrist                    basis of emotional disturbance.
diagnosed P.S. with depression and
                                                               The public high school serving
prescribed medication, but there was no
                                                        P.S.’s community is Shore Regional High

                                                    2
School (“Shore”), but P.S.’s parents had            weekly counseling.       Based on this
begun to look for a different school for            program, the Shore authorities concluded
their son some years earlier, and they              that their school would be the “least
eventually became interested in Red Bank            restrictive environment” for P.S. See 20
High School (“Red Bank”), the public high           U.S.C. § 1412(a)(5)          (school must
school in a neighboring school district.            provide education in least restrictive
Red Bank was attractive both because it             environment).
did not enroll students from Maple Place
                                                           P.S.’s parents strongly disagreed
and because it had a drama program that
                                                    with Shore’s decision and unilaterally
appealed to P.S.’s interests.        P.S.
                                                    placed him in Red Bank for the ninth
auditioned for the Red Bank drama
                                                    grade. Initially, Red Bank did not create
program and was accepted. P.S.’s parents
                                                    an IEP for P.S., but did provide him with a
then asked Shore to place him at Red
                                                    special education class in algebra and
Bank, and the Oceanport CST concurred.
                                                    academic support. While Red Bank did
The CST believed that if P.S. attended
                                                    not schedule weekly counseling sessions,
Shore Regional High School he would
                                                    it made clear to P.S. that counseling was
experience the same harassment that had
                                                    available upon request. Red Bank’s plan
occurred at Maple Place because the
                                                    was to mainstream P.S. for all his classes.
bullies who were responsible would also
                                                    When P.S. was in ninth grade, Red Bank
be there.
                                                    created an IEP for him that maintained his
        Shore undertook its own evaluation,         academic support center class, but
relying mostly on the Maple Place IEP and           mainstreamed him for all other classes.
a surveillance of P.S. in his classes.              Like Shore, Red Bank offered a program
Despite the recommendation from the                 to combat bullying that included discipline
CST, Shore rejected P.S.’s request to               and diversity seminars. As the District
attend Red Bank and concluded that he               Court not ed, P .S. “thrived both
should attend Shore for ninth grade. Shore          academically and socially at Red Bank.”
apparently believed that if it granted P.S.’s       App. 23.
request, it would have to grant the request
                                                            After Shore rejected P.S.’s request
of non-disabled students who wished to
                                                    to attend Red Bank, P.S.’s father filed a
attend Red Bank. Shore’s affirmative
                                                    mediation request with the New Jersey
action officer, Dr. Barbara Chas,
                                                    Department of Education. Mediation
contended that Shore could contain the
                                                    proved unsuccessful, and the action was
bullying by disciplining bullies and by
                                                    transferred to the New Jersey Office of
utilizing peer and social worker mediation.
                                                    Administrative Law for a “due process
Shore also proposed an IEP in which P.S.
                                                    hearing.” Before the hearing, both sides
would attend the resource room for math
                                                    agreed to an independent evaluation by the
and would have a supplemental course in
                                                    Institute for Child Development at the
learning skills, adaptive gym classes, and
                                                    Hackensack University Medical Center

                                                3
(“Hackensack”).        Hackensack                  as the defendant, and P.S.’s father filed a
recommended that P.S. attend a school              counterclaim for attorneys’ fees. Relying
such as Red Bank.                                  on the administrative record, the District
                                                   Court reversed the ALJ’s decision.
       At the due process hearing, the ALJ
                                                   Crediting Dr. Chas’s testimony, the
heard testimony from several witnesses,
                                                   District Court found that Shore offered
including P.S., his mother, Dr. Chas, Dr.
                                                   P.S. a free appropriate public education.
Mina Corbin-Fliger (a member of the
                                                   The Court wrote:
Oceanport CST), and Dr. Carol Friedman
(a psychologist at Hackensack). All of the                The inability of the Maple
witnesses agreed that P.S. had been                       Place administration to
subjected to unusual levels of harassment.                successfully discipline its
While Dr. Chas testified that she believed                students does not make
that Shore could control the bullying, P.S.,              Shore an inappropriate
his mother, Dr. Corbin-Fliger, and Dr.                    placement. No school can
Friedman all disagreed. The ALJ also                      ever guarantee that a student
reviewed several documents relating to                    will not be harassed by other
P.S.’s case, including his IEPs and                       students. . . . However, we
recommendations regarding placement.                      find that, in light of the
                                                          s t r u ct u r e d disciplin ary
        The ALJ concluded that Shore
                                                          mechanism in place at Shore
could not provide P.S. with a “free
                                                          and Chas’s op inion
appropriate public education,” as required
                                                          regarding the supportive
by the IDEA, see 20 U.S.C. § 1412(a)(1),
                                                          nature of students involved
because of the “legitimate and real fear
                                                          in drama there, the risk that
that the same harassers who had followed
                                                          the harassment wou ld
P.S. through elementary and middle school
                                                          continue was not so great as
would continue [to bully him.]” App. 41.
                                                          to        render        Shore
The ALJ was particularly concerned that
                                                          inappropriate.
the bullies from P.S.’s area would harass
him during largely unsupervised school             App. 31-32 (emphasis in original).
bus rides to Shore and that Shore would be
                                                           The District Court did not accept
unable to provide for P.S.’s emotional
                                                   the testimony of Dr. Corbin-Fliger and Dr.
needs within its very large student body.
                                                   Friedman, stating that they had “focused
App. 42, 47. The ALJ ordered Shore to
                                                   on the failure of the Maple Place
reimburse P.S. for the out-of-district
                                                   administration to discip line [th e]
tuition and related costs, including P.S.’s
                                                   tormenters; they did not address whether
reasonable attorneys’ fees.
                                                   the Shore administration would have been
       Shore then commenced this action            able to address the problem.” App. 23.
in the District Court, naming P.S.’s father        The Court also implicitly faulted Dr.


                                               4
Friedman on the ground that she had                20 U.S.C. §1401(8).
“never visited Shore to investigate their
                                                           States provide a FAPE through an
disciplinary measures or the type of
                                                   individualized education program (“IEP”).
environment supplied by its drama
                                                   See 20 U.S.C. 1414(d). The IEP must be
program.” Id. at 30 n. 21. In addition, the
                                                   “reasonably calculated” to enable the child
District Court concluded that “Shore was
                                                   to receive “meaningful educational
the least restrictive environment for P.S.
                                                   benefits” in light of the student’s
because it was his local public high school,
                                                   “intellectual potential.” Polk v. Cent
where he would have been educated with
                                                   Susquehanna Interm. Unit 16, 853 F.2d
other nondisabled children.” Id. at 33.
                                                   171, 181 (3d Cir. 1988).
                      II.
                                                           Under 20 U.S.C. § 1412(5),
       All states receiving federal                children must also be educated in the least
education funding under the IDEA must              restrictive environment. This means that,
comply with federal requirements designed          “[t]o the maximum extent appropriate,
to provide a “free appropriate public              children with disabilities . . . are [to be]
education” (“FAPE”) for all disabled               educated with children who are not
children. See 20 U.S.C. §1412(1). “The             disabled” and that ch ildren w ith
term ‘free appropriate public education’           disabilities are not to be placed in special
means special education and related                classes or otherwise removed from “the
services that--                                    regular educational environment” except
                                                   when “the nature or severity of the
       (A) have been provided at
                                                   disability of a child is such that education
       public expense, under public
                                                   in regular classes with the use of
       supervision and direction,
                                                   supplementary aids and services cannot be
       and without charge;
                                                   achieved satisfactorily.” Id.
       (B) meet the standards of
                                                          As long as a state satisfies the
       t h e S t a t e ed u c ati o n al
                                                   requirements of the IDEA, the state may
       agency;
                                                   fashion its own procedures. Under New
       (C) include an appropriate                  Jersey law, a CST composed of a
       preschool, elementary, or                   psychologist, a learning disability teacher-
       secondary school education                  consultant, and a school social worker
       in the State involved; and                  conducts an evaluation of the student. See
                                                   N.J.S.A. §18A:46-5.1. Using the CST’s
       (D) are provided in
                                                   evaluation, the school district determines
       conform ity with the
                                                   whether the student should be classified as
       individualized educa tion
                                                   disabled. See N.J.A.C. §6A:14-3.1. If the
       program required under
                                                   student is found to be disabled, the school
       section 1414(d) of this title.”
                                                   assembles a team to create an IEP for the


                                               5
child. See N.J.A.C. §6A:14-3.7. This               “reasonably calculated” to enable the child
program is reevaluated every year, and the         to receive “meaningful educational
child’s eligibility is redetermined every          benefits” in light of the child’s
three years. See N.J.A.C. §6A:14-3.8.              “intellectual potential.” See Board of
                                                   Educ. of Hendrick Hudson Central School
        Under 20 U.S.C. § 1415,
                                                   Dist., Westchester County v. Rowley, 458
dissatisfied parents may challenge a school
                                                   U.S. 176, 206-07 (1982); Ridgewood
district’s determ ination s in an
                                                   Bd.of Educ.v. N.E., 172 F.3d 238, 247 (3d
administrative proceeding. In New Jersey,
                                                   Cir. 1999). If the IEP did not provide a
the parents and the school board first
                                                   FAPE, the District Court must then decide
undergo mediation, and if mediation is
                                                   whether the parents took appropriate
unsuccessful, a “due process hearing” is
                                                   actions. See Michael C. v. Radnor Twp.
held before a state administrative law
                                                   Sch. Dist., 202 F.3d 642, 651 (3d Cir.
judge. See 20 U.S.C. § 1415(e) and (f);
                                                   2000).
N.J.A.C. § 6A:14-2.7(c) and (d). Parents
who disagree with their child’s placement                  The burden of proof that a District
may unilaterally enroll their child in a           Court must apply when an IDEA decision
different school and seek reimbursement.           by a state agency is challenged is unusual.
N.J.A.C. § 6A:14-2.10)d). However, no              Although the District Court must make its
reimbursement is required if the school            own findings by a preponderance of the
district offered the student a FAPE.               evidence, 20 U.S.C. § 1415 (1)(2)(B)(iii),
N.J.A.C. § 6A14-2.1(a).                            the District Court must also afford “due
                                                   weight” to the ALJ’s determination.
       Any party aggreived by a placement
                                                   Rowley, 458 U.S. at 206; see also Holmes
decision may bring suit in a state court of
                                                   v. Millcreek Tp. School Dist., 205 F.3d
competent jurisdiction or a federal district
                                                   583, 591 (3d Cir. 2000). Under this
court. 20 U.S.C. § 1415(i)(2). In a case in
                                                   standard, “[f]actual findings from the
which parents seek reimbursement for a
                                                   administrative proceedings are to be
unilateral placement, the District Court
                                                   considered prima facie correct,” and “[i]f
must first determine whether the IEP
                                                   a reviewing court fails to adhere to them,
afforded the student a FAPE. School
                                                   it is obliged to explain why.” S.H. v.
Committee of Town of Burlington, Mass.
                                                   State-Operated School Dist. of City of
v. Department of Educ. of Mass., 471 U.S.
                                                   Newark, 336 F.3d 260, 271 (3d Cir. 2003).
359, 370 (1985). The school has the
                                                   In addition, if a state administrative agency
burden of showing that a FAPE was
                                                   has heard live testimony and has found the
offered. See Oberti v. Board of Educ. of
                                                   testimony of one witness to be more
Borough of Clementon School Dist., 995
                                                   worthy of belief than the contradictory
F.2d 1204, 1219 (3d Cir. 1993). To meet
                                                   testimony of another witness, that
this burden, the school must establish that
                                                   determination is due special weight. Id.;
it complied with the procedures set out in
                                                   Carlisle Area School v. Scott P., 62 F.3d
the IDEA and that the IEP was

                                               6
520, 527-29 (3d Cir. 1995). Specifically,          a FAPE.       The ALJ who heard the
this means that a District Court must              witnesses during a hearing that extended
accept the state agency’s credibility              over four days credited the witnesses who
determ inatio n s “ u n less the non -             opined that placement at Shore would have
testimonial, extrinsic evidence in the             exposed P.S. to a continuation of the
record would justify a contrary                    devastating bullying that had occurred in
conclusion.” Carlisle, 62 F.3d at 529              Middle School. The District Court did not
(emphasis added). In this context the word         point to any “nontestimonial evidence”
“justify” demands essentially the same             that undermined the testimony of these
standard of review given to a trial court’s        witnesses. See S.H., 336 F.3d at 271.
findings of fact by a federal appellate            Instead, the Court simply chose to credit a
court. See Anderson v. City of Bessemer            witness who expressed a contrary opinion.
City, N.C., 470 U.S. 564, 574 (1985).              In taking this approach, the District Court
                                                   did not give the requisite deference to the
       When a District Court decision in a
                                                   ALJ’s evaluation of the witnesses’
case such as this is appealed to us, we of
                                                   credibility.
course exercise plenary review with
respect to the question whether the District               As noted, Dr. Friedman, a
Court applied the correct legal standards          psychologist at the Institute for Child
under the IDEA, see Polk, 853 F.2d at 181,         De ve lopme nt a t the Ha c kensack
but we review the District Court’s factual         University Medical Center, and Dr.
findings for clear error. T.R. v. Kingwood         Corbin-Fliger, a member of the Oceanport
Tp. Bd. of Educ., 205 F.3d 572, 576 (3d            CST, testified unequivocally that
Cir. 2000)(citations omitted). “A finding          placement at Shore would not have been
of fact is clearly erroneous when, after           appropriate due to the threat of
reviewing the evidence, the court of               harassment. Dr. Corbin-Fliger was fully
appeals is left with a definite and firm           informed about Shore’s program, but she
conviction that a mistake has been                 testified “a high school situation is even
committed.” Oberti, 995 F.2d at 1204               more unrestrictive than a middle school
(internal quotation marks omitted).                situation” and that “no matter what
                                                   program” Shore implemented, she did not
                   III.
                                                   believe that P.S. would “be in a safe
       The District Court in this case did         environment with the same kids” who had
not properly apply the “due weight”                previously harassed him. App. 134-5.
standard. Both the ALJ and the District
                                                          Dr. Friedman testified that bullying
Court were confronted with conflicting
                                                   does not go away on its own, particularly
opinions by experts on the question
                                                   when the victim is 12 years of age or older.
whether placement at Shore offered P.S.
                                                   App. 198. Indeed, she stated that one
an education that was sufficiently free
                                                   could “pretty much guarantee” that the
from the threat of harassment to constitute
                                                   bullies would continue to harass P.S. if

                                               7
given the chance. Id. at 215. She stated             Shade would be diluted by students who
that, while “intensive interventions” with           had attended other middle schools and that
the bullies, the onlookers, and the victim           P.S. would receive support from the
“can be he lpful” under some                         students in the Shore drama club, who
circumstances, this strategy “is most                were “a tight-knit group that is accepting
effective at the beginning” of a course of           of newcomers.” Id. at 31.
harassment, and she noted that the
                                                             As previously noted, the District
harassment of P.S. had been going on for
                                                     Court was required under our cases to
years. Id. at 202. As a result, she testified,
                                                     provide an explanation for its decision to
the “bullies are . . . used to looking at
                                                     reject the ALJ’s decision to credit Dr.
[P.S.] in this manner, and . . . he’s used to
                                                     Friedman and Dr. Corbin-Fliger, but the
dealing with them in this manner.” Id. at
                                                     District Court’s chief explanation does not
205. She expressed particular concern
                                                     accurately characterize these witnesses’
about the “ripe opportunity” that the
                                                     testimony. The District Court faulted Dr.
bullies from P.S.’s area would have to
                                                     Corbin-Fliger and Dr. Friedman because,
harass him on school bus rides to and from
                                                     in the Court’s view, they “focused on the
Shore, id. at 203, and she opined that
                                                     failure of the Maple Place administration
neither the presence at Shore of students
                                                     to discipline these tormenters” and “did
who had not attended Maple Shade nor
                                                     n o t a ddr e ss whe ther the S h o re
participation by P.S. in Shore’s drama
                                                     administration would have been able to
program would have been enough to
                                                     address the problems.” App. 30. In fact,
protect him. Id. at 210, 219. Finally, she
                                                     however, while Drs. Corbin-Fliger and
observed that simply seeing the bullies at
                                                     Friedman certainly took into account
Shore would have adversely affected P.S’s
                                                     P.S.’s experiences at Maple Shade (as did
self-esteem and his “ability to concentrate
                                                     Dr. Chas), they focused upon and squarely
and focus.” Id. at 205.
                                                     addressed the question whether Shore
        Rejecting the AL J’s decision to             would have been able to protect P.S. from
credit these witnesses, the District Court           devastating harassment. Fairly read, their
was more impressed by the testimony of               collective testimony was that Shore would
Dr. Chas, the Shore affirmative action               not have been able to remedy the problem
officer, who opined that Shore would be              because, among other things, the same
able to control the bullying problem                 bullies would be present at Shore; bullies
because it provides “peer mediation” and             generally do not stop on their own; even
“counseling and training for both victims            “intensive interventions” are often not
and perpetrators of harassment” and                  effective when they are not begun until
employs “a structured disciplinary system”           after a course of harassment has continued
with “a hierarchy of punishments.” App.              for some time; the presence at Shore of
30-31. Dr. Chas also maintained that the             students who had not attended Maple
influence of the students from Maple                 Shade would not have shielded P.S.; the


                                                 8
bullies would have had a ripe opportunity            Shore could prevent the Maple Shade
to harass P.S. on the bus; and, in short, no         bullies from having any contact with P.S.
matter what program Shore implemented,               Nor did she claim that Shore had ever
P.S. would not have been adequately                  dealt successfully with a harassment
protected. Thus, the witnesses upon whom             problem of this severity in the past. Nor
the ALJ relied directly addressed the                did she claim that she knew of cases in
question whether Shore would have been               which other high schools had successfully
able to deal with the harassment problem             cured problems of this nature by means of
successfully.                                        a program similar to the one that Shore
                                                     proposed. In addition, although it appears
        In a footnote, the District Court also
                                                     that Dr. Chas’s opinion rested heavily on
implicitly criticized Dr. Friedman’s
                                                     the view that Shore’s disciplinary system
testimony on the ground that she “never
                                                     would deter the bullies, she did not explain
visited Shore to inv estigate their
                                                     in concrete terms how that system could
disciplinary measures or the type of
                                                     have dealt satisfactorily with a campaign
environment supplied by its drama
                                                     of harassment involving a barrage of
program.” App. 30 n. 21. On cross-
                                                     abusive conduct of a sort that is difficult to
examination, Dr. Friedman was asked why
                                                     prove in a disciplinary proceeding – for
she had not visited Shore, and she
                                                     example, constant snickering, shunning, or
responded that the Institute for Child
                                                     mumbled epithets that no one other than
Development had based its evaluation on
                                                     P.S. claims to have heard.
the information that Shore had released
and that Shore had not suggested that a                     We do not suggest that Dr. Chas’s
visit to the school was needed. See App.             opinion was unworthy of belief or that the
206. Since the District Court did not                testimony of Dr. Corbin-Fliger and Dr.
identify any specific and material                   Friedman was beyond dispute. But the
information that only an actual visit to             task of evaluating their conflicting
Shore would have revealed, the Court’s               opinions lay in the first instance with the
criticism of Dr. Friedman for not making             ALJ in whose presence they testified.
such a visit is largely beside the point. In         When the ALJ’s determination in this case
short, the District Court provided no                is given its “due weight,” we see no basis
substantial reason for refusing to credit the        for overturning that determination. In
witnesses upon whom the ALJ clearly                  doing so, the District Court did not heed
relied.                                              the “due weight” standard, and the District
                                                     Court’s finding that Shore offered FAPE
       Moreover, the District Court failed
                                                     was clearly erroneous.
to acknowledge weaknesses in Dr. Chas’s
testimony.   Dr. Chas provided little                                     IV.
support for her belief that the Shore
                                                            For the reasons set out above, we
program could remedy the problem that
                                                     reverse the order of the District Court and
P.S. had faced. She did not claim that

                                                 9
remand for the entry of summary judgment
in favor of the defendant on the issue of
liability and for a determination of the
amount of reimbursement, attorney’s fees,
and any other costs that the school district
owes.




                                               10
