                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1999

Warren G. ex rel. Tom G. v. Cumberland County
School Dist.
Precedential or Non-Precedential:

Docket 98-7512, 98-7517




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Recommended Citation
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Filed August 25, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7512
No. 98-7517

WARREN G.; GRANT G., by and through their
parents and nearest friends,
Tom G. and Louisa G.,
       Appellants in 98-7512

v.

CUMBERLAND COUNTY SCHOOL DISTRICT,
       Appellant in 98-7517

On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civ. No. 97-cv-00946
(Honorable Sylvia H. Rambo)

Argued June 2, 1999

Before: SCIRICA, McKEE, Circuit Judges, and
SCHWARZER,* District Judge

(Filed August 25, 1999)



_________________________________________________________________

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
       VIVIAN B. NAREHOOD,
        ESQUIRE (ARGUED)
       Gibbel, Kraybill & Hess
       41 East Orange Street
       Lancaster, PA 17602

       Attorney for Warren G.
       and Grant G., Appellants/
       Cross-Appellees

       JANE M. WILLIAMS, ESQUIRE
        (ARGUED)
       Sweet, Stevens, Tucker & Katz, LLP
       116 East Court Street P.O. Box 150
       Doylestown, PA 18901

       Attorney for Cumberland County
       School District, Appellee/Cross-
       Appellant

OPINION OF THE COURT

SCHWARZER, District Judge

Plaintiffs Grant and Warren, through their parents,
brought this action against the Cumberland Valley School
District (District) under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. SS 1400-1491o (1994), to
recover reimbursement of private school tuition and the
cost of independent educational evaluations (IEEs) of
plaintiffs. The District Court, on cross-motions for
summary judgment, affirmed the decisions of a Special
Education Appeals Panel (Panel) granting the request for
tuition reimbursement but limiting the amount on equitable
grounds, and reversed the decision denying reimbursement
for the cost of the IEEs. Plaintiffs appeal and the District
cross-appeals. We hold that the IDEA did not permit
reduction of tuition reimbursement to which plaintiffs are
otherwise entitled based on an assessment of the relative
reasonableness of the parties' conduct. We further hold
that plaintiffs are entitled to reimbursement for the IEEs,
the District having failed to establish that its evaluations
were appropriate.

                                 2
FACTS AND PROCEDURAL BACKGROUND

Warren and Grant are both gifted students with learning
disabilities. For several years they attended public school in
the District, which provided them with individual
educational programs (IEPs) as required by the IDEA. In the
fall of 1993, their parents became dissatisfied with their
sons' IEPs and obtained IEEs of them. From November
1993 until May 1994, the parents were in discussions with
the District over the design of appropriate IEPs for their
sons but failed to reach agreement. At the end of the 1993-
94 school year, the District sent the parents revised IEPs
for both Warren and Grant together with a notice of
parents' rights. The parents responded in August 1994, by
advising that they were withdrawing Warren and Grant
from the District and enrolling them in the Janus School
("Janus"), a private school for students with learning
disabilities. On September 9, 1994, the District notified the
parents of their right to have the children educated at
Janus at their own expense but warned that if they wished
to challenge the District's IEPs and receive tuition
reimbursement, they would have to request a due process
hearing.

The parents did not make such a request for tuition
reimbursement or, in the alternative, for a hearing, until
December 1995, sixteen months later. The District rejected
the request for reimbursement, but offered to develop
updated IEPs and agreed to a hearing. Hearings for both
children were held between July and October 1996. The
hearing officer issued separate opinions, finding the
District's proposed IEPs appropriate and denying the
request for reimbursement for tuition and for the cost of
the IEEs. The parents appealed to the Panel, which
reversed. In separate opinions, the Panel found both
Grant's and Warren's IEPs inappropriate. With respect to
Grant, it found that the District was liable prospectively for
tuition reimbursement for violating its duty to provide a
"defensible IEP" but reduced its liability by the equivalent of
one semester (the last semester of the 1995-96 school year)
because of the unreasonableness of the parents' demands.
With respect to Warren, the Panel also held that because
the District had violated its "clear duty to provide a

                                  3
reasonably defensible proposed IEP" it was liable
prospectively for tuition reimbursement but reduced its
liability (by deferring reimbursement until the second
semester of the 1996-97 school year) by the equivalent of
one year because of the "excessiveness of the parents'
conduct." The Panel also denied reimbursement for the
IEEs on equitable grounds, both because the parents had
not expressed disagreement with the District's IEE and
because they had waited for over two and one-half years to
seek reimbursement.

Plaintiffs appealed to the District Court. The court, on
cross-motions for summary judgment, affirmed the Panel,
except with respect to the IEE reimbursement. Plaintiffs
now appeal from the District Court's judgment and the
District cross-appeals contending that all tuition
reimbursement should be denied because Janus was not a
proper private placement and that IEE reimbursement
should be denied because the school district's evaluations
were appropriate.

The District Court had subject matter jurisdiction under
former 20 U.S.C. S 1415(e)(2) (1994) (amended in 1997 as
20 U.S.C. S 1415(I)(2)(A)).1 We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291 (1994), and we"exercise
plenary review over the district court's conclusions of law
and review its findings of fact for clear error." See Carlisle
Area Sch. v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995).2

DISCUSSION

I. REIMBURSEMENT FOR PRIVATE SCHOOL TUITION

A. Proper Private Placement

The District contends that Janus is not a proper
placement because it is not an approved private school in
_________________________________________________________________

1. The IDEA was amended in 1997, resulting in a renumbering of its
sections. See Individuals with Disabilities Education Act Amendments of
1997, Pub. L. No. 105-117, 111 Stat. 37 (hereinafter 1997 Amendments).
We discuss the effect of the 1997 Amendments below.

2. We have considered and deny the District's motion to file a
supplemental appendix.

                                4
Pennsylvania and does not comply with Pennsylvania's
licensure requirements or the state's educational
standards. Florence County School District Four v. Carter,
510 U.S. 7, 14 (1993), disposes of the District's contention.
There, the Court held that a private school's failure to meet
state education standards is not a bar to reimbursement
under the IDEA. Insofar as the District's argument is based
on particular alleged deficiencies, in the absence of any
showing of clear error, we defer to the Panel's and the
District Court's finding that Janus is an appropriate
placement.

The District further contends that because only students
with learning disabilities attend Janus, it did not provide
the least restrictive environment--that is, an environment
where disabled and nondisabled children are integrated to
the maximum extent possible--as required by the IDEA.
See 20 U.S.C. S 1412(5)(B) (1994) (now 20 U.S.C.
S 1412(a)(5)(A)). The District Court held, relying on
Cleveland Heights-University Heights City School District v.
Boss, 144 F.3d 391, 399-400 (6th Cir. 1998), that Janus's
failure to provide Grant and Warren with opportunities to
interact with nondisabled students did not render it an
inappropriate placement, reasoning that imposition of the
least-restrictive environment requirement on private
placements would vitiate the parental right of unilateral
withdrawal. Subsequently, in Ridgewood Board of
Education v. N.E., this court reached the same conclusion,
holding that when the public school fails to provide an
appropriate IEP, tuition reimbursement may be made to
students placed in private schools that specialize in
educating students with learning disabilities. See 172 F.3d
at 245, 249 (citing Boss and other authorities). The least-
restrictive environment requirement does not bar
reimbursement because "the IDEA requires that disabled
students be educated in the least restrictive appropriate
educational environment." Id. An appropriate private
placement is not disqualified because it is a more restrictive
environment than that of the public placement. See id.
Thus, the test for the parents' private placement is that it
is appropriate, and not that it is perfect. See id. at 249 n.8.
"Since the court was presented with only one option, it was
not required to locate another school that would satisfy the

                               5
least restrictive alternative requirement based on the entire
pool of schools available, but rather was required simply to
determine whether that one available choice would provide
an appropriate education for [the student]." Board of Educ.
v. Illinois State Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir.
1994). Both the Panel and the District Court having found
that the Janus School offered an appropriate education for
Grant and Warren, the parents are not barred from tuition
reimbursement.

B. Reductions of Tuition Reimbursement

       1. Tuition Prior to Parents' Request for Due Process
       Hearing

Relying on Bernardsville Board of Education v. J.H., 42
F.3d 149 (1994), the District Court, affirming the Panel,
rejected plaintiffs' claim for tuition reimbursement for the
sixteen- month period during which Grant and Warren
were enrolled at Janus prior to the parents' request for a
due process hearing in December 1995. Plaintiffs did not
challenge this ruling in their brief on appeal butfirst raised
the issue at oral argument. " `An issue is waived unless a
party raises it in its opening brief . . . .' " See Reform Party
v. Allegheny County Dept. of Elections, 174 F.3d 305, 316
n.11 (3d Cir. 1999) (quoting Laborers' Int'l Union v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)). Even if we
were to consider this claim, we would be bound by our
decision in Bernardsville holding that when parents
unilaterally withdraw their children from public school,
absent mitigating circumstances, they are not entitled to
reimbursement for private school tuition until they request
review proceedings. See Bernardsville, 42 F.3d at 156-58 &
n.14 ("[T]he right of review contains a corresponding
parental duty to unequivocally place in issue the
appropriateness of an IEP. This is accomplished through
the initiation of review proceedings within a reasonable
time of the unilateral placement for which reimbursement
is sought."). Bernardsville does not establish a one-year
grace period as plaintiffs argue. In Bernardsville, parents
who waited over two years to initiate proceedings were
denied reimbursement for the entire two-year period and
were not simply excused for their first year of inaction. See

                               6
id. at 158 ("We think more than two years, indeed, more
than one year, without mitigating excuse, is an
unreasonable delay."). In the absence of any mitigating
excuse, the District Court appropriately denied tuition
reimbursement for the period preceding the parents'
request for a due process hearing.

       2. Tuition Reduction Because of
       Parents' Unreasonable Conduct

The Panel reduced the District's liability for tuition
reimbursement on equitable grounds by one semester in
the case of Grant and two semesters in the case of Warren.
In its decision regarding Grant, the Panel, afterfinding that
the District had failed to comply with the IDEA, determined
that it nevertheless "merits high marks with regard to the
procedure and, in terms of parental participation, patience."
As for the parents, it faulted them for making unrealistic
and unreasonable demands, providing inaccurate
information, contradicting themselves and making false
accusations against the District. After acknowledging the
need for and right to vigorous parental representation of
their children, it determined that "the cumulative extent
has the equitable effect of reducing the requested
reimbursement by the equivalent of one semester." In the
case of Warren, the Panel, after finding that the IEP was
insufficient, determined:

       [T]he residual excessiveness of the parents' conduct,
       after due latitude for vigorous parental participation
       and advocacy, combined with the marginal
       inappropriateness of the District's proposed program
       and the marginal appropriateness of the private school
       program to have the equitable effect of reducing the
       requested reimbursement by the equivalent of one
       year.

The District Court accepted the Panel's findings and
conclusions. It held that the Panel properly considered the
parents' conduct in its equitable analysis, reasoning that
the IDEA does not provide an absolute right to
reimbursement but, rather, authorizes courts to fashion
"appropriate" relief. It concluded:

                               7
       To reward the parents' uncooperative and
       unreasonable conduct in the face of good faith
       attempts by the District would little serve IDEA's
       purpose of providing disabled children with a free
       appropriate public education through the cooperation
       of school officials and parents.

The IDEA (both as it stood at the time of the events in
question and under the 1997 Amendments) "authorizes
federal assistance to states and localities for educational
programs which confer an educational benefit on disabled
students. The [District] receives an allocation of funds
under this Act and, thus, incurs the responsibility to confer
an educational benefit on learning disabled students
enrolled in a public school within its jurisdiction."
Bernardsville, 42 F.3d at 151; see also 20 U.S.C. SS 1411,
1412(1) (1994) (requiring that "[t]he State has in effect a
policy that assures all handicapped children the right to a
free appropriate public education"); Burlington Sch. Comm.
v. Massachusetts Dept. of Educ., 471 U.S. 359, 368 (1985)
(stating that "the Act provides federal money to state and
local educational agencies that undertake to implement the
substantive and procedural requirements of the Act"). State
and local educational agencies are required to establish and
maintain procedures to assure that handicapped children
and their parents are guaranteed procedural safeguards
with respect to the provision of free appropriate public
education. See 20 U.S.C. S 1415(a) (1994). Aggrieved parties
are entitled to bring a civil action in state or federal courts
which "shall grant such relief as the court determines is
appropriate." See 20 U.S.C. S 1415(e)(2) (1994).

In Burlington the Court considered the scope of the
district court's remedial power under S 1415(e)(2) in the
context of affirming the right of parents to tuition
reimbursement pending the due process hearing on a
proposed IEP. Referring to the statutory text, the Court
stated:

       The ordinary meaning of these words confers broad
       discretion on the court. The type of relief is not further
       specified, except that it must be "appropriate." Absent
       other reference, the only possible interpretation is that

                               8
       the relief is to be "appropriate" in light of the purpose
       of the Act.

Burlington, 471 U.S. at 369. The Court went on to hold that
a parental violation of S 1415(e)(3), which requires a child to
remain in its current educational placement during review
proceedings, does not constitute a waiver of
reimbursement. It said that if S 1415(e)(3) were to be
interpreted to cut off parental rights to reimbursement, the
principal purpose of the Act would in many cases be
defeated in the same way as if reimbursement were never
available. See id. at 372. It added that"[t]he Act was
intended to give handicapped children both an appropriate
education and a free one; it should not be interpreted to
defeat one or the other of those objectives." Id.

Although the facts in Burlington are distinguishable, the
situation presented is analogous. The conduct of parents
should not be permitted to defeat the purpose of the Act,
and the remedial power of the court should not be
interpreted to further such an end. The same generous view
of the IDEA's broad remedial purpose is reflected in the
Court's subsequent decision in Florence County v. Carter,
which held that a private school's failure to meet state
education standards is not a bar to reimbursement. Carter
indicates that the amount of tuition reimbursement may be
limited "if the Court determines that the cost of the private
education was unreasonable," Carter, 510 U.S. at 16; we do
not read it as sanctioning a denial of an arbitrary fraction
of reimbursement for a portion of the school year where the
IEPs are found deficient but the parents' conduct was
unreasonable. Here it is undisputed that the District failed
to come forward with appropriate IEPs and there is no
finding that the parents' conduct obstructed its ability to do
so. In those circumstances it makes little sense to
determine the amount of reimbursement not with reference
to what is required by the IDEA to provide an appropriate
education but by comparing the conduct of the school
district with that of the parents, as was done here.

We reject the approach taken by the Panel and the
District Court for the further reason that it flies into the
face of the policy underlying the IDEA emphasizing parent
involvement. By " `emphasiz[ing] the process of parent and

                               9
child involvement and . . . provid[ing] a written record of
reasonable expectations, the [Senate] Committee intend[ed]
to clarify that such individualized planning conferences are
a way to provide parent involvement and protection to
assure that appropriate services are provided to a
handicapped child.' " Board of Educ. v. Rowley, 458 U.S.
176, 208-09 (1982) (quoting S. Rep. No. 94-168 at 11-12
(1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1435-36); see
also Burlington, 471 U.S. at 368 ("In several places, the Act
emphasizes the participation of the parents in developing
the child's educational program and assessing its
effectiveness."). Vigorous advocacy is an anticipated by-
product of a policy encouraging parental involvement. See
Rowley, 458 U.S. at 209 (discussing Congress' intent to
protect children through parental involvement and
commenting that "parents . . . will not lack ardor in seeking
to ensure that handicapped children receive all of the
benefits to which they are entitled by the Act"). The rulings
in this case undermine that policy by placing parents at
risk that their advocacy may be found extreme at the cost
of full reimbursement. Accordingly, we will reverse the
judgment insofar it denies full reimbursement for Grant's
and Warren's tuition commencing with the second semester
of the 1995-96 school year.3
_________________________________________________________________

3. As noted above, Congress amended the IDEA in 1997 by providing
that "[t]he cost of reimbursement . . . may be reduced or denied -- upon
a judicial finding of unreasonableness with respect to actions taken by
the parents." 20 U.S.C.A. S 1412(a)(10)(C)(iii)(III) (West Supp. 1999).
The
District Court held that the amendment did not apply because all of the
events in this case occurred prior to the effective date of the amendment,
June 4, 1997, and neither party has challenged that ruling. We agree.
The court's ruling was consistent with the position taken by all other
courts of appeals that have addressed the issue. See Peter v. Wedl, 155
F.3d 992, 998-99 (8th Cir. 1998); Muller v. Committee on Special Educ.,
145 F.3d 95, 97 n.1 (2d Cir. 1998); Sellers v. School Bd., 141 F.3d 524,
526 n.2 (4th Cir.), cert. denied, 119 S. Ct. 168 (1998); Tucker v.
Calloway
County Bd. of Educ., 136 F.3d 495, 501 (6th Cir. 1998); Fowler v. Unified
Sch. Dist. No. 259, 128 F.3d 1431, 1436 (10th Cir. 1997); Heather S. v.
Wisconsin, 125 F.3d 1045, 1047 n.1 (7th Cir. 1997); Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 n.1 (5th Cir. 1997).

                               10
II. REIMBURSEMENT FOR INDEPENDENT
    EDUCATIONAL EVALUATIONS

In its cross-appeal, the District contends that the District
Court erred in awarding reimbursement to the parents for
the 1993 IEEs of Grant and Warren.4

At the due process hearings, the hearing officer found
that the evaluations of Grant and Warren obtained by the
District in 1992 were appropriate and, therefore, denied
reimbursement to the parents. On appeal the Panel
evaluated the equities. With respect to Grant's IEE, the
Panel found that the District did rely on the IEE results in
reconsidering Grant's IEP, but because of doubts
concerning the evaluator's impartiality, the parents' failure
to express disagreement with the District's evaluation and
their delay in requesting reimbursement, law and equity
preponderated in favor of denying reimbursement. With
respect to Warren's IEE, the Panel determined that its
"apparent value in terms of triggering the District's initial
eligibility reevaluation and being incorporated in the final
CER-IEP are forfeited based on" the parents' failure to
express disagreement with the District's evaluations and
their delay in seeking reimbursement.

The District Court rejected the equitable balancing
analysis on the ground that a parent has an unqualified
right under the IDEA's implementing regulations to
reimbursement unless the District's evaluation is found to
be appropriate:

       A parent has the right to an independent educational
       evaluation at public expense if the parent disagrees
       with an evaluation obtained by the public agency.
       However, the public agency may initiate a hearing . . .
       to show that its evaluation is appropriate. If thefinal
       decision is that the evaluation is appropriate, the
_________________________________________________________________

4. Although the parents obtained additional IEEs in other years,    IDEA
regulations permit only one IEE per child at public expense. See    34
C.F.R. S 300.503(b) (1993); Illinois State Bd. of Educ., 41 F.3d    at 1169.
The district court interpreted the parents' request as a request    for
reimbursement of the 1993 IEEs and the parents do not take issue    with
that interpretation on appeal.

                                11
       parent still has the right to an independent educational
       evaluation, but not at public expense.

34 C.F.R. S 300.503(b) (1991). Moreover, the parents' failure
to express disagreement with the District's evaluations prior
to obtaining their own does not foreclose their right to
reimbursement. See Illinois State Bd. of Educ., 41 F.3d at
1169; Hudson v. Wilson, 828 F.2d 1059, 1065 (4th Cir.
1987). To accept the District's argument would render the
regulation pointless because the object of parents' obtaining
their own evaluation is to determine whether grounds exist
to challenge the District's. See Hudson, 828 F.2d at 1065.

The District Court went on to hold that the hearing
officer's findings that the District's evaluations of Grant and
Warren were appropriate were unsupported by substantial
evidence. It found the primary deficiency in these
evaluations to be their failure to uncover the specific areas
of Grant's and Warren's learning disabilities. See 34 C.F.R.
S 300.532(b) (1991) (requiring that the public agency use
"[t]ests and other evaluation materials . . . tailored to assess
specific areas of educational need"); 34 C.F.R.S300.532(f)
(1991) (requiring that a child be "assessed in all areas
related to the suspected disability"). The inappropriateness
of the District's evaluation is further demonstrated by the
fact that it was the parents' evaluator who identified the
boys' specific problem areas: In Grant's case, punctuation,
spelling and writing comprehension, and in Warren's,
dyslexia. We find no clear error in the District Court's
findings and agree that plaintiffs are entitled to be
reimbursed for the 1993 IEEs.

CONCLUSION

We AFFIRM the judgment of the District Court in all
respects except for its denial of reimbursement for tuition
for both Grant and Warren commencing with the second
semester of the 1995-96 school year, and REMAND for
entry of a revised judgment.

                               12
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
