                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-1995

David v Wilson School Dist.
Precedential or Non-Precedential:

Docket 94-2051




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                       No. 94-2051


                    SUSAN N.; DAVID N.,
          Individually and as Parents and Natural
                Guardians to M.N. a minor,

                                               Appellants

                            v.

                  WILSON SCHOOL DISTRICT


   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
           (D.C. Civil Action No. 93-4658)


                 Argued October 10, 1995

BEFORE:    GREENBERG, LEWIS, and ROSENN, Circuit Judges

                (Filed: November 20, 1995)



                             Leonard Rieser (argued)
                             Alyssa R. Fieo
                             Education Law Center
                             801 Arch Street
                             Suite 610
                             Philadelphia, PA 19107

                                     Attorneys for Appellants


                             Andrew E. Faust (argued)
                             Rosemary E. Mullaly
                             Sweet, Stevens, Tucker & Katz
                             116 East Court Street
                            P.O. Box 150
                             Doylestown, PA 18901

                                     Attorneys for Appellee



                            1
                       OPINION OF THE COURT



GREENBERG, Circuit Judge.


          This case arises under the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-85 (1990).

Appellants Susan and David N. brought the case individually, and

as parents and natural guardians of their daughter, M., against

the Wilson School District, charging that it had not fulfilled

its statutory obligations to M. under the IDEA.    The hearing

officer at the local educational level found in appellants'

favor, concluding that M. was both mentally gifted and afflicted

with a specific learning disability, and that she thereby was

entitled to special education.    An appeals panel at the state

education agency level reversed the hearing officer's findings.

The appellants challenged this decision in a civil action in the

district court, which affirmed the decision of the appeals panel

on the record of the administrative proceedings without accepting

the appellants' proffer of additional evidence.    The appellants

appeal from the district court's order entered September 27,

1994, in accordance with its opinion.


          I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                      A.    FACTUAL BACKGROUND

          The appellants reside in the Wilson School District

with M., who is now nine years old.    They believe that M. suffers


                                  2
from attention deficit disorder with hyperactivity ("ADHD"), a

learning disability manifested in attention problems, hyperactive

motor behavior, poor social skills, extensive difficulty in

completing tasks, low frustration tolerance, and low self-esteem.

Memorandum and Order of the District Court ("Mem."), N. v. Wilson

Sch. Dist., No. 93-4658, slip op. at 2 (E.D. Pa. Sept. 26, 1994).

M. has been treated with Ritalin, a medication intended to

control the symptoms of ADHD.    See Mem. at 3 n.6.   The appellants

believe that M.'s disability may affect her progress in school

and that she is entitled to special education from the State of

Pennsylvania.   Id. at 2.

          During the spring of 1992, when M. was in kindergarten,

the appellants requested that the school district undertake a

multidisciplinary evaluation of her to determine whether she was

in need of special education.1   Id.   In accordance with the

appellants' request, a district multidisciplinary team ("MDT")

conducted an evaluation in April 1992 that included two

psychological examinations, an interview with M.'s kindergarten

teacher, and discussions with appellants.    Id. at 2-3.   The MDT

issued a report on June 2, 1992, concluding that M. was not

"exceptional,"2 and that she did not require special education.

1
   Under the IDEA, "special education" is defined as "specially
designed instruction, at no cost to parents or guardians, to meet
the unique needs of a child with a disability, including -- (A)
instruction conducted in the classroom, in the home, in hospitals
and institutions, and in other settings; and (B) instruction in
physical education." 20 U.S.C. § 1401(a)(16).
2
  Pennsylvania defines the term "exceptional children" as
"children of school age who deviate from the average in physical,
mental, emotional or social characteristics to such an extent
that they require special educational facilities or services

                                 3
Specifically, the MDT found that M. did exhibit symptoms

consistent with ADHD, including processing weaknesses that

involved fine motor control, but that she had strong verbal

skills and her ability and achievement levels were average or

above average.   The MDT concluded that M. could be educated in a

regular classroom as long as her school program addressed "`her

strong verbal skills, her weak motor skills, and her difficulty

with impulsivity and inattention and hyperactivity (which often

lead to disorganization).'"   Id. at 3 (quoting Record at 321a).

           On June 9, 1992, an Individual Education Program

("IEP") team met with the appellants to discuss the MDT report.3

Mem. at 4.   The IEP team agreed with the MDT's evaluation that M.

was not exceptional and not in need of special education.     The

team concluded that, in spite of her weaknesses, M. could sustain

. . . ."   Pa. Stat. Ann. tit. 24, § 13-1371(1) (1992).

    The IDEA defines "children with disabilities" as children
"(i) with mental retardation, hearing impairments including
deafness, speech or language impairments, visual impairments
including blindness, serious emotional disturbance, orthopedic
impairments, autism, traumatic brain injury, other health
impairments, or specific learning disabilities; and (ii) who, by
reason thereof, need special education and related services." 20
U.S.C. § 1401(a)(1)(A).

    In Pennsylvania, the term "exceptional" is used to refer both
to students who are mentally gifted and in need of special
education and students who have one of the 11 disabilities
recognized under the IDEA and who, as a result thereof, require
special education. See 22 Pa. Code §§ 14.1 (definitions of
"exceptional student" and "eligible student"); 342.1(b)
definition of "mentally gifted") (1994). The IDEA does not
include the concept of "mentally gifted" within its definition of
"children with disabilities." See 20 U.S.C. § 1401(a)(1)(A).
3
  Under Pennsylvania law, an IEP team must make the final
determination of whether a student is eligible for special
education. See 22 Pa. Code §§ 14.32, 342.32 (1994).


                                4
herself in a regular academic curriculum with proper assistance

from her parents and teachers.   Id.    The team then developed a

Notice of Recommended Assignment ("NORA"), which consisted of

written program "suggestions" to M.'s regular education teachers.

Id.

            The appellants refused to approve the school district's

NORA, which was offered to them on June 18, 1992.    Mem. at 5.

Instead, they requested a pre-hearing conference and an

independent evaluation of M. at the school district's expense. On

July 26, 1992, the appellants requested an administrative due

process hearing pursuant to the IDEA, 20 U.S.C. § 1415(b)(1)(E).4

Id.

            A Pennsylvania Special Education Hearing Officer

conducted the due process hearing on September 17 and September

28, 1992.    The appellants presented two issues: (1) whether,

under Pennsylvania law, M. is a mentally gifted child suffering
from a _!___E_@Error! Reference source not found.`ÆÐÐ20 U.S.C. ÀÀ

1401(a)15.    States wishing to receive funding underthe IDEA must

ensure that "all children residing in the State whoare disabled,

regardless of the severity of their disability, andwho are in

need of special education and related services areidentified,

located, and evaluated" by the state.    20 U.S.C. ÀÀÀÀ1412(2)(C),

1414(a)(1)(A); ÃÃsee alsoÄÄ 34 C.F.R. ÀÀÀÀ 300.128(a)(1) &note 1,

4
  The district court seems to have mistakenly treated the school
district's list of recommendations (NORA) for M. as an Individual
Education Program (IEP). See Mem. at passim. The parties have
stipulated that the district court was in error. See Joint
Stipulation, app. at 126. We describe an IEP, which is far more
comprehensive than a NORA, later in this opinion.


                                 5
300.220 & note, 300.300 note 3.       This obligation is knownas the

"child find" duty.   ÃÃMatulaÄÄ, slip op. at

10.ÔØ'0* ( (°°ÔŒÁ``ÁThe primary mechanism for delivering a free

appropriateeducation is the development of a detailed instruction

plan,known as an Individual Education Program ("IEP"), for each

childclassified as disabled.    20 U.S.C. ÀÀ 1401(18).      An IEP

consistsof, ÃÃinter aliaÄÄ, a specific statement of a student's

presentabilities, goals for improvement, services designed to

meet thosegoals, and a timetable for reaching the goals via the

services. ÃÃId.ÄÄ ÀÀ 1401(a)(20).      The creation of an

administrative structurecapable of producing IEPs is a requisite

to receiving IDEA funds. ÃÃId.ÄÄ ÀÀ 1414(a)(5).      To the extent

possible, however, a school must"mainstream" disabled students ©©

that is, instruct them in aregular, not special, education

setting.   ÃÃId.ÄÄ ÀÀ 1412(5).Á``ÁThe IDEA authorizes federal

reviews of state and localcompliance, ÃÃseeÄÄ 34 C.F.R. ÀÀÀÀ

104.61, 100.7, and affords certainprocedural safeguards to the

parents of disabled children.    ÃÃInteraliaÄÄ, parents may examine

all relevant records concerningevaluation and placement of their

children, 20 U.S.C. ÀÀ1415(b)(1)(A); must receive prior written

notice when a schoolproposes or refuses to alter a placement, ÀÀ

1415(b)(1)(C); maycontest in an impartial due process hearing

decisions regardingthe evaluation of their child or the

appropriateness of thechild's program, ÀÀÀÀ 1415(b)(1)(E),

1415(b)(2); may appeal thedecision from such a hearing to the

state education agency, ÀÀ1415(c); and may obtain judicial review

of the administrativedecision, ÀÀ 1415(e)(2).      ÃÃSeeÄÄ


                                  6
ÃÃMatulaÄÄ, slip op. at 11;ÃÃBernardsville Bd. of Educ. v.

J.H.ÄÄ, 42 F.3d 149, 158 & n.13 (3dÔ'0* ( (°°ÔCir. 1994);

ÃÃLester H. v. GilhoolÄÄ, 916 F.2d 865, 869 (3d Cir.1990),

ÃÃcert. deniedÄÄ, 499 U.S. 923, 111 S.Ct. 1317 (1991).

Pennsylvania fulfills its IDEA obligations through a

complexstatutory and regulatory scheme codified at Pa. Stat. Ann.

tit.24, ÀÀÀÀ 13©1371 and 13©1372 (1992), and 22 Pa. Code ÀÀÀÀ

14.1 to14.74, 342.1 to 342.74 (1994).ÁàôìÁB.   JUDICIAL REVIEW

UNDER THE IDEAƒÁ``ÁAs we noted above, the appellants brought this

actionagainst the school district after requesting an

administrativedue process hearing before a Pennsylvania Special

EducationHearing Officer to satisfy a requirement of the IDEA, 20

U.S.C.ÀÀÀÀ 1415(b)(1)(E), 1415(b)(2).   Mem. at 5.   After the

hearingofficer decided in appellants' favor, the school

districtappealed his decision to the Pennsylvania Special

EducationAppeals Panel, which ruled in its favor.    ÃÃId.ÄÄ at 7.

Accordingly,the appellants exhausted the IDEA's provisions for

administrativereview, ÃÃseeÄÄ section 1415(c), and thus were

entitled to bring thiscivil action.   ÃÃSeeÄÄ section 1415(e)(2).

It is the nature of thatjudicial proceeding, in particular the

extent to which the courtis required to receive evidence beyond

that contained in theadministrative record, that the parties now

principally dispute.Á``ÁWe approach this question by first

addressing thejudicial review provision of the IDEA, section

1415(e)(2), whichprovides in relevant part:ÐÐÐÐÂ°``ÂAny party

aggrieved by the findings anddecision made under subsection . . .

shallhave the right to bring a civil action withrespect to the


                               7
complaint presented pursuant toÔØ'0* ( (°°Ôthis section, which

action may be brought inany State court of competent jurisdiction

orin a district court of the United Stateswithout regard to the

amount in controversy. In any action brought under this paragraph

thecourt shall receive the records of theadministrative

proceedings, shall hearadditional evidence at the request of a

party,and, basing its decision on the preponderanceof the

evidence, shall grant such relief asthe court determines is

appropriate.ÐÐÆx`ÆÐÐ20 U.S.C. ÀÀ 1415(e)(2).Áhh#ÁIn determining

the scope of a districtcourt's review under the IDEA, the Supreme

Court has stated thatthe statute's language instructing that the

district court,"basing its decision on the preponderance of the

evidence, shallgrant such relief as the court determines is

appropriate," doesnot mean that courts are free to substitute

their own notions ofsound education policy for those of the

educational agencies theyreview, but rather that they should give

"due weight" to theadministrative proceedings.   ÃÃBoard of Educ.

v. RowleyÄÄ, 458 U.S.at 205©06, 102 S.Ct. at 3050©51; ÃÃsee

alsoÄÄ ÃÃFuhrmann v. EastHanover Bd. of Educ.ÄÄ, 993 F.2d 1031,

1034 (3d Cir. 1993). Naturally, the requirement that the courts

give "due weight" toadministrative proceedings has obliged the

district courts todetermine how much weight is "due."   ÃÃSeeÄÄ

ÃÃCapistrano Unified Sch.Dist. v. WartenbergÄÄ, 59 F.3d 884, 891

(9th Cir. 1995).Á``ÁThe Court of Appeals for the Ninth Circuit

has observedthat "judicial review in IDEA cases differs

substantially fromjudicial review of other agency actions, in

which courtsgenerally are confined to the administrative record


                               8
and are heldto a highly deferential standard of review."    ÃÃOjai

Unified Sch.Ô'0* ( (°°ÔDist. v. JacksonÄÄ, 4 F.3d 1467, 1471 (9th

Cir. 1993), ÃÃcert.deniedÄÄ, 115 S.Ct. 90 (1994).   Because the

IDEA specificallyrequires a district court to "receive the

records of theadministrative proceedings, . . . hear additional

evidence at therequest of a party, and, basing its decision on

the preponderanceof the evidence," grant any appropriate relief,

20 U.S.C. ÀÀ1415(e)(2), a district court "does not use the

substantialevidence standard typically applied in the review

ofadministrative agency decisions, `but instead must

decideindependently whether the requirements of the IDEA are

met.'" ÃÃMurray v. Montrose County Sch. Dist.ÄÄ, 51 F.3d 921, 927

(10th Cir.1995) (quoting ÃÃBoard of Educ. v. Illinois State

Bd.ÄÄ, 41 F.3d1162, 1167 (7th Cir. 1994)).Á``ÁThe courts of

appeals differ in their description ofthe interplay between the

Supreme Court's "due weight"interpretation and the IDEA's

provision for independent judicialreview.   As the Court of

Appeals for the Tenth Circuit recentlysummarized,ÐÐÐÐÂ°``Â[t]he

district court must . . . independentlyreview the evidence

contained in theadministrative record, accept and

reviewadditional evidence, if necessary, and make adecision based

on the preponderance of theevidence, while giving 'due weight' to

theadministrative proceedings below.   This hasbeen described as a

'modified ÃÃde novoÄÄ review,'or as 'involved

oversight.'ÐÐÆx`ÆÐÐÃÃMurrayÄÄ, 51 F.3d at 927 (citations

omitted).   The Court of Appealsfor the First Circuit has

described judicial review under theIDEA as follows:    "Congress


                                9
intended courts to make bounded,Ô'0* ( (°°Ôindependent decisions

©© bounded by the administrative record andadditional evidence,

and independent by virtue of being based ona preponderance of the

evidence before the court[.]"   ÃÃTown ofBurlington v. Department

of Educ.ÄÄ, 736 F.2d 773, 791 (lst Cir.1984), ÃÃaff'd on other

groundsÄÄ, 471 U.S. 359, 105 S.Ct. 1996(1985).Á``ÁWe have not

spoken definitively on what constitutes"due weight" under the

ÃÃRowleyÄÄ standard, and need not do so today. We, however, have

referred to the interpretation of the standardfirst developed by

the Court of Appeals for the First Circuit:ÐÐÐÐÂ°``Â[T]he

question of the weight due theadministrative findings of facts

must be leftto the discretion of the trial court.   Thetraditional

test of findings being binding onthe court if supported by

substantialevidence, or even a preponderance of theevidence, does

not apply.   This does not mean,however, that the findings can be

ignored. The court, in recognition of the expertise ofthe

administrative agency, must consider thefindings carefully and

endeavor to respond tothe hearing officer's resolution of

eachmaterial issue.   After such consideration, thecourt is free

to accept or reject the findingsin part or in

whole.ÐÐÆx`ÆÐÐÃÃBurlingtonÄÄ, 736 F.2d at 791©92; ÃÃseeÄÄ

ÃÃCarlisle Area Sch. v. ScottP.ÄÄ, 62 F.3d 520, 527 (3d Cir.

1995) ("[D]istrict courts havediscretion to determine how much

deference to accord theadministrative proceedings[.]");

ÃÃBernardsvilleÄÄ, 42 F.3d at 161(quoting ÃÃBurlingtonÄÄ);

ÃÃOberti v. Board of Educ.ÄÄ, 995 F.2d 1204,1219 (3d Cir. 1993)

("[T]he amount of deference to be affordedthe administrative


                                10
proceedings `is an issue left to thediscretion of the district

court.'") (quoting ÃÃJefferson CountyÔ'0* ( (°°ÔBd. of Educ. v.

BreenÄÄ, 853 F.2d 853, 857 (11th Cir. 1988));ÃÃFuhrmannÄÄ, 993

F.2d at 1042 (Hutchinson, J., concurring anddissenting).Á``ÁThe

district court relied on ÃÃRowleyÄÄ for itsdetermination that

"[w]hile the court may, at its discretion,hear additional

evidence, it must give `due weight' to theadministrative

proceedings and the education experience andexpertise applied

therein."   Mem. at 11.   The district courtthereafter concluded

that "the proper exercise of discretionmove[d] it to decline to

second©guess the judgment of theadministrative panel with

evidence that was not before the panelwhen it made its decision,"

Mem. at 12.   Accordingly, thedistrict court ruled on the merits

of the appellants' casewithout evaluating or accepting their

proffer of additionalevidence.    ÃÃId.ÄÄ   The district court thus

seems to have interpretedÃÃRowleyÄÄ to limit severely the IDEA's

directive in section1415(e)(2) that, on judicial review, a court

"shall hearadditional evidence at the request of a party."

Á``ÁOur review of a district court's legal analysis isplenary.

However, our review here "must be conducted within thegeneral

framework of deference to state decision©makers" that isdictated

by the IDEA and by the Supreme Court's direction inÃÃRowleyÄÄ.

ÃÃFuhrmannÄÄ, 993 F.2d at 1032 (citing ÃÃWexler v. WestfieldBd.

of Educ.ÄÄ, 784 F.2d 176, 181 (3d Cir.), ÃÃcert. deniedÄÄ, 479

U.S.825, 107 S.Ct. 99 (1986)); ÃÃsee alsoÄÄ ÃÃCarlisleÄÄ, 62 F.3d

at 526("We, of course, exercise plenary review over the

districtÔ'0* ( (°°Ôcourt's conclusions of law and review its


                                 11
findings of fact forclear error.").    In view of a district

court's scope of reviewunder section 1415(e)(2) which goes beyond

the traditionaldeferential standard, and in view of the provision

in thatsection for the court to hear additional evidence at the

requestof a party, we hold that the district court erred in

concludingthat it is within a court's discretion summarily to

excludealtogether the consideration of additional evidence

submitted bya party.   Consequently, we are obliged to vacate its

order andremand the matter for further proceedings.      We turn,

then, to aconsideration of what additional evidence may be

introduced onthe remand.ÁàˆìÁC.    ADDITIONAL EVIDENCEƒÁ``ÁThe

Court of Appeals for the First Circuit, inÃÃBurlingtonÄÄ, 736

F.2d 773, seems to have been the first court ofappeals to analyze

the IDEA's directive that a district court"shall hear additional

evidence at the request of a party."    ÃÃId.ÄÄat 790.   There, the

court held that the word "additional" shouldbe construed in the

ordinary sense of the word to mean"supplemental."    ÃÃId.ÄÄ    Thus

construed, the act:ÐÐÐÐÂ°``Â[C]ontemplates that the source of the

evidencegenerally will be the administrative hearingrecord, with

some supplementation at trial. The reasons for supplementation

will vary;they might include gaps in the administrativetranscript

owing to mechanical failure,unavailability of a witness, an

improperexclusion of evidence by the administrativeagency, and

evidence concerning relevantevents occurring subsequent to

theadministrative hearing.   The starting pointfor determining

what additional evidenceÔØ'0* ( (°°Ôshould be received, however,

is the record ofthe administrative proceeding.ÐÐÆx`ÆÐÐÃÃId.ÄÄ       In


                                  12
providing examples of types of additional evidence thatmight be

relevant to judicial review under the IDEA, theÃÃBurlingtonÄÄ

court did not limit admissible evidence to those typesenumerated,

which interpretation the school district would haveus make.

ÃÃSeeÄÄ appellee's br. at 12©13.     In contrast, the courtseems

merely to have provided examples of additional evidencethat a

court could find relevant to IDEA matters on judicialreview.

Á``ÁAlthough we never explicitly have interpreted thephrase, we

recently referred to the ÃÃBurlingtonÄÄ construction

of"additional evidence" in ÃÃBernardsvilleÄÄ, 42 F.3d at 161,

where weupheld a district court's decision to exclude evidence

ascumulative and an improper embellishment of testimony

previouslygiven at an administrative hearing.    ÃÃSee alsoÄÄ

ÃÃObertiÄÄ, 995 F.2d at1220 (court makes fact findings in IDEA

case not only onadministrative record, but also on any new

evidence presented byparties); ÃÃWexler v. Westfield Bd. of

Educ.ÄÄ, 784 F.2d at 181(court must independently review the

record, hear any requestedadditional evidence, and apply the

preponderance standard). Other courts of appeals have followed

ÃÃBurlingtonÄÄ's lead inconstruing section 1415(e)(2)'s

"additional evidence" clause,ÃÃsee, e.g.ÄÄ, ÃÃOjaiÄÄ, 4 F.3d at

1473 (upholding district court'sadmission of additional evidence

concerning relevant eventsoccurring subsequent to the

administrative hearing), although theinterpretation is not

unanimous.   ÃÃSeeÄÄ ÃÃMetropolitan Gov't ofÔØ'0* ( (°°ÔNashville

v. CookÄÄ, 915 F.2d 232, 234 (6th Cir. 1990) ("Insofar as[the

language in ÃÃBurlingtonÄÄ] suggests that additional evidence


                                13
isadmissible only in limited circumstances, such as to

supplementor fill in the gaps in the evidence previously

introduced, wedecline to adopt the position taken by the First

Circuit."); ÃÃseealsoÄÄ ÃÃMurrayÄÄ, 51 F.3d at 930©31 & n.15.

Á``ÁAlthough we make no explicit interpretation of

section1415(e)(2)'s "additional evidence" clause, even

underÃÃBurlingtonÄÄ's restrictive approach a district court first

mustevaluate a party's proffered evidence before deciding to

excludeit.   Moreover, while the purpose of the ÃÃBurlingtonÄÄ

constructionis to "structurally assist[ ] in giving due weight to

theadministrative proceeding, as ÃÃRowleyÄÄ requires,"

ÃÃBurlingtonÄÄ, 736F.2d at 790, the court of appeals did not say

that a districtcourt arbitrarily or summarily could exclude

additional evidencesubmitted by a party in pursuit of that

deference.   On thecontrary, the examples that ÃÃBurlingtonÄÄ

provided of additionalevidence that should ÃÃnotÄÄ be admitted

were all types of evidencethat courts might decide to exclude in

a conventional civilproceeding.    For instance, the court stated

that the additionalevidence clause "does not authorize witnesses

at trial to repeator embellish their prior administrative hearing

testimony; thiswould be entirely inconsistent with the usual

meaning of`additional.'"   ÃÃId.ÄÄ     Even while making this

statement, though,the court stressed that it would not be wise to

devise a hardªand©fast rule:Ô'0* ( (°°ÔŒÐÐÐÐÂ°``ÂWe decline to

adopt the rule urged bydefendants that the appropriate

constructionis to disallow testimony from all who did, orcould

have, testified before theadministrative hearing.      We believe


                                  14
that,although an appropriate limit in many cases, arigid rule to

this effect would unduly limit acourt's discretion and constrict

its abilityto form the independent judgment Congressexpressly

directed.   A salient effect ofdefendants' proposed rule would be

to limitexpert testimony to the administrativehearing.    Our

review of the cases involvingthe Act reveals that in many

instances thedistrict court found expert testimony helpfulin

illuminating the nature of the controversyand relied on it in its

decisional process. Å°ÅThere could be some valid reasons for

notpresenting some or all expert testimony beforethe state

agency.ÐÐÆx`ÆÐÐÃÃId.ÄÄ at 790©91.Å°ÅÁ``ÁThus, the ÃÃBurlingtonÄÄ

court stated that certain evidencemay be excluded under IDEA

judicial review out of deference tothe administrative

proceedings.   The court, however, declined todevise a bright©line

rule, choosing instead to leave "thequestion of the weight due

the administrative findings of fact"to the discretion of the

trial court.   ÃÃId.ÄÄ at 791©92.    Othercourts, including ours,

likewise have condoned the exclusion ofadditional evidence

submitted by the parties to an IDEAproceeding when, for a

particular reason, the court properlycould exclude the evidence.

ÃÃSee, e.g.ÄÄ, ÃÃBernardsvilleÄÄ, 42 F.3d at161 (upholding

exclusion of evidence as cumulative and improperembellishment of

testimony previously given at administrativehearing).Á``ÁIt is

regularly held that the question of whatadditional evidence to

admit in an IDEA judicial reviewÔØ'0* ( (°°Ôproceeding, as well

as the question of the weight due theadministrative findings of

fact, should be left to the discretionof the trial court.       ÃÃSee,


                                15
e.g.ÄÄ, ÃÃCarlisleÄÄ, 62 F.3d at 527;ÃÃBernardsvilleÄÄ, 42 F.3d

at 161; ÃÃObertiÄÄ, 995 F.2d at 1219;ÃÃBurlingtonÄÄ, 736 F.2d at

791©92.   As appellants note, Congress'central goal in enacting

the IDEA was to ensure "that each childwith disabilities has

access to a program that is tailored to hisor her changing needs

and designed to achieve educationalprogress."   Appellants' br. at

11.   Children are not staticbeings; neither their academic

progress nor their disabilitieswait for the resolution of legal

conflicts.   While a districtcourt appropriately may exclude

additional evidence, a court mustexercise particularized

discretion in its rulings so that it willconsider evidence

relevant, non©cumulative and useful indetermining whether

Congress' goal has been reached for the childinvolved.

Consequently, on the remand the district court shoulduse this

standard in determining whether to admit the proferredadditional

evidence, ÃÃi.e.ÄÄ, would the evidence assist the court

inascertaining whether Congress' goal has been and is being

reachedÔ‰?°Ôfor the child involved.Ö›x°$= Because we vacate the

judgment of the district court andremand the case for the

district court's evaluation of additionalevidence, which may lead

to the admission of some, none, or allof the evidence submitted,

it is not necessary for us to addressappellants' claim that the

district court denied them a fairopportunity to argue their case.

The remand necessarily resolvesthat issue. ›ÖÁàèìÁD.     ÃÃFUHRMANN

V. EAST HANOVER BOARD OF EDUCATIONÄÄƒÔ@0* ( (°°ÔŒÁ``ÁWe consider

one final matter with respect to the"additional evidence" clause

of the IDEA.   In deciding to rule onthe merits of appellants'


                                16
IDEA claims without evaluating oraccepting their offer of

additional evidence, the district courtrelied on our holding in

ÃÃFuhrmannÄÄ, 993 F.2d 1031, in addition torelying on the Supreme

Court's decision in ÃÃRowleyÄÄ.    ÃÃSeeÄÄ Mem. at11©12.    The

district court cited ÃÃFuhrmannÄÄ for the propositionthat "the

court cannot assess the adequacy of a student'splacement `at some

later date when one has the benefit of thechild's actual

experience,'" Mem. at 11 (quoting ÃÃFuhrmannÄÄ, 993F.2d at 1040),

but instead "must measure the adequacy of aneducational program

at the time it was offered to the student." Mem. at 12 (citing

ÃÃFuhrmannÄÄ, 993 F.2d at 1040).       As theappellants "proposed that

they be allowed to supplement therecord with additional evidence

which was not available in 1992,"the district court chose to

address the merits of their casewithout evaluating or admitting

that evidence because in the eyesof the district court, doing so

would be "second©guess[ing] thejudgment of the administrative

panel with evidence that was notbefore the panel when it made its

decision."   Mem. at 12.   Thecourt proceeded to "confine its

analysis to the evidence that wasbefore the panel in 1992, and .

. . give due deference to the[administrative] panel's findings."

ÃÃId.ÄÄ   In order to addressÔ`"0* ( (°°Ôcompletely appellants'

claim for relief, we must revisit theÔ‰? Ôevidentiary issues we

considered in ÃÃFurhmannÄÄ.ÖE $= Appellants try to minimize the

applicability of ÃÃFuhrmannÄÄ tothis case by pointing out that

the major thrust of their claim is"for a prospective

determination of eligibility for services," appellants' br. at

20.   They continue:ÐÐÂ°``ÂIt may well be unfair to force a


                                  17
district topay reimbursement where it correctlyidentified the

child as eligible and developedan IEP reasonably calculated to

produceprogress, even if, in hindsight, progress didnot actually

occur.   But there is nothingunfair about parents trying to

convince acourt that their child should be declared ©©at least

from that point forward ©© to have adisability, and nothing

irrelevant aboutevidence that brings the court up to date

onwhether indicia of a disability are present.Æx`ÆÐÐAppellants'

br. at 20©21.   Although appellants try to convince usthat we need

not address ÃÃFuhrmannÄÄ's effect on their claims, ÃÃseeÄÄbr. at

21 n.10 ("[T]he Court need not decide these points."),appellants,

as they admit, did include claims for reimbursementin their

complaint in the district court. Br. at 20 n.9.    Thus,we must

address ÃÃFuhrmannÄÄ's holding to see if what appellants seekis

truly the "unfair" use of hindsight in judging the

schooldistrict's decision regarding M.'s eligibility for

specialeducation.EÖÁ``ÁIn ÃÃFuhrmannÄÄ, we addressed the claim of

parents of achild with disabilities for reimbursement for two

years ofprivate schooling for their son.    The parents contended

that theindividual education programs that the school district

hadoffered to the child were inappropriate and thus violated

theÔ‰?ðÔIDEA.ÖÈx0ð¨$= Appellants again try to distinguish their

case from ÃÃFuhrmannÄÄ by pointing out that "[u]nlike the

[appellants] here,the parents in ÃÃFuhrmannÄÄ were not seeking a

determination ofeligibility for special education, or a finding

concerning theprogram that would be appropriate for their child

in the future." Appellants' br. at 19.     We decline, however, to


                                18
draw such aÔØ'0* ( (°°Ôbright line between the appropriateness of

taking additionalevidence in an IDEA judicial review proceeding

when thereasonableness of an IEP is at issue and taking such

evidence ina proceeding where the initial determination of

eligibility forspecial education is being litigated.    However, we

do note thatCongress' primary purpose in enacting the IDEA did

seem to be theassurance of access to special education services

for childrenwith disabilities.    ÃÃSeeÄÄ 20 U.S.C. ÀÀ 1400(c) ("It

is the purposeof this chapter to assure that all children with

disabilitieshave available to them . . . a free appropriate

public educationwhich emphasizes special education and related

services designedto meet their unique needs[.]").    But we also

note that in ÃÃW.B.v. MatulaÄÄ, No. 95©5033, we recently held

that the IDEA allows therecovery of damages as rather broadly

defined.   Slip op. at 16ª17.   Obviously, a court would have to

exercise great care inadmitting after©acquired evidence in a

damages action,particularly one such as this case, which involves

a claim forpunitive damages.    Thus, while we are not drawing

bright lines,we do observe that a more liberal approach might be

appropriatein a case involving a claim for remedial educational

relief ascontrasted to a damages action.ÈÖ    Neither party sought

to introduce additional evidence inÔðÀ0* ( (°°ÔÃÃFuhrmannÄÄ.       993

F.2d at 1034 n.3.   The issue, instead, was theweight that the

district court should give to evidence already inthe

administrative record regarding the child's progress inprivate

school (evidence amassed after the school district'sdecision

regarding the IEP but before the parents sought judicialreview).


                                 19
ÃÃId.ÄÄ at 1039.   As appellants note, we held in ÃÃFuhrmannÄÄthat

the district's liability hinged upon whether its proposedprogram

for the child was, at the time it was offered,"reasonably

calculated" to benefit the child.    Appellants br. at19.

Appellants interpret our ruling as follows:ÐÐÐÐÂ°``ÂThe Court

declined, therefore, to adopt a ruleunder which the district

would have beenfinancially penalized for an IEP that,

whileapparently appropriate at the time it wasdeveloped, turned

out in hindsight to beinadequate.    Accordingly, the Court

held,evidence of the child's subsequent educationalprogress (or

lack thereof) could be consideredÔÀ0* ( (°°Ôonly insofar as it

bore on the issue ofwhether the IEP was appropriate when it

wascreated.ÐÐÆx`ÆÐÐAppellants' br. at 20 (citing ÃÃFuhrmannÄÄ,

993 F.2d at 1040).Á``ÁAppellants' characterization of our holding

in ÃÃFuhrmannÄÄis fair.   The case was unusual in that the panel

authored threeseparate opinions: one opinion by Judge Garth for

the court, oneconcurring opinion by Judge Mansmann, and one

concurring anddissenting opinion by Judge Hutchinson.       On the

matter of whatweight to give evidence not before a school

district when itoriginally made the decision regarding the

educational placementof a child, Judge Garth and Judge Mansmann

agreed on theaforementioned holding: "[T]he measure and adequacy

of an IEP canonly be determined as of the time it is offered to

the student,and not at some later date."    993 F.2d at 1040.

However, despiteJudge Garth's statement that "Judge Mansmann and

I are incomplete agreement as to the time when we must look at

the`reasonable calculation' made pursuant to ÃÃRowleyÄÄ,"


                                20
ÃÃid.ÄÄ, the twojudges may have come to different conclusions as

to theconsequences of that holding.     While Judge Garth stated

that"evidence of a student's later educational progress may only

beconsidered in determining ÃÃwhether the original IEP was

reasonablycalculated to afford some educational benefitÄÄ,"

ÃÃid.ÄÄ (emphasisadded), Judge Mansmann concluded that "evidence

of what tookplace after the hearing officer rendered his decision

in the fallof 1989 is not relevant in deciding whether [the

child's] 1989©90placement was appropriate."     ÃÃId.ÄÄ at 1041

(Mansmann, J.,Ô'0* ( (°°Ôconcurring).    Judge Garth thus seemed to

take the lessrestrictive approach, one that would admit evidence

dating from atime after both the school district and the hearing

officer madetheir decisions, but only in determining the

reasonableness ofthe school district's original decision.     Judge

Mansmann'sopinion could be read to indicate that she would not

admit suchevidence at all, and the school district advances that

reading. ÃÃSeeÄÄ appellee's br. at 10 n.3.Á``ÁIn light of the

IDEA's purpose "to assure that allchildren with disabilities have

available to them . . . a freeappropriate public education which

emphasizes special educationand related services," 20 U.S.C. ÀÀ

1400(c), in addition to itsdirective to "hear additional evidence

at the request of aparty," ÃÃid.ÄÄ ÀÀ 1415(e)(2), we believe that

Judge Garth'sinterpretation of the statute should control the

taking ofevidence on judicial review that was not before the

schooldistrict when it made its initial IDEA placement decisions.

Inso concluding, however, we stress that such

after©acquiredevidence, such as information received through the


                               21
experience ofan alternative placement, should be used by courts

only inassessing the reasonableness of the district's initial

decisionsregarding a particular IEP or the provision of special

educationservices at all.   Courts must be vigilant to heed Judge

Garth'swarning that "[n]either the statute nor reason

countenance`Monday Morning Quarterbacking' in evaluating the

appropriatenessof a child's placement."    993 F.2d at 1040.

Ô'0* ( (°°ÔŒÁ``ÁThe dangers inherent in this process of

second©guessingthe decisions of a school district with

information to which itcould not possibly have had access at the

time it made thosedecisions are great.    As appellants recognize,

it indeed would beunfair "to adopt a rule under which [a]

district would [be]financially penalized for an IEP that, while

apparentlyappropriate at the time it was developed, turned out in

hindsightto be inadequate."   Appellants' br. at 20.   Our recent

holding inÃÃCarlisleÄÄ, 62 F.2d at 534, is not inconsistent with

theseconclusions, for in that case we merely emphasized

theprospective nature of judging the appropriateness of a

particularIEP, and cited ÃÃFuhrmannÄÄ for the prospect that a

student'ssubsequent failure to make progress in school does

notretrospectively render an IEP ÃÃperÄÄ ÃÃseÄÄ inappropriate.

In ÃÃCarlisleÄÄ,we did not address specifically the issue of how

to use afterªacquired evidence in assessing the reasonableness of

an IEP ©© ajudicial process that, by the very nature of judicial

review,must occur after the formulation of the educational

program.Á``ÁIn remanding this case to the district court, then,

wehold that it was not within that court's discretion to


                                22
rejectappellants' offer of additional evidence without even

evaluatingit for its admissibility.    However, we also note that,

because atleast some of appellants' proffered additional evidence

wasacquired after the school district's decision regarding M.'s

needfor special education, the district court will need to

examinesuch evidence carefully.    Such evidence may be considered

onlyÔ'0* ( (°°Ôwith respect to the ÃÃreasonablenessÄÄ of the

district's decision atthe time it was made.    Of course, this

caveat does not mean thatthe court cannot exclude evidence that

could have been availablewhen the school district made its

decision.Áà@ìÁE.   THE PREEMPTIVE EFFECT OF THE IDEAƒÁ``ÁFinally,

appellants contend that the district courterroneously dismissed

their additional statutory claims as"preempted" by the IDEA.     We

agree.Á``ÁSection 1415(f) of the IDEA

states:ÐÐÐÐÐÐÂ°``ÂÁ¸¸ÁNothing in this chapter shall beconstrued

to restrict or limit the rights,procedures, and remedies

available under theConstitution, title V of the RehabilitationAct

of 1973 [29 U.S.C. ÀÀ 790 et seq.], orother Federal statutes

protecting the rightsof children and youth with

disabilities,except that before the filing of a civilaction under

such laws seeking relief that isalso available under this

subchapter, theprocedures under subsections (b)(2) and (c) ofthis

section shall be exhausted to the sameextent as would be required

had the actionbeen brought under this subchapter.ÐÐÆx`ÆÐÐ20

U.S.C. ÀÀ 1415(f).   In its Memorandum Opinion, the districtcourt

interpreted this section of the IDEA to mean that "parentsmust

first challenge [an] educational program under the IDEAbefore


                                  23
they may pursue a civil action alleging additional causesof

action."   Mem. at 10©11.   The court thereafter concluded thatthe

appellants' additional statutory claims were "clearly preªempted

by ÀÀ 1415(f)" and therefore should be dismissed.    ÃÃId.ÄÄ

at11.Á``ÁThe district court's dismissal of appellants'additional

statutory claims was a legal determination over

whichÔØ'0* ( (°°Ôwe exercise plenary review.    ÃÃCarlisleÄÄ, 62

F.3d at 526; ÃÃFuhrmannÄÄ,993 F.2d at 1033.    While section

1415(f) requires a party toexhaust the IDEA's administrative

remedies before pursuing otherclaims, the section makes clear

that the IDEA is not theexclusive avenue through which children

with disabilities canassert claims for an appropriate education.

ÃÃW.B. v. MatulaÄÄ, slipÔ‰?`Ôop. at 14©15;ÃÃÄÄ ÃÃHayes v. Unified

Sch. Dist.ÄÄ, 877 F.2d 809, 812(10th Cir. 1989); ÃÃBoard of Educ.

v. DiamondÄÄ, 808 F.2d 987, 995(3d Cir. 1986).Á``ÁIndeed,

Congress amended the IDEA in 1986 to includesection 1415(f) in

response to the Supreme Court's decision inÃÃSmith v. RobinsonÄÄ,

468 U.S. 992, 104 S.Ct. 3457 (1984), whichheld that the IDEA was

the exclusive statute through which adisabled child could obtain

relief.    ÃÃSeeÄÄ The HandicappedChildren's Protection Act of

1986, Pub. L. No. 99©372 ÀÀ 3, 100Stat. 796, 797 (1986).       Section

1415(f) thus clarified Congress'intent with regard to the

preemptive effect of the IDEA. ÃÃDiamondÄÄ, 808 F.2d at 995.      As

we recently stated, "Section1415(f) was . . . enacted to

`reaffirm, in light of [ÃÃSmithÄÄ], theviability of section 504,

42 U.S.C. ÀÀ 1983, and other statutes asseparate vehicles for

ensuring the rights of handicappedchildren.'"    ÃÃMatulaÄÄ, slip


                                 24
op. at 14©15 (quoting H.R. Rep. No. 99ª296, 99th Cong., 1st Sess.

4 (1985)); ÃÃsee alsoÄÄ ÃÃMrs. W. v.TirozziÄÄ, 832 F.2d 748,

754©55 (2d Cir. 1987).Á``ÁThus, the district court erred in

dismissing theappellants' additional statutory claims as

preempted by the IDEA. Ô'0* ( (°°ÔWhile the school district

states that "the lower court appears tohave overlooked Section

1415(f) of the IDEA" in so ruling,appellee's Br. at 18, it claims

that "the record simply does notsupport the maintenance of a

cause of action against appellees onany other theory."   ÃÃId.ÄÄ

But even though this assertion may beestablished on remand, it

was not within the district court'sdiscretion to dismiss the

appellants' claims without addressingtheir merits.   Accordingly,

we will vacate the order of thedistrict court dismissing

appellants' additional statutoryÔ‰?Ôclaims.ÃÃÄÄÃÃÔ‰?0ÔÁàhì#ÁIII.

CONCLUSIONÄÄƒÁ``ÁFor all the reasons detailed above, we will

vacate thedistrict court's order entered September 27, 1994.     We

willremand the case to the district court for the evaluation

and,perhaps, depending on that evaluation, the taking of

additionalevidence on the IDEA claim and for further proceedings

consistentwith this opinion.   Costs shall be allowed the

appellants.




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