                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2009

G.N. v. Bd Ed Twp Livingston
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2337




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2337


                                   G. N. and S. N.,
                               On Behalf of J.N., a minor

                                           v.

                   BOARD OF EDUCATION OF THE TOWNSHIP
                              OF LIVINGSTON

                                     G.N. and S.N.,
                                                   Appellants


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Civil No. 05-cv-03325)
                District Judge: The Honorable Joseph A. Greenaway


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 18, 2008


    Before: BARRY, CHAGARES, Circuit Judges, and COHILL, Jr.,* District Judge

                           (Opinion Filed: February 4, 2009)


                                       OPINION



*
 Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the Western
District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       Appellants G.N. and S.N., parents of J.N., brought this action against the Board of

Education of the Township of Livingston (“the Board”), alleging violations of the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

Appellants sought reimbursement for the cost of private tuition and other declaratory

relief. They now appeal the order of the United States District Court for the District of

New Jersey which denied their motion for summary judgment and, the parties agree, fully

resolved the matter before the District Court. We will affirm.

                                             I.

       Inasmuch as we write primarily for the parties, we reprise only those facts that are

helpful in our discussion of the case.

       This case stems from a disagreement between J.N.’s parents and the Child Study

Team (“CST”) at her school as to the appropriate educational setting and services for J.N.

J.N. has been diagnosed with Developmental Reading Disorder (dyslexia),

Developmental Writing Disorder, and Attention Deficit Hyperactivity Disorder

(“ADHD”), though she tests in the high average range for cognitive functioning. From

the second to the sixth grade, J.N., in accordance with successive individualized

education programs (“IEPs”), received special education instruction. The type of

instruction varied from grade to grade, with J.N. receiving exclusively in-class support

during some years and some combination of in-class support and out-of-class or “pull-



                                             2
out” remediation in her school’s Resource Center in others. Beginning in September

2003, the start of her sixth grade year, J.N. was enrolled in the school’s general education

program, with in-class resource program services provided in Integrated Reading and

Language Arts (“IRLA”), Social Studies, and Science.

       The present controversy arose during the reformulation of J.N.’s sixth grade IEP.

Based upon their consultation with a private learning disabilities expert and their own

assessment of J.N.’s performance under the existing sixth grade IEP, appellants requested

that J.N. continue in mainstream classes with in-class resource support, but also receive

homework accommodations and supplemental multi-sensory reading instruction, both

during the school year and in an extended school year (“ESY”) program. Appellants

stressed that they did not want to return J.N. to pull-out remediation, fearing low self-

esteem and reduced opportunities for socialization. The CST recommended pull-out

placement in small-group Resource Center classes for IRLA to aid her in reading and

written language areas in addition to the in-class support she already received.

       The CST brought two draft IEPs to the January 23, 2004 IEP meeting with

appellants. One draft outlined the CST’s recommended pull-out program; the other called

for enhanced mainstream instruction, but not the supplemental reading instruction or

homework accommodation requested by appellants. After some discussion, the CST

provided only the latter, “mainstream” draft IEP for appellants’ review. Although

appellants had pressed for J.N. to continue in mainstream classes, they rejected the



                                              3
proposed IEP because it lacked some of their requests and did not contain a statement of

individualized goals and objectives. The CST finalized the “mainstream” draft (the

“January 2004 IEP”).

       Appellants filed a mediation request with the New Jersey Department of

Education. When mediation proved unsuccessful, the action was transferred to the New

Jersey Office of Administrative Law for a due process hearing. Appellants’

administrative petition alleged that the Board had violated the IDEA, and sought an order

directing the Board to (1) formulate individualized goals and objectives and monitor

J.N.’s progress, (2) provide the requested supplemental instruction and accommodations,

and (3) provide out-of-school tutoring to compensate for any shortcomings in the school’s

services. In the alternative, appellants requested reimbursement for a private school

placement. Before the hearing could take place, appellants enrolled J.N. in a private

school for her seventh-grade year, a school which, we note, would not appear to have

provided, among other things, the least restrictive educational environment for J.N.

       At the due process hearing, the administrative law judge (“ALJ”) heard testimony

from multiple witnesses for each side. The Board’s witnesses, which included several

members of the CST, testified that the January 2004 IEP offered a free appropriate public

education in the least restrictive environment, and pointed to several indicators, including

grades and test scores, to demonstrate that J.N. had obtained a meaningful benefit from

enhanced mainstream instruction. In addition to their own testimony, appellants offered



                                             4
outside consultant Dr. Jane Healey and learning disabilities expert Dr. Sandra Newman.

Dr. Healey recommended that J.N. remain in either the mainstream or the Resource

Center for her primary subjects, but that, in either case, she receive multi-sensory reading

instruction. Dr. Newman acknowledged that the Board’s Resource Center was adequate

for J.N.’s needs, and that “virtually all but one of the modifications and accommodations

set forth in the January 2004 IEP would be of educational benefit to JN.” (App. 155.) The

ALJ also reviewed several documents, including the IEP, the correspondence between the

CST and appellants, and performance reviews. Ultimately, the ALJ concluded that the

January 2004 IEP was appropriate and denied appellants’ request for reimbursement.

       Appellants then commenced this action in the District Court.1 Relying exclusively

on the administrative record, the Court upheld the bulk of the ALJ’s order, including its

conclusion that the January 2004 IEP addressed J.N.’s unique educational needs and

conferred a meaningful benefit. However, the Court also noted certain factual

inaccuracies in the ALJ’s opinion. For one, appellants did not consent to the January

2004 IEP and, in fact, registered their rejection of the IEP on the document itself. While

appellants preferred mainstream instruction to pull-out remediation, they did so with the

proviso that J.N. receive supplemental reading instruction and the requested homework

accommodation. The Court also disagreed with the ALJ with regard to a procedural



   1
     As the parties seeking relief, appellants had the burden of establishing that the Board
violated a substantive IDEA right. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 391
(3d Cir. 2006).

                                             5
error, pointing out that the January 2004 IEP did not contain a statement of individualized

goals and objectives. The Court concluded, however, that this error did not deprive J.N.’s

parents of the opportunity to participate in the process of formulating the IEP nor result in

the loss of educational opportunity. Accordingly, the Court held that the Board satisfied

its obligation to provide a free and appropriate legal education under the IDEA, and ruled

that appellants were not entitled to reimbursement.

                                             II.

       The District Court exercised jurisdiction under 20 U.S.C. § 1415, and we have

jurisdiction under 28 U.S.C. § 1291.

       “When deciding an IDEA case, the District Court applies a modified version of de

novo review and is required to give due weight to the factual findings of the ALJ.” L.E. v.

Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); see also Shore Reg’l High Sch.

Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (noting that the District Court

“must make its own findings by a preponderance of the evidence” but “also afford ‘due

weight’ to the ALJ’s determination”). Where, as here, a district court reviews

administrative fact finding without hearing additional evidence, it is “required to defer to

the ALJ’s factual findings unless it can point to contrary nontestimonial extrinsic

evidence in the record.” S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270

(3d Cir. 2003). We apply “plenary review with respect to the question whether the




                                             6
District Court applied the correct legal standards under the IDEA, but we review the

District Court’s factual findings for clear error.” Shore Reg’l, 381 F.3d at 199.

                                             III.

       Appellants argue they are entitled to reimbursement on two theories: (1) the Board

failed to comply with several procedural requirements for the formulation of an IEP under

the IDEA and the New Jersey regulations implementing the IDEA; and (2) the January

2004 IEP did not confer a meaningful educational benefit. We will take these theories in

reverse, as the resolution of the latter bears on the former.

       Under the IDEA, an IEP must be individually tailored to meet the needs of a

disabled child such that the child receives a “meaningful benefit” from the instruction.

L.E., 435 F.3d at 390. It does not require school districts to “maximize” the potential of

that child. Bd. of Educ. v. Rowley, 458 U.S. 176, 198 (1982).

       Appellants claim that the absence of the requested modifications to J.N.’s

education plan—the homework accommodation and the provision of a supplemental

reading program—rendered the January 2004 IEP ineffective. We disagree. Both the

ALJ and the District Court concluded on the basis of the testimony adduced during the

administrative hearing and several indicators of J.N.’s performance—including grades,

year-to-year progress, and standardized and independent testing—that the January 2004

IEP was reasonably designed to confer a meaningful educational benefit tailored to J.N.’s

specific needs. While appellants disagree strongly with the conclusions to be drawn from



                                              7
this evidence, we detect no clear error in the findings of the Court.

       Our conclusion necessarily disposes of appellants’ procedure-based

arguments—that the Board violated the IDEA by its failure to: (1) provide J.N.’s parents

with proper notice and access to the alternate draft IEP; (2) offer J.N. a continuum of

alternative placements; (3) consider J.N.’s individual needs in denying ESY reading

instruction; and (4) include goals and objectives in her IEP. These arguments fail if for

no other reason than that, as noted above, there is adequate support in the record for the

conclusion of both the ALJ and the District Court that the January 2004 IEP conferred a

free and appropriate public education.

       Pursuant to the IDEA, a procedural violation committed during the formulation of

a child’s IEP is actionable only if that violation: (1) impedes the child’s right to a free

appropriate public education; (2) significantly impedes the parents’ opportunity to

participate in the decisionmaking process; or (3) causes a deprivation of benefits.

Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994, 2001 (2007)

(citing 20 U.S.C. § 1415(f)(3)(E)(i) & (ii)); see also W.G. v. Bd. of Trustees, 960 F.2d

1479, 1484 (9th Cir. 1992) (holding that only “procedural inadequacies that result in the

loss of educational opportunity or seriously infringe the parents’ opportunity to participate

in the IEP formulation process clearly result in the denial of a [free and appropriate public

education]”) (citations omitted); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994

(1st Cir. 1990) (en banc) (“Before an IEP is set aside, there must be some rational basis to



                                               8
believe that procedural inadequacies compromised the pupil’s right to an appropriate

education, seriously hampered the parents’ opportunity to participate in the formulation

process, or caused a deprivation of education benefits.”) (citations omitted).

       After carefully reviewing the administrative record, the District Court determined

that, contrary to appellants’ claims, the January 2004 IEP was the product of a

collaborative effort between the CST and J.N.’s parents and was designed to address

J.N.’s needs. Appellants’ frustration with the end-product of that collaboration does not

diminish the fact that the IEP—had appellants agreed to its implementation—would have

conferred a meaningful educational benefit. Appellants cite no evidence that compels us

to overturn that conclusion.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             9
