                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-22-1994

Bernardsville Bd. of Ed. v. J.H., et al.
Precedential or Non-Precedential:

Docket 93-5767




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                           No. 93-5767
                           ___________

          BERNARDSVILLE BOARD OF EDUCATION

                                Appellant

                          vs.

          J. H., Individually and on behalf of their minor son
          J.H.; E. H., Individually and on behalf of their minor
          son, J.H.; J. H., Individually
                           ___________

          Appeal from the United States District Court
                 for the District of New Jersey
                   (D.C. Civ. No. 92-cv-03694)
                           ___________

                              Argued
                          August 8, 1994
      Before:   MANSMANN, COWEN and McKEE, Circuit Judges.

                    (Filed November 22, 1994)
                           ___________

Nathanya G. Simon, Esquire (ARGUED)
David L. Rosenberg, Esquire
Schwartz, Simon, Edelstein,
  Celso & Kessler
293 Eisenhower Parkway
Suite 300
Livingston, NJ 07039

  COUNSEL FOR APPELLANT

Theodore A. Sussan, Esquire (ARGUED)
Staci J. Greenwald, Esquire
Sussan & Greenwald
407 Main Street
Spotswood, NJ 08884

  COUNSEL FOR APPELLEES
                           ___________

                      OPINION OF THE COURT
__________
MANSMANN,   Circuit Judge.

            Through the exercise in "cooperative federalism" which

is the hallmark of the implementation of the Education of the

Handicapped Act, 20 U.S.C. §§ 1400 et seq., now known as the

Individuals with Disabilities Education Act, local school boards

are mandated to provide a free, appropriate public education for

handicapped children alongside their peers who are not so

impaired.    The Act authorizes federal assistance to states and

localities for educational programs which confer an educational

benefit on disabled students.    The Bernardsville School 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.

            J.H., the child who is the subject at the heart of this

case, was denied the benefit of a free appropriate public

education throughout his several years as an elementary school

student within the Bernardsville School District.    Year after

year the School District failed to design an Individualized

Educational Program suitable to J.H.'s special needs, and failed

to intervene responsibly in his quite apparent trend of academic

and social deterioration.    Observing their son's educational

predicament and dissatisfied with the school program in

Bernardsville, J.H.'s parents unilaterally removed J.H. from the

School District and enrolled him in a private out-of-state

residential school, where J.H. improved significantly under a

program responsive to his needs.    More than two years later,
J.H.'s parents sought reimbursement from the Bernardsville School

District for tuition and expenses for J.H.'s private education.

J.H.'s parents argued that Bernardsville was by law obliged to

provide J.H. with a free appropriate public education, that it

failed utterly in this regard, and that they were virtually

forced to enroll J.H. in an out of district school in order to

ensure him an appropriate educational benefit.   The Act and the

implementing regulations offer no guideline with regard to the

timeliness of this claim for retroactive reimbursement.

          We must decide whether J.H.'s parents requested due

process for their son within an appropriate time limitation.

Notwithstanding an acknowledgement of good cause for the

frustration of J.H.'s parents and the reasonableness of their

educational decision, we conclude that the request for

reimbursement for the first two years after J.H. was removed from

Bernardsville and enrolled in a private institution was untimely.

We will award reimbursement only for J.H.'s third year of private

education and for partial attorney's fees.



                                I.

           J.H. entered the Bernardsville School District in

September, 1980, after he had completed kindergarten at a

parochial school and it had become apparent that his academic

progress was not commensurate with the other children in his

class.   In the Bernardsville School District, J.H. repeated

kindergarten, at the end of which it was again apparent that

J.H.'s academic skills were significantly deficient and that he
had not progressed much during the academic year.   By November of

academic year 1981-82, while J.H. was in the first grade, J.H.'s

parents still observed a lack of progress in their son, and hired

a private tutor for reading and math once a week.   In January,

1982, a private learning consultant advised Mr. and Mrs. H. that

J.H. required one-on-one academic assistance.   In January, 1982,

the Bernardsville School District, also well aware of J.H.'s

academic difficulties, referred J.H. to their Child Study Team,1

and on April 8, 1982, classified J.H. as perceptually impaired.

The District placed J.H. in a small resource room reading and

math group, and mainstreamed J.H. for other subjects.    J.H. also

attended summer school in the Bernardsville school district after

completing the first grade.

          J.H. remained in resource room instruction in the

Bernardsville school through the end of the third grade, showing

1
 .        The Bernardsville elementary school's referral for
evaluation in J.H.'s case listed the following specific reasons
for referral:

          1.   [J.H.] is very inattentive unless its a
          one to one situation.

          2.   He often fails to respond when his name
          is called.

          3.   We are concerned that there may be an
          articulation problem. There are many words
          he cannot pronounce.

          4.   His answers to questions are often
          inappropriate.

          5.   He cannot work independently.

A. 2095-96.
very limited progress and great difficulty keeping academic pace

with his peers.   The Individualized Educational Program (IEP)

reports created by the Bernardsville district for the years 1982-

83, 1983-84 and 1984-85, as well as Bernardsville's psychological

evaluations of J.H., attest to J.H.'s lack of academic progress

and a disturbing deterioration in his confidence, self-esteem and

social interaction with peers.   The district court found that

academic frustration and social isolation marked J.H.'s education

experience in Bernardsville.

          As early as October of 1982, J.H.'s resource room

teacher, Mrs. Garland, recorded Mrs. H.'s "persistent anxiety"

regarding the efficacy of the IEP.   Mr. Walter Mahler of the

Bernardsville Child Study Team was also apprised in 1982 of an

audiological evaluation and assessment of central auditory

functioning performed by a private neurologist, which revealed

that J.H. was experiencing significant difficulty with auditory

figure-ground discrimination ability,2 auditory closure ability3

and appeared also to suffer with auditory memory deficits.4     A.
2
 .        The report, which was done through St. Clare's
Hospital, indicates that auditory figure ground discrimination
deficits may manifest as inability to communicate in an
environment of background noise. Communication difficulties may
be circumvented if optimal listening conditions, including a
quiet room with few distractions, are provided for learning. A.
2127.
3
 .        Auditory closure deficits cause difficulty in blending
sounds and manifest as reading, spelling and articulation
problems. A. 2128.
4
 .        Auditory memory deficits may manifest as problems with
following verbal instructions, reading comprehension and other
verbal abilities. A. 2128.
2126-2128.    That report recommended optimal listening conditions

for J.H. in order to enhance his academic development.    The

report recommended specifically a quiet learning room with few

distractions, preferential seating in a classroom, eliciting

frequent feedback from J.H., certain speech and common memory

training techniques, and counseled against a phonetics approach

to reading.     Phonetics was nevertheless emphasized in J.H.'s IEPs

for reading.5    Moreover, Mrs. H. testified before the

administrative law judge that J.H.'s resource room was not

reasonably free from background noise which could sabotage

efforts to educate this attention deficit child.

          In academic year 1986-87, at the end of J.H.'s sixth

grade, his reading level, as measured by the Woodcock Johnson

Psychoeducational Battery, had only progressed from 1.0 in the

first grade to 2.9.    Notwithstanding J.H.'s lack of success in

prior years, the IEP provided by the district for the 1987-88

school year, J.H.'s grade 7, was virtually identical to the prior

unsuccessful IEPs.    Dr. Howard Margolis, testifying as an expert

on behalf of J.H. at trial, characterized J.H.'s placement as

5
 .        Dr. Margolis, Ed.D., Reading and Special Education
Consultant, in testimony before the administrative law judge and
in a written evaluation report on J.H.'s educational program
prior to his enrollment at Landmark, A. 2561 et seq., concluded
that Bernardsville maintained a phonetics approach to reading
year after year despite its inappropriateness given J.H.'s
handicapping condition. A. 2572. The administrative law judge
was persuaded by Dr. Margolis' findings and conclusions, and
specifically found that J.H.'s reading program deprived J.H. an
opportunity to acquire reading skills. The district court
endorsed the determination of the administrative law judge,
specifically noting the inappropriateness of the reading program.
inappropriate and not reasonably calculated to confer educational

benefit on J.H.

            In September of 1987, J.H.'s parents unilaterally

removed J.H. from the Bernardsville school system and placed him

at the Landmark School in Massachusetts, a residential school for

handicapped children.    J.H. attended school at Landmark for

academic years 1987-88 through 1989-90, J.H.'s grades 7, 8 and 9.

In December of 1987 and November of 1988, at the request of

J.H.'s parents, the Bernardsville District conducted educational

assessments of J.H., but never approved J.H.'s placement at

Landmark.

            In September of 1989, after J.H. had been in attendance

at Landmark for more than two years, the parents of J.H.

petitioned for an administrative hearing concerning J.H.'s

placement and program from September 1987 to his current

situation, and sought retroactive reimbursement for J.H.'s out-

of-district residential schooling at Landmark.    The Board of

Education denied J.H.'s parents' request for reimbursement and

defended their proposed IEP for academic year 1987-88.   J.H.'s

parents filed a new request for an administrative hearing on

November 17, 1989.

            Between November and December of 1989, the parties

negotiated and reached various agreements, and the matter did not

proceed to a hearing at that time.    The parties agreed that

Deputy Public Advocate for the State of New Jersey, David Harris,

would provide a release for Bernardsville to obtain the current

records of J.H., that J.H. would be evaluated by the
Bernardsville Child Study Team on December 22, 1989, that in

early January, 1990, the Bernardsville school psychologist would

visit Landmark to observe and evaluate J.H., that a meeting would

be held to discuss the recommendations of the Child Study Team

and that, if necessary, due process procedures could be

activated.

           Pursuant to the agreement, the Child Study Team did

conduct a reevaluation of J.H. in order to develop an appropriate

IEP.   On April 11, 1990, Lynn Caravello, Ed.D., Director of

Special Services, advised J.H.'s parents that a new IEP had been

developed for J.H. and recommended that J.H. be placed in the

Bernards High School as a ninth grader eligible for part-time

special education.

           In May of 1990, J.H.'s parents removed J.H. from the

eighth grade at Landmark and reenrolled him in the Bernardsville

School.   Bernards High School implemented the newly developed IEP

for the balance of the 1989-90 school year, and appeared to be

responsive to Dr. Margolis' revisional recommendations for the

1990-91 academic year.

           On September 4, 1990, Mr. H. authorized J.H.'s

placement in Bernards High School conditioned upon pending

agreement on the IEP, and "upon agreement by the Bernardsville

Board of Education that such placement [would] not thereby become

the current educational placement of [J.H.] within the meaning of

federal or state statutes and regulations pertaining to special

education."   J.H. in fact completed the 1990-91 academic year as

a tenth grader at Bernards High School.
          On January 4, 1991, J.H.'s parents through their

attorney filed a request for due process and for the matter to be

transmitted to the office of administrative law for trial.    The

petition contended that the Bernardsville Board of Education had

offered an inappropriate program for J.H. through June of 1987,

forcing J.H.'s parents to place J.H. at the Landmark School so as

not to deprive him of his statutory right to a free appropriate

public education.    The petition alleged among other things that

the IEPs prepared by the Board of Education prior to J.H.'s

enrollment at Landmark did not comply with the requirements of

New Jersey Administrative Code 6:28-3.6 in that they were not

reasonably calculated to confer any educational benefit upon

J.H., and did not contain specific or measurable goals or

instructional objectives.    The petition requested reimbursement

for all monies expended on behalf of J.H. relative to his

placement at the Landmark school commencing in the summer of 1987

through May of 1990.    The matter was forwarded to the Office of

Administrative Law on January 16, 1991, and hearings began on

February 19, 1991.

          On June 24, 1992, the administrative law judge decided

the case against the Bernardsville Board of Education, ordering

reimbursement to the parents of J.H. for Landmark tuition

expenses for the academic years 1987-88 through 1989-90,

excluding the cost of J.H.'s room and board.    Decision of

Administrative Law Judge, OAL Dkt. No. EDS 576-91 (June 24,

1992), A. 24-50.     In pertinent part, the administrative law judge

found:
         The [IEPs] were not compliant with the New
         Jersey Administrative Code as it then existed
         and, did not enable J.H. to receive either an
         appropriate education, or to best achieve
         educational success.[6] Specifically, J.H.'s
         IEP's were severely lacking in adequate
         statements of current educational status, the
         annual goals were vague, non-specific and
         incapable of being measured, and repeated
         themselves, for the most part, in each
         succeeding year.

         The IEP's . . . did not enable J.H. to
         improve in any meaningful way in his reading
         . . . .

         Despite parental concern and intervention
         through regular contact and communication
         with the District and the hiring of tutors,
         J.H.'s lack of progress in reading caused him
         to suffer emotionally, and significantly
         affected his self-esteem.



6
 .        The administrative law judge recognized that prior to
May 15, 1989, the New Jersey standard for a free appropriate
public education reflected in N.J.A.C. 6:28-2.1(a), was an
education that would allow a handicapped child to best achieve
success in learning. Geis v. Board of Education, 774 F.2d 575,
582 (3d Cir. 1985). A. 47. The Court further acknowledged that
subsequent to May 15, 1989, the New Jersey Department of
Education rejected the Geis standard in favor of the federal
standard set forth in the Education For All Handicapped Act, 20
U.S.C. § 1400 et seq., which was defined as an education which
merely confers educational benefit on a handicapped person. The
1989 amended N.J.A.C. 6:28-1.1 specifically provides that New
Jersey is obliged to ensure that all educationally disabled
pupils "have available to them a free, appropriate public
education as that standard is set under the [federal Act]," 20
U.S.C. § 1400 et seq. (Emphasis added.) See Board of Education
v. Rowley, 458 U.S. 176 (1982).

          The administrative law judge determined that for all
the relevant time periods, including 1982 through May 15, 1989,
the standard set forth in Geis was operative, and found that
under the more stringent local standard, the Bernardsville Board
of Education failed to comply with the procedural requirements of
N.J.A.C. 6:28-1.1. A. 48.
          As a result, J.H. had significant problems
          with his peers and socialization . . . .

          Although one-to-one instruction in reading
          was recommended by independent evaluations
          . . . with little exception, the same was not
          offered to J.H. . . . .

          The program offered to J.H for seventh grade
          . . . was a continuation of prior programs
          which did not address J.H.'s handicapping
          condition.

          Petitioners were justified in seeking a free,
          appropriate public education under the
          circumstances recognizing that J.H.'s reading
          handicap was not being addressed.

          . . . [P]etitioners [sic] decision to enroll
          [J.H. in the Landmark School] was reasonable.
          The program at Landmark School was
          appropriate for J.H. to meet his needs, and
          offered the best opportunity to enable J.H.
          to achieve educational success and benefit
          from his education.


OAL Dkt. No. EDS 576-91, pp.19-20; A. 42-43.

          The Bernardsville Board of Education appealed the

matter to the United States District Court for the District of

New Jersey on September 2, 1993 pursuant to 20 U.S.C. §
1415(e)(2).7   Bernardsville Board of Education v. J.H., Civil No.

92-3694 (D.N.J. March 22, 1993).   The parents of J.H. moved for

7
.         Section 1415(e)(2) provides in pertinent part:

               Any party aggrieved by the
          [administrative] findings and decision . . .
          shall have the right to bring a civil action
          with respect to the complaint presented
          pursuant to this section, which action may be
          brought in any State court of competent
          jurisdiction or in a district court of the
          United States without regard to the amount in
          controversy. . . .
summary judgment on the ground that the Board of Education's

appeal was untimely under 20 U.S.C. § 1415(e)(2).    Following the

opinion of this circuit in Tokarcik v. Forest Hills School

District, 665 F.2d 443, 450-54 (3d Cir. 1981) (30-day state

limitation statute for state administrative appeals to state

courts does not apply to federal claim brought in federal court

under Education of Handicapped Act), cert. denied, 458 U.S. 1121

(1982), the district court dismissed J.H.'s parents' summary

judgment motion.   The district court denied the Board of

Education's cross-motion for summary judgment brought on the

ground that J.H.'s parents waived their right to reimbursement by

unilaterally placing J.H. in Landmark and failing to initiate

review proceedings prior to seeking reimbursement.    The district

court also denied the Board of Education's alternative argument

for summary judgment that J.H.'s parents failed to comply with

the 90-day statute of limitations contained in N.J.A.C. 6:24-

1.2(c), which the Board argued should be applied to challenges to

IEPs.   The court noted that the New Jersey Administrative Code

does not contain any explicit time limitation within which a

party must request a due process hearing in the special education

context, and no caselaw has held that the 90-day time limit would

be applicable.

           Prior to trial, on September 9, 1993, the district

court ruled on the parties' motions in limine.   J.H.'s parents

had filed a motion seeking to limit the testimony of two expert

witnesses for the Board of Education, Joanne Seelaus, school

psychologist and Supervisor of Special Education, and Dr. Lynn
Caravello, Director of Special Services for the Bernardsville

Board of Education.   Seelaus and Caravello had prepared a joint

report which contained references to the IEP prepared for J.H.

for the 1987-88 school year, references to testimony previously

given during the administrative hearing, and references to the

reevaluation of J.H. preparatory to his return to the district in

1990.   The court excluded these portions of their testimony on

the ground that such evidence would have been cumulative and

improper "additional evidence" pursuant to 20 U.S.C. §

1415(e)(2),8 and with regard to that portion of the report

discussing J.H.'s anticipated return to Bernardsville in the fall

of 1990, that it would have been irrelevant to the request for

reimbursement for tuition from 1987 through the spring of 1990.

           The district court also granted the Board of

Education's motion to preclude J.H.'s parents from testifying at

the hearing about issues that they had already or could have

addressed at the administrative proceeding.

           The court ruled on the merits of the appeal on November

15, 1993, after conducting a de novo review of the state

administrative decision.   Affording the administrative law judge

8
.          Section 1415(e)(2) provides in pertinent part:

           . . . In any action brought under this
           paragraph the court shall receive the records
           of the administrative proceedings, shall hear
           additional evidence at the request of a
           party, and basing its decision on the
           preponderance of the evidence, shall grant
           such relief as the court determines is
           appropriate.
due deference in consideration of a perceived expertise on the

part of the administrative agency to articulate state educational

policy, and with respect to the administrative law judge's

credibility determinations, the district court concluded that the

Bernardsville School District failed to confer upon J.H. even the

minimally satisfactory educational benefit under the least

stringent standard which could arguably have been applied.    The

district court concluded that the IEPs developed for J.H. during

the relevant school years were not reasonably calculated to

confer an educational benefit.   After an independent examination

of the record, the district court affirmed the administrative law

judge's specific findings, including that the IEPs did not

contain adequate statements of current educational status or

measurable annual goals, were virtually redundant from year to

year and hence unresponsive to J.H.'s apparent difficulties, and

that Bernardsville failed to offer J.H. adequate one-to-one

instruction.   The district court held that Bernardsville failed

to sustain its burden of proof to show by a preponderance that

its IEPs provided J.H. with a free, appropriate, public

education, and further held that the Landmark placement was

appropriate.

          On equitable considerations and on the power conferred

on the district court by 20 U.S.C. § 1415(e)(2) to "grant such

relief as the court determines is appropriate," the district

court awarded J.H.'s parents retroactive reimbursement of

Landmark School tuition, exclusive of room and board, for

academic years 1987-88 through 1989-90, affirming the order of
the administrative law judge.   The court further designated

J.H.'s parents as the prevailing party for purposes of awarding

attorney's fees and costs pursuant to 20 U.S.C. § 1415(e)(4)(B),9

but left open the determination of the specific calculation of

reasonable fees.   By order of the court on February 2, 1994, the

award of attorney's fees was set in the amount of $91,494.85.

          Pursuant to 28 U.S.C. § 1291, on December 14, 1993, the

Bernardsville Board of Education timely appealed the final order

of the district court of November 15, 1993, which affirmed the

decision of the administrative law judge, and from the February

2, 1994, order of the district court awarding attorney's fees.10

The Board of Education also appealed the two interlocutory



9
.         Section 1415(e)(4)(B) provides:

               In any action or proceeding brought
          under this subsection, the court, in its
          discretion, may award reasonable attorneys'
          fees as part of the costs to the parents or
          guardian of a handicapped child or youth who
          is the prevailing party.
10
 .        Although Bernardsville's notice of appeal explicitly
specifies only the district court's November 15, 1993 order and
opinion, we construe the notice as incorporating the unspecified
February 2, 1994 order quantifying the attorneys' fees award.
Because the November order designates the prevailing party for
purposes of attorneys' fees, we recognize an adequate connection
between it and the February 2 order for purposes of extending our
jurisdiction over the latter, given that the subsequent appellate
proceedings manifest the appellant's intent to appeal the
attorneys' fees issue. Importantly, here the opposing party had
and exercised a full opportunity to brief the issue and did not
raise any claim of prejudice. A copy of the district court's
February 2 order and opinion setting the attorneys' fees was also
attached to the appellant's brief. See Williams v. Guzzardi, 875
F.2d 46, 49 (3d Cir. 1989) (and cases cited therein).
opinions denying its motion for summary judgment and excluding

the testimonies of two witnesses.



                                II.

          Upon an examination of the record on appeal, we are

confident that the district court properly ruled that, under any

arguably appropriate legal standard, the Bernardsville Board of

Education failed to establish by a preponderance that its program

and placement for J.H. assured him a free, appropriate, public

education as required under the Education of the Handicapped Act,

20 U.S.C. § 1412(1).11   The record bespeaks an appalling failure
11
 .        The Education of the Handicapped Act, 20 U.S.C.§ 1400
et seq., now known as the Individuals With Disabilities Education
Act ("IDEA"), provides federal financial assistance to states and
local agencies for the education of handicapped children,
provided that the state can demonstrate that it "has in effect a
policy that assures all children with disabilities the right to a
free appropriate public education." 20 U.S.C.§ 1412(1). In
Board of Education v. Rowley, 458 U.S. 176, 200-04 (1982), the
Supreme Court held that the Federal Act requires state or local
school districts to provide a program designed to confer an
educational benefit on the child.

          The state of New Jersey implements the Federal Act
through state statute and regulations promulgated by the New
Jersey State Board of Education. N.J.S.A. §§ 18A:46-1 through
18A:46-46. Until May 15, 1989, New Jersey law established a
higher standard for local school boards than the Act mandates,
requiring not only that the program be designed to confer an
educational benefit, but that the program be designed to permit
the child to best achieve success in education. N.J.A.C. § 6:28-
2.1 (1978). See Geis v. Board of Education, 774 F.2d 575, 582-83
(3d Cir. 1985). Furthermore, New Jersey statutes set forth in
detail the specific requirements for each Individualized
Education Program. N.J.A.C. §§ 6:28-3.6; 6:28-1.1 et seq.

          Because we agree with the district court that the Board
of Education failed under either standard, we need not address
the parties' contentions as to which standard applies.
on the part of the education bureaucracy to develop and implement

an appropriate IEP.   We will not belabor this point.   We turn our

attention directly to the question of the timeliness of J.H.'s

parents' request for reimbursement.



                                A.

          The Bernardsville Board of Education contends that

J.H.'s parents' more than two year delay in commencing the review

process renders their claim ineligible for reimbursement for any

portion of the private tuition in question.    The Board cites a

number of cases in which parents have been awarded prospective

private school tuition and/or expenses incurred while a challenge

to the student's IEP was pending through administrative review to

support its position that parents must commence the review

process in order to be entitled to relief.12   See, e.g., School

Committee of Burlington v. Department of Education, 471 U.S. 359,

370 (1985) (Act authorizes prospective injunction and


12
 .        Caselaw qualifies 20 U.S.C. § 1415(e)(3), which
provides:

                During the pendency of any proceedings
          . . ., unless the State or local educational
          agency and the parents or guardian otherwise
          agree, the child shall remain in the then
          current educational placement of such child .
          . . .

          Authorization for a judicial grant of retroactive
reimbursement for interim unilateral placements ultimately proven
to be reasonable and appropriate, where the IEP is adjudged
inappropriate, is justified under the court's equitable powers to
grant appropriate relief under 20 U.S.C. § 1415(e)(2).
reimbursement for appropriate unilateral private placement during

interim pending review of public placement later adjudged

inappropriate); Lascari v. Board of Education, 116 N.J. 30, 50,

560 A.2d 1180 (1989) (parents may be reimbursed for private

school tuition during pendency of any proceeding which determines

that the district's IEP was inappropriate); Garland Independent

School Dist. v. Wilks, 657 F. Supp. 1163, 1167 (N.D. Tex. 1987)

(parent not entitled to tuition reimbursement incurred prior to

bringing dissatisfaction with district's IEP to school district's

attention); Lewisville Independent School District v. Brooke P.,

16 EHLR 1313, 1315-16 (E.D. Tex. 1990) (parents' failure to

request due process hearing constitutes waiver of right to

reimbursement for cost of extended school year services prior to

initiation of due process proceedings, but court ordered

prospective injunction against school district); but cf.

Northeast Central School Dist. v. Sobol, 170 A.D.2d 80, 85-87,

572 N.Y.S.2d 752, 755-57 (N.Y. App. Div. 1991) (the ability to

order retroactive reimbursement within the statutory context and

public policy is necessary to ensure a child's right to a free,

appropriate, public education).   Thus, Bernardsville argues that

reimbursement for J.H.'s private placement prior to commencement

of review proceedings is not warranted in this case, and that the

district court erroneously denied the Board of Education's motion

for summary judgment.

          J.H.'s parents assert that the caselaw in this area

does not explicitly, or necessarily by inference, preclude pre-

proceedings reimbursement; they argue that costs incurred
subsequent to their expressions of dissatisfaction with J.H.'s

IEP, before they officially commenced a review, should be

reimbursed.   J.H.'s parents informed the Board of Education of

their concerns regarding J.H.'s program and placement in August

of 1987 and requested placement at Landmark.   The Board denied

that request, but since at least that time the Board was arguably

on effective notice of the IEP's inadequacy and the Board's

potential liability to J.H.'s parents.   Furthermore, the Board's

annual monitoring of J.H.'s program and progress while at

Landmark served to keep the Board on notice for the duration of

J.H.'s out-of-district enrollment.

          J.H.'s parents' argument is not without merit.    The

fact that here the regulations do not specify a time limitation

within which to bring a due process hearing, as well as the very

nature and social significance of the education of children with

disabilities, incline us to equitable considerations.   The fact

that the school district was notified of the parents'

dissatisfaction, albeit not through the initiation of official

proceedings, from the very first summer that J.H. attended

Landmark, that the parents did request a new placement for J.H.,

and that there was continued contact between the school district

and J.H. for the duration of J.H.'s enrollment at Landmark

support Mr. and Mrs. H's argument.   There is no evidence

whatsoever that J.H.'s parents acted in bad faith, and given the

apparent severe deficiencies in the IEPs developed for J.H. at

Bernardsville, it is clear that J.H.'s parents acted reasonably

in securing an appropriate education for their son outside the
district.    At the time J.H. left Bernardsville, the IEP developed

for him was both procedurally and substantively inadequate, and

it is untenable for the school district to maintain the argument

that it was not aware of a problem with the IEP it offered,

virtually unmodified, to J.H. year after year despite his lack of

academic progress, and in the face of his social regression.    We

do not hesitate to affirm the right to reimbursement for private

tuition incurred from a unilateral enrollment during the pendency

of any proceeding if it is ultimately determined that the IEP in

question was inappropriate.    See Burlington, 471 U.S. at 370, and

related cases cited above.

            Nevertheless, here, where proceedings were initiated

more than two years after J.H.'s transfer, we must place into our

equation the practical opportunity afforded the school district

to modify its IEP or to determine definitively whether

expenditures occurred outside the district could have been

obviated by the filing of a prompt complaint.    We are cognizant

of the fact that the school district serves a very large student

population, and in light of the numerous contacts it has with

parents seeking the individual welfare of their respective

children, mere notice of parental "dissatisfaction" does not

alone put the Board on reasonable notice that the parents will

challenge a particular IEP in the future and seek reimbursement

for an interim unilateral placement in a private institution.

Absent initiation of review proceedings within a reasonable time

of a unilateral decision to transfer a child to a private

institution, a school district would not know to continue to
review and revise an IEP, and the court would be left to hazard

conjecture or hypothesis as to what the Board of Education might

have proposed if it had been informed of the parents' continued

intent to pursue an appropriate education for their child within

the school district.   We, of course, recognize that the school

district has the duty in the first instance to provide an

appropriate IEP, and moreover, to demonstrate by a preponderance

at a due process hearing that the IEP it offered was indeed

appropriate.   With that foremost in mind, we must nevertheless

also recognize that as a practical reality, and as a matter of

procedural law13 of which J.H.'s parents were fully apprised, the

right of review contains a corresponding parental duty to
13
 .        The IDEA, 20 U.S.C. § 1415(b)(1)(E), requires that the
state or local agency receiving federal funds under the Act
provide a grievance process with regard to the placement and
programs offered to any child. Section 1415(b)(2) requires that
the state or appropriate state agency provide parents who have
filed a complaint the opportunity for an impartial due process
administrative hearing. Section 1415(e)(2) provides for appeal
from the decision of such a hearing to any state court of
competent jurisdiction, or to a United States district court
without regard to amount in controversy.

          New Jersey implements the IDEA with extensive statutory
and regulatory provisions designed to provide any parent who
believes that his or her child is being or has been denied the
rights secured by IDEA an opportunity for mediation and an
impartial due process administrative hearing. N.J.S.A. 18A:46-1-
46 and N.J.A.C. 6:28-1-11. The New Jersey Administrative Code
requires that parents be sent a copy and explanation of all
procedures pertaining to the IDEA and the New Jersey Code.
N.J.A.C. 1:6A-2.1 et seq.

          It is undisputed that in 1987 J.H.'s parents received
this information regarding the proper steps to invoke the
administrative review process, but delayed invoking their rights
to any part of the administrative process until more than two
years after unilaterally placing J.H. at Landmark.
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.   We think more than two years, indeed,

more than one year, without mitigating excuse, is an unreasonable

delay.14   We will vacate the district court's November 15, 1993
14
 .        We concur largely with the dissent, except, of course,
on the critical issue of whether the Act implicitly can recognize
a duty on the part of the parents to place in question the
appropriateness of the IEP within a reasonable time of the year
for which they seek reimbursement. We certainly agree that the
handicapped child's education is an interest both of the parents
and of the district, and that here the parents' decision to
withdraw J.H. was reasonable. Nevertheless, we believe that the
provisions of the Act can only be effectively and fairly
implemented if we recognize that the interest of both the parents
and the district on behalf of the child bear a corresponding
respective duty -- on the district to develop and justify its
IEP, and on the parents to unambiguously challenge the IEP when
they think it inappropriate. We think this allocation of burdens
comports fully with the Act and the relevant implementing
regulations.

          We note, as does the dissent, that given the Act's lack
of specificity on the question of timeliness and the nature of
the issue here, a balancing of the equities is unavoidable. We
resort to the standard of reasonableness under the circumstances,
and a consideration of mitigating circumstances for any delay in
the initiation of review proceedings which might otherwise be
deemed unreasonable. Our disagreement with the dissent is over
the questions of whether the unmitigated delay here was
reasonable, and, perhaps more dispositive, whether the district
was placed on reasonably adequate notice of the parents'
intention to seek reimbursement.

          We wish to clarify that our weighing of the equities
was not unduly influenced by the isolated fact that the district
must cope with a large student population, as the dissent perhaps
implies, although we believe that this fact has relevance to the
question of what constitutes reasonably adequate notice in these
particular circumstances. We agree with the dissent, however,
that the Act imposes the same duty to provide a free, appropriate
education to a child in a large urban district as it does to a
child in a small urban community.
order directing Bernardsville to reimburse Mr. & Mrs. H. for

tuition at Landmark to the extent it covers school years 1987-88

and 1988-89.15



                                B.

          The issue of retroactive reimbursement for the school

year 1989-90 requires closer scrutiny of the equities.   At the

beginning of the 1989-90 academic year, J.H.'s parents sought an

administrative hearing regarding J.H.'s placement and began

intensive negotiations with Bernardsville resulting in a reentry

of J.H. in a newly developed IEP within the district shortly

before that academic year expired.   J.H.'s parents subsequently

continued actively to pursue the review process, and ultimately

requested a due process hearing for retroactive reimbursement in

the middle of academic year 1990-91.   Thus from the beginning of

1989-90, J.H.'s parents set in motion the firm steps which fairly

notified the school board that retroactive liability was a

possibility and afforded the board a fair opportunity to revise

its IEP for J.H.

          The Board of Education asserts that the district court

was constrained to dismiss even the reimbursement request for

1989-90 as time-barred pursuant to the 90-day rule set forth in

N.J.A.C. 6:24-1.2.   That provision provides in relevant part:

15
 .        Because the circumstances here make this case merely
analogous to the caselaw upon which the Board of Education
relies, the district court properly denied the Board of
Education's motion for summary judgment based on the parents'
late initiation of review proceedings.
          (a) To initiate a contested case for the
          Commissioner's determination of a controversy
          or dispute arising under the school laws, a
          petitioner shall serve a copy of a petition
          upon each respondent . . . .
          * * *

          (c) The petitioner shall file a petition no
          later than the 90th day from the date of
          receipt of the notice of a final order,
          ruling or other action by the district board
          of education, individual party, or agency,
          which is the subject of the requested
          contested case hearing.


The Board of Education cites a number of cases in which the 90-

day rule has been applied in the education context.   See North
Plainfield Education Assoc. v. Board of Education, 96 N.J. 587,

594, 476 A.2d 1245 (1984) (because award of teacher salary scale

increment is not statutory right, it is subject to 90-day time

bar); Riely v. Board of Education, 173 N.J. Super. 109, 113-14,

413 A.2d 628 (App. Div. 1980) (teacher's petition of appeal with

Commissioner of Education concerning reinstatement time-barred by

90-day rule, and pendency of arbitration does not relieve

compliance with 90-day rule); Lombardi v. Board of Education, OAL
Dkt. No. EDU 6808-86 (January 30, 1987) (Commissioner of

Education); Markman v. Board of Education , OAL Dkt. No. EDU

0317-86 (August 22, 1986) (Commissioner of Education).

          In addition to citing arguably supporting caselaw, the

Board of Education contends that the scheme of the New Jersey

Code also compels application of the 90-day rule.   The Board

cites N.J.A.C. 1:6 A-1.1, which provides:
               The rules in this chapter shall apply to
          the notice and hearing of matters arising out
          of the Special Education Program of the
          Department of Education, pursuant to N.J.A.C.
          6:28. Any aspect of notice and hearing not
          covered by these special rules shall be
          governed by the Uniform Administrative
          Procedure Rules (U.A.P.R.) contained in
          N.J.A.C. 1:1 . . . .

N.J.A.C. 1:1-3.1 provides:

               A contested case shall be commenced in
          the State agency with appropriate subject
          matter jurisdiction. A contested case may be
          commenced by the agency itself or by an
          individual or entity as provided in the rules
          and regulations of the agency.


          The appropriate state agency here is the Commissioner

of Education.   N.J.A.C. 6:24-1.2 is the code provision which

limits the time within which a parent may seek a hearing before

an administrative law judge for the Commissioner of Education.

Thus the Board argues that N.J.A.C. 6:24-1.2(c), which sets forth

the 90-day rule, mandated that J.H.'s parents file a petition

with the Commissioner within 90 days from receipt of the disputed

IEP, and that their delay results in a time-bar from all relief.

          We have already decided that a mere expression of

dissatisfaction with a proposed IEP and placement is not

sufficient to guarantee retroactive reimbursement for the cost of

a reasonable unilateral placement, even where the IEP is

ultimately found to have been inappropriate.   Even a liberal

understanding of the operative policies of the IDEA cannot

obviate the practical necessity for a reasonable timeframe for

filing due process claims.   Nevertheless, we find no precedent

for applying the 90-day rule to special education matters, though

undoubtedly that limitation applies to disputes arising under
school laws other than special education matters.   The district

court accurately noted that the rules which expressly pertain to

special education do not contain a time limit, and no caselaw has

adopted the 90-day rule in the context of the IDEA.     The district

court correctly rejected the 90-day rule here.

           Under the facts of this case in light of all the

equities, recognizing the operative policies of the IDEA and

acknowledging all relevant statutes and regulations, we believe

that J.H.'s parents adequately placed in issue their

dissatisfaction with J.H.'s IEP for purposes of reimbursement at

the time they requested an administrative hearing in September of

1989.   Due process procedures were not activated at that time

only because the parties were attempting to negotiate a

settlement.   A formal request for due process was eventually made

when it became apparent that a resolution could not otherwise be

negotiated.   Although we cannot award compensation for

Bernardsville's past failure to provide J.H. a free appropriate

public education, we believe substantial justice can be achieved

by awarding reimbursement for tuition costs incurred while in

attendance at Landmark for the 1989-90 academic year.     We will

affirm the district court's award of reimbursement tuition costs

for the 1989-90 school year, excluding the costs associated with

room and board.16

16
 .        We reject the Board of Education's argument that
reimbursement for academic year 1989-90 should be precluded on
the ground that it was incapable of formulating a timely IEP for
that year, given the unilateral action of J.H.'s parents.
Bernardsville's long history with J.H. and its continued contact
with him and educational assessments of his progress after the
                               III.

          In light of the IDEA, 20 U.S.C. § 1415(e)(4)(B), which

provides that "the court, in its discretion, may award reasonable

attorneys' fees as part of the costs to the parents or guardian

of a handicapped child or youth who is the prevailing party," and

consistent with our holding, we must vacate the district court's

February 2, 1994 order awarding full attorneys' fees in the

amount of $91,494.85.   We find, however, that the district court

was correct in its rejection of the Board of Education's

contention that the court should disallow those fees associated

with J.H.'s parents' motion for summary judgment pertaining to a

statute of limitations issue on appeal.   We find that counsel for

J.H. has made "a good-faith effort to exclude from [the] fee

request hours that are excessive, redundant, or otherwise

unnecessary," and has exercised sound billing judgment as

required in Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)

(citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)

(en banc)).   We also find that the district court did not err in

its acceptance of the $235 hourly billing rate charged by counsel

for J.H. as reasonable in light of comparable prevailing rates.

          Furthermore, we agree with the district court that the

award of fees should not be reduced to reflect J.H.'s counsel's
(..continued)
unilateral act belie this contention. Under a just and proper
consideration of the equities and the court's discretionary power
to grant "appropriate" relief, which includes a qualified power
to grant retroactive reimbursement, we are convinced of the
appropriateness of an award for the 1989-90 year.
partial success by virtue of the district court's refusal to

award reimbursement costs for room and board as requested.    The

issue of reimbursement for residential costs involved a "common

core of facts" relative to the issue of tuition reimbursement,

was based on "related legal theories," and cannot be viewed as a

discrete claim capable of disassociation from the tuition claim

for purposes of awarding attorneys' fees.   Id. at 435.

Nevertheless, since J.H. has failed to prevail on his claim for

reimbursement costs for academic years 1987-88 and 1988-89, we

must remand to the district court to calculate an appropriate

reduced fee award to reflect the adjusted scope of J.H.'s

success.



                               IV.

           Lastly, the Board of Education argues that the district

court erroneously excluded the testimonies of Dr. Lynn Caravello,

the Director of Special Services at the time J.H. reentered the

Bernardsville School District in 1990, and Ms. Joanne Seelaus,

school psychologist, from the de novo hearing the district court

held.   The Board of Education sought to admit a joint report

prepared by Dr. Caravello and Ms. Seelaus which included a

reevaluation of J.H. in anticipation of his return and other

information relevant to the 1990-91 IEP prepared for J.H.

           During the prior administrative law hearing, the

administrative law judge had excluded this report.   Nevertheless,

Ms. Seelaus had offered testimony at the hearing on the Board's

behalf exclusive of matters concerning J.H.'s post-reentry
experience.   Dr. Caravello had also been present and available to

testify before the administrative law judge on June 4, 1991,

although she did not testify.

          At the district court hearing, the court excluded their

testimony in part on the ground that the IEP subsequently

developed for J.H. in 1990-91, which was not at issue in the

present litigation, was irrelevant to the issue of the

appropriateness of the public education offered to J.H. in the

prior contested years.   The district court further held that the

testimony would be cumulative and would improperly embellish

testimony previously given at the administrative hearing.     Order

of the District Court, Civ. No. 92-3694 (D.N.J. Sept. 9, 1993).

See Burlington v. Department of Education, 736 F.2d 773, 790-91

(1st Cir. 1984) ("additional evidence" under 20 U.S.C. §

1415(e)(2) "does not authorize witnesses at trial to repeat or

embellish their prior administrative hearing testimony"; the

trial court in its discretion must not allow "such evidence to

change the character of the hearing from one of review to a trial

de novo"), aff'd, 471 U.S. 359 (1985); Egg Harbor Township Board
of Education v. S.O., by his Guardian ad litem, R.O., Civil

Action No. 90-1043, slip op. at 3 n.1 (D.N.J. Aug. 19,

1992)("additional evidence" under 20 U.S.C. § 1415(e)(2) should

not be cumulative, introduced to impeach credibility of

administrative hearing witnesses, nor embellish testimony from

the administrative hearing, and should not have been available

for proffer during the administrative hearing).
          We do not find any error of law or abuse of discretion

in the district court's decision to exclude the joint report on

J.H.'s parents' motion in limine.   The Bernardsville School

District's performance with regard to the IEP it developed for

J.H. for the 1990-91 school year and for prospective years are

not at issue here and admission of the joint report would not

affect the disposition of this case.



                               V.

          We will thus vacate that portion of the district

court's November 15, 1993 judgment which awards J.H.'s parents

reimbursement for tuition at the Landmark School for the academic

years 1987-88 and 1988-89, and we will affirm that portion which

awards J.H.'s parents reimbursement for tuition at the Landmark

School for academic year 1989-90.   Although we agree with the

district court's designation of J.H.'s parents as a "prevailing

party" pursuant to 20 U.S.C. § 1415(e)(4)(B), we will vacate the

amount of attorneys' fees set by the district court by order

dated February 2, 1994, and remand to the district court for

recalculation.
BERNARDSVILLE BOARD OF EDUCATION V. J.H., ET AL.
NO. 93-5767



MCKEE, Circuit Judge, concurring in part and dissenting in part.

               I concur with Part IV of the majority opinion. In

addition, I agree that J.H.'s parents are entitled to

reimbursement for the 1989-90 academic year and thus concur with

Part II B of the majority opinion.   However, I believe that

J.H.'s parents are entitled to be reimbursed for 1987-88 and

1988-89 as well.   Therefore, I respectfully dissent from Part II

A of the majority opinion.

                                I.

               The majority errs by allowing the timeliness of

the parents' request for due process to define and control its

analysis.17 The majority states:
          [W]here proceedings were initiated more than
          two years after J.H.’s transfer, we must
          place into our equation the practical
          opportunity afforded the school district to
          modify its IEP or to determine definitively
          whether expenditures occurred outside the
          district could have been obviated by the
          filing of a prompt complaint. . . . We, of
          course, recognize that the school district
          has the duty in the first instance to provide
          an appropriate IEP, and moreover, to
          demonstrate by a preponderance at a due
          process hearing that the IEP it offered was
          indeed appropriate. With that foremost in
          mind, we must nevertheless also recognize
          that as a practical reality, and as a matter
          of procedural law of which J.H.’s parents
          were fully apprised, the right of review
          contains a corresponding parental duty to
     17
       Because I agree with much of the majority’s assessment of
this case, I take the liberty of quoting at length from the
majority opinion in explaining my reasons for dissenting.
          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 . . . . We think more
          than two years, indeed, more than one year,
          without mitigating excuse, is an unreasonable
          delay.

Majority opinion at 20-22 (footnote omitted).


                 I do not agree that the Act "contains a

corresponding parental duty."   The Act does not state that the

parental right to reimbursement is conditioned upon the parents'

request for a due process hearing.   Further, the Act does not

specify a time frame within which parents must seek evaluation of

an IEP upon pain of forfeiting their child’s right to the

benefits of the Act.    “[B]oth the parents and the district have

an interest in assuring that a handicapped child receives an

appropriate education."   Lascari v. Board of Educ., 560 A.2d

1180, 1188 (N.J. 1989) (emphasis added).   I fail to see where the

Act imposes the unilateral parental obligation to which the

majority refers and it clearly does not impose a time limitation

upon the district court's authority to grant retroactive

reimbursement.   The majority has effectively amended the Act in a

manner which is inconsistent with its purpose and with the

remedial authority that the Act vests in a district court.

                 A district court's power to award retroactive

reimbursement arises from its authority to grant relief that

effectuates the provisions of the Act.
          The statute directs the court to ‘grant such
          relief as [it] determines is appropriate.'
          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 relief is to be 'appropriate' in
          light of the purpose of the Act.


School Comm. of Burlington v. Department of Educ., 471 U.S. 359,
369 (1985) (emphasis added).   The purpose of the Act is "'to

assure that all handicapped children have available to them . . .

a free appropriate public education which emphasizes special

education . . . designed to meet their unique needs [and] to

assure that the rights of handicapped children and their parents

. . . are protected.'"   Id. at 367 (citing 20 U.S.C. § 1400(c)).

The Supreme Court in Burlington unequivocally declared that “a

free appropriate public education” means “special education and

related services which [] have been provided at public expense,

under public supervision and direction, and without charge . . .

.” Id. at 367-68 (quoting 20 U.S.C. § 1401(18)) (internal

quotation marks omitted).

               The Act clearly requires that a school district

provide a free appropriate education for eligible students.

Thus, the issue before us is not "whether J.H.'s parents

requested due process for their son within an appropriate time

limitation," as the majority states.   See majority opinion at 3.

Rather, the issue we should address is whether the requested

relief is "appropriate" in light of the purposes of the Act.
                 Accordingly, we must examine the circumstances

surrounding the request for reimbursement.    Our analysis should

examine the length of the delay in requesting formal due process

and the number of years for which compensation is requested, the

adequacy of the IEP that caused the parents to withdraw J.H., the

bona fides of the parties, and the school district's notice of

the problem and of the likelihood that it may be asked to

reimburse J.H.'s parents.

                 The Length of the Delay.

                 This is not a case of parents seeking

reimbursement for an entire elementary and secondary education

after allowing many years to pass before requesting a due process

hearing.    The delay in commencing due process was not exorbitant.

Moreover, "[t]he fact that here the regulations do not specify a

time limitation within which to bring a due process hearing, as

well as the very nature and social significance of the education

of children with disabilities, [should] incline us to equitable

considerations."    Majority opinion at 19.   Furthermore, although

the school district would no doubt prefer to avoid any additional

expenditures, the school district does not claim that the cost of

having to reimburse J.H.'s parents for J.H.'s entire three years

at Landmark will interfere with its ability to educate other

children.

                 The IEP.
                 The IEP that caused J.H.'s parents to withdraw him

from Bernardsville was, indeed, woefully inadequate.   The

majority opinion sets forth at length the inadequacy of that

IEP18 and appropriately concludes that “[t]he record bespeaks an

appalling failure on the part of the educational bureaucracy to

develop and implement an appropriate IEP.”    Majority opinion at

16-17.    Moreover,
            the district court concluded that the
            Bernardsville School District failed to
            confer upon J.H. even the minimally
            satisfactory educational benefit under the
            least stringent standard which could arguably
            have been applied, and that the IEPs
            developed for J.H. during the relevant school
            years were not reasonably calculated to
            confer an educational benefit. . . . [T]he
            district court affirmed the administrative
            law judge’s specific findings, including that
            the IEPs did not contain adequate statements
            of current educational status or measurable
            annual goals, were virtually redundant from
            year to year and hence unresponsive to J.H.’s
            apparent difficulties . . . .


Majority opinion at 14.    In short, "the IEP developed for [J.H.]

was both procedurally and substantively inadequate."    Majority

opinion at 20.    It is thus little wonder that J.H. failed to

progress educationally, socially, or developmentally from

kindergarten to seventh grade when his parents finally said

“enough” and withdrew him from the Bernardsville district.

                 The Good Faith of the Parties.



18
     See majority opinion at 10-11.
                "There is no evidence whatsoever that J.H.’s

parents acted in bad faith, and given the severe deficiencies in

the IEPs developed for J.H. at Bernardsville, it is clear that

J.H.’s parents acted reasonably . . . .”   Majority opinion at 19-

20. Indeed, given their concern for their child, they had no

option but to withdraw J.H. from the Bernardsville district.

                The good faith of J.H.’s parents is in stark

contrast to the attitude and behavior of the school district.

J.H.’s placement at Bernardsville was "inappropriate and not

reasonably calculated to confer educational benefit on J.H.”

Majority opinion at 7. “Year after year the School District

failed to design an Individualized Educational Program suitable

to J.H.’s special needs, and failed to intervene responsibly in

his quite apparent trend of academic and social deterioration.”

Majority opinion at 2.    Thus, the school district almost totally

disregarded its duty to J.H. and his welfare.

                Notice.

                The Bernardsville District had been aware of

J.H.’s developmental problems since J.H.'s enrollment in

kindergarten.   J.H. had been evaluated and assessed by the

appropriate school personnel since J.H.’s earliest days in the

Bernardsville School District.   Accordingly, “it is untenable for

the school district to maintain the argument that it was not

aware of a problem with the IEP it offered, virtually unmodified,

to J.H. year after year despite his lack of academic progress,
and in the face of his social regression.”   Majority opinion at

20.   Quite naturally, J.H.'s parents were dissatisfied, and the

school district was well aware of their dissatisfaction.   In

August of 1987, J.H.’s parents requested that school officials

place J.H. at Landmark.   Upon the district’s refusal to do so the

parents unilaterally withdrew J.H. and placed him at Landmark

themselves.

                               II.

                The majority's analysis fails to adequately

consider the totality of these factors which weigh so heavily in

favor of the parents. Instead, the majority leans with sufficient

force upon the parents' delay in requesting due process hearings

to tip the equitable balance in favor of the school district:
          We are cognizant of the fact that the school
          district serves a very large student
          population, and in light of the numerous
          contacts it has with parents seeking the
          individual welfare of their respective
          children, mere notice of parental
          "dissatisfaction" does not alone put the
          Board on reasonable notice that the parents
          will challenge a particular IEP in the future
          and seek reimbursement for an interim
          unilateral placement in a private
          institution.


Majority opinion at 20-21.   J.H.’s situation presents far more

than “mere notice of parental ‘dissatisfaction.’" This is not a

case of disgruntled and unrealistic parents who are concerned

that the school’s curriculum is not sufficiently challenging

their child.   Furthermore, the size of the student population and

the number of parental contacts is not pertinent to our inquiry.
An eligible child in a large urban school district is entitled to

the same free appropriate education as a child in the smallest

rural community.    The Act does not distinguish based upon the

size of the student population and we should not allow that

distinction to influence our analysis.    The school district’s

size is no excuse for its conduct in this case.

                  The Bernardsville District was clearly on notice,

albeit not through a formal due process request, that J.H.’s

parents wanted the school district to pay for the cost of

Landmark.   The district could have requested hearings in order to

have the adequacy of its IEP promptly determined and thereby

prevented the very problem it now complains of, notwithstanding

the majority’s conclusion that the Act imposes a unilateral

obligation on the parents. "When a dispute arises between the

board and the parents, either party has the right to resolve the

matter through an administrative proceeding known as an

`impartial due process hearing.'" Lascari, 560 A.2d at 1183

(citing 20 U.S.C. § 1415(b)(2)).

                  Courts have routinely held that equity requires

the burdens of the Act be placed on the school district and not

on the parents.    See McKenzie v. Smith, 771 F.2d 1527, 1531 (D.C.
Cir. 1985) (where district sought to change child's IEP, it had

the burden of proving that the proposed placement complied with

the requirements of the Act); Grymes v. Madden, 672 F.2d 321, 322

(3d Cir. 1982) (affirming district court's decision that the
district had "failed to sustain its burden of proof that an

appropriate public program existed"); Cf. S-1 v. Turlington, 635

F.2d 342, 348-49 (5th Cir.) (burden on district to question

whether student's misconduct is due to handicap because parents

lack expertise to develop an appropriate IEP for their child),

cert. denied 454 U.S. 1030 (1981), abrogated on other grounds by

Honig v. Doe, 484 U.S. 305 (1988).   It is understandable that a

school district may be reluctant to initiate formal proceedings

against a parent.   However, the district’s failure to do so ought

to be considered when it asserts that parental delay exonerates

it from its failure to provide a student with a free appropriate

public education.

               Moreover, an argument similar to that accepted by

the majority was rejected by the Supreme Court in Burlington.

The town in Burlington argued that the parents had forfeited

their claimed right to reimbursement for alternative placement by

removing their child from public school during the pendency of

administrative proceedings in violation of 20 U.S.C. §

1415(e)(3).19 The Supreme Court responded by stating:
          We do not agree with the Town that a parental
          violation of § 1415(e)(3) constitutes a
          waiver of reimbursement. The provision says
          nothing about financial responsibility,
          waiver, or parental right to reimbursement at
          the conclusion of judicial proceedings.
     19
       Section 1415(e)(3) states in part: "During the pendency
of any proceedings conducted pursuant to [§ 1415], unless the
State or local educational agency and the parents . . . otherwise
agree, the child shall remain in the then current educational
placement . . . ." 20 U.S.C. § 1415(e)(3) (1988).
          Moreover, if the provision is interpreted to
          cut off parental rights to reimbursement, the
          principal purpose of the Act will in many
          cases be defeated in the same way as if
          reimbursement were never available. . . . The
          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.


Burlington, 471 U.S. at 372.     This case is different because we

are concerned with parents who withdrew their child prior to

requesting administrative hearings.     Yet, the situation before us

is analogous to Burlington and the difference does not allow us
to abandon the Supreme Court's reasoning.

                                 III.

               We do not achieve “substantial justice” by

awarding reimbursement for the 1989-90 academic year and

requiring the parents to pay the remaining two thirds of J.H.’s

tuition expense.   See majority opinion at 26-27.    These parents

are seeking reimbursement, not damages.     “Reimbursement merely

requires the [Bernardsville School District] to belatedly pay

expenses that it should have paid all along and would have borne

in the first instance had it developed a proper IEP."

Burlington, 471 U.S at 370-71.

               The parents' request for the 1987-88 and 1988-89

academic years is appropriate and should be granted. Our failure

to affirm the district court effectively shifts most of the

obligation of providing an appropriate education from the Board
to the shoulders of J.H.'s parents.   Accordingly, I respectfully

dissent from Part II A of the majority opinion.
