                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 08-4841
                                     ____________

                                        N.M.,
                          A minor, by and through his parents;
                                        M.M.;
                            L.M., and on their own behalf,
                                                  Appellants

                                            v.

                    THE SCHOOL DISTRICT OF PHILADELPHIA
                                ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 08-cv-01162)
                    District Judge: Honorable Joseph E. Irenas
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 14, 2010
                                    ____________

                Before: SLOVITER, BARRY and SMITH, Circuit Judges

                          (Opinion Filed: September 20, 2010)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      L.M. and M.M., individually and on behalf of their minor son, N.M., (collectively

“Appellants”), appeal the District Court’s judgment granting the School District of
Philadelphia’s (“District”) motion for judgment on the administrative record. We will

affirm.

                                                I.

          Because we write solely for the parties, we discuss only the facts relevant to our

analysis.

          When this dispute arose in 2007, N.M. was eight years old and suffered from a

pervasive development disorder that caused him to be challenged in his language skills

and auditory processing. He also had socialization, attentiveness, and distractibility

impairments. He spent his first two years of school at Stratford Friends School (“ASFS”),

a private school for students with disabilities, typically language-based learning

disabilities.

          In March 2007, a full auditory processing battery was completed.

Recommendations included using preferential seating and slow, clear speech; multi-

modal learning strategies that present information in ways other than audition only; and

repetition and redundancy. In April 2007, Dr. Leonard Auritt, a school psychologist,

evaluated N.M. Dr. Auritt recommended, among other things, that N.M. be provided

support to develop his expressive language skills; demonstrations, modeling, and guided

practice; interaction with nonhandicapped students; and “intensive multi-sensory,

structured, language-based instruction that offers [N.M.] rigorous instruction

commensurate with his average ability to learn.” (A219.) According to Dr. Auritt,

“[r]emoving [N.M.] from a regular school environment may be counterproductive to

                                                2
developing age appropriate social skills.” (A218.)

       With those reports, and others, as a backdrop, the District proposed an

Individualized Education Program (“IEP”) for N.M.’s second grade, 2007-08 school year

that split his instructional time between a special education learning support classroom

and a regular education classroom. In both classrooms, N.M would receive a one-to-one

assistant to help with transitioning, distractibility, and language processing.

The IEP provided for a “multisensory instructional program moving step by step from

simple to more complex material in a sequential, logical manner through visual, auditory,

kinesthetic, and tactile strategies and approaches.” (A232.) Other accommodations

included small group instruction; use of kinesthetics in decoding practice; preferential

seating; structured peer interaction opportunities; visual supports; rephrasing instructions;

verbal prompting; modeling; slower rate of speech; and repeat directions.

       Appellants rejected the proposed IEP, requested a due process hearing, and

enrolled N.M. in SFS for the 2007-08 school year. The Hearing Officer concluded that

N.M. was not eligible for tuition reimbursement because the IEP provided a free

appropriate public education (“FAPE”), and, in the alternative, because SFS was an

inappropriate placement due to its failure to comply with the Individuals with Disabilities

Education Act’s (“IDEA”) least restrictive environment requirement. The Special

Education Appeals Panel affirmed, finding the IEP appropriate.

       Appellants filed an action in federal court seeking tuition reimbursement. After

admitting additional evidence not admitted at the due process hearing, the District Court

                                              3
granted the District’s motion for judgment on the administrative record and denied

Appellants’ motion for summary judgment. The Court concluded that the IEP provided

N.M. with a FAPE and, in the alternative, that placement at SFS was not the least

restrictive environment.1

                                             II.

                                             A.

       Where a state has a two-tiered administrative structure, the federal court begins its

review with the appellate opinion. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528-29 (3d

Cir. 1995). A district court reviews the administrative determination under a modified de

novo standard.2 L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006). Factual

findings are based on a preponderance of the evidence with “due weight” afforded to the

agency’s determinations. Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199



1
 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We
have jurisdiction pursuant to 28 U.S.C. § 1291.

2
  Appellants contend that the District Court should have reviewed this matter de novo,
rather than under the modified de novo standard, due to the Hearing Officer’s failure to
include all exhibits in the administrative record. However, any purported error is of no
moment for two reasons. First, the District Court properly supplemented the
administrative record with the exhibits introduced at the due process hearing. See Oberti
v. Bd. of Educ. of Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir. 1993). Second, the
District Court noted that “even under a de novo standard, the result would be the same.”
(A11.) We see no reason to deviate from our traditional standard of review and, even if
we did, it would not alter our decision. See S.H. v. State-Operated Sch. Dist. of Newark,
336 F.3d 260, 271 (3d Cir. 2003) (“Even if [a] [d]istrict [c]ourt applied the wrong
standard of review, we may still uphold its decision if correct under the appropriate
standard of review.”).


                                             4
(3d Cir. 2004). We exercise plenary review over questions of law. Ramsey Bd. of Educ.,

435 F.3d at 389. Where, as here, a district court supplements the administrative record,

we review factual findings for clear error. Oberti, 995 F.2d at 1220.

                                             B.

       Appellants seek reimbursement of the costs incurred from the unilateral placement

of N.M. in SFS. See 20 U.S.C. ' 1412(a)(10)(C)(i)-(ii). Reimbursement of tuition is

appropriate where both “the public placement violated IDEA and . . . the private school

placement was proper under the [IDEA].” Florence County Sch. Dist. Four v. Carter,

510 U.S. 7, 15 (1993). Appellants argue that the proposed IEP did not provide N.M. with

a FAPE because it did not provide full-day, small group multisensory structured language

based instruction from sufficiently trained teachers. A school district provides a FAPE by

designing and administering an IEP “reasonably calculated to enable the child to receive

meaningful educational benefits in light of the student’s intellectual potential.” Shore

Reg’l High Sch. Bd. of Ed., 381 F.3d at 198 (quotation omitted). Here, the District Court

concluded that N.M. would receive meaningful educational benefits from the proposed

IEP. (A19.) We agree.

       The proposed IEP provides for multisensory structured language based instruction

to be provided across all educational environments throughout the day by two special

education teachers, one regular education teacher, and a one-to-one assistant, all of whom

were, or were to be, trained in multisensory structured language based instruction. Other

modifications and accommodations also addressed N.M.’s needs, such as preferential

                                             5
seating, small group instruction, use of slower speech, repetitive instructions, and visual

supports. Moreover, the proposed IEP provides for social interaction by N.M. with non-

disabled peers. Accordingly, the District Court did not clearly err in concluding that the

proposed IEP was reasonably calculated to provide meaningful educational benefits.3

                                                C.

         Appellants also argue that N.M.’s IEP is procedurally flawed because it lacks

annual goals and short-term objectives responsive to his auditory processing delay,

inattentiveness, distractibility, and social skills deficit. A procedural violation of the

IDEA is actionable only if the purported violation impedes the child’s right to a FAPE,

significantly impedes the parents’ participation rights, or causes a deprivation of benefits.

See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007) (citing 20 U.S.C. '

1415(f)(3)(E)). Because the proposed IEP provides a FAPE and because Appellants have

not demonstrated any impediment of their participation or deprivation of educational

benefits, we reject this contention.4

                                               III.

         We will affirm the order of the District Court.




3
    In light of this holding, we need not address the District Court’s alternative rationale.

4
  We also reject Appellants’ claim for attorneys’ fees given that they are not prevailing
parties. See 20 U.S.C. § 1415(i)(3)(B).


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