                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-2-2004

H.W. v. Highland Park Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3309




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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       No. 03-3309


                         H.W. and J.W. O/B/O A.W., a Minor Child,
                                                      Appellees
                                           vs.

                   HIGHLAND PARK BOARD OF EDUCATION,
                                           Appellant
                              ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                        (D.C. Civ. No. 01-cv-05166)
                     District Judge: Mary Little Cooper
                                ____________

                             Argued July 15, 2004
               Before: SLOVITER, BARRY and WEIS, Circuit Judges.

                             (Filed: September 2, 2004)
                                      ____________




James L. Plosia, Jr., Esquire (ARGUED)
Apruzzese, McDermott, Mastro & Murphy, P.C.
25 Independence Boulevard, P.O. Box 112
Liberty Corner, New Jersey 07938

Attorney for Appellant


Nathan Lewin, Esquire (ARGUED)

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Alyza D. Lewin, Esquire
Lewin & Lewin, LLP
1828 L Street, N.W., Suite 1000
Washington, D.C. 20036

Michael I. Inzelbuch, Esquire
S.I. Bank & Trust Building
555 Madison Avenue
Lakewood, New Jersey 08701

Attorneys for Appellees

Abba Cohen, Esquire
Agudath Israel of America
1730 Rhode Island Avenue, Suite 504
Washington, D. C. 20036

David Zwiebel, Esquire
Mordechai Biser, Esquire
Agudath Israel of America
42 Broadway, 14th Floor
New York, New York 10004

Yehuda L. Neuberger, Esquire
59 Maiden Lane, Plaza Level
New York, New York 10038

Amicus Curiae Agudath Israel of America In Support of Appellees

                                     ____________

                               OPINION OF THE COURT


WEIS, Circuit Judge.

             This appeal is from the entry of judgment in favor of H.W. and his wife on

a claim for reimbursement of expenses incurred in a unilateral placement of their



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daughter, A.W., at a private school for the disabled. Because the facts are well known to

the parties and were exhaustingly developed in lengthy administrative proceedings, as

well as thoroughly explored in the District Court’s opinion, we will refer to them only as

necessary to the understanding of the legal issues.

              A.W., born on April 28, 1989, had learning difficulties in pre-school and

the primary grades. She was classified as perceptually impaired and diagnosed as

suffering from Attention Deficit Hyperactivity Disorder, Mixed Adjustment Disorder,

Motor Coordination Disorder, and Asperger’s Syndrome (a form of autism).

              In August 2000, the Highland Park School District proposed a placement

for A.W. in the Bartle School. The parents rejected this plan and enrolled their daughter

in Sinai Special Needs Institute at the Kushner Hebrew Academy, a private school for the

disabled. The Bartle plan called for A.W. to be in a co-ed class of eight students. In

addition to Ms. Lois Brown, a teacher who was familiar with Asperger’s Syndrome, two

para-professionals would be present with the likelihood that a third would be added if

A.W. were enrolled.

              A.W. would receive one-on-one instruction in language arts, reading and

mathematics. She would also receive occupational therapy, speech therapy, and physical

therapy. Moreover, the District also expected to develop and implement a behavior

modification plan. A.W. would attend mainstream classes with other children in her age

group in art, music, physical education, health, as well as lunch and recess.



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              At the Sinai School, A.W. received instruction in mathematics and social

studies with five other girls, one of whom had Asperger’s Syndrome and the other four of

whom had learning disabilities. She also attended a science class with one other girl. The

Sinai School had an excellent social skills development department and employed a full-

time school psychologist. A.W. attended mainstream lunch and it was planned that she

would also attend mainstream physical education and synagogue.

              A.W . remained in the Sinai School until the family moved to Israel in 2003.

The parents’ claim is for their expenditures at the Sinai School for the school years

beginning in September 2000, 2001 and 2002.

              A very patient ALJ presided over extensive presentation of evidence by two

committed and loquacious advocates in the due process administrative proceeding. At the

conclusion of the hearings, the ALJ stated, “I find Highland Park’s proposed placement of

A.W. did not violate IDEA . . . I find all of Highland Park’s actions after A.W. enrolled in

the Highland Park School District lead to the conclusion that Highland Park would meet

its responsibilities to A.W. . . . petitioner did not give Highland Park the opportunity to

provide FAPE [free appropriate public education] to A.W.”

              The plaintiffs appealed to the District Court for the District of New Jersey.

After presenting oral arguments on legal issues, the parties stipulated to submit the case

on the administrative record with no further evidence.




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              The District Court reviewed the record and wrote a comprehensive opinion,

concluding that Sinai was an appropriate placement and that A.W. had shown

improvement there. The Court also held that the School District’s proposal did not

provide an appropriate placement and entered judgment against it.

              The District Court’s determination rested on three factors:

              1.     Plaintiffs’ experts Trigani and Handleman had “a
                     deeper knowledge of Asperger’s Syndrome” than the
                     defendant’s expert;

              2.     The Highland Park Child Study Team of Bartle
                     School had not met with A.W. before deciding on her
                     placement; and

              3.     Defendant’s expert findings based on a 1996 test were
                     inconsistent with those of other examiners.

              The District Court held that, even though Sinai was a private parochial

school, nevertheless reimbursement to the parents was permissible. We do not reach that

issue and intimate no views on it. On appeal, the defendant contends that the District

Court erred in considering A.W.’s placement in 1996 and 1997, and failed to give due

weight to the ALJ’s decision.

              Our standard of review is plenary. S.H. v. State-Operated Sch. Dist. of the

City of Newark, 336 F.3d 260 (3d Cir. 2003). See also D.R. v. E. Brunswick Bd. of

Educ., 109 F.3d 896 (3d Cir. 1997); Carlisle Area Sch. v. Scott P., 62 F.3d 520 (3d Cir.

1995). The District Court’s standard of review is described as modified de novo. See

S.H., 336 F.3d at 269-70.

                                             5
             District Courts are to give due weight to the factual findings of an ALJ in

IDEA cases. See Board of Education v. Rowley, 458 U.S. 176, 206 (1982); S.H., 336

F.3d at 269-70. W e recently had occasion to discuss the appropriate standard.

       [I]f a state administrative agency has heard live testimony and has found
      the testimony of one witness to be more worthy of belief than the
      contradictory testimony of another witness, that determination is due special
      weight. Id.; Carlisle Area School v. Scott P., 62 F.3d 520, 527-29 (3d Cir.
      1995). Specifically, this means that a District Court must accept the state
      agency’s credibility determinations “unless the non-testimonial, extrinsic
      evidence in the record would justify a contrary conclusion.” Carlisle, 62
      F.3d at 529 (emphasis added). In this context the word “justify” demands
      essentially the same standard of review given to a trial court’s findings of
      fact by a federal appellate court. See Anderson v. City of Bessemer City,
      N.C., 470 U.S. 564, 574 (1985).
                    When a District Court decision in a case such as this is
      appealed to us, we of course exercise plenary review with respect to the
      question of whether the District Court applied the correct legal standard, see
      Polk, 853 F.2d at 181, but we review the District Court’s factual findings
      for clear error. T.R. v. Kingwood Tp. Bd. of Educ., 205 F.3d 572, 576 (3d
      Cir. 2000). “A finding of fact is clearly erroneous when, after reviewing
      the evidence, the court of appeals is left with a definite and firm conviction
      that a mistake has been committed.” Oberti, 995 F.2d at 1204 (internal
      quotation marks omitted). Shore Reg’l High Sch. Bd. of Educ. v. P.S., ___
      F.3d ___, at ___ - ___ (3d Cir. 2004).




                                               6
              Where the court does not hear additional evidence, factual support for

findings contrary to those of the ALJ must be found in the record. “Moreover, the court

must explain why it does not accept the ALJ’s findings of fact to avoid the impression

that it is substituting its own notions of sound educational policy for those of the agency it

reviews.” S.H., 336 F.3d at 270.

              The issue in the case before us is not determined by comparison between

the programs at Highland and Sinai. As we explained in Shore Reg’l High Sch. Bd. of

Educ., ___ F.3d at ___ - ___, where “parents seek reimbursement for a unilateral

placement, the District Court must first determine whether the IEP afforded the student a

FAPE.” A comparison between the two programs is irrelevant to the adequacy of the

proposed placement under IDEA.

              Moreover, the propriety of an IEP must be judged prospectively. See

Carlisle Area Sch., 62 F.3d at 530. The IDEA does not require a school district to

provide the best possible education, but it must be more than de minimus. IDEA demands

an Individualized Education Program that will result in some measurable benefit. The

benefit must be gauged in relation to the child’s potential. Polk v. Central Susquehanna

Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988); see also Carlisle Area Sch., 62 F.3d

520.

              The education must be delivered in the least restrictive appropriate

environment. See 20 U.S.C. § 1412(a)(5)(A). See also Carlisle Area Sch., 62 F.3d at



                                              7
533. The School District has the burden to prove that its proposed program was

appropriate. Oberti v. Bd. of Educ., 995 F.2d 1204 (3d Cir. 1993).

                We have pored through the extensive record in this case and it is clear that

the District Court diligently reviewed the matter. Nonetheless, despite the competence

displayed by the District Court, we have differing views on several significant factors

underlying the grant of judgment for the parents.

                Although the Court faulted the School Board for preparing a proposal

without meeting with A.W., the transcript demonstrates that such a meeting was indeed

held in early August 2000. It was part of the process leading to a recommendation for

placement of A.W. in September 2000. See J.A. at 730, 746, 1499 & 1500.

                The court concluded that the plaintiff’s experts, Drs. Trigani and

Handleman, had a deeper knowledge of Asperger’s Syndrome than Ellyn Atherton, the

School District expert. However, Dr. Handleman’s testimony did not support A.W.’s

position that Highland Park would not provide an appropriate program. In his view, A.W.

should not have been moved because she was thriving at Sinai as of October 2000. When

questioned directly about whether the Highland Park proposal was appropriate, he said

“the issue of assessing whether any program is appropriate is really a non-issue for me.”

J.A. at 1232.

                When asked whether any other consideration made Highland Park

inappropriate, Dr. Handleman responded: “[Regression] is the major factor.” J.A. at



                                               8
1233. “Movement would not be appropriate for her . . . regardless of . . . what program.”

J.A. at 1233-34. “. . . the issue of whether or not Highland Park could provide an

appropriate program becomes a non-issue at that point, because my strong feeling was

that A. should not be moved from her current placement.” J.A. at 1240-41.

                 Dr. Handleman did concede that when he visited the Bartle School Special

Education Class in October 2000, he “didn’t see anything at that point that would indicate

any particular concern.” J.A. at 1240. He added that “[i]f it was judged that she was

ready for a move, that the Highland Park program or some other program could be

appropriate for her.” J.A. at 1264. Furthermore, he stated that “[t]here was nothing at

that point to suggest that the component [at Bartle] couldn’t be enhanced or developed.”

J.A. at 1265. In sum, Dr. Handleman did not opine that Highland Park’s program was

inappropriate.

                 Dr. Trigani’s testimony was lengthy, often repetitious, and frequently

devoted to conditions at Sinai, an issue not relevant in appraising the program at Highland

Park. His objections to the Highland Park program centered on the fact that the class size

would be nine, and that he believed that none of the children in that class would be

potential friends for A.W. He conceded, however, that the Bartle class would not be

above the legal maximum number of students He noted that “Highland Park is in

compliance with the law, but acceptable practice goes far in excess of maximum limits

and goes down to one-on-one pretty much.” J.A. at 822.



                                                9
              Dr. Trigani also was critical of Highland Park’s lack of experience in

dealing with Asperger’s Syndrome children in a self-contained program, lack of success

and failure to have a behavioral plan. All of these factors were contradicted by the

District’s expert.

              Defendant’s expert Ellyn Atherton has a Masters Degree in speech and

language pathology and audiology. She has taught at Highland Park for 24 years,

including students who had Asperger’s Syndrome. She described the proposed placement

in her testimony before the ALJ. At the Bartle school, A.W. would be placed in Lois

Brown’s special education classroom.

              The credibility of the expert witnesses was a matter for determination by the

ALJ, who had the opportunity to hear and evaluate their demeanor and persuasiveness.

Our study of the transcript and giving due weight to the findings of the ALJ does not lead

us to disagree with his determination of the facts and credibility of the witnesses.

Moreover, we are impressed with the qualifications of Ms. Lois Brown, who was the

teacher assigned by Highland Park to conduct the special education class. She had more

than 14 years experience in the field of special education, including Asperger’s

Syndrome.

              Dr. Handleman’s fear of regression in the event of transfer, while an

obvious concern to the parents, is irrelevant to the legal issue in this case - whether the

Highland Park proposal was appropriate under IDEA. Just as comparison with Sinai’s



                                              10
program is not a proper subject for evaluation, the possibility of regression caused by

transfer from that school, where the parents unilaterally placed their daughter, has no

bearing on the Highland Park program’s compliance with IDEA. Although Dr. Trigani

favored an all-girl class for A.W., he failed to provide any professional research to

support that view as a critical element in the Highland Park plan. In short, the record is

devoid of any non-testimonial, extrinsic evidence that would justify a conclusion contrary

to the ALJ decision.

              It is important to emphasize once again that the ALJ found that, based upon

its actions, it was reasonable to presume that Highland Park would meets its obligations

to provide an appropriate education to A.W. However, by preemptively placing and

continuing the child in classes at Sinai, the parents did not give the school district the

opportunity to provide a free and appropriate education.

              We conclude, therefore, that the District Court’s decision was not supported

by the record and, accordingly, the judgment in favor of the parents will be reversed.




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