                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2000

T.R. v. Bd Ed Kingwood Twp
Precedential or Non-Precedential:

Docket 99-5021




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Filed March 9, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5021

T.R.; E.M.R., ON BEHALF OF THEIR MINOR CHILD, N.R.,
       Appellants

v.

KINGWOOD TOWNSHIP BOARD OF EDUCATION,
HUNTERDON CO., NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey

(No. 97-2129 (MLC))
District Judge: Honorable Mary L. Cooper

Argued: November 18, 1999

Before: ALITO, BARRY, and STAPLETON, Circuit   Judges.

(Opinion Filed: March 9, 2000)

       MICHAELENE LOUGHLIN (Argued)
       Loughlin & Latimer
       131 Main Street, Suite 235
       Hackensack, NJ 07601

       JANET J. STOTLAND
       The Education Law Center
        of Pennsylvania
       Philadelphia, PA

       Counsel for Appellants




       LINDA D. HEADLEY
       CANDICE SANG-JASEY
       New Jersey Protection and
        Advocacy, Inc.
       210 South Broad Street, Third Floor
       Trenton, NJ 08608

       Counsel for Amici Curiae
       in Support of Appellants

       BRIAN J. DUFF, ESQ. (Argued)
       Lamb, Hartung, Kretzer, Reinman
        & DePascale
       601 Pavonia Avenue
       Jersey City, NJ 07306

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Plaintiff N.R., through his parents, T.R. and E.M.R.,
brought this action against the Kingwood Township Board
of Education ("the Board") under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.SS 1400-91
(1994), requesting reimbursement for private school tuition
and support services. N.R. claims that the Board's proposed
placement failed to provide him with a meaningful
educational benefit in the least restrictive environment, as
required by the IDEA. The District Court granted summary
judgment in favor of the Board.

We affirm the District Court's holding that the Kingwood
placement provided N.R. with a sufficient educational
benefit to constitute a "free and appropriate public
education." However, we vacate the court's holding that the
Kingwood placement constituted the least restrictive
environment, and we remand for a determination of
whether the Board failed to consider any appropriate, state-
qualified alternate placements within a reasonable distance
of N.R's residence.

                               2


I.

N.R. was born on September 7, 1991, and was classified
as preschool handicapped in 1994. During the summer of
1996, N.R.'s parents met with Board officials to discuss an
Individualized Education Program ("IEP") for N.R. for the
1996-97 school year. The Board's child study team
determined that N.R. had the skills to begin kindergarten in
the fall of 1996 and recommended his placement in the
Kingwood School's regular kindergarten program. On
August 2, 1996, however, T.R. and E.M.R. rejected this
proposed placement, stating that they planned to send N.R.
to preschool for another year.1

At that time, Kingwood Township did not offer a regular
preschool program for non-disabled children. Rather, the
Township offered a single, half-day preschool class
composed of half disabled children and half non-disabled
children. The Board drafted a new IEP which provided for
N.R.'s placement in this class, with afternoon placement in
the school's resource room. N.R.'s parents rejected this
proposal and informed the Board that they planned to have
N.R. spend the next year at the Rainbow Rascals Learning
Center ("Rainbow Rascals"), a private daycare center that
N.R. had attended the previous year. At the time, Rainbow
Rascals was not accredited as a preschool by the State of
New Jersey or by any independent educational
accreditation agency. Nevertheless, T.R. and E.M.R.
requested that the Board pay for N.R.'s tuition at Rainbow
Rascals and provide supplemental special education
services there.

The Board filed for due process, seeking a determination
that its 1996-97 IEP provided N.R. with a free appropriate
public education in the least restrictive environment as
required by the IDEA. The Administrative Law Judge found
that Kingwood Township's kindergarten program satisfied
the IDEA's requirements and that the Board should not be
liable for the parents' decision to keep N.R. at Rainbow
Rascals.
_________________________________________________________________

1. N.R. would have turned five the week that school began, and New
Jersey law does not require a parent to enroll a child in kindergarten
until the child has reached the age of six.

                                3


In April 1997, N.R.'s parents filed suit on his behalf in
District Court. They alleged, inter alia, that the ALJ had
erred in finding that the Board's proposed IEPs had offered
N.R. a free appropriate public education in the least
restrictive environment. The parties filed cross-motions for
summary judgment, and the District Court granted
summary judgment in favor of the Board. The District
Court found that the 1996-97 IEP (consisting of placement
in Kingwood's half-day preschool class and resource room)
provided N.R. with a free, appropriate public education by
offering more than a trivial education benefit. See T.R. v.
Kingwood Township Bd. of Educ., 32 F. Supp. 2d 720, 728-
29 (D.N.J. 1998). The court pointed to testimony by the
Board's expert witnesses, Dr. Frances Hobbie and Dr. Leslie
Callanan, who stated that the Kingwood program would
meet N.R.'s educational needs. The court also referenced
the testimony of Darlene Johnson, the teacher of the
Kingwood preschool class, who stated that she was familiar
with N.R.'s IEP and would work to implement it on a daily
basis.

In addition, the District Court found that the Kingwood
class constituted the least restrictive environment for N.R.
under the IDEA. See id. at 730. Finally, the court held that
Rainbow Rascals could not be considered as a possible
placement for N.R. because it was not accredited by the
state. See id. at 730-31.

N.R. and his parents appeal, seeking reimbursement for
N.R.'s tuition at Rainbow Rascals and for his therapy costs
for the 1996-97 school year.

We exercise jurisdiction pursuant to 20 U.S.C.
S 1415(i)(2). We exercise plenary review of the legal
standard applied by the District Court. See Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171, 181 (3d
Cir. 1988). However, we must accept the District Court's
findings of fact unless they are clearly erroneous. See Oberti
v. Board of Educ. of Borough of Clementon Sch. Dist. , 995
F.2d 1204, 1220 (3d Cir. 1993).

II.

The IDEA requires states receiving federal funding under
the Act to have "in effect a policy that ensures all children

                               4


with disabilities the right to a free appropriate public
education." 20 U.S.C. S1412(1). Where a state fails to
satisfy this statutory mandate, parents have a right to
reimbursement for private school tuition. See Burlington v.
Department of Educ. of Commonwealth of Mass., 471 U.S.
359, 370 (1985). Appellants argue that the District Court
erred in finding that the Board's 1996-97 IEP provided N.R.
with a free appropriate public education because the Court
applied an incorrect legal standard and failed to conduct an
independent review of the record. We reject this argument.
Although it appears that the District Court did apply an
incorrect legal standard, it is also apparent that the Board
introduced more than sufficient evidence to prove, under
the proper standard, that the Kingwood preschool
placement provided a free and appropriate education
(hereinafter "FAPE") for N.R.

The Supreme Court has construed the statute's FAPE
mandate to require "education specially designed to meet
the unique needs of the handicapped child, supported by
such services as are necessary to permit the child`to
benefit' from the instruction." Hendrick Hudson Dist. Bd. of
Educ. v. Rowley, 458 U.S. 176, 188-89 (1982). The
education provided must "be sufficient to confer some
educational benefit upon the handicapped child," id. at
200, although the state is not required to "maximize the
potential of handicapped children." Id. at 197 n.21. Prior to
the District Court's decision in this case, our Court
interpreted Rowley to require that an IEP offer "more than
a trivial or de minimis educational benefit." Oberti, 995
F.2d at 1213; see also Polk, 853 F.2d at 179 (IDEA "calls
for more than a trivial educational benefit"). Specifically, we
said that a satisfactory IEP must provide "significant
learning" and confer "meaningful benefit." Polk, 853 F.2d at
182, 184.

The District Court, in apparent reliance on these
precedents, focused its review on "whether [N.R.'s] IEP was
sufficient to confer an educational, nontrivial benefit on
him," and concluded that it was. T.R., 32 F. Supp. 2d at
728. However, in our most recent explication of the FAPE
standard, our Court squarely held that "[t]he provision of
merely `more than a trivial educational benefit' does not

                               5


meet" the meaningful benefit requirement of Polk.
Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir.
1999). By failing to inquire into whether the Board's IEP
would confer a meaningful educational benefit on N.R., the
District Court applied the incorrect legal standard on this
issue.2

Nevertheless, we believe that the evidence on which the
District Court relied amply satisfies the somewhat more
stringent "meaningful benefit" test. As the District Court
noted, both Dr. Callanan and Dr. Hobbie testified to the
benefits N.R. would receive from resource-room work in the
areas of communication and motor skills. (App. 32, 45.) Dr.
Hobbie also noted the educational advantages of the
Kingwood preschool program, including small class size, a
full-time aide, and the presence of supplemental staff and
a child study team on premises. (App. 38-39.) Darlene
Johnson, the teacher of the Kingwood preschool class,
testified that she would implement N.R.'s IEP on a daily
basis in her class. (App. 34-35.) The District Court's
decision to credit this testimony is a finding of fact and is
entitled to deference in the absence of clear error. See
Oberti, 995 F.2d at 1220. In light of this credible evidence,
we believe that the Board satisfied its burden to show that
N.R. would receive a meaningful educational benefit from
the Kingwood preschool program.

Appellants also argue that the District Court failed to give
adequate consideration to N.R.'s individual potential in
concluding that the Kingwood IEP was appropriate. In
Ridgewood, this Court reiterated that the educational
benefit of an IEP "must be gauged in relation to a child's
potential." 172 F.3d at 247 (quoting Polk, 853 F.2d at 185).
To fulfill this mandate a district court must"analyze the
type and amount of learning" of which the student is
capable. Ridgewood, 172 F.2d at 248.
Contrary to appellants' suggestion, the District Court did
address N.R.'s specific needs in its analysis. The Court
noted that "Dr. Frances Hobbie stated that the[Kingwood]
_________________________________________________________________

2. Although the District Court did cite to Polk, it explicitly--and
erroneously--applied a "more than trivial benefit" standard. See T.R., 32
F. Supp. 2d at 728.

                               6


preschool program would . . . suit N.R.'s needs," and the
Court cited to the portion of Dr. Hobbie's testimony that
specifically discussed those needs. T.R., 32 F. Supp. 2d at
728. For example, Dr. Hobbie discussed the specific
benefits that N.R. could obtain from resource room work:

       I like some individual attention to the areas of need.
       . . . I would definitely think that it would be
       tremendously beneficial for [N.R.] to have some speech
       language therapy individually . . . certainly in the
       resource center I would like to see him get some really
       individual work on speech language.

       As far as the motor component where he has some
       difficulty, that again could be worked on in that special
       program.

(App. 45.)

The District Court also cited Dr. Callanan's testimony, in
which she further addressed N.R.'s specific needs and
capabilities. See T.R., 32 F. Supp. 2d at 729. Dr. Callanan
opined that "N.R.'s particular difficulties" did not
necessitate a full-day preschool program. (App. 8.) She
noted that N.R.'s participation in lunch and recess in the
Kingwood program would provide "additional time for
socialization." (App. 8.) She further testified that N.R. would
benefit from time in the resource center at Kingwood
because of "his need for additional time to rehearse skills"
(App. 20) and noted that "N.R.'s motoric [sic] difficulties and
his communication difficulties could be greatly benefitted
by resource center placement." (App. 32.) This testimony--
which was referenced by the District Court in support of its
holding--explicitly assessed the Kingwood IEP in light of
N.R.'s individual needs and potential.

In sum, the District Court's failure to enunciate the
correct "meaningful benefit" test is not fatal to its
determination that the 1996-97 IEP offered N.R. a free
appropriate public education. Even under the proper
standard, the evidence in the record is more than sufficient
to support a finding that the Kingwood program would
confer on N.R. a meaningful educational benefit in light of
his individual needs and potential.

                               7


III.

A.

The IDEA also contains a "mainstreaming" component,
which requires states to establish "procedures to assure
that, to the maximum extent appropriate, handicapped
children . . . are educated with children who are not
handicapped." 20 U.S.C. S 1412(5)(B) (1994).3 We have
interpreted this mandate to require that a disabled child be
placed in the least restrictive environment (hereinafter
"LRE") that will provide him with a meaningful educational
benefit. "The least restrictive environment is the one that,
to the greatest extent possible, satisfactorily educates
disabled children together with children who are not
disabled, in the same school the disabled child would
attend if the child were not disabled." Carlisle Area Sch. v.
Scott P., 62 F.3d 520, 535 (3d Cir. 1995). Appellants
contend that the District Court erred in finding that the
Kingwood preschool program was the LRE for N.R. We
agree with the appellants that the Court failed adequately
to investigate potential alternative placements, and we
remand for consideration of this issue.

In Oberti, this Court adopted a two-part test for assessing
compliance with the LRE requirement. First, the Court
must determine "whether education in the regular
classroom, with the use of supplementary aids and
services, can be achieved satisfactorily." Oberti, 995 F.2d at
1215. Factors the Court should consider in applying this
prong are: (1) the steps the school district has taken to
accommodate the child in a regular classroom; (2) the
child's ability to receive an educational benefit from regular
education; and (3) the effect the disabled child's presence
has on the regular classroom. See id. at 1215-17. Second,
if the Court finds that placement outside of a regular
_________________________________________________________________

3. In 1997, Congress amended the IDEA, recodifying the definition of
least restrictive environment at 20 U.S.C. S 1412(a)(5)(A) (1998 Supp.)
and adding a new provision that requires that state special education
funding formulas not result in restrictive or segregated placements, see
20 U.S.C. S 1412(a)(5)(B) (1998 Supp.). Because the Kingwood IEP was
formulated prior to 1997, the amendments do not apply in this case.

                               8
classroom is necessary for the child's educational benefit, it
must evaluate "whether the school has mainstreamed the
child to the maximum extent appropriate, i.e., whether the
school has made efforts to include the child in school
programs with nondisabled children whenever possible." Id.
at 1215. These requirements apply to preschool children,
see 34 C.F.R. S 300.552, and the Board bears the burden
of proving compliance with the IDEA's mainstreaming
requirement. See Oberti, 995 F.2d at 1215.

B.

The peculiar facts of this case make a mechanical
application of the Oberti test difficult. As the District Court
correctly noted, the Kingwood preschool program"cannot
be described as a typical `regular class,' nor is it a typical
special education class; half of the children in the class are
handicapped, and any preschool child living in Kingwood
Township may apply to attend the program." T.R., 32 F.
Supp. 2d at 730. Nevertheless, it is clear that the Kingwood
preschool class is, under the terms of the IDEA, more
restrictive than a "regular," fully-mainstreamed preschool
class would be. Indeed, the Kingwood program's statement
of philosophy states that it "has been designed to meet the
needs of Kingwood Township students ages three through
five who have an identified disabling condition or a
measurable developmental impairment and who would
benefit from special education." (App. 100) (emphasis
added).

Certainly, the IDEA does not contemplate "an all-or-
nothing educational system in which handicapped children
attend either regular or special education." Oberti, 995 F.2d
1204, 1218 (quoting Daniel R.R. v. State Bd. of Educ., 874
F.2d 1036, 1050 (5th Cir. 1989)). However, we believe that,
under the IDEA's strict mainstreaming requirement, a
hybrid preschool program like Kingwood's would ordinarily
provide the LRE only under two circumstances: first, where
education in a regular classroom (with the use of
supplementary aids and services) could not be achieved
satisfactorily or, second, where a regular classroom is not
available within a reasonable commuting distance of the
child.

                               9


The record contains no indication that N.R. could not
have been educated satisfactorily in a regular classroom.
Indeed, the Board's own experts admit that N.R.'s
placement in Kingwood's regular kindergarten class (which
was rejected by the parents) would be fully appropriate.
(App. 31-32, 40-41, 46-47, 50-51.) Based on this
undisputed testimony, it seems clear that N.R. could have
received a meaningful educational benefit from a regular
classroom. Moreover, there is no contention that his
behavior would have been disruptive to other students.

Of course, a district that does not operate a regular
preschool program is not required to initiate one simply in
order to create an LRE opportunity for a disabled child. See
34 C.F.R. S 300.552, Note (1996). However, the school
district is required to take into account a continuum of
possible alternative placement options when formulating an
IEP, including "[p]lacing children with disabilities in private
school programs for nondisabled preschool children." Id.
Under these circumstances, the District Court erred in not
inquiring into whether regular classroom options were
available within a reasonable distance to implement N.R.'s
IEP, and we remand so the District Court may consider this
question.

C.

We next address the appellants' contention that the
Board and the District Court erred specifically in failing to
include Rainbow Rascals in the continuum of available
programs. Appellants claim that Rainbow Rascals would
have provided N.R. with a free and appropriate public
education in the least restrictive environment and that the
state's placement of N.R. in the Kingwood preschool
program, rather than in Rainbow Rascals, was in error.

As a substantive matter, it seems likely that the Rainbow
Rascals program, aside from its lack of accreditation, could
have provided N.R. with an FAPE. For example, the Board's
experts admitted that N.R. had made substantial gains
during his 1995-96 placement at Rainbow Rascals. (App.
25, 48.) In addition, Rainbow Rascals' classroom was fully
mainstreamed and thus less restrictive under the IDEA

                               10


than the Kingwood preschool program. Therefore, unless
the state was barred from considering Rainbow Rascals on
its continuum of alternative placements for some other
reason, the Board would have been required to approve the
Rainbow Rascals placement as the one providing an FAPE
in the LRE.

Nevertheless, we agree with the District Court's
conclusion that the Board was not required to consider
placement in Rainbow Rascals because that program was
not properly accredited under New Jersey law. Under 20
U.S.C. S 1401(a)(18)(D), the "free and appropriate public
education" required under IDEA must "meet the standards
of the State educational agency." Although federal
regulations envision placing disabled children in"regular"
private school classes, the universe of private programs
that a state may consider is at least partly defined by state
law.

Under the state regulations in place at the time the 1996-
97 IEP was formulated, New Jersey's program options for
IDEA placement included "[a]n approved private school for
the handicapped," and "[a]n accredited nonpublic school
which is not specifically approved for the education of
children with educational disabilities." N.J.A.C.S 6:28-4.2
(1997).4 The regulations defined an "approved private school
for the handicapped" as "an incorporated entity approved
by the Department of Education . . . to provide special
education and related services to pupils with educational
disabilities." N.J.A.C. S 6:28-1.3 (1997). It is undisputed
that Rainbow Rascals lacked such approval.

The regulations also permitted placement in a non-
approved, accredited private school "with the consent of the
Commissioner [of Education] or by an order of a court of
competent jurisdiction." N.J.A.C. S 6:28-6.5(a) (1997).
Accreditation under this regulation required "the on-going,
on-site evaluation of a nonpublic school by a governmental
or independent educational accreditation agency which is
based upon written evaluation criteria that address
_________________________________________________________________

4. The sections of the New Jersey Administrative Code dealing with
special education were repealed and recodified as amended in 1998.
However, the pre-amendment regulations govern this case.

                               11


educational programs and services, school facilities and
school staff." N.J.A.C. S 6:28-6.5(b)(1) (1997). Rainbow
Rascals was not accredited as a preschool by any state or
independent agency at the time the IEP was formulated,
and there is no showing that its personnel possessed the
professional certifications and licenses required by N.J.A.C.
S 6:28-6.5(b)(5). Indeed, Rainbow Rascals' only license at
the time was as a daycare center. (App. 119.) Accordingly,
it was not eligible for placement under this regulation, even
with the consent of the state Department of Education.5

Because Rainbow Rascals was neither approved nor
accredited as a preschool under New Jersey law, it was
ineligible for placement consideration by the state under
S 1401(a)(18)(D).6 Accordingly, the Board did not err by
failing to consider it when preparing N.R.'s IEP.
_________________________________________________________________

5. The special education regulations in force in 1996 did contain what
was apparently a general waiver provision, which provided that
"[e]xceptions to the requirements of this chapter shall be [m]ade only
with prior written approval of the Department of Education through its
county office . . . for a period not to exceed one year." N.J.A.C. S
6:28-4.6
(1997). Nevertheless, we do not believe that the IDEA required New
Jersey to make an exception for an unaccredited, unapproved program
like Rainbow Rascals. Requiring a state to ignore its substantive
educational standards by forcing it to make an exception whenever a
non-qualifying school provides a somewhat less restrictive environment
than an approved school (which also offers the student an FAPE) would
effectively replace state standards with the federal courts' case-by-case
determinations of educational appropriateness. Such a reading would
render S 1401(a)(18)(D) a virtual nullity. As the Supreme Court
emphasized in Rowley, the IDEA was not intended to "displace the
primacy of states in the field of education" but rather "to assist them in
extending their educational systems to the handicapped." 458 U.S. at
208.

6. The dissent suggests that New Jersey's accreditation requirement was
a mere formality, unconnected to any substantive criteria. This is
untrue. The accreditation regulations in effect at the time required,
inter

alia, that there be ongoing, on-site evaluation of the school by a
government or independent accreditation agency based on written
evaluation criteria, see N.J.A.C. S 6:28-6.5(b)(1) (1997); that personnel
providing educational or related services hold appropriate educational
certifications, see N.J.A.C. S 6:28-6.5(b)(5) (1997); and that the pupil
receive a program comparable to that required to be provided by the

                               12


D.

Finally, appellants contend that, even if Rainbow Rascals
was not an available option for state placement, they are
nevertheless entitled for reimbursement for their own
unilateral placement under Florence County School District
Four v. Carter, 510 U.S. 7 (1993). In Florence, the school
district proposed a placement which the court found failed
to provide the child with an FAPE. The parents rejected the
placement, and enrolled the child in a private program
which was not on the state's "approved list," but which did
provide a substantive FAPE. The Supreme Court held that
the parents were entitled to reimbursement even though
the school lacked state approval, because the state
standards requirement of 20 U.S.C. S 1401(a)(18)(D) applies
only to placements made by a public authority. See id. at
13-14; see also Warren G. v. Cumberland County Sch. Dist.,
190 F.3d 80 (1999).

Florence does not require reimbursement for appellants'
Rainbow Rascals placement. Both Florence and Warren G.
involved disputes over the FAPE requirement. They did not
address the situation we face in this case, where both the
state-chosen (accredited) school and the parent-chosen
(unaccredited) school would provide an FAPE, but where
the unaccredited school would arguably provide a less
restrictive environment. Extending Florence to these
circumstances would require a state to ensure the
maximally optimal LRE placement for each child, even if
such a placement is not available in any qualifying school
within a reasonable distance.
_________________________________________________________________

public schools under the relevant statutes and regulations, see N.J.A.C.
S 6:28-6.5(b)(6) (1997). There is no record evidence that Rainbow Rascals
met any of these substantive criteria. Moreover, the dissent's contention
that "the State at the relevant point in time was not accrediting private
preschools" is without basis in the record. Even if the state had imposed
some sort of accreditation moratorium, Rainbow Rascals would still have
been free to qualify for IDEA placement by obtaining accreditation from
a private agency--as it in fact did the following year. In short, there is
no evidence that New Jersey's accreditation and approval standards were
being used systematically to avoid the state's affirmative obligations
under the IDEA.

                                13


Florence's own language forecloses such an
 537<!>interpretation. Florence gives parents the right to

reimbursement for a unilateral placement in a non-
qualifying school only "if a federal court concludes both
that the public placement violated IDEA and that the private
school placement was proper under the Act." Florence, 510
U.S. at 15 (emphasis added). By its terms, this is a two-
pronged inquiry. The threshold question here focuses on
the first prong--viz., whether the Board's proposed
placement violated the IDEA by failing to consider Rainbow
Rascals. The parental reimbursement mandate comes into
play only if we answer yes to this initial question.

Florence, while holding that parents are not bound by
S 1401(a)(18)(B)'s state standards requirement, did not
suggest that the state is required--or even permitted--to
overlook that statutory mandate and consider placements
that do not meet its substantive educational standards.
Such a reading would go against the plain language of the
statute and render the state standards requirement of
S 1401(a)(18)(D) a nullity. Because we have found that the
Board did not err in rejecting Rainbow Rascals as a
potential placement, we cannot find that the "public
placement violated IDEA" on these grounds. Of course, if
the District Court on remand finds that the Board
improperly failed to consider other potential placements
that met New Jersey's substantive standards (see part
III(B), supra), the state may have failed to meet its
obligations under the IDEA and reimbursement for the
Rainbow Rascals placement may be available under
Florence.

IV.

We affirm the holding of the District Court that the 1996-
97 Kingwood IEP provided N.R. with an FAPE. We vacate
the District Court's holding that the Kingwood placement
constituted the least restrictive environment, and remand
for additional proceedings consistent with this opinion.

                                14


STAPLETON, Circuit Judge, Dissenting:

The Court concludes that, although "public agencies that
do not operate programs for non-disabled preschool
children are not required to initiate such programs," the
federal regulations do impose upon them an affirmative
duty to make all reasonable efforts to find alternatives that
will provide the LRE. 34 C.F.R. S 300.552 Note (1987); see
also 34 C.F.R. S 300.551. This includes the alternative of
"[p]lacing children with disabilities in private school
programs for non-disabled preschool children." 34 C.F.R.
S 300.552 Note. I agree.

The Court also concludes, quite properly, that Rainbow
Rascals was available to provide N.R. with a free and
appropriate public education in a wholly integrated
environment. It nevertheless relieves the Board of
Education of any duty to provide N.R. access to that
education because Rainbow Rascals was not "accredited or
approved" under the applicable state regulation at the time
the placement decision was made. I would have no quarrel
with this holding if the record indicated that Rainbow
Rascals failed to meet educational criteria established by
the State. See 20 U.S.C. S 1401(a)(18)(D) (the FRAP required
under IDEA must "meet the standards of the State
educational agency."). The record in this case, however,
does not suggest there are any such criteria that Rainbow
Rascals failed to meet. What the record does affirmatively
establish is that the State at the relevant point in time was
not accrediting private preschools, and that although state
law provided for a waiver of the "accredited or approved"
requirement, see N.J. Admin. Code S 6:28-4.6 (Supp. 1994),
no request for a waiver was made.1 If a state can so easily
avoid its affirmative duty to provide a free and appropriate
public education in the least restrictive environment, the
promise of the IDEA will be illusory for many. For that
reason, I respectfully dissent. I would reverse and remand
with instructions to grant tuition reimbursement.
_________________________________________________________________

1. In addition to placement in accredited private schools, state law also
authorized placement in preschools "in approved facilities." N.J. Admin.
Code S 6:28-1.1(e)(3) (Supp. 1994). The record does not reflect, however,
that the State maintained any list of preschools in"approved facilities."

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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