BERNARDSVILLE BOARD OF EDUCATION, Appellant, v. 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.
No. 93-5767
United States Court of Appeals, Third Circuit
Argued Aug. 8, 1994. Decided Nov. 22, 1994.
Sur Petition for Rehearing Dec. 20, 1994.
42 F.3d 149
The district court also found, in the alternative, that even if Ellman had not exhausted his state remedies, he was excused from the exhaustion requirement. The court found that in this case the remedy available in the state court was ineffective to protect Ellman‘s rights. We disagree.
An exception to the exhaustion requirement may be made “only if there is no opportunity to obtain redress in state court or if the [state] corrective process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 18, 70 L.Ed.2d 1 (1981) (emphasis added). The district court viewed the state procedure as ineffective to remedy the repetitive ninety-day recommitment orders. Of course, if Ellman had properly presented his constitutional issues to the state Appellate Division on either his original commitment order or any one of the subsequent recommitment orders, and the state court refused to hear his claims, the district court‘s view may have been correct. See United States ex rel. Stevens v. McCloskey, 345 F.2d 305, 308 (2d Cir.1965) (ruling that petitioner, by appealing his first contempt conviction, had satisfied the exhaustion requirement for his third conviction concerning the same issues presented to the state court), rev‘d on other grounds sub nom. Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724 (1966). However, in this case, Ellman never properly presented his constitutional claims to the state appellate court. He never directly appealed the July, 1992 civil contempt adjudication, opting instead to pursue a state habeas petition. This state petition was dismissed in September, but the appeal could not be taken until January. The delays in Ellman‘s appeals were not the result of repetitive recommitment orders, but were caused, at least in part, by Ellman‘s attorneys’ failure to submit orders to the court. The state remedies available were not ineffective and simple compliance with state procedure would have avoided much of the delay.
The district court also found that the “procedural obstacles” thrown in Ellman‘s way were not his fault, but were the fault of the state courts or the state Attorney General. A careful review of the record, however, discloses that these “procedural obstacles” were not obstacles but were reasonable procedural requirements. Nothing in the record suggests that Ellman was precluded from submitting an order either for the dismissal of his state habeas claim or for the October recommitment order. Ellman‘s counsel knew that an order was required to pursue the appeal. Yet, Ellman and his counsel failed to take advantage of the available procedures. Ellman‘s own failure to utilize the state process cannot render that process “so clearly deficient as to render futile any effort to obtain relief,” Duckworth, 454 U.S. at 3, 102 S.Ct. at 18.
III.
For the foregoing reasons, the judgment of the district court is reversed, and this case is remanded to the district court with instructions to dismiss the petition for a writ of habeas corpus for failure to exhaust state court remedies, pursuant to
Theodore A. Sussan, (argued), Staci J. Greenwald, Sussan & Greenwald, Spotswood, NJ, 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,
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,
J.H. remained in resource room instruction in the Bernardsville school through the end of the third grade, showing 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. 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 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
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
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, nonspecific 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.
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 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
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
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 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
Pursuant to
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,
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 Commit-
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, 105 S.Ct. at 2003, 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.
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
(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....
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(c) The petitioner shall file a petition no later than the 90th day from the date of receipt of the notice of a final ruling, order 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
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 inN.J.A.C. 1:1 ....
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.
We have already decided that a mere expression of dissatisfaction with a proposed
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
III.
In light of the IDEA,
Furthermore, we agree with the district court that the award of fees should not be reduced to reflect J.H.‘s counsel‘s 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, 103 S.Ct. at 1940. Nevertheless, since J.H. has failed to prevail on his claim for reimbursement costs for
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
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
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.
The majority errs by allowing the timeliness of the parents’ request for due process to define and control its analysis.1 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 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 157-58 (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., 116 N.J. 30, 560 A.2d 1180, 1188 (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, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (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, 105 S.Ct. at 2001 (quoting
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 151. Rather, the issue we should address is whether the requested
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 157. 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 IEP2 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 156. 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 judges 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 155. In short, “the IEP developed for [J.H.] was both procedurally and substantively inadequate.” Majority opinion at 157. 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.
“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 157. 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 152. “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 151. 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. Accord-
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 158. 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
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, 321-22 (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, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981), abrogated on other grounds by Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (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
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. 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, 105 S.Ct. at 2004. 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 159-60. 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, 105 S.Ct. at 2003.
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.
SUR PETITION FOR REHEARING
Dec. 20, 1994
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN, Circuit Judges.
The petition for rehearing filed by appellees in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judges Becker, Hutchinson, Nygaard, McKee and Sarokin would have granted rehearing.
Judges BECKER, HUTCHINSON, NYGAARD, McKEE and SAROKIN would have granted rehearing.
Notes
- [J.H.] is very inattentive unless its a one to one situation.
- He often fails to respond when his name is called.
- We are concerned that there may be an articulation problem. There are many words he cannot pronounce.
- His answers to questions are often inappropriate.
- He cannot work independently.
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
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....
... 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.
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.
The state of New Jersey implements the Federal Act through state statute and regulations promulgated by the New Jersey State Board of Education.
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.
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 underDuring 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....
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.
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.
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.