SUSAN N.; DAVID N., Individuаlly and as Parents and Natural Guardians to M.N. a minor v. WILSON SCHOOL DISTRICT
No. 94-2051
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 20, 1995
Argued October 10, 1995
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 93-4658)
BEFORE: GREENBERG, LEWIS, and ROSENN, Circuit Judges
Alyssa R. Fieo
Education Law Center
801 Arch Street
Suite 610
Philadelphia, PA 19107
Attorneys
Andrew E. Faust (argued)
Rosemary E. Mullaly
Sweet, Stevens, Tucker & Katz
116 East Court Street
P.O. Box 150
Doylestown, PA 18901
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This case arises under the Individuals with Disabilities Education Act (“IDEA“),
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
The appellants reside in the Wilson School District with M., who is now nine years old. They believe that M. suffers from attention deficit disorder with hyperactivity (“ADHD“), a learning disability manifested in attention problems, hyperactive motor behavior, poor social skills, extensive difficulty in completing tasks, low frustration tolerance, and low self-esteem. Memorandum and Order of the District Court (“Mem.“), N. v. Wilson Sch. Dist., No. 93-4658, slip op. at 2 (E.D. Pa. Sept. 26, 1994). M. has been treated with Ritalin, a medication intended to control the symptoms of ADHD. See Mem. at 3 n.6. The appellants believe that M.‘s disability may affect her progress in school and that she is entitled to special education from the State of Pennsylvania. Id. at 2.
During the spring of 1992, when M. was in kindergarten, the appellants requested that the school district undertake a multidisciplinary evaluation of her to determine whether she was in need of special education.1 Id. In accordance with the appellants’ request, a district multidisciplinary team (“MDT“) conducted an evaluation in April 1992 thаt included two psychological examinations, an interview with M.‘s kindergarten teacher, and discussions with appellants. Id. at 2-3. The MDT issued a report on June 2, 1992, concluding that M. was not “exceptional,”2 and
Specifically, the MDT found that M. did exhibit symptoms consistent with ADHD, including processing weaknesses that involved fine motor control, but that she had strong verbal skills and her ability and achievement levels were average or above average. The MDT concluded that M. could be educated in a regular classroom as long as her school program addressed “‘her strong verbal skills, her weak motor skills, and her difficulty with impulsivity and inattention and hyperactivity (which often lead to disorganization).‘” Id. at 3 (quoting Record at 321a).
On June 9, 1992, an Individual Eduсation Program (“IEP“) team met with the appellants to discuss the MDT report.3 Mem. at 4. The IEP team agreed with the MDT‘s evaluation that M. was not exceptional and not in need of special education. The team concluded that, in spite of her weaknesses, M. could sustain herself in a regular academic curriculum with proper assistance from her parents and teachers. Id. The team then developed a Notice of Recommended Assignment (“NORA“), which consisted of written program “suggestions” to M.‘s regular education teachers. Id.
The appellants refused to approve the school district‘s NORA, which was offered to them on June 18, 1992. Mem. at 5. Instead, they requested a pre-hearing conferenсe and an independent evaluation of M. at the school district‘s expense. On July 26, 1992, the appellants requested an administrative due process hearing pursuant to the IDEA,
A Pennsylvania Special Education Hearing Officer conducted the due process hearing on September 17 and September 28, 1992. The appellants presented two issues: (1) whether, under Pennsylvania law, M. is a mentally gifted child suffering from a specific learning disability; and (2) if so, whether the school district has provided M. with an
States wishing to receive funding under the IDEA must ensure that “all children residing in the State who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated” by the state.
Pennsylvania fulfills its IDEA obligations through a complex statutory
B. JUDICIAL REVIEW UNDER THE IDEA
As we noted above, the appellants brought this action against the school district after requesting an administrative due process hearing before a Pennsylvania Special Education Hearing Officer to satisfy a requirement of the IDEA,
Any party aggrieved by the findings and decision made under subsection . . . 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 procеedings, 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.
20 U.S.C. § 1415(e)(2) .
In determining the scope of a district court‘s review under the IDEA, the Supreme Court has stated that the statute‘s language instructing that the district court, “basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate,” does not mean that courts are free to substitute their own notions of sound education policy for those of the educational agencies they review, but rather that they should give “due weight” to the administrative proceedings. Board of Educ. v. Rowley, 458 U.S. 176, 205-06, 102 S.Ct. 3034, 3050-51 (1982); see also Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1034 (3d Cir. 1993). Naturally, the requirement that the courts give “due weight” to administrative proceedings has obliged the district courts to determine how much weight is “due.” See Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). The Court of Appeals for the Ninth Circuit has observed that “judicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993), cert. denied, 115 S.Ct. 90 (1994). Because the IDEA specifically requires a district court to “receive the records of the administrative proceedings, . . . hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidencе,” grant any appropriate relief,
The courts of appeals differ in their description of the interplay between the Supreme Court‘s “due weight” interpretation and the IDEA‘s provision for independent judicial review. As the Court of Appeals for the Tenth Circuit recently summarized:
[t]he district court must . . . independently review the evidence contained in the administrative record, accept and review additional
evidence, if necessary, and make a decision based on the prеponderance of the evidence, while giving ‘due weight’ to the administrative proceedings below. This has been described as a ‘modified de novo review,’ or as ‘involved oversight.’ Murray, 51 F.3d at 927 (citations omitted).
The Court of Appeals for the First Circuit has described judicial review under the IDEA as follows: “Congress intended courts to make bounded, independent decisions -- bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court[.]” Town of Burlington v. Department of Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff‘d on other grounds, 471 U.S. 359, 105 S.Ct. 1996 (1985).
We have not spoken definitively on what constitutes “due weight” under the Rowley standard, and need not do so today. We, however, have referred to the interpretation of the standard first developed by the Court of Appeals for the First Circuit:
[T]he question of the weight due the administrative findings of facts must be left to the discretion of the trial court. The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer‘s resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole. Burlington, 736 F.2d at 791-92; see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995) (“[D]istrict courts have discretion to determinе how much deference to accord the administrative proceedings[.]“); Bernardsville, 42 F.3d at 161 (quoting Burlington); Oberti v. Board of Educ., 995 F.2d 1204, 1219 (3d Cir. 1993) (“[T]he amount of deference to be afforded the administrative proceedings ‘is an issue left to the discretion of the district court.‘“) (quoting Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir. 1988)); Fuhrmann, 993 F.2d at 1042 (Hutchinson, J., concurring and dissenting).
The district court relied on Rowley for its determination that “[w]hile the court may, at its discretion, hear additional evidence, it must give ‘due weight’ to the administrative proceedings and the education experience and expertise applied therein.” Mem. at 11. The district court thereafter concluded that “the proper exercise of discretion move[d] it to decline to second-guess the judgment of the administrative panel with evidence that was not before the panel when it made its decision,” Mem. at 12. Accordingly, the district court ruled on the merits of the appellants’ case without evaluating or accepting their proffer of additional evidence. Id. The district court thus seems to have interpreted Rowley to limit severely the IDEA‘s directive in
Our review of a district court‘s legal analysis is plenary. However, our review here “must be conducted within the general framework of deference to state decision-makers” that is dictated by the IDEA and by the Supreme Court‘s direction in Rowley. Fuhrmann, 993 F.2d at 1032 (citing Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 99 (1986)); see also Carlisle, 62 F.3d at 526 (“We, of course, exercise plenary review over the district court‘s conclusions of law and review its findings of fact for clear error.“). In view of a district court‘s scope of review under
The Court of Appeals for the First Circuit, in Burlington, 736 F.2d 773, seems to have been the first court of appeals to analyze the IDEA‘s directive that a district court “shall hear additional evidenсe at the request of a party.” Id. at 790. There, the court held that the word “additional” should be construed in the ordinary sense of the word to mean “supplemental.” Id. Thus construed, the act:
[C]ontemplates that the source of the evidence generally will be the administrative hearing record, with some supplementation at trial. The reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding. Id.
In providing examples of types of additional evidence that might be relevant to judicial review under the IDEA, the Burlington court did not limit admissible evidence to those types enumerated, which interpretation the school district would have us make. See appellee‘s br. at 12-13. In contrast, the court seems merely to have provided examples of additional evidence that a court could find relevant to IDEA matters on judicial review.
Although we never explicitly have interpreted the phrase, we recently referred to the Burlington construction of “additional evidence” in Bernardsville, 42 F.3d at 161, where we upheld a district court‘s decision to exclude evidence as cumulative and an improper embellishment of testimony previously given at an administrative hearing. See also Oberti, 995 F.2d at 1220 (court makes fact findings in IDEA case not only on administrative record, but also on any new evidence presented by parties); Wexler, 784 F.2d at 181 (court must independently review the record, hear any requested additional evidence, and apply the preponderance standard). Other courts of appeals have followed Burlington‘s lead in construing
Although we make no explicit interpretation of
We decline to adopt the rule urged by defendants that the appropriate construction is to disallow testimony from all who did, or could have, testified before the administrative hearing. We believe that, although an appropriate limit in many cases, a rigid rule to this effect would
unduly limit a court‘s discretion and constrict its ability to form the independent judgment Congress expressly directеd. A salient effect of defendants’ proposed rule would be to limit expert testimony to the administrative hearing. Our review of the cases involving the Act reveals that in many instances the district court found expert testimony helpful in illuminating the nature of the controversy and relied on it in its decisional process. . . . There could be some valid reasons for not presenting some or all expert testimony before the state agency. Id. at 790-91.
Thus, the Burlington court stated that certain evidence may be excluded under IDEA judicial review out of deference to the administrative proceedings. The court, however, declined to devise a bright-line rule, choosing instead to leave “the question of the weight due the administrative findings of fact” to the discretion of the trial court. Id. at 791-92. Other courts, including ours, likewise have condoned the exclusion of additional evidence submitted by the parties to an IDEA proceeding when, for a particular reason, the court properly could exclude the evidence. See, e.g., Bernardsville, 42 F.3d at 161 (upholding exclusion of evidence as cumulative and improper embellishment of testimony previously given at administrative hearing). It is regularly held that the question of what additional evidence to admit in an IDEA judicial review proceeding, as well as the question of the weight due the administrative findings of fact, should be left to the discretion of the trial court. See, e.g., Carlisle, 62 F.3d at 527; Bernardsville, 42 F.3d at 161; Oberti, 995 F.2d at 1219; Burlington, 736 F.2d at 791-92. As appellants note, Congress’ central goal in enacting the IDEA was to ensure “that each child with disabilities has access to a program that is tailored to his or her changing needs and designed to achieve educational progress.” Appellants’ br. at 11. Children are not static beings; neither their academic progress nor their disabilities wait for the resolution of legal conflicts. While a district court appropriately may exclude additional evidence, a court must exercise particularized discretion in its rulings so that it will consider evidence relevant, non-cumulative and useful in determining whether Congress’ goal has been reached for the child involved. Consequently, on the remand the district court should use this standard in determining whether to admit the proferred additional evidence, i.e., would the evidence assist the court in ascertaining whether Congress’ goal has been and is being reached for the child involved. Because we vacate the judgment of the district court and remand the case for the district court‘s evaluation of additional evidence, which may lead to the admission of some, none, or all of the evidence submitted, it is not necessary for us to address appellants’ claim that the district court denied them a fair opportunity to argue their case. The remand necessarily resolves that issue.
D. FUHRMANN V. EAST HANOVER BOARD OF EDUCATION
We consider one final matter with respect to the “additional evidence” clause of the IDEA. In deciding to rule on the merits of aрpellants’ IDEA claims without evaluating or accepting their offer of additional evidence, the district court relied on our holding in Fuhrmann, 993 F.2d 1031, in addition to relying on the Supreme Court‘s decision in Rowley. See Mem. at 11-12. The district court cited Fuhrmann for the proposition that “the court cannot assess the adequacy of a student‘s placement ‘at some later date when one has the benefit of the child‘s actual experience,‘” Mem. at 11 (quoting Fuhrmann, 993 F.2d at 1040), but instead “must measure the adequacy of an educational program at the time it was offered to the student.” Mem. at 12 (citing Fuhrmann, 993 F.2d at 1040). As the appellants “proposed that they be allowed to supplement the record with additional evidence which was not available in 1992,” the district court chose to address the merits of their case without evaluating or admitting that evidence because in the eyes of the district court, doing so would be “second-guess[ing] the judgment of the administrative panel with evidence that was not before the panel when it made its decision.” Mem. at 12. The court proceeded to “confine its analysis to the evidence that was
In order to address completely appellants’ claim for relief, we must revisit the evidentiary issues we considered in Fuhrmann. Appellants try to minimize the applicability of Fuhrmann to this case by pointing out that the major thrust of their claim is “for a prospective determination of eligibility for services,” appellants’ br. at 20. They continue:
It may well be unfair to force a district to pay reimbursement where it correctly identified the child as eligible and developed an IEP reasonably calculated to produce progress, even if, in hindsight, progress did not actually occur. But there is nothing unfair about parents trying to convince a court that their child should be declared -- at least from that point forward -- to have a disability, and nothing irrelevant about evidence that brings the court up to date on whether indicia of a disability are present. Appellants’ br. at 20-21.
Although appellants try to convince us that we need not address Fuhrmann‘s effect on their claims, see br. at 21 n.10 (“[T]he Court need not decide these points.“), appellants, as they admit, did include сlaims for reimbursement in their complaint in the district court. Br. at 20 n.9. Thus, we must address Fuhrmann‘s holding to see if what appellants seek is truly the “unfair” use of hindsight in judging the school district‘s decision regarding M.‘s eligibility for special education.
In Fuhrmann, we addressed the claim of parents of a child with disabilities for reimbursement for two years of private schooling for their son. The parents contended that the individual education programs that the school district had offered to the child were inappropriate and thus violated the IDEA. Appellants again try to distinguish their case from Fuhrmann by pointing out that “[u]nlike the [appellants] here, the parents in Fuhrmann were not seeking a determination of eligibility for special education, or a finding concerning the program that would be appropriate for their child in the future.” Appellants’ br. at 19. We decline, however, to draw such a bright line between the appropriateness of taking additional evidence in an IDEA judicial review proceeding when the reasonableness of an IEP is at issue and taking such evidence in a proceeding where the initial determination of eligibility for special education is being litigated. However, we do note that Congress’ primary purpose in enacting the IDEA did seem to be the assurance of access to special education services for children with disabilities. See
Neither party sought to introduce additional evidence in Fuhrmann. 993 F.2d at 1034 n.3. The issue, instead, was the weight that the district court should give to evidence already in the administrative record regarding the child‘s progress in private school (evidence amassed after the school district‘s decision regarding the IEP but before the parents sought judicial review). Id. at 1039. As appellants note, we held in Fuhrmann that the district‘s liability hinged upon whether its proposed program for the child was, at the time it was offered, “reasonably calculated” to benefit the child. Appellants br. at 19. Appellants interpret our ruling as follows:
The Court declined, therefore, to adopt a rule under which the district would have been financially penalized for an IEP that, while apparently appropriatе at the time it was developed, turned out in hindsight to be inadequate. Accordingly, the Court held, evidence of the child‘s subsequent educational progress (or lack thereof) could be considered only insofar as it bore on the issue of whether the IEP was appropriate when it was created. Appellants’ br. at 20 (citing Fuhrmann, 993 F.2d at 1040).
Appellants’ characterization of our holding in Fuhrmann is fair. The case was unusual in that the panel authored three separate opinions: one opinion by Judge Garth for the court, one concurring opinion by Judge Mansmann, and one concurring and dissenting opinion by Judge Hutchinson. On the matter of what weight to give evidence not before a school district when it originally made the decision regarding the educational placement оf a child, Judge Garth and Judge
In light of the IDEA‘s purpose “to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services,”
Finally, appellants contend that the district court erroneously dismissed their additional statutory claims as “preempted” by the IDEA. We agree. Section 1415(f) of the IDEA states:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [29 U.S.C. §§ 790 et seq.], or other Federal statutes protecting the rights of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this sectiоn shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(f) .
In its Memorandum Opinion, the district court interpreted this section of the IDEA to mean that “parents must first challenge [an] educational program under the IDEA before they may pursue a civil action alleging additional causes of action.” Mem. at 10-11. The court thereafter concluded that the appellants’ additional statutory claims were “clearly preempted by §§ 1415(f)” and therefore should be dismissed. Id. at 11. The district court‘s dismissal of appellants’ additional statutory claims was a legal determination over which we exercise plenary review. Carlisle, 62 F.3d at 526; Fuhrmann, 993 F.2d at 1033. While section 1415(f) requires a party to exhaust the IDEA‘s administrative remedies before pursuing other claims, the section makes clear that the IDEA is not the exclusive avenue through which children with disabilities can assert claims for an appropriate education. W.B. v. Matula, slip op. at 14-15; Hayes v. Unified Sch. Dist., 877 F.2d 809, 812 (10th Cir. 1989); Board of Educ. v. Diamond, 808 F.2d 987, 995 (3d Cir. 1986). Indeed, Congress amended the IDEA in 1986 to include section 1415(f) in response to the Supreme Court‘s decision in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457 (1984), which held that the IDEA was the exclusive statute through which a disabled child could obtain relief. See The Handicapped Children‘s Protection Act of 1986,
III. CONCLUSION
For all the reasons detailed above, we will vacate the district court‘s order entered September 27, 1994. We will remand the case to the district court for the evaluation and, perhaps, depending on that evaluation, the taking of additional evidence on the IDEA claim and for further proceedings consistent with this opinion. Costs shall be allowed the appellants.
GREENBERG, Circuit Judge.
Notes
The IDEA defines “children with disabilities” as children “(i) with mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, need special education and related services.”
In Pennsylvania, the term “exceptional” is used to refer both to students who are mеntally gifted and in need of special education and students who have one of the 11 disabilities recognized under the IDEA and who, as a result thereof, require special education. See