S.H., INDIVIDUALLY AND ON BEHALF OF I.H., Appellant v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF Newark.
No. 01-2358
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 14, 2003
2003 Decisions, Paper 325
SLOVITER, NYGAARD, and BARRY, Circuit Judges.
Argued June 6, 2002. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 00-cv-02559). District Judge: The Honorable Joseph A. Greenaway, Jr.
Arsen Zartarian, Esq. (Argued) Office of General Counsel Board of Education 2 Cedar Street, 10th Floor Newark, NJ 07102 Counsel for Appellee
OPINION OF THE COURT
NYGAARD, Circuit Judge.
This
I. Background
A. The Individuals with Disabilities Act
This case arises under a confluence of state and federal disabilities law. Therefore, it is useful to review the statutory framework before proceeding to the
As we noted in Susan N., an Individual Education Program (IEP) is the primary vehicle for providing students with the required free and appropriate education. Id. An IEP is a written statement developed for each child that must include several elements.
Besides setting out the required content of an IEP, the
(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child‘s language and communication needs, opportunities for direct communications with peers and professional personnel in the child‘s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child‘s language and communication mode; and
(v) consider whether the child requires assistive technology devices and serviсes.
In addition to the general requirements set out in the
The IEP team is required to review the IEP at least annually to determine whether the child is reaching the stated goals. In addition, the IEP team is to revise the IEP to address lack of progress, necessary changes arising from reevaluation of the child, and parental input, among other things.
In addition, the
The issue here is not whether I.H. should receive special education, nor is it whether the School District afforded her due process. Rather, the only issue is whether the School District‘s proposed IEP, changing I.H.‘s placement, would provide her a meaningful educational benefit. Ridgewood, 172 F.3d at 247.
B. Factual Background
The Appellant, S.H., brings this appeal individually and on behalf of her daughter I.H. I.H. has severe to profound sensorineural hearing loss. When she was two years old, the Newark Public School District identified I.H. as eligible for its preschool handicapped program. After determining that there was no suitable program in I.H.‘s home School District, the School District placed I.H. at the Lake Drive School for Deaf and Hard of Hearing Children. I.H. began attending Lake Drive School in the summer of 1997 when she was three years old.
The Lake Drive School is a public school outside the Newark School District. In justifying this placement, the School District noted that I.H. required a special program unavailable in her home district. Specifically, she required a small, specialized, and highly structured education program tailored to her functioning levels, hearing impairment, and specific sensory deficit. This program would provide “developmentally appropriate curriculum, teachers specialized in working with hearing-impaired children, presentation of auditory training, sensory utilization skills and facilitation of communication skills.” S.H. v. Newark Bd. Educ., No. EDS7639-99, at 3 ¶1 (N.J. OAL, Oct. 4, 1999) available at http://lawlibrary.rutgers.edu/oal/word/initial/eds7639-99-1.doc
S.H. challenged the School District‘s change in I.H.‘s placement. Following mediation, I.H. was allowed to remain at the Lake Drive School. As a result, I.H. attended the Lake Drive School preschool handicapped program from 1997 to 1999. An interim IEP developed in January 1999 also resulted in I.H.‘s continuing placement at Lake Drive School. The Lake Drive School‘s evaluations of I.H. conducted in January 1999 concluded that she should remain in the sсhool for summer school and the 1999-2000 school year.
In the spring of 1999, the School District reevaluated I.H. to decide the appropriate placement for the 1999-2000 school year, the year she would start kindergarten. In this June 1999 proposed IEP, the School District found that the least restrictive environment for I.H. was the Bruce Street School for the Deaf. In finding that it was the least restrictive environment, the School District noted that Bruce Street School is near I.H.‘s home, and differs from Lake Drive in that I.H. could have interaction with nonhandicapped children between classes (e.g., lunch and recess). Because she wanted I.H. to continue attending school at Lake Drive, where the District initially placed I.H., S.H. requested a due process hearing challenging I.H.‘s placement for the 1999-2000 school year.
C. Procedural History
1. ALJ Decision
New Jersey‘s process for resolving disputes arising in special education cases starts with mediation.
At the administrative hearing, S.H. sought to have I.H.‘s placement continue at the Lake Drive School for the 1999-2000 school year. The ALJ held hearings for three days, received evidence from both the Sсhool District and S.H., and heard testimony from several witnesses for both parties. In his opinion, the ALJ made extensive factual findings. The ALJ had before him multiple evaluations of I.H, including Lake Drive School‘s annual review prepared in January, and the School District‘s June proposed IEP. The ALJ made his factual findings based on these reports, in addition to other documentary evidence, and the testimony of several witnesses.
The primary witness for S.H. was Dr. Laura McKirdy, the principal at Lake Drive School. Besides being principal of Lake Drive since 1978, Dr. McKirdy is a speech language pathologist and developmental psychologist, and is a certified elementary school teacher. The ALJ accepted Dr. McKirdy аs an expert on deaf education based on her training, education,
In this particular matter, as in most, the credibility and persuasiveness of the testimony is of paramount concern. While I found all of the witnesses who testified were credible, I was most persuaded by the testimony of Dr. McKirdy. With regard to her resume, suffice it to say that she is impeccably credentialed in the area of deaf education. However, her credentials did not form the entire basis of my decision to give controlling weight to her testimony — it was the manner in which she testified. It was abundantly clear to me, after listening to her on both direct and crоss-examination and comparing her responses to those of the other witnesses, that no one connected with the hearing knew more about deaf education than she. Furthermore, her knowledge of I.H., while admittedly not as personal as others who may have testified, was sufficiently informed to lead me to conclude that her opinions took into account I.H.‘s unique needs.
S.H. v. Newark Bd. Educ., No. EDS7639-99 at 10.
Both parties and the witnesses agreed that I.H. was a good student, and was making progress toward her educational goals. In his decision, the ALJ summarized the conclusions from the Lake Drive School‘s evaluation. The Lake Drive evaluation recommended continuing speech and language therapy of four thirty-minute-sessions a week. Thе evaluation found that I.H.‘s progress was directly related to the frequency and planning of the speech and language programs. Lake Drive‘s review concluded that continuing I.H.‘s “tightly structured” program was necessary for her language development.
The ALJ contrasted Lake Drive School‘s comprehensive evaluation to the proposed IEP. It is through the IEP that the School District must prove that it will confer a meaningful educational benefit on I.H. in transferring her to Bruce Street. The School District carries the burden of showing this IEP is appropriate. See, e.g., Fuhrmann, 993 F.2d at 1034-35 (“[I]t is quite clear that when a change in a child‘s IEP is sought, regardless of whether the party seeking the change is the school district or the parents, the burden of shоwing that the placement is ‘appropriate’ rests with the school district.“).
A Child Study Team (CST) from Bruce Street developed the June proposed IEP. Although the CST that placed I.H. in the Lake Drive School in 1999 was also from the Newark School District, the members of each team were different.2 The CST drafted the proposed IEP after observing I.H. both in and out of Lake Drive School. However, the ALJ found that the School District drafted the IEP with little or no input from the staff at Lake Drive. In his findings of fact, the ALJ noted several deficiencies in the IEP. Because the ALJ heard the witnesses and weighed the evidence in light of their testimony and credibility, reviewing these factual findings is instructive.
The ALJ noted that the proposed IEP failed to recognize that I.H. retаined some residual hearing in her left ear. Testimony before the ALJ suggested that this residual hearing might be used to help I.H. develop some understandable oral communication. The ALJ found this omission
The ALJ considered the “supplementary aides and services and instructional modifications” in the proposed IEP and found them to be inappropriate for I.H. The IEP specified the use of the “Kendall Demonstration Elementary School Curriculum.” However, the ALJ found that the Kendall Curriculum are guidelines for a curriculum, not a curriculum; that they may be outdated; and, since not developed for New Jersey, that they may be inappropriate for enabling deaf children to compete academically in New Jersey. Instead, the ALJ found that the appropriate curriculum would focus on New Jersey‘s educational requirements and standards. In contrast, the Lake Drive School uses New Jersey standards and materials for the education of hearing impaired children.
Although the School District placed much emphasis on Bruce Street as the least restrictive environment because it offered extracurricular activities, the ALJ found that the proposed IEP did not support this assertion. Specifically, the proposed IEP nоted that I.H. would be able to participate in “art with sign interpreter.” However, the ALJ found that I.H. would receive little benefit from this art class because focusing on both the teacher and the sign interpreter, and understanding that the message and deliverer are distinct, is difficult for young deaf children. In comparison, the art teacher at Lake Drive is a fluent signer. The School District emphasized the “mainstreaming” opportunities available at Bruce Street, but the ALJ found the “mainstreaming” provided at Bruce Street to be de minimis at best. The students are segregated for classes, and although they attend assemblies and recess with hearing children, they are further segregated by the uniforms the Bruce Street children wear, which differentiate thеm from the rest of the Carver School children.
Lake Drive‘s evaluation of I.H. suggested that she needed to participate in an extended school year (summer school). The ALJ found that for I.H., the extended school year was particularly important in her language acquisition. The proposed IEP did not call for an extended school year. In addition, the ALJ found that the proposed IEP lacked many specifics necessary to find that it would confer a meaningful education benefit on I.H.
Finally, the ALJ found that the School District failed to prove that the “total communication” philosophy employed at Bruce Street would confer a meaningful benefit to I.H. Total communication is a process of incorporating all means of communication with the children, which in practice can differ between institutions. The ALJ accepted the testimony that consistent use of signs and word order was important for teaching I.H. The total communication practiced at Bruce Street is apparently different from that used at Lake Drive, and to the extent that they are different, the ALJ found that it would be detrimental to I.H. Based on his extensive factual findings, the ALJ concluded that the School District did not prove “by a preponderance of the credible evidence that it can provide I.H. with an appropriate education.” S.H. v. Newark Bd. Educ., No. EDS7639-99 at 11.
2. District Court Proceedings
The ALJ issued his decision on October 4, 1999. S.H. went to U.S. District Court seeking fees for the cost of the administrative action on May 24, 2000. On June 8, 2000, eight months after the ALJ‘s decision,
In his recommendation, the Magistrate Judge reviewed the facts and arguments of the parties, and summarily rejected the testimony of Dr. McKirdy, whose testimony the ALJ found most persuasive and credible. After recognizing that the standard of review called for giving due weight to the ALJ, the Magistrate Judge conducted a one-paragraph “analysis“:
On the record before me, I conclude that the defense motion should be granted. I reсognize that “due weight” must be afforded to the Administrative Law Judge‘s determination. But even granting that weight, I believe the Court‘s independent judgment based on a preponderance of the evidence requires a determination that the Administrative Law Judge in this case simply “got it wrong.” It is entirely clear to me that a free and appropriate public education will be provided at the Bruce Street School while affording the least restrictive environment for I.H., as mandated by the applicable law. . . . In short, I find the defendant District‘s arguments more persuasive in this case.
The District Court adopted the conclusion of the Magistrate in a letter opinion. In adopting the recommendation, the District Court added little to the Magistrаte Judge‘s recommendation. It found that Bruce Street was the least restrictive environment because of its proximity to I.H.‘s home and its opportunities for interaction with nondisabled children. In addition, the District Court noted that the CST members evaluated I.H. and recommended that she attend Bruce Street.
II.
A. Issues
On appeal, S.H. argues that the District Court did not afford the ALJ proper deference as to his findings of fact. S.H. also challenges the District Court‘s conclusion that the proposed IEP would confer a meaningful educational benefit. Finally, S.H. questions whether the School District‘s counterclaim appealing the ALJ decision was timely.
B. Standard of Review
We exercise jurisdiction over
In Susan N., we noted the Tenth Circuit‘s description of the “due weight” requirement as “modified de novo review.” 70 F.3d at 758 (citing Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)). Since then, several other cases have elucidated the contours of “due weight,” and described the standard of review as “modified de novo review.” Under the
Although we have not referred to the proper standard of review as modified de novo before, our cases call for this standard. In discussing Pennsylvania‘s two-tier system of administrative review in
In Oberti v. Board of Education of the Borough of the Clementon School District, we noted that where the District Court hears additional evidence it is “free to accept or rejeсt the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the Act.” 995 F.2d 1204, 1220 (3d Cir. 1993). In contrast, where the District Court does not hear additional evidence it must find support for any factual conclusions contrary to the ALJ‘s in the record before it. Moreover, the court must explain why it does not accept the ALJ‘s findings of fact to avoid the impression that it is substituting its own notions of sound educational policy for those of the agency it reviews. See Susan N., 70 F.3d at 757.
In addition to the Tenth Circuit and Fourth Circuit‘s use of the modified de novo standard, the Sixth Circuit has described the appropriate standard of review as modified de novo as well. See Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001) (“According to this ‘modified’ de novo standard of review, a district court is required to makе findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings.“). We agree with these other courts that the appropriate review of the administrative hearing is modified de novo.
A. Application of modified de novo review
In cases where we have upheld a District Court‘s decision to overrule the administrative fact finder, the District Court has fully explained its reasons for departing from the state decision. For example, in Wexler v. Westfield Board of Education, “The district court, in a very thorough opinion, analyzed the evidence in a responsible and sensitive fashion. It reviewed all the test results, and all the administrative proceedings, including the transcripts and rеports. Its findings are detailed and supported by the evidence.” 784 F.2d 176, 181 (3d Cir. 1986). Similarly in Geis v. Board of Education, we noted that “In a thorough opinion, the district court [made an independent determination based on a preponderance of the evidence], specifically citing the evidence in its record and the administrative record that supported its conclusion, as well as discussing the conflicting evidence.” 774 F.2d 575, 583 (3d Cir. 1985). In Oberti, the District Court held a three day trial and took new evidence before concluding that the ALJ erred. 995 F.2d at 1210.
In contrast, the Magistrate Judge here concluded that the ALJ “simply got it wrong.” Although the report and recommendation adopted by the District Court does set forth the arguments from the School District and S.H., it does not explain why the District Court reached the conclusion that the ALJ “simply got it wrong.” The District Court did not address any of the extensive factual findings noted above regarding the deficiencies with the proposed IEP. Under the modified de novo standard of review, this does not accord sufficient deference to the factual conclusions of the ALJ.
B. Appropriateness of IEP
The issue of whether an IEP is appropriate is a question of fact. Carlisle, 62 F.3d at 526. Even if the District Court applied the wrong standard of review, we may still uphold its decision if correct under the appropriate standard of review. See T.R., 205 F.3d at 577 (finding that although the district court applied the wrong test, its decision could nevertheless be upheld under application of the correct standard.). We review the decision of the ALJ under the modified de novo standard, giving due weight to the ALJ‘s decision. The issue is the appropriateness of the IEP changing I.H.‘s placement to the Bruce Street School, and the burden is on the School District. We will defer to the ALJ‘s credibility determinations unless countered by non-testimonial evidence on the record.
As discussed above, the ALJ noted several deficiencies in the proposed IEP. Taking the ALJ‘s factual findings as prima facie correct, we must decide whether the record contradicts those factual findings. As the School District correctly points out, the issue is not a comparison between the Lake Drive School and the Bruce Street School. The
1. Least Restrictive Environment
The School District premises much of its argument on the idea that Bruce Street is the least restrictive environment (LRE). The ALJ found that although Bruce Street is contained within a neighborhood school with nondisabled children, its mainstreaming opportunities were actually de minimis.
We have adopted a two-part test for determining whether a School District complies with the LRE requirement. The first step is for the court to determine whether the school can educate the child in a regular classroom with the use of supplementary aids and services. If, as here, the child cannot be educated in a regular classroom, the next step is to decide whether the school is mainstreaming the child to the maximum extent possible. Oberti, 995 F.2d at 1215. Before we reach this two-part test though, we note that the child must be educated in the LRE that will provide a meaningful educational benefit. See T.R., 205 F.3d at 578.
In Carlisle, we noted that the LRE would ideally be the same school the child would have attended if she were not disabled. 62 F.3d at 535. However, we prefaced that statement by noting that such placement is only appropriate to the extent that it “satisfactorily educates” the disabled child. Id. The School District and District Court‘s emphasis on the LRE requirement here is misplaced. The School District must first prove that the IEP will provide a meaningful educational benefit. The School District cannot bootstrap the meaningful educational benefit with the LRE requirement. The ”
Even considering the mainstreaming opportunities the School District points to, we agree with the ALJ that they are de minimis. Other than potential interaction at lunch or recess (in a uniform segregating the Bruce Street students from the nondisabled students), the School District points to art with sign interpreter and “after school sports with late bus” proving Bruce Street is the LRE. App. at A458. The LRE should be considered in light of I.H.‘s specific educational needs. Geis, 774 F.2d at 583. As the ALJ noted, art with sign interpreter would provide almost no eduсational benefit to I.H. Therefore, any value from mainstreaming is marginal. As to the “after school sports with late bus,” the School District does not detail to what extent I.H., in kindergarten, would even be able to use this program.
2. Meaningful Educational Benefit
Taking each deficiency noted by the ALJ in turn, the evidence on the record does not overcome the ALJ‘s factual conclusions. For several deficiencies, the School District does not present any rebuttal and none can be found in the record. The proposed IEP does not address I.H.‘s residual hearing, nor does the School District explain why the ALJ‘s finding that this is a significant omission is incorrect. The IEP refers to use of the Stanford Achievement Test “normed on the Hearing
The proposed IEP recognizes that I.H.‘s progress may suffer without an extended school year. App. at A463 (“Hearing-impaired children lose a great deal of academic ground during the summer months . . . when they are not in a structured, academic setting.“). Nevertheless, the proposed IEP does not address extended school year services.
The ALJ found that consistent use of signs, specifically relating to the word order used and the use of connecting words and word endings, was one of the most important aspects of teaching I.H. English. S.H. v. Newark Bd. Educ., No. EDS7639-99 at 9-10, ¶ 34-36. A thorоugh review of the record supports the ALJ‘s conclusion that the School District did not prove by a preponderance of the evidence that the communications methods of Bruce Street and Lake Drive are the same. The parties agree that both schools adhere to the “total communication” philosophy. The evidence in the record does not rebut the ALJ‘s conclusion that the execution of the total communication philosophy was different between the two schools. Dr. McKirdy testified that Lake Drive stresses the use of connecting words and word endings because those words are easily missed.4 The school stresses consistency between teachers and classes to assure that the appropriate signs are used. In addition, Dr. McKirdy testified that the school strives for consistency with words for which there is not a formally accepted sign. The School District‘s witnesses testified that Bruce Street employs the same philosophy of total communication, but did not contradict the ALJ‘s conclusions that there may be significant differences in the details of the language used. Coupled with the ALJ‘s finding that I.H. is at an important stage in her language acquisition, the record supports the
ALJ‘s conclusion that differences in the program may be detrimental to I.H.
The non-testimonial evidence on the record does not contradict the ALJ‘s factual findings. Therefore, we accept them as correct. In light of his factual findings, the ALJ‘s conclusion that the School District did not prove by a preponderance of the evidence that the proposed IEP would convey a meaningful educational benefit is not in error.
C. Timeliness
S.H. also challenges the timeliness of the School District‘s challenge to the ALJ‘s decision. The District Court did not address this issue. The
S.H. suggests that we should extend this equitable principle to determining the appropriate time for the school to appeal from an adverse administrative decision. S.H.‘s concerns are understandable. New Jersey clearly seeks prompt settlement of these disputes by imposing a 45-day limit on the time the ALJ may take to decide. Here, the ALJ promptly issued a decision as to the 1999-2000 IEP early in the school year. It was not until May 26, 2000 that S.H. sought attorneys’ fees. This was after the May 16, 2000 IEP development meeting for the 2000-01 school year where the School District apрarently suggested continuing placement at Lake Drive. Only after S.H. sought attorneys’ fees did the School District challenge the ALJ‘s decision. Nevertheless, we are not inclined to parse our earlier decisions in an attempt to carve out a new statute of limitations here.
While we do not adopt S.H.‘s suggestion to impose a shorter statute of limitation, we do note that the School District‘s delay should have an impact on the remedy. The School District suggests that if we uphold the ALJ‘s decision that the IEP is inappropriate, the proper remedy is to allow it to revise its IEP to properly address the placement at Bruce Street. Were we to follow the School District‘s suggestion, we would strip the attorney fеe provisions of the
IV.
The School District did not prove by a preponderance of the evidence that the prоposed IEP would afford I.H. with a free and appropriate education. Therefore, the judgment of the District Court in favor of the School is reversed and we remand this case with instructions to enter judgment in favor of S.H.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit