L.G., о/b/o E.G., E.G., o/b/o E.G., Appellants v. FAIR LAWN BOARD OF EDUCATION.
No. 11-3014.
United States Court of Appeals, Third Circuit.
June 28, 2012.
967
Submitted Under Third Circuit LAR 34.1(a) April 23, 2012.
Robin S. Ballard, Esq., Schenck, Price, Smith & King, Florham Park, NJ, for Fair Lawn Board of Education.
Before: SLOVITER and ROTH, Circuit Judges, and POLLAK, District Judge.*
SLOVITER, Circuit Judge.
The Individuals with Disabilities Education Act (“IDEA“),
I.
Because we write primarily for the parties who are familiar with this case, we will provide only a brief summary of its extensive background here.
Shortly before L.‘s third birthday, Fair Lawn determined that L. qualified for special education and related serviсes as a preschooler with a disability.2 Fair Lawn‘s child study team prepared an IEP for L. that provided for placement in Fair Lawn‘s Stepping Stones program, which is exclusively for preschoolers with autism spectrum disorders. L.‘s IEP did not provide for any interaction with children without disabilities.
L.‘s mother approved the IEP, and L. began to attend Stepping Stones on January 22, 2007, her third birthday. At Stepping Stones, L. received approximately three hours pеr day of one-on-one discreet trial instruction based on Applied Behavioral Analysis (“ABA“), a research-based system of educating children with autism. Along with a variety of other strategies, ABA includes a “mainstreaming” component that “occurs only when the child has adequate skills to enable a meaningful interaction with a more typical peer.” J.A. at 41.
For the remainder of the school day, L. participated in group activities with other сhildren who had been diagnosed with autism spectrum disorders including some children who were higher functioning than L., who was “one of the lower functioning students” in the class. J.A. at 42.
In the fall of 2007, L.‘s parents requested that Fair Lawn consider an alternative educational placement for L. that would provide her with opportunities to interact with typically developing peers. By letter dated November 15, 2007, Fair Lawn denied the request. J.A. at 578.
At the request of L.‘s parеnts, a meeting was convened on December 20, 2007 to discuss L.‘s IEP for the coming year and, in particular, a request by L.‘s parents that L. be placed at the Children‘s Center,
Prior to the December 20, 2007 meeting, Fair Lawn Staff met to develop a proposed IEP. The proposed IEP, which was presented to L.‘s parents at the December 20, 2007 IEP team meeting, continued to provide for L.‘s placement at Stepping Stоnes without specifically providing for any interaction with nondisabled children. According to Fair Lawn, L. did not have the requisite skills to benefit from placement in an inclusion program or from any interaction with typically developing peers. L.‘s case manager later explained that “before children are integrated into a program like [the Children‘s Center] they would need to show some social-interaction skills, some awareness оf other children, some modeling of other children, and some interest in engaging with other children,” which L. had not shown. J.A. at 49. The IEP thus provided that Fair Lawn staff would “continue to monitor [L.‘s] progress to ensure she has opportunities to interact with nondisabled peers when she is able to benefit from them.” J.A. at 617. In early 2008, Fair Lawn began to include “reverse-inclusion component,” which “allowed a child from outside the classroom, either typical or presсhool disabled, to come in to play with the group in order to demonstrate social skills, providing students with the opportunity to emulate.” J.A. at 42.3
On March 3, 2008, L.‘s parents transferred her from Stepping Stones to the Children‘s Center, where she would be placed in a class that included both typically developing children and children with disabilities. That day, they initiated administrative proceedings against Fair Lawn, seeking reimbursement of the expenses they incurred in рlacing L. at the Children‘s Center and in privately obtaining other services for L.
On May 6, 2008, the New Jersey Office of Administrative Law began a due process hearing. On the eleventh day of the hearing, having first solicited briefing from both parties and heard argument, the Administrative Law Judge (“ALJ“) determined that the proceedings should be bifurcated: the ALJ first would decide whether Fair Lawn‘s placement of L. complied with the IDEA, and if he determined that it did not, he would then move on to consider whether the Children‘s Center was an appropriate placement. The ALJ subsequently ruled that, in the first part of the bifurcated proceedings, he would exclude evidence not relevant to the question whether Fair Lawn had offered L. a free appropriate public education in the least restrictive environment as of March 2008, when L.‘s parents transferred her to the Children‘s Center.
In a decision dated October 5, 2009, the ALJ detеrmined that Fair Lawn had complied with the IDEA. Based on the expert testimony and his independent review of the video of L. that her parents had provided to Fair Lawn, the ALJ found that L.‘s disability “renders her incapable of being satisfactorily educated in a regular
Seeking independent review of the ALJ‘s decision, L.‘s parents brought a civil action under
II.
A. Jurisdiction & Standard of Review
We have jurisdiction pursuant to
Appellants contend that the District Court applied the incorrect standard of review to the ALJ‘s decision. In IDEA cases, а district court is required to “hear additional evidence at the request of a party” and to make its own findings by a “preponderance of the evidence,”
The District Court‘s opinion contains a detailed and accurate description of the modified de novo standard of review. However, at the end of this description, the District Court stated that it rеviews the ALJ‘s factual findings “under a clearly erroneous standard.” L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., No. 2:09-CV-6456, 2011 WL 2559547, at *5 (D.N.J. June 27, 2011). In the “Discussion” section that followed, however, the District Court explicitly stated, “the evidence as adduced by the ALJ proves by a preponderance of the evidence that L. received that to which she was statutorily entitled.” Id. at *4. The District Court thus appropriately applied the modified de novo standard of review.4
B. Reimbursement Claim
L.‘s parents seek reimbursement of the сosts they incurred as a result of their placement of L. at the Children‘s Center. Tuition reimbursement is an appropriate remedy if “the public placement violated [the] IDEA and ... the private school placement was proper under the Act.” Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993). L.‘s parents contend that Fair Lawn‘s placement of L. violated the IDEA because (1) Fair Lawn excluded them from meaningful participation in the determination of L.‘s placement; and (2) Fair Lаwn did not provide L. with an education in the least restrictive environment in which she could obtain a meaningful educational benefit. We discuss each contention in turn.
1. Predetermination of placement
L.‘s parents argue that Fair Lawn violated the IDEA‘s procedural requirements when, prior to the December 20, 2007 IEP team meeting, Fair Lawn staff met without L.‘s parents present, determined that L. should be placed at Stepping Stones, and drafted an IEP for L. reflecting this determination. In enacting thе IDEA, “Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process ... as it did upon the measurement of the resulting IEP against a substantive standard.” Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982).
Although L.‘s parents did not ultimately sign the IEP that was presented to them on December 20, 2007, they were not excluded from the process of determining L.‘s placemеnt, and they had an opportunity to participate in the formulation of her IEP in a meaningful way. Federal and state regulations require that the parents of a child with a disability be afforded the opportunity to participate in meetings about a child‘s placement; however, parents need not be included in “preparatory activities that public agency personnel engage in to develop a proposal оr response to a parent proposal that will be discussed at a later meeting.”
2. Least restrictive environment
The central question in the proceedings befоre the District Court and the ALJ was whether Fair Lawn‘s placement of L. in accordance with the December 20,
[t]o the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and special classes, separate schooling, оr other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
Appellants argue that the District Court conflated the standard for determining whether L.‘s IEP provided for a free and appropriate education with the standard for determining whеther she was being educated in the least restrictive environment. Whether an education is “appropriate” for the purposes of determining whether a school district has offered a student a free and appropriate public education is, of course, a distinct question from whether the student has been integrated “to the maximum extent appropriate.” Ramsey, 435 F.3d at 393. Although the District Court did not engage in a separate analysis of the least restrictive environment requirement and did not make any factual findings about Fair Lawn‘s compliance with the requirement, it affirmed as “legally sufficient” the ALJ‘s determination that Fair Lawn‘s IEP met the requirement. On review, we apply the legal standards that the District Court should have applied, and may affirm the District Court‘s decision if the result was proper and supported by the factual findings of the ALJ. See Kingwood, 205 F.3d at 577; Bucks Cnty. Dep‘t of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61, 65 (3d Cir. 2004).
In determining compliance with the least restrictive environment requirement, courts in the Third Circuit apply the two-part test adopted in Oberti ex rel. Oberti v. Board of Education of Clementon School District, 995 F.2d 1204, 1215 (3d Cir. 1993). First, a court inquires “whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily.” Id. (internal quotation marks and citation omitted). If a court finds that the child cannot bе satisfactorily educated in a regular classroom with supplementary aids and services, it turns to the second part of the Oberti test: “whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible.” Id. at 1215 (internal quotation marks and citation omitted).
In the present case, the ALJ‘s findings of fact were sufficient to determine that Fair Lawn reasоnably concluded that the completely segregated environment provided for in L.‘s IEP was the least restrictive environment in which L. could obtain a “meaningful educational benefit.” See
The ALJ аlso concluded that L. “would not have benefited from a less restrictive environment ... [because she] wouldn‘t notice her peers, and, therefore, would not gain from their modeling appropriate behavior.” Id. at 71. The ALJ‘s independent review of the video provided by L.‘s parents “generally confirmed” the interpretation offered by Fair Lawn—that L. “is unable to engage with her peers“—rather than the opposite conclusion that was оffered by an expert hired by L.‘s parents.6 J.A. at 54. Additionally, the ALJ noted that “[t]he evidence that [L.] had any interest in peers came largely from [her mother], and was generally anecdotal.” J.A. at 67. The ALJ thus determined that the benefits of a less restrictive environment would not accrue to L. given her limited abilities. The ALJ also found that L. “learns best one-to-one,” and that she “made significant and meaningful progress” at Stepping Stones. J.A. at 70. Stepping Stones prоvided L. with the opportunity to interact with peers who had higher skills than she, and the ABA program used at Stepping Stones provides for mainstreaming when a child has developed the appropriate prerequisite skills. Moreover, L.‘s IEPs provided that L. would have “the same opportunities for participation in school social and extracurricular activities as her non-disabled peers,” J.A. at 528, and that Fair Lawn would “continue to monitоr her progress to ensure she has opportunities to interact with nondisabled peers when she is able to benefit from them.” J.A. at 617. The addition of a reverse-inclusion component to the Stepping Stones program also demonstrates Fair Lawn‘s efforts to provide L. with opportunities to interact with typically developing peers to the maximum extent appropriate. These facts demonstrate that the District Court proрerly adopted the ALJ‘s conclusion that Fair Lawn satisfied the least restrictive environment requirement.
C. Evidence Related to Children‘s Center
L.‘s parents also argue that the District Court erred in upholding the ALJ‘s exclusion—pursuant to the bifurcation order—of evidence related to the Children‘s Center and L.‘s progress there, and in denying their request to introduce the same evidence in the District Court. Under the New Jersey Administrative Code, a judge has the authority to bifurcate a hearing when, “there are multiple parties, issues or claims, and the nature of the case is such that a hearing of all issues in one proceeding may be complex and confusing, or whenever a substantial saving of time would result from conducting separate hearings or whenever bifurcation might eliminate the need for further hearings.”
IDEA provides that the district court “shall hear additional evidence at the request of a party.”
III.
For the reasons stated above, wе will affirm the District Court‘s decision.