C.H. v. Cape Henlopen School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-3630

C.H., by and through his parents and

next friends, Timothy and Barbara Hayes

v.

CAPE HENLOPEN SCHOOL DISTRICT;

GEORGE E. STONE, Superintendent of Schools

Cape Henlopen School District;

DELAWARE DEPARTMENT OF EDUCATION;

VALERIE A. WOODRUFF, Secretary,

Delaware Department of Education

C.H. Hayes; Barbara Hayes,

Appellants

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-07-cv-00193)

District Judge: Honorable Mary Pat Thynge

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 12, 2010

Before: FISHER, HARDIMAN and COWEN,

Circuit Judges.

(Filed: May 25, 2010)

C. H. Hayes

Barbara Hayes

21055 Cubbage Pond Road

Lincoln, DE 19960

Pro Se Appellants

Michael P. Stafford

Young, Conaway, Stargatt & Taylor

1000 West Street, P.O. Box 391

17th Floor, Brandywine Building

Wilmington, DE 19899-0391

Counsel for Appellees, Cape Henlopen

School District and George E. Stone

Catherine T. Hickey

John B. Hindman

Delaware Department of Justice

102 West Water Street, 3rd Floor

Dover, DE 19904

Counsel for Appellees, Delaware

Department of Education and

Valerie A. Woodruff

2

OPINION OF THE COURT

FISHER, Circuit Judge.

This appeal arises from an order of the District Court,

entered July 22, 2008, granting summary judgment in favor of

the Cape Henlopen School District (the “District”) and denying

appellants’ claim for reimbursement of private school tuition

and other related costs for their disabled child under the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C.

§ 1400, et seq. Appellants claim that the District’s failure to

have an individualized educational program (IEP) in effect for

their child on the first day of classes warranted their unilateral

decision to remove their child from the public school and place

him in a private residential school for students with disabilities.

Because procedural violations of the IDEA do not merit tuition

reimbursement absent a showing of substantive harm, and

because unreasonable parent conduct warrants equitable

reduction of an award under the IDEA, we will affirm the order

of the District Court.

I.

Plaintiff, C.H., was a minor child during the 2006-2007

school year.1 C.H. has been diagnosed with dyslexia,

dysgraphia, and a severe language disorder and may also suffer

1

To protect the identity of the disabled plaintiff, these

proceedings and those underlying it refer to the child, C.H., by

his initials only.

3

from Attention Deficit Hyperactivity Disorder (ADHD) and a

central auditory processing disorder. C.H. has thus been

identified as a child with a learning disability under 20 U.S.C.

§ 1401 and 29 U.S.C. § 705 since the 1998-1999 school year.

In the relevant time period, C.H. and his parents resided in the

Cape Henlopen School District.

The dispute between C.H.’s parents (the “Parents”)2 and

the District over the provision of adequate educational resources

for C.H. is longstanding. Since 2000, the Parents have

unilaterally withdrawn C.H. from the District and placed him in

private school on two separate occasions – once in 2002 and

again in 2004. In both instances the Parents sought

reimbursement from the District for private school tuition and in

both instances the District opposed reimbursement. Ultimately,

the District and the Parents entered into a Settlement Agreement

regarding only the 2005-2006 school year under which the

District agreed to pay C.H.’s tuition and certain educational

costs at the Gow School, a private residential school for boys

with language-based learning disabilities. The Agreement

provided that the placement was the sole decision of the Parents,

that the District’s tuition obligations pertained only to the 2005-

2006 year, and that the District was under no obligation to

monitor C.H.’s performance or develop an IEP for C.H. while

he was enrolled at the Gow School.

2

We will refer to the Parents collectively, though it is

clear that C.H.’s mother, who proceeds pro se before this Court,

was the active participant in most or all of the relevant

proceedings. Although C.H. is no longer a minor, he continues

to proceed by and through his Parents.

4

During the 2005-2006 school year, the Parents discussed

with the District C.H.’s potential return to the District for the

following year and the need to develop an IEP for C.H.

However, the Parents never definitively stated that C.H. would

return to the District for the 2006-2007 school year, and had in

fact already enrolled C.H. in the Gow School for the 2006-2007

school year as of March 2006. Despite this uncertainty, the

District determined that it should evaluate C.H. and develop an

IEP in the event C.H. returned to the District. Accordingly, in

May 2006, the District sought authorization from the Parents to

evaluate C.H. The Parents returned the initial permission form

without properly checking the box authorizing the evaluation.

The District notified the Parents of this oversight and obtained

the properly executed authorization on July 6, 2006. A District

Psychologist contacted the Parents on July 24, 2006, to schedule

the evaluation. The Psychologist evaluated C.H. on August 7

and 14, 2006, and completed an evaluation report on August 15,

2006.3

On August 18, the District sent a notice to the Parents

that an IEP team meeting was scheduled for August 22 to review

the results of the evaluation and to develop or revise an IEP for

C.H. Although the notice came less than ten days before the

meeting, in violation of the IDEA notice requirements, C.H.’s

mother signed a written waiver of the notice requirement in

order to permit the meeting to proceed.

3

The Psychologist later made an addendum to the report

after additional documents arrived from the Gow School.

5

The IEP meeting took place as scheduled on August 22

with C.H.’s mother in attendance. The District Psychologist

reviewed his findings and concluded that C.H. remained eligible

for special services. However, because of scheduling conflicts

of certain members of the IEP team, the meeting concluded

before C.H.’s IEP was finalized. Although the District

expressed its willingness to promptly schedule a continuation of

the meeting, C.H.’s mother indicated that her travel schedule

made her unable to meet again until after the start of the 2006-

2007 school year. The District proposed that the meeting be

continued on September 11, 2006, five days after the first day of

classes in the District. C.H.’s mother stated that she had a

scheduling conflict with the proposed date, but agreed to

tentatively schedule the meeting for September 11. She testified

that she anticipated notice of the rescheduled meeting. The

District did not send the Parents a written notice confirming the

continuation of the IEP meeting.

C.H. did not report to class in the District on the first day

of the public school year, September 6, 2006. Rather, his

Parents had unilaterally chosen to have him begin classes at the

Gow School on September 5, 2006. The Parents did not notify

the District at any point in advance of placing C.H. in the Gow

School that they intended to seek reimbursement for his tuition

from the District.

On September 7, 2006, one day after the start of District

classes, the Parents filed a request for a due process hearing

before the Department of Education Hearing Panel (the

“Hearing Panel”). Despite this due process request, the District

intended to proceed with the September 11 meeting. On

6

September 8, the District sent a letter to the Gow School inviting

a representative to participate in person or by conference call.

C.H.’s mother was sent a copy of this letter. On the morning of

September 11, approximately one hour before the scheduled

meeting time, the District received a phone call from the Gow

School indicating that its representative would not participate in

the meeting because C.H.’s mother had informed them that she

would not be attending. The Parents later advised the District

that, in light of their due process complaint, they would no

longer participate in IEP meetings with the District.

Additionally, the Parents refused to give the District permission

to conduct a speech and language evaluation of C.H., which was

necessary in order to develop his IEP.

The Hearing Panel convened in December 2006 to

consider the Parents’ due process complaint. As the Hearing

Panel parsed it, the Parents raised five claims. The first four the

Panel treated as alleged procedural violations: the District failed

to develop an IEP during the 2005-2006 year while C.H. was at

the Gow School, the District failed to provide an IEP for the

2006-2007 year as of the first day of the school year; the District

failed to provide the required ten-day notice of the proposed IEP

meetings; and the District failed to provide the speech and

language evaluation necessary to develop an IEP. The final

claim the Panel treated as substantive: the District failed to

review and consider the appropriate documentation of C.H.’s

performance in conducting his psychological evaluation. As a

remedy, the Parents sought the full cost of tuition and all related

costs for C.H.’s enrollment in the Gow School for the 2006-

2007 school year.

7

The Hearing Panel conducted a two-day evidentiary

hearing, which included testimony from the District Supervisor

of Special Programs, the District Psychologist, the Cape

Henlopen Principal, the District Special Education Coordinator,

the Director of the middle school at Gow School, the Director of

the upper school at Gow School, and the District Supervisor of

Instructional Support for Special Programs. C.H.’s mother also

testified.

Prior to the inception of the hearings, and again in

between the two days of testimony, the Parents sought the

recusal of the members of the Hearing Panel based on

allegations of bias and the Panel members’ supposed inability to

understand the IDEA. Each member of the Panel considered the

recusal request and determined that he/she was not biased and

could ably render a decision in the matter.

On January 6, 2007, the Panel issued its decision. The

Hearing Panel concluded that all of the Parents’ claims – both

procedural and substantive – failed under the IDEA because the

alleged deficiencies on the District’s part did not act to deprive

C.H. of a free and appropriate public education.

On April 5, 2007, the Parents filed a Complaint in the

United States District Court for the District of Delaware seeking

review of the Hearing Panel decision.4 The parties filed cross-

4

The Complaint also asserts the District Court’s

jurisdiction under Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, et seq., and Section 1983, 42 U.S.C. § 1983,

without any further factual or legal development. The District

8

motions for summary judgment. The District Court granted

summary judgment to the District and denied summary

judgment to the Parents, joining in the reasoning of the Hearing

Panel and noting that the Parents’ conduct in delaying and then

refusing to participate in the IEP meetings, and subsequent

refusal to authorize the speech and language evaluation, was a

substantial contributing factor to any alleged delays in the IEP

development. This timely appeal followed.

II.

The District Court had jurisdiction pursuant to 20 U.S.C.

§ 1415(i)(2)(A). We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

The IDEA directs that a reviewing court “is obliged to

conduct a modified de novo review, giving ‘due weight’ to the

underlying administrative proceedings.” S.H. v. State-Operated

Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)

(quoting MM v. Sch. Dist. of Greenville County, 303 F.3d 523,

530-31 (4th Cir. 2002)). Factual findings from the

administrative proceedings are to be considered prima facie

correct. Id. We exercise plenary review over the legal

conclusions reached by the District Court. See Lauren W. v.

DeFlaminis, 480 F.3d 259, 266 (3d Cir. 2007).

III.

Court did not address these claims. The Parents do not raise the

Rehabilitation Act claim on appeal, and we address the Section

1983 claim infra, in Part III.D.

9

On appeal, the Parents raise two categories of claims.

First, they allege that various procedural violations of the IDEA

warrant an award of tuition reimbursement for C.H.’s private

education for the 2006-2007 school year.5 Second, they allege

that the conduct of the Hearing Panel violated their right to due

process. The District argues that the alleged procedural

violations did not deprive C.H. of any educational benefit, and,

alternatively, that the Parents’ conduct warrants equitable denial

of reimbursement. We will address these arguments in turn.

A. Background

Under the IDEA, a state receiving federal educational

funding must provide children within that state a “free

appropriate public education” (FAPE). See 20 U.S.C.

§§ 1412(a)(1)(A), 1401(9). The FAPE required by the Act is

tailored to the unique needs of the child by means of an

“individualized educational program.” See id. § 1414(d)(1)(A).

An appropriate IEP must contain statements concerning a

disabled child’s level of functioning, set forth measurable annual

achievement goals, describe the services to be provided, and

establish objective criteria for evaluating the child’s progress.

See id.

The IDEA sets out a variety of procedures to be followed

in the creation of the IEP. For instance, the IEP is to be

prepared at a meeting including a qualified representative of the

5

The Parents do not raise the substantive claim related to

the sufficiency of the documentation reviewed by the District

Psychologist in their brief on appeal.

10

local educational agency, the child’s teacher, a special education

teacher, the child’s parent or guardian, and, where appropriate,

the child. Id. § 1414(d)(1)(B).6 The local educational agency is

to provide the parent with “[w]ritten prior notice” of “any

evaluation procedures such agency proposes to conduct[,]” id.

§ 1414(b)(1), or when the agency proposes or refuses to initiate

a change in the “identification, evaluation, or educational

placement of the child,” id. § 1415(b)(3). In addition, the statute

requires that,

[a]t the beginning of each school year, each local

educational agency, State educational agency, or

other State agency, as the case may be, shall have

in effect, for each child with a disability in the

agency’s jurisdiction, an individualized education

program, as defined in paragraph (1)(A).

Id. § 1414(d)(2)(A) (emphasis added).

The IDEA establishes a private cause of action against a

school district that fails to abide by its legal obligations. The

parent or guardian of a minor student who is denied the rights

and procedures set forth in the IDEA is afforded the opportunity

to file an administrative complaint and to appeal an adverse

determination to a federal district court. Id. §§ 1415(b)(6),

(i)(2). Accordingly, the Supreme Court has directed that a

6

The attendance of any of such individuals may be

waived by agreement between the parent or guardian and the

local educational agency, or by prior written input from the

absent party. Id. § 1414(d)(1)(C).

11

school district’s liability for violations of the IDEA is a two-fold

inquiry: (1) Has the school district complied with the

procedures set forth in IDEA?; and (2) Has the school district

fulfilled its obligation to provide the student with a FAPE? See

Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley,

458 U.S. 176, 206-07 (1982).

While a failure to satisfy either requirement may merit

court-ordered relief, the appropriate relief depends on which

requirement is not met. A plaintiff who alleges the denial of a

FAPE may seek compensatory relief in the form of appropriate

educational services within the district (referred to as

“compensatory education”) or tuition reimbursement for an

appropriate placement in private school. See Mary T. v. Sch.

Dist. of Phila., 575 F.3d 235, 249 (3d Cir. 2009). On the other

hand, a plaintiff alleging only that a school district has failed to

comply with a procedural requirement of the IDEA, independent

of any resulting deprivation of a FAPE, may only seek

injunctive relief for prospective compliance. See P.P. ex rel.

Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738

(3d Cir. 2009) (quoting Erickson v. Albuquerque Pub. Schs., 199

F.3d 1116, 1122-23 (10th Cir. 1999) (“[C]ompensatory

education is not an appropriate remedy for a procedural

violation of the IDEA.”)).

In some cases, a procedural violation may rise to the level

of a denial of a FAPE, entitling the plaintiff to compensatory

education or tuition reimbursement. However, “[a] procedural

violation of the IDEA is not a per se denial of a FAPE; rather,

a school district’s failure to comply with the procedural

requirements of the Act will constitute a denial of a FAPE only

12

if such violation causes substantive harm to the child or his

parents.” Knable ex rel. Knable v. Bexley City Sch. Dist., 238

F.3d 755, 765 (6th Cir. 2001) (citations omitted); see also D.S.

v. Bayonne Bd. of Education, No. 08-4730, ___ F.3d ___, 2010

WL 1610591, at * 9-11 (3d Cir. Apr. 22, 2010) (“A procedural

violation is actionable under the IDEA only if it results in a loss

of educational opportunity for the student, seriously deprives

parents of their participation rights, or causes a deprivation of

educational benefits.”); Adam J. v. Keller Indep. Sch. Dist., 328

F.3d 804, 811-12 (5th Cir. 2003) (“[P]rocedural defects alone do

not constitute a violation of the right to a FAPE unless they

result in the loss of an educational opportunity.”); DiBuo v. Bd.

of Educ., 309 F.3d 184, 190 (4th Cir. 2002) (“[A] violation of a

procedural requirement of the IDEA (or one of its implementing

regulations) must actually interfere with the provision of a

FAPE.”). Under the implementing regulations, substantive harm

occurs only if the preponderance of the evidence indicates that

the procedural inadequacies (i) [i]mpeded the

child’s right to a FAPE; (ii) significantly impeded

the parent’s opportunity to participate in the

decision-making process regarding the provision

of a FAPE to the parent’s child; or (iii) caused a

deprivation of the educational benefit.

34 C.F.R. § 300.513(a)(2).

Where a parent unilaterally places a child into private

school, a court or hearing officer may require reimbursement of

private school expenses where it finds there has been a

substantive harm – namely, that “the agency had not made a

13

[FAPE] available to the child in a timely manner.” 20 U.S.C.

§ 1412(a)(10)(C)(ii). However, even where private placement

is appropriate and reimbursement is otherwise due, the IDEA

permits the equitable reduction or elimination of tuition

reimbursement under certain circumstances. The statute

provides, in relevant part:

The cost of reimbursement . . . may be reduced or

denied-

(I) if-

(aa) at the most recent IEP meeting that the

parents attended prior to removal of the

child from the public school, the parents

did not inform the IEP Team that they

were rejecting the placement proposed by

the public agency to provide a free

appropriate public education to their child,

including stating their concerns and their

intent to enroll their child in a private

school at public expense; or

(bb) 10 business days (including any

holidays that occur on a business day)

prior to the removal of the child from the

public school, the parents did not give

written notice to the public agency of the

information described in item (aa);

14

(II) if, prior to the parents’ removal of the child

from the public school, the public agency

informed the parents, through the notice

requirements described in section 1415(b)(3) of

this title, of its intent to evaluate the child

(including a statement of the purpose of the

evaluation that was appropriate and reasonable),

but the parents did not make the child available

for such evaluation; or

(III) upon a judicial finding of unreasonableness

with respect to actions taken by the parents.

Id. § 1412(a)(10)(C)(iii).

B. Tuition Reimbursement for Procedural

Violations of the IDEA

The Parents here seek tuition reimbursement for C.H.’s

private education at the Gow School. (Compl. Relief ¶¶ d-g.)

Thus, in order to recover, the Parents must demonstrate that the

District violated the IDEA in a way that caused a substantive

harm – either by depriving C.H. of an educational benefit or

significantly impeding the Parents’ participation in the decision-

making process regarding C.H.’s education. The Parents

premise their alleged harm on the District’s procedural

violations of the IDEA. These procedural violations take two

principal forms: the District’s failure to have an IEP in place on

the first day of the 2006-2007 school year, and the District’s

failure to notify the Parents ten days prior to any scheduled IEP

15

meeting.7 The District Court reasoned that these procedural

violations, to the extent they occurred, did not rise to the level

of the denial of a FAPE. We agree.

1. Failure to Develop an IEP as of the First Day

of Classes

There is no dispute that the District failed to have an IEP

in place on the first day of the 2006-2007 school year. This is

a violation of the plain mandate of the IDEA that a District

should have an IEP in place “[a]t the beginning of each school

year.” 20 U.S.C. § 1414(d)(2)(A). Thus, acknowledging that a

procedural violation has occurred, we must determine whether,

under the circumstances, this violation can meaningfully be said

to have “[i]mpeded the child’s right to a FAPE” or “caused a

deprivation of [an] educational benefit.” Id. § 300.513(a)(2)(i),

(iii).

7

In fact, the Parents allege a host of procedural violations

over the course of the year preceding the 2006-2007 school year,

including the District’s failure to complete the speech and

language evaluation that C.H. needed before the District could

develop an IEP. (See Parents’ Br. 11 (“[T]he District’s

procedural violations began in December of 2005 when they

recommended evaluations.”).) However, these alleged

procedural violations really boil down to one essential

complaint: that the District failed to take the necessary steps to

timely develop an IEP. Accordingly, we will address these

allegations as related claims in support of the Parents’

contention that the failure to have an IEP in place on the first

day of the school year denied C.H. a FAPE.

16

The Fourth Circuit considered this question under similar

circumstances in MM v. School District of Greenville County,

303 F.3d 523 (4th Cir. 2002). In Greenville, a four year-old

child (“MM”) suffered from a form of dystrophy and mild

autism and was enrolled in a public preschool program,

receiving special services under the IDEA. Id. at 528. Her

parents also participated in a private in-home program for

autism when MM was not in preschool. Id. For the 1995-1996

school year, MM had an IEP in place that the parents had

approved. Id. In May of 1996, the IEP team convened to

reassess MM’s progress and proposed an IEP that did not

include “extended school year” services to cover a summer

educational program for MM. Id. at 528-29. The parents

objected and the IEP was not agreed to for the 1996-1997 school

year. Id. at 529. A subsequent meeting on August 8 was

similarly unsuccessful, in large part because the parents insisted

that the in-home autism treatment should be part of the IEP. Id.

A third meeting was scheduled for August 22, but the parents

cancelled the meeting. Id. The parents then unilaterally decided

to enroll MM in a private kindergarten program, and she never

attended classes in the public school district for the 1996-1997

school year. Id.

In assessing the parents’ claim for reimbursement of

MM’s private tuition costs, the court considered whether the

school district’s failure to have an IEP in place before the start

of classes “resulted in the loss of an educational opportunity for

the disabled child, or whether . . . it was a mere technical

contravention of the IDEA.” Id. at 533. Under the facts of that

case, the court reasoned that “the District was willing to offer

MM a FAPE, and that it had attempted to do so[,]” and that “her

17

parents had a full opportunity to participate in the development

of the Proposed 1996-97 IEP.” Id. at 534. Additionally, there

was no evidence that MM suffered any educational loss because

her parents “would [not] have accepted any FAPE offered by the

District that did not included reimbursement for the [in-home

autism] program” and “MM suffered no prejudice from the

District’s failure to agree to her parents’ demands.” Id. at 535.

The court ultimately concluded that “[b]ecause this procedural

defect did not result in any lost educational opportunity for

MM,” the reimbursement claim failed. Id. The court further

admonished, “it would be improper to hold [the] School District

liable for the procedural violation of failing to have the IEP

completed and signed, when that failure was the result of [the

parents’] lack of cooperation.” Id. at 534 (quoting district court

slip op. at 15).

On the other hand, we note the Sixth Circuit, in Knable

v. Bexley City School District, 238 F.3d 755, 766-67 (6th Cir.

2001), held that a “draft” IEP did not satisfy the IDEA and that

the school district’s failure to formulate a final IEP prior to the

start of the school year resulted in a denial of FAPE. However,

central to the Sixth Circuit’s analysis was the fact that the school

district there never convened an IEP meeting, either before or

after the start of the school year, and that the disabled student

enrolled in the district for the school year and never received an

IEP. Thus, the court reasoned, “the absence of an IEP at any

time during [the child’s] sixth-grade year caused [him] to lose

educational opportunity.” Id. at 766.

Reconciling these approaches, we find the Fourth

Circuit’s reasoning in Greenville highly persuasive in our

18

present analysis. The District here demonstrated consistent

willingness to evaluate C.H. and to develop an IEP for the 2006-

2007 school year. Despite some initial delays in finalizing the

authorization, C.H. was evaluated by a District psychologist a

month before the start of school and an IEP team convened

shortly thereafter to develop his educational program. Although

the IEP was not completed in the first meeting, it was the

Parents and not the District who delayed the continuation of that

meeting until after the start of classes, and ultimately terminated

the process by filing a due process request. Like the court in

Greenville, we decline to hold that a school district is liable for

procedural violations that are thrust upon it by uncooperative

parents.

Additionally, we lack the essential element in the Sixth

Circuit’s analysis in Knable: the ability to determine whether

the failure to develop an IEP on the first day of classes would

have resulted in a lost educational benefit for the disabled child.

C.H. never attended a single class in the District in the 2006-

2007 school year. The Parents enrolled C.H. in Gow on the

presumption that the District’s failure to have the IEP in place

on the first day would deprive C.H. of an educational benefit.

Neither the Hearing Panel nor the District Court credited this

presumption as fact. Rather, the Hearing Panel reasoned that an

IEP could have been developed for C.H. within a week of the

start of the school year, had C.H. remained in the District and

had the Parents continued to cooperate. We will not disrupt that

determination in the face of mere supposition.

Absent any evidence that C.H. would have suffered an

educational loss, we are left only to determine whether the

19

failure to have an IEP in place on the first day of school is,

itself, the loss of an educational benefit. While we do not

sanction a school district’s failure to provide an IEP for even a

de minimis period, we decline to hold as a matter of law that any

specific period of time without an IEP is a denial of a FAPE in

the absence of specific evidence of an educational deprivation.

As the Supreme Court has cautioned, “parents who unilaterally

change their child’s placement during the pendency of review

proceedings, without the consent of state or local school

officials, do so at their own financial risk.” Florence County

Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993).

Accordingly, the District’s failure to have an IEP in place

on the first day of classes did not deprive C.H. of a FAPE, and

reimbursement on that basis was properly denied.

2. Failure to Provide Ten-Day Notice of IDEA

Meetings

Next we turn to the question of whether any alleged

failure on the District’s part to timely notify the Parents of IEP

meetings “significantly impeded the parent’s opportunity to

participate in the decision-making process regarding the

provision of a FAPE[.]” 34 C.F.R. § 300.513(a)(2)(ii).

As explained above, the IDEA contains a notice

provision, requiring prior written notice to parents whenever an

agency proposes or refuses to initiate or change “the

identification, evaluation, or educational placement of the child,

or the provision of a free appropriate public education to the

child.” 20 U.S.C. § 1415(b)(3). These procedures are designed

20

to ensure that the parents of a child with a disability are both

notified of decisions affecting their child and given an

opportunity to object to these decisions. See id. § 1415(a). Thus

in cases where a violation of a notification requirement does not

actually impair the parents’ knowledge of, or participation in,

educational decisions, the violation is not a substantive harm

under the IDEA. See, e.g., Gadsby by Gadsby v. Grasmick, 109

F.3d 940, 956 (4th Cir. 1997) (noting that parents received late

notice with ample time to respond and holding that “[b]ecause

any violation of the notice provisions did not interfere with the

provision of a free appropriate public education to [the child],

these violations cannot subject [the district] to liability for

reimbursement of [private school] tuition”).

We are not persuaded that the alleged notification

violations here impaired the Parents’ ability to participate in the

IEP meetings. As to the first meeting on August 22, C.H.’s

mother signed a written waiver of ten-day notice of IEP

meetings, leading the District Court to correctly conclude that

no notice violation occurred. However, even if a violation had

occurred, the Parents do not claim it had any effect on their

ability to participate fully in the meeting, and C.H.’s mother

attended the August 22 meeting without objection.

Further, the Parents do not allege that they were unaware

of the September 11 continuation of the IEP meeting, only that

they did not receive the formal notice required by the IDEA.8 In

8

The District Court concluded that, because the

September 11 meeting was merely a continuation of the

August 22 meeting, no new notice was necessary. (Dist. Ct. Slip

21

fact, C.H.’s mother testified that she was present when the

District scheduled the meeting for September 11, though she

says she did not commit to it and expected notice when the date

was finalized. She further testified that the reason she did not

attend the September 11 meeting was because she had filed for

due process, not because she was unaware of the meeting

schedule.

The procedural requirements of the IDEA governing

notice of IEP meetings are intended to ensure parental

participation in the IEP process, not to provide the Parents with

a hook on which to hang a tuition reimbursement claim. It is

clear to us, as it was to the District Court, that the Parents have

been their own greatest impediment to participation in the

evaluation of C.H.’s disabilities and the development of an

appropriate IEP. We therefore affirm the District Court’s

rejection of the argument that any notice deficiencies rise to the

level of substantive harm.

C. Equitable Reduction of Reimbursement

Although we hold that C.H. was not denied a FAPE and

therefore cannot seek tuition reimbursement for his private

education, we agree with the District that, alternatively,

equitable considerations weigh against granting the relief sought

by the Parents. Even where a District is found to be in violation

Op. 13.) The Parents insist they were owed additional notice

under the IDEA. Because we agree that the notice violation,

even if it had occurred, does not constitute a denial of a FAPE,

we need not resolve this dispute.

22

of the IDEA and private school placement is deemed

appropriate, “courts retain discretion to reduce the amount of a

reimbursement award if the equities so warrant.” Forest Grove

Sch. Dist. v. T.A., 129 S. Ct. 2484, 2496 (2009).9 The IDEA

directs that an award of private school tuition “may be reduced

or denied” under a variety of circumstances, including “upon a

judicial finding of unreasonableness with respect to actions

taken by the parents,” 20 U.S.C. § 1412(a)(10)(C)(iii)(III), or

where parents fail to give the school district ten days notice prior

to enrolling a child in private school, id.

§ 1412(a)(10)(C)(iii)(I)(bb).10

There is no question here that the Parents unilaterally

withdrew C.H. from the District without any prior notice to the

District. Further, there is no question that the Parents’ conduct

9

Although Forest Grove was decided after the District

Court’s consideration of this matter, the principles stated therein

with regard to equitable relief under the IDEA are not new. See

Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 374

(1985) (“[E]quitable considerations are relevant in fashioning

relief” under the IDEA).

10

The IDEA provides for exceptions where

reimbursement need not be denied despite the failure of the

parents to notify the school district of their intent to place their

child in private school – for example where the parents were not

notified of the notice requirement or where compliance would

result in harm to the child. See 20 U.S.C.

§ 1412(a)(10)(C)(iv)(IV). The Parents have not alleged the

application of any of these exceptions here.

23

in delaying the continuation of the IEP meeting and cancelling

the speech and language evaluation substantially precluded any

possibility that the District could timely develop an appropriate

IEP for C.H. and provide the necessary services to him, or that

the parties could resolve this dispute without resort to litigation.

The District argues that this conduct warrants equitable denial

of reimbursement, as allowed by statute.

In response, the Parents contend that their refusal to

continue with IEP development or permit evaluation of C.H.

after they filed their due process request is a right conferred on

them by the IDEA. For this proposition, they refer to § 1415(j),

which provides:

[D]uring the pendency of any proceedings

conducted pursuant to this section, unless the

State or local educational agency and the parents

. . . otherwise agree, the child shall remain in the

then-current educational placement of such child

....

20 U.S.C. § 1415(j); see also 34 C.F.R. § 300.518(a).11

Commonly referred to as the “stay-put” provision, § 1415(j)

11

In actuality, the Parents mistakenly cite 34 C.F.R.

§ 300.514 for the proposition that “[n]o change in identification,

evaluation, program, educational placement or IEP may be made

during the process of a hearing unless agreed to by both parties.”

(Parents’ Br. 11.) Although this overstates the command of

§ 1415(j), we construe the citation as a reference to 34 C.F.R.

§ 300.518(a), the implementing regulation of § 1415(j).

24

protects the status quo of a child’s educational placement while

a parent challenges a proposed change to, or elimination of,

services.

The Parents grossly misread the effect of this provision.

The stay-put provision merely ensures that a disabled child’s

educational services are not altered or reduced until the parent

has an opportunity to avail herself of the appeal procedures.

The stay-put provision was never intended to suspend or

otherwise frustrate the ongoing cooperation of parents and the

school district to reach an amenable resolution of a disagreement

over educational services. In fact, the IDEA specifically

obligates the parents to participate in a resolution session with

the school district after a due process request is filed “where the

parents of the child discuss their complaint, and the facts that

form the basis of the complaint, and the local educational

agency is provided the opportunity to resolve the complaint.”

20 U.S.C. § 1415(f)(1)(B)(i)(IV).12 The inclusion of a

mandatory resolution session clearly reflects Congress’ intention

that parents and school districts continue to work toward the

resolution of disputes and the provision of appropriate

educational services even after a due process request is filed.

See also Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53

(2005) (“The core of the [IDEA] . . . is the cooperative process

that it establishes between parents and schools.”). The stay-put

provision does not, therefore, excuse the Parents, who based

12

The resolution session can be waived by agreement of

the parties. See 20 U.S.C. § 1415(f)(1)(B)(i)(IV). The record

does not reflect whether the Parents and the District here waived

the resolution session.

25

their complaint on the absence of an IEP, from continuing to

meet with the District to rectify the perceived wrong.

The Parents here have disregarded their obligation to

cooperate and assist in the formulation of an IEP, and failed to

timely notify the District of their intent to seek private school

tuition reimbursement. We believe these are among the

“unreasonable[] . . . actions taken by the parents,” 20 U.S.C.

§ 1412(a)(10)(C)(iii)(III), that Congress contemplated when it

gave courts the authority to equitably reduce or eliminate tuition

reimbursement. See Forest Grove, 129 S. Ct. at 2496 (noting

instance of unreasonableness where “the parents failed to give

the school district adequate notice of their intent to enroll the

child in private school”). The IDEA was not intended to fund

private school tuition for the children of parents who have not

first given the public school a good faith opportunity to meet its

obligations. See Roland M. v. Concord Sch. Comm., 910 F.2d

893, 995 (1st Cir. 1990) (“The law ought not to abet parties who

block assembly of the required team and then, dissatisfied with

the ensuing IEP, attempt to jettison it because of problems

created by their own obstructionism.”). Accordingly, we also

will also affirm the denial of the Parents’ request for tuition

reimbursement on equitable grounds.

D. Section 1983 Claim for Denial of Due Process

in State Administrative Proceedings

Finally, on appeal, the Parents contend that the District

Court erred in failing to separately address their claim that the

conduct of the Hearing Panel, in denying certain procedures,

violated their rights to procedural due process. Specifically, the

26

Parents allege that the Hearing Panel “made no findings of facts

based on determination of testimonial credibility[,]” “refused to

rule on the Plaintiff Parent’s right to review the child’s entire

educational record for evidentiary disclosure[,]” and that the

Panel chairperson “utiliz[ed] leading questions, had the witness

rephrase her answers to conform to the answers provided by the

Panel Chairperson[,] . . . and requested the District recall a

witness for rebuttal so she could ask questions.” (Parents’ Br.

3-4.) Presumably these allegations are premised on some of the

same perceived deficiencies that led the Parents to repeatedly

seek the recusal of the Panel members, though the record of the

recusal proceedings is not before us on appeal.

Upon review of the Complaint, we find no due process

claim asserted in the District Court. Although the Complaint

asserts the District Court’s jurisdiction under 42 U.S.C. § 1983,

through which an individual can seek damages for certain

constitutional deprivations, the Parents failed to allege any

misconduct by the Hearing Panel to the District Court. Nor do

the Parents request any relief pursuant to § 1983. Accordingly,

we will not address the merits of a constitutional argument for

the first time on appeal. See Ross v. Hotel Emps. and Rest.

Emps. Int’l Union, 266, F.3d 236, 242 (3d Cir. 2001) (“[A]bsent

compelling circumstances an appellate court will not consider

issues that are raised for the first time on appeal.”) (quotations

and citations omitted).13

13

Neither can the Parents tie any alleged procedural

deficiencies before the Hearing Panel into their requested

remedies under the IDEA. The IDEA states that a party “shall

have the right to bring a civil action with respect to the

27

IV.

For the foregoing reasons, we will affirm the District

Court’s grant of summary judgment to the District and denial of

summary judgment to the Parents.

complaint presented pursuant to this section[.]” 20 U.S.C.

1415(i)(2)(A) (emphasis added). Thus, “a party seeking judicial

relief from the decision of state administrative proceedings may

do so only to the extent that the party sought such relief in those

proceedings.” Chambers ex rel. Chambers v. Sch. Dist. of

Phila. Bd. of Educ., 587 F.3d 176, 186 n.14 (3d Cir. 2009). As

a matter of chronology, a state administrative complaint could

not seek relief for a due process violation that had not yet

occurred. Thus, any claim for deprivation of procedural due

process in the state administrative proceedings cannot be

redressed by the remedial provisions of the IDEA; the aggrieved

party must file a separate § 1983 action in the District Court,

supported by appropriate factual allegations.

28