The opinion
Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-22-1994
Bernardsville Bd. of Ed. v. J.H., et al.
Precedential or Non-Precedential:
Docket 93-5767
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Bernardsville Bd. of Ed. v. J.H., et al." (1994). 1994 Decisions. Paper 197.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/197
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-5767
___________
BERNARDSVILLE BOARD OF EDUCATION
Appellant
vs.
J. H., Individually and on behalf of their minor son
J.H.; E. H., Individually and on behalf of their minor
son, J.H.; J. H., Individually
___________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 92-cv-03694)
___________
Argued
August 8, 1994
Before: MANSMANN, COWEN and McKEE, Circuit Judges.
(Filed November 22, 1994)
___________
Nathanya G. Simon, Esquire (ARGUED)
David L. Rosenberg, Esquire
Schwartz, Simon, Edelstein,
Celso & Kessler
293 Eisenhower Parkway
Suite 300
Livingston, NJ 07039
COUNSEL FOR APPELLANT
Theodore A. Sussan, Esquire (ARGUED)
Staci J. Greenwald, Esquire
Sussan & Greenwald
407 Main Street
Spotswood, NJ 08884
COUNSEL FOR APPELLEES
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
Through the exercise in "cooperative federalism" which
is the hallmark of the implementation of the Education of the
Handicapped Act, 20 U.S.C. §§ 1400 et seq., now known as the
Individuals with Disabilities Education Act, local school boards
are mandated to provide a free, appropriate public education for
handicapped children alongside their peers who are not so
impaired. The Act authorizes federal assistance to states and
localities for educational programs which confer an educational
benefit on disabled students. The Bernardsville School District
receives an allocation of funds under this Act and thus incurs
the responsibility to confer an educational benefit on learning
disabled students enrolled in a public school within its
jurisdiction.
J.H., the child who is the subject at the heart of this
case, was denied the benefit of a free appropriate public
education throughout his several years as an elementary school
student within the Bernardsville School District. Year after
year the School District failed to design an Individualized
Educational Program suitable to J.H.'s special needs, and failed
to intervene responsibly in his quite apparent trend of academic
and social deterioration. Observing their son's educational
predicament and dissatisfied with the school program in
Bernardsville, J.H.'s parents unilaterally removed J.H. from the
School District and enrolled him in a private out-of-state
residential school, where J.H. improved significantly under a
program responsive to his needs. More than two years later,
J.H.'s parents sought reimbursement from the Bernardsville School
District for tuition and expenses for J.H.'s private education.
J.H.'s parents argued that Bernardsville was by law obliged to
provide J.H. with a free appropriate public education, that it
failed utterly in this regard, and that they were virtually
forced to enroll J.H. in an out of district school in order to
ensure him an appropriate educational benefit. The Act and the
implementing regulations offer no guideline with regard to the
timeliness of this claim for retroactive reimbursement.
We must decide whether J.H.'s parents requested due
process for their son within an appropriate time limitation.
Notwithstanding an acknowledgement of good cause for the
frustration of J.H.'s parents and the reasonableness of their
educational decision, we conclude that the request for
reimbursement for the first two years after J.H. was removed from
Bernardsville and enrolled in a private institution was untimely.
We will award reimbursement only for J.H.'s third year of private
education and for partial attorney's fees.
I.
J.H. entered the Bernardsville School District in
September, 1980, after he had completed kindergarten at a
parochial school and it had become apparent that his academic
progress was not commensurate with the other children in his
class. In the Bernardsville School District, J.H. repeated
kindergarten, at the end of which it was again apparent that
J.H.'s academic skills were significantly deficient and that he
had not progressed much during the academic year. By November of
academic year 1981-82, while J.H. was in the first grade, J.H.'s
parents still observed a lack of progress in their son, and hired
a private tutor for reading and math once a week. In January,
1982, a private learning consultant advised Mr. and Mrs. H. that
J.H. required one-on-one academic assistance. In January, 1982,
the Bernardsville School District, also well aware of J.H.'s
academic difficulties, referred J.H. to their Child Study Team,1
and on April 8, 1982, classified J.H. as perceptually impaired.
The District placed J.H. in a small resource room reading and
math group, and mainstreamed J.H. for other subjects. J.H. also
attended summer school in the Bernardsville school district after
completing the first grade.
J.H. remained in resource room instruction in the
Bernardsville school through the end of the third grade, showing
1
. The Bernardsville elementary school's referral for
evaluation in J.H.'s case listed the following specific reasons
for referral:
1. [J.H.] is very inattentive unless its a
one to one situation.
2. He often fails to respond when his name
is called.
3. We are concerned that there may be an
articulation problem. There are many words
he cannot pronounce.
4. His answers to questions are often
inappropriate.
5. He cannot work independently.
A. 2095-96.
very limited progress and great difficulty keeping academic pace
with his peers. The Individualized Educational Program (IEP)
reports created by the Bernardsville district for the years 1982-
83, 1983-84 and 1984-85, as well as Bernardsville's psychological
evaluations of J.H., attest to J.H.'s lack of academic progress
and a disturbing deterioration in his confidence, self-esteem and
social interaction with peers. The district court found that
academic frustration and social isolation marked J.H.'s education
experience in Bernardsville.
As early as October of 1982, J.H.'s resource room
teacher, Mrs. Garland, recorded Mrs. H.'s "persistent anxiety"
regarding the efficacy of the IEP. Mr. Walter Mahler of the
Bernardsville Child Study Team was also apprised in 1982 of an
audiological evaluation and assessment of central auditory
functioning performed by a private neurologist, which revealed
that J.H. was experiencing significant difficulty with auditory
figure-ground discrimination ability,2 auditory closure ability3
and appeared also to suffer with auditory memory deficits.4 A.
2
. The report, which was done through St. Clare's
Hospital, indicates that auditory figure ground discrimination
deficits may manifest as inability to communicate in an
environment of background noise. Communication difficulties may
be circumvented if optimal listening conditions, including a
quiet room with few distractions, are provided for learning. A.
2127.
3
. Auditory closure deficits cause difficulty in blending
sounds and manifest as reading, spelling and articulation
problems. A. 2128.
4
. Auditory memory deficits may manifest as problems with
following verbal instructions, reading comprehension and other
verbal abilities. A. 2128.
2126-2128. That report recommended optimal listening conditions
for J.H. in order to enhance his academic development. The
report recommended specifically a quiet learning room with few
distractions, preferential seating in a classroom, eliciting
frequent feedback from J.H., certain speech and common memory
training techniques, and counseled against a phonetics approach
to reading. Phonetics was nevertheless emphasized in J.H.'s IEPs
for reading.5 Moreover, Mrs. H. testified before the
administrative law judge that J.H.'s resource room was not
reasonably free from background noise which could sabotage
efforts to educate this attention deficit child.
In academic year 1986-87, at the end of J.H.'s sixth
grade, his reading level, as measured by the Woodcock Johnson
Psychoeducational Battery, had only progressed from 1.0 in the
first grade to 2.9. Notwithstanding J.H.'s lack of success in
prior years, the IEP provided by the district for the 1987-88
school year, J.H.'s grade 7, was virtually identical to the prior
unsuccessful IEPs. Dr. Howard Margolis, testifying as an expert
on behalf of J.H. at trial, characterized J.H.'s placement as
5
. Dr. Margolis, Ed.D., Reading and Special Education
Consultant, in testimony before the administrative law judge and
in a written evaluation report on J.H.'s educational program
prior to his enrollment at Landmark, A. 2561 et seq., concluded
that Bernardsville maintained a phonetics approach to reading
year after year despite its inappropriateness given J.H.'s
handicapping condition. A. 2572. The administrative law judge
was persuaded by Dr. Margolis' findings and conclusions, and
specifically found that J.H.'s reading program deprived J.H. an
opportunity to acquire reading skills. The district court
endorsed the determination of the administrative law judge,
specifically noting the inappropriateness of the reading program.
inappropriate and not reasonably calculated to confer educational
benefit on J.H.
In September of 1987, J.H.'s parents unilaterally
removed J.H. from the Bernardsville school system and placed him
at the Landmark School in Massachusetts, a residential school for
handicapped children. J.H. attended school at Landmark for
academic years 1987-88 through 1989-90, J.H.'s grades 7, 8 and 9.
In December of 1987 and November of 1988, at the request of
J.H.'s parents, the Bernardsville District conducted educational
assessments of J.H., but never approved J.H.'s placement at
Landmark.
In September of 1989, after J.H. had been in attendance
at Landmark for more than two years, the parents of J.H.
petitioned for an administrative hearing concerning J.H.'s
placement and program from September 1987 to his current
situation, and sought retroactive reimbursement for J.H.'s out-
of-district residential schooling at Landmark. The Board of
Education denied J.H.'s parents' request for reimbursement and
defended their proposed IEP for academic year 1987-88. J.H.'s
parents filed a new request for an administrative hearing on
November 17, 1989.
Between November and December of 1989, the parties
negotiated and reached various agreements, and the matter did not
proceed to a hearing at that time. The parties agreed that
Deputy Public Advocate for the State of New Jersey, David Harris,
would provide a release for Bernardsville to obtain the current
records of J.H., that J.H. would be evaluated by the
Bernardsville Child Study Team on December 22, 1989, that in
early January, 1990, the Bernardsville school psychologist would
visit Landmark to observe and evaluate J.H., that a meeting would
be held to discuss the recommendations of the Child Study Team
and that, if necessary, due process procedures could be
activated.
Pursuant to the agreement, the Child Study Team did
conduct a reevaluation of J.H. in order to develop an appropriate
IEP. On April 11, 1990, Lynn Caravello, Ed.D., Director of
Special Services, advised J.H.'s parents that a new IEP had been
developed for J.H. and recommended that J.H. be placed in the
Bernards High School as a ninth grader eligible for part-time
special education.
In May of 1990, J.H.'s parents removed J.H. from the
eighth grade at Landmark and reenrolled him in the Bernardsville
School. Bernards High School implemented the newly developed IEP
for the balance of the 1989-90 school year, and appeared to be
responsive to Dr. Margolis' revisional recommendations for the
1990-91 academic year.
On September 4, 1990, Mr. H. authorized J.H.'s
placement in Bernards High School conditioned upon pending
agreement on the IEP, and "upon agreement by the Bernardsville
Board of Education that such placement [would] not thereby become
the current educational placement of [J.H.] within the meaning of
federal or state statutes and regulations pertaining to special
education." J.H. in fact completed the 1990-91 academic year as
a tenth grader at Bernards High School.
On January 4, 1991, J.H.'s parents through their
attorney filed a request for due process and for the matter to be
transmitted to the office of administrative law for trial. The
petition contended that the Bernardsville Board of Education had
offered an inappropriate program for J.H. through June of 1987,
forcing J.H.'s parents to place J.H. at the Landmark School so as
not to deprive him of his statutory right to a free appropriate
public education. The petition alleged among other things that
the IEPs prepared by the Board of Education prior to J.H.'s
enrollment at Landmark did not comply with the requirements of
New Jersey Administrative Code 6:28-3.6 in that they were not
reasonably calculated to confer any educational benefit upon
J.H., and did not contain specific or measurable goals or
instructional objectives. The petition requested reimbursement
for all monies expended on behalf of J.H. relative to his
placement at the Landmark school commencing in the summer of 1987
through May of 1990. The matter was forwarded to the Office of
Administrative Law on January 16, 1991, and hearings began on
February 19, 1991.
On June 24, 1992, the administrative law judge decided
the case against the Bernardsville Board of Education, ordering
reimbursement to the parents of J.H. for Landmark tuition
expenses for the academic years 1987-88 through 1989-90,
excluding the cost of J.H.'s room and board. Decision of
Administrative Law Judge, OAL Dkt. No. EDS 576-91 (June 24,
1992), A. 24-50. In pertinent part, the administrative law judge
found:
The [IEPs] were not compliant with the New
Jersey Administrative Code as it then existed
and, did not enable J.H. to receive either an
appropriate education, or to best achieve
educational success.[6] Specifically, J.H.'s
IEP's were severely lacking in adequate
statements of current educational status, the
annual goals were vague, non-specific and
incapable of being measured, and repeated
themselves, for the most part, in each
succeeding year.
The IEP's . . . did not enable J.H. to
improve in any meaningful way in his reading
. . . .
Despite parental concern and intervention
through regular contact and communication
with the District and the hiring of tutors,
J.H.'s lack of progress in reading caused him
to suffer emotionally, and significantly
affected his self-esteem.
6
. The administrative law judge recognized that prior to
May 15, 1989, the New Jersey standard for a free appropriate
public education reflected in N.J.A.C. 6:28-2.1(a), was an
education that would allow a handicapped child to best achieve
success in learning. Geis v. Board of Education, 774 F.2d 575,
582 (3d Cir. 1985). A. 47. The Court further acknowledged that
subsequent to May 15, 1989, the New Jersey Department of
Education rejected the Geis standard in favor of the federal
standard set forth in the Education For All Handicapped Act, 20
U.S.C. § 1400 et seq., which was defined as an education which
merely confers educational benefit on a handicapped person. The
1989 amended N.J.A.C. 6:28-1.1 specifically provides that New
Jersey is obliged to ensure that all educationally disabled
pupils "have available to them a free, appropriate public
education as that standard is set under the [federal Act]," 20
U.S.C. § 1400 et seq. (Emphasis added.) See Board of Education
v. Rowley, 458 U.S. 176 (1982).
The administrative law judge determined that for all
the relevant time periods, including 1982 through May 15, 1989,
the standard set forth in Geis was operative, and found that
under the more stringent local standard, the Bernardsville Board
of Education failed to comply with the procedural requirements of
N.J.A.C. 6:28-1.1. A. 48.
As a result, J.H. had significant problems
with his peers and socialization . . . .
Although one-to-one instruction in reading
was recommended by independent evaluations
. . . with little exception, the same was not
offered to J.H. . . . .
The program offered to J.H for seventh grade
. . . was a continuation of prior programs
which did not address J.H.'s handicapping
condition.
Petitioners were justified in seeking a free,
appropriate public education under the
circumstances recognizing that J.H.'s reading
handicap was not being addressed.
. . . [P]etitioners [sic] decision to enroll
[J.H. in the Landmark School] was reasonable.
The program at Landmark School was
appropriate for J.H. to meet his needs, and
offered the best opportunity to enable J.H.
to achieve educational success and benefit
from his education.
OAL Dkt. No. EDS 576-91, pp.19-20; A. 42-43.
The Bernardsville Board of Education appealed the
matter to the United States District Court for the District of
New Jersey on September 2, 1993 pursuant to 20 U.S.C. §
1415(e)(2).7 Bernardsville Board of Education v. J.H., Civil No.
92-3694 (D.N.J. March 22, 1993). The parents of J.H. moved for
7
. Section 1415(e)(2) provides in pertinent part:
Any party aggrieved by the
[administrative] findings and decision . . .
shall have the right to bring a civil action
with respect to the complaint presented
pursuant to this section, which action may be
brought in any State court of competent
jurisdiction or in a district court of the
United States without regard to the amount in
controversy. . . .
summary judgment on the ground that the Board of Education's
appeal was untimely under 20 U.S.C. § 1415(e)(2). Following the
opinion of this circuit in Tokarcik v. Forest Hills School
District, 665 F.2d 443, 450-54 (3d Cir. 1981) (30-day state
limitation statute for state administrative appeals to state
courts does not apply to federal claim brought in federal court
under Education of Handicapped Act), cert. denied, 458 U.S. 1121
(1982), the district court dismissed J.H.'s parents' summary
judgment motion. The district court denied the Board of
Education's cross-motion for summary judgment brought on the
ground that J.H.'s parents waived their right to reimbursement by
unilaterally placing J.H. in Landmark and failing to initiate
review proceedings prior to seeking reimbursement. The district
court also denied the Board of Education's alternative argument
for summary judgment that J.H.'s parents failed to comply with
the 90-day statute of limitations contained in N.J.A.C. 6:24-
1.2(c), which the Board argued should be applied to challenges to
IEPs. The court noted that the New Jersey Administrative Code
does not contain any explicit time limitation within which a
party must request a due process hearing in the special education
context, and no caselaw has held that the 90-day time limit would
be applicable.
Prior to trial, on September 9, 1993, the district
court ruled on the parties' motions in limine. J.H.'s parents
had filed a motion seeking to limit the testimony of two expert
witnesses for the Board of Education, Joanne Seelaus, school
psychologist and Supervisor of Special Education, and Dr. Lynn
Caravello, Director of Special Services for the Bernardsville
Board of Education. Seelaus and Caravello had prepared a joint
report which contained references to the IEP prepared for J.H.
for the 1987-88 school year, references to testimony previously
given during the administrative hearing, and references to the
reevaluation of J.H. preparatory to his return to the district in
1990. The court excluded these portions of their testimony on
the ground that such evidence would have been cumulative and
improper "additional evidence" pursuant to 20 U.S.C. §
1415(e)(2),8 and with regard to that portion of the report
discussing J.H.'s anticipated return to Bernardsville in the fall
of 1990, that it would have been irrelevant to the request for
reimbursement for tuition from 1987 through the spring of 1990.
The district court also granted the Board of
Education's motion to preclude J.H.'s parents from testifying at
the hearing about issues that they had already or could have
addressed at the administrative proceeding.
The court ruled on the merits of the appeal on November
15, 1993, after conducting a de novo review of the state
administrative decision. Affording the administrative law judge
8
. Section 1415(e)(2) provides in pertinent part:
. . . In any action brought under this
paragraph the court shall receive the records
of the administrative proceedings, shall hear
additional evidence at the request of a
party, and basing its decision on the
preponderance of the evidence, shall grant
such relief as the court determines is
appropriate.
due deference in consideration of a perceived expertise on the
part of the administrative agency to articulate state educational
policy, and with respect to the administrative law judge's
credibility determinations, the district court concluded that the
Bernardsville School District failed to confer upon J.H. even the
minimally satisfactory educational benefit under the least
stringent standard which could arguably have been applied. The
district court concluded that the IEPs developed for J.H. during
the relevant school years were not reasonably calculated to
confer an educational benefit. After an independent examination
of the record, the district court affirmed the administrative law
judge's specific findings, including that the IEPs did not
contain adequate statements of current educational status or
measurable annual goals, were virtually redundant from year to
year and hence unresponsive to J.H.'s apparent difficulties, and
that Bernardsville failed to offer J.H. adequate one-to-one
instruction. The district court held that Bernardsville failed
to sustain its burden of proof to show by a preponderance that
its IEPs provided J.H. with a free, appropriate, public
education, and further held that the Landmark placement was
appropriate.
On equitable considerations and on the power conferred
on the district court by 20 U.S.C. § 1415(e)(2) to "grant such
relief as the court determines is appropriate," the district
court awarded J.H.'s parents retroactive reimbursement of
Landmark School tuition, exclusive of room and board, for
academic years 1987-88 through 1989-90, affirming the order of
the administrative law judge. The court further designated
J.H.'s parents as the prevailing party for purposes of awarding
attorney's fees and costs pursuant to 20 U.S.C. § 1415(e)(4)(B),9
but left open the determination of the specific calculation of
reasonable fees. By order of the court on February 2, 1994, the
award of attorney's fees was set in the amount of $91,494.85.
Pursuant to 28 U.S.C. § 1291, on December 14, 1993, the
Bernardsville Board of Education timely appealed the final order
of the district court of November 15, 1993, which affirmed the
decision of the administrative law judge, and from the February
2, 1994, order of the district court awarding attorney's fees.10
The Board of Education also appealed the two interlocutory
9
. Section 1415(e)(4)(B) provides:
In any action or proceeding brought
under this subsection, the court, in its
discretion, may award reasonable attorneys'
fees as part of the costs to the parents or
guardian of a handicapped child or youth who
is the prevailing party.
10
. Although Bernardsville's notice of appeal explicitly
specifies only the district court's November 15, 1993 order and
opinion, we construe the notice as incorporating the unspecified
February 2, 1994 order quantifying the attorneys' fees award.
Because the November order designates the prevailing party for
purposes of attorneys' fees, we recognize an adequate connection
between it and the February 2 order for purposes of extending our
jurisdiction over the latter, given that the subsequent appellate
proceedings manifest the appellant's intent to appeal the
attorneys' fees issue. Importantly, here the opposing party had
and exercised a full opportunity to brief the issue and did not
raise any claim of prejudice. A copy of the district court's
February 2 order and opinion setting the attorneys' fees was also
attached to the appellant's brief. See Williams v. Guzzardi, 875
F.2d 46, 49 (3d Cir. 1989) (and cases cited therein).
opinions denying its motion for summary judgment and excluding
the testimonies of two witnesses.
II.
Upon an examination of the record on appeal, we are
confident that the district court properly ruled that, under any
arguably appropriate legal standard, the Bernardsville Board of
Education failed to establish by a preponderance that its program
and placement for J.H. assured him a free, appropriate, public
education as required under the Education of the Handicapped Act,
20 U.S.C. § 1412(1).11 The record bespeaks an appalling failure
11
. The Education of the Handicapped Act, 20 U.S.C.§ 1400
et seq., now known as the Individuals With Disabilities Education
Act ("IDEA"), provides federal financial assistance to states and
local agencies for the education of handicapped children,
provided that the state can demonstrate that it "has in effect a
policy that assures all children with disabilities the right to a
free appropriate public education." 20 U.S.C.§ 1412(1). In
Board of Education v. Rowley, 458 U.S. 176, 200-04 (1982), the
Supreme Court held that the Federal Act requires state or local
school districts to provide a program designed to confer an
educational benefit on the child.
The state of New Jersey implements the Federal Act
through state statute and regulations promulgated by the New
Jersey State Board of Education. N.J.S.A. §§ 18A:46-1 through
18A:46-46. Until May 15, 1989, New Jersey law established a
higher standard for local school boards than the Act mandates,
requiring not only that the program be designed to confer an
educational benefit, but that the program be designed to permit
the child to best achieve success in education. N.J.A.C. § 6:28-
2.1 (1978). See Geis v. Board of Education, 774 F.2d 575, 582-83
(3d Cir. 1985). Furthermore, New Jersey statutes set forth in
detail the specific requirements for each Individualized
Education Program. N.J.A.C. §§ 6:28-3.6; 6:28-1.1 et seq.
Because we agree with the district court that the Board
of Education failed under either standard, we need not address
the parties' contentions as to which standard applies.
on the part of the education bureaucracy to develop and implement
an appropriate IEP. We will not belabor this point. We turn our
attention directly to the question of the timeliness of J.H.'s
parents' request for reimbursement.
A.
The Bernardsville Board of Education contends that
J.H.'s parents' more than two year delay in commencing the review
process renders their claim ineligible for reimbursement for any
portion of the private tuition in question. The Board cites a
number of cases in which parents have been awarded prospective
private school tuition and/or expenses incurred while a challenge
to the student's IEP was pending through administrative review to
support its position that parents must commence the review
process in order to be entitled to relief.12 See, e.g., School
Committee of Burlington v. Department of Education, 471 U.S. 359,
370 (1985) (Act authorizes prospective injunction and
12
. Caselaw qualifies 20 U.S.C. § 1415(e)(3), which
provides:
During the pendency of any proceedings
. . ., unless the State or local educational
agency and the parents or guardian otherwise
agree, the child shall remain in the then
current educational placement of such child .
. . .
Authorization for a judicial grant of retroactive
reimbursement for interim unilateral placements ultimately proven
to be reasonable and appropriate, where the IEP is adjudged
inappropriate, is justified under the court's equitable powers to
grant appropriate relief under 20 U.S.C. § 1415(e)(2).
reimbursement for appropriate unilateral private placement during
interim pending review of public placement later adjudged
inappropriate); Lascari v. Board of Education, 116 N.J. 30, 50,
560 A.2d 1180 (1989) (parents may be reimbursed for private
school tuition during pendency of any proceeding which determines
that the district's IEP was inappropriate); Garland Independent
School Dist. v. Wilks, 657 F. Supp. 1163, 1167 (N.D. Tex. 1987)
(parent not entitled to tuition reimbursement incurred prior to
bringing dissatisfaction with district's IEP to school district's
attention); Lewisville Independent School District v. Brooke P.,
16 EHLR 1313, 1315-16 (E.D. Tex. 1990) (parents' failure to
request due process hearing constitutes waiver of right to
reimbursement for cost of extended school year services prior to
initiation of due process proceedings, but court ordered
prospective injunction against school district); but cf.
Northeast Central School Dist. v. Sobol, 170 A.D.2d 80, 85-87,
572 N.Y.S.2d 752, 755-57 (N.Y. App. Div. 1991) (the ability to
order retroactive reimbursement within the statutory context and
public policy is necessary to ensure a child's right to a free,
appropriate, public education). Thus, Bernardsville argues that
reimbursement for J.H.'s private placement prior to commencement
of review proceedings is not warranted in this case, and that the
district court erroneously denied the Board of Education's motion
for summary judgment.
J.H.'s parents assert that the caselaw in this area
does not explicitly, or necessarily by inference, preclude pre-
proceedings reimbursement; they argue that costs incurred
subsequent to their expressions of dissatisfaction with J.H.'s
IEP, before they officially commenced a review, should be
reimbursed. J.H.'s parents informed the Board of Education of
their concerns regarding J.H.'s program and placement in August
of 1987 and requested placement at Landmark. The Board denied
that request, but since at least that time the Board was arguably
on effective notice of the IEP's inadequacy and the Board's
potential liability to J.H.'s parents. Furthermore, the Board's
annual monitoring of J.H.'s program and progress while at
Landmark served to keep the Board on notice for the duration of
J.H.'s out-of-district enrollment.
J.H.'s parents' argument is not without merit. The
fact that here the regulations do not specify a time limitation
within which to bring a due process hearing, as well as the very
nature and social significance of the education of children with
disabilities, incline us to equitable considerations. The fact
that the school district was notified of the parents'
dissatisfaction, albeit not through the initiation of official
proceedings, from the very first summer that J.H. attended
Landmark, that the parents did request a new placement for J.H.,
and that there was continued contact between the school district
and J.H. for the duration of J.H.'s enrollment at Landmark
support Mr. and Mrs. H's argument. There is no evidence
whatsoever that J.H.'s parents acted in bad faith, and given the
apparent severe deficiencies in the IEPs developed for J.H. at
Bernardsville, it is clear that J.H.'s parents acted reasonably
in securing an appropriate education for their son outside the
district. At the time J.H. left Bernardsville, the IEP developed
for him was both procedurally and substantively inadequate, and
it is untenable for the school district to maintain the argument
that it was not aware of a problem with the IEP it offered,
virtually unmodified, to J.H. year after year despite his lack of
academic progress, and in the face of his social regression. We
do not hesitate to affirm the right to reimbursement for private
tuition incurred from a unilateral enrollment during the pendency
of any proceeding if it is ultimately determined that the IEP in
question was inappropriate. See Burlington, 471 U.S. at 370, and
related cases cited above.
Nevertheless, here, where proceedings were initiated
more than two years after J.H.'s transfer, we must place into our
equation the practical opportunity afforded the school district
to modify its IEP or to determine definitively whether
expenditures occurred outside the district could have been
obviated by the filing of a prompt complaint. We are cognizant
of the fact that the school district serves a very large student
population, and in light of the numerous contacts it has with
parents seeking the individual welfare of their respective
children, mere notice of parental "dissatisfaction" does not
alone put the Board on reasonable notice that the parents will
challenge a particular IEP in the future and seek reimbursement
for an interim unilateral placement in a private institution.
Absent initiation of review proceedings within a reasonable time
of a unilateral decision to transfer a child to a private
institution, a school district would not know to continue to
review and revise an IEP, and the court would be left to hazard
conjecture or hypothesis as to what the Board of Education might
have proposed if it had been informed of the parents' continued
intent to pursue an appropriate education for their child within
the school district. We, of course, recognize that the school
district has the duty in the first instance to provide an
appropriate IEP, and moreover, to demonstrate by a preponderance
at a due process hearing that the IEP it offered was indeed
appropriate. With that foremost in mind, we must nevertheless
also recognize that as a practical reality, and as a matter of
procedural law13 of which J.H.'s parents were fully apprised, the
right of review contains a corresponding parental duty to
13
. The IDEA, 20 U.S.C. § 1415(b)(1)(E), requires that the
state or local agency receiving federal funds under the Act
provide a grievance process with regard to the placement and
programs offered to any child. Section 1415(b)(2) requires that
the state or appropriate state agency provide parents who have
filed a complaint the opportunity for an impartial due process
administrative hearing. Section 1415(e)(2) provides for appeal
from the decision of such a hearing to any state court of
competent jurisdiction, or to a United States district court
without regard to amount in controversy.
New Jersey implements the IDEA with extensive statutory
and regulatory provisions designed to provide any parent who
believes that his or her child is being or has been denied the
rights secured by IDEA an opportunity for mediation and an
impartial due process administrative hearing. N.J.S.A. 18A:46-1-
46 and N.J.A.C. 6:28-1-11. The New Jersey Administrative Code
requires that parents be sent a copy and explanation of all
procedures pertaining to the IDEA and the New Jersey Code.
N.J.A.C. 1:6A-2.1 et seq.
It is undisputed that in 1987 J.H.'s parents received
this information regarding the proper steps to invoke the
administrative review process, but delayed invoking their rights
to any part of the administrative process until more than two
years after unilaterally placing J.H. at Landmark.
unequivocally place in issue the appropriateness of an IEP. This
is accomplished through the initiation of review proceedings
within a reasonable time of the unilateral placement for which
reimbursement is sought. We think more than two years, indeed,
more than one year, without mitigating excuse, is an unreasonable
delay.14 We will vacate the district court's November 15, 1993
14
. We concur largely with the dissent, except, of course,
on the critical issue of whether the Act implicitly can recognize
a duty on the part of the parents to place in question the
appropriateness of the IEP within a reasonable time of the year
for which they seek reimbursement. We certainly agree that the
handicapped child's education is an interest both of the parents
and of the district, and that here the parents' decision to
withdraw J.H. was reasonable. Nevertheless, we believe that the
provisions of the Act can only be effectively and fairly
implemented if we recognize that the interest of both the parents
and the district on behalf of the child bear a corresponding
respective duty -- on the district to develop and justify its
IEP, and on the parents to unambiguously challenge the IEP when
they think it inappropriate. We think this allocation of burdens
comports fully with the Act and the relevant implementing
regulations.
We note, as does the dissent, that given the Act's lack
of specificity on the question of timeliness and the nature of
the issue here, a balancing of the equities is unavoidable. We
resort to the standard of reasonableness under the circumstances,
and a consideration of mitigating circumstances for any delay in
the initiation of review proceedings which might otherwise be
deemed unreasonable. Our disagreement with the dissent is over
the questions of whether the unmitigated delay here was
reasonable, and, perhaps more dispositive, whether the district
was placed on reasonably adequate notice of the parents'
intention to seek reimbursement.
We wish to clarify that our weighing of the equities
was not unduly influenced by the isolated fact that the district
must cope with a large student population, as the dissent perhaps
implies, although we believe that this fact has relevance to the
question of what constitutes reasonably adequate notice in these
particular circumstances. We agree with the dissent, however,
that the Act imposes the same duty to provide a free, appropriate
education to a child in a large urban district as it does to a
child in a small urban community.
order directing Bernardsville to reimburse Mr. & Mrs. H. for
tuition at Landmark to the extent it covers school years 1987-88
and 1988-89.15
B.
The issue of retroactive reimbursement for the school
year 1989-90 requires closer scrutiny of the equities. At the
beginning of the 1989-90 academic year, J.H.'s parents sought an
administrative hearing regarding J.H.'s placement and began
intensive negotiations with Bernardsville resulting in a reentry
of J.H. in a newly developed IEP within the district shortly
before that academic year expired. J.H.'s parents subsequently
continued actively to pursue the review process, and ultimately
requested a due process hearing for retroactive reimbursement in
the middle of academic year 1990-91. Thus from the beginning of
1989-90, J.H.'s parents set in motion the firm steps which fairly
notified the school board that retroactive liability was a
possibility and afforded the board a fair opportunity to revise
its IEP for J.H.
The Board of Education asserts that the district court
was constrained to dismiss even the reimbursement request for
1989-90 as time-barred pursuant to the 90-day rule set forth in
N.J.A.C. 6:24-1.2. That provision provides in relevant part:
15
. Because the circumstances here make this case merely
analogous to the caselaw upon which the Board of Education
relies, the district court properly denied the Board of
Education's motion for summary judgment based on the parents'
late initiation of review proceedings.
(a) To initiate a contested case for the
Commissioner's determination of a controversy
or dispute arising under the school laws, a
petitioner shall serve a copy of a petition
upon each respondent . . . .
* * *
(c) The petitioner shall file a petition no
later than the 90th day from the date of
receipt of the notice of a final order,
ruling or other action by the district board
of education, individual party, or agency,
which is the subject of the requested
contested case hearing.
The Board of Education cites a number of cases in which the 90-
day rule has been applied in the education context. See North
Plainfield Education Assoc. v. Board of Education, 96 N.J. 587,
594, 476 A.2d 1245 (1984) (because award of teacher salary scale
increment is not statutory right, it is subject to 90-day time
bar); Riely v. Board of Education, 173 N.J. Super. 109, 113-14,
413 A.2d 628 (App. Div. 1980) (teacher's petition of appeal with
Commissioner of Education concerning reinstatement time-barred by
90-day rule, and pendency of arbitration does not relieve
compliance with 90-day rule); Lombardi v. Board of Education, OAL
Dkt. No. EDU 6808-86 (January 30, 1987) (Commissioner of
Education); Markman v. Board of Education , OAL Dkt. No. EDU
0317-86 (August 22, 1986) (Commissioner of Education).
In addition to citing arguably supporting caselaw, the
Board of Education contends that the scheme of the New Jersey
Code also compels application of the 90-day rule. The Board
cites N.J.A.C. 1:6 A-1.1, which provides:
The rules in this chapter shall apply to
the notice and hearing of matters arising out
of the Special Education Program of the
Department of Education, pursuant to N.J.A.C.
6:28. Any aspect of notice and hearing not
covered by these special rules shall be
governed by the Uniform Administrative
Procedure Rules (U.A.P.R.) contained in
N.J.A.C. 1:1 . . . .
N.J.A.C. 1:1-3.1 provides:
A contested case shall be commenced in
the State agency with appropriate subject
matter jurisdiction. A contested case may be
commenced by the agency itself or by an
individual or entity as provided in the rules
and regulations of the agency.
The appropriate state agency here is the Commissioner
of Education. N.J.A.C. 6:24-1.2 is the code provision which
limits the time within which a parent may seek a hearing before
an administrative law judge for the Commissioner of Education.
Thus the Board argues that N.J.A.C. 6:24-1.2(c), which sets forth
the 90-day rule, mandated that J.H.'s parents file a petition
with the Commissioner within 90 days from receipt of the disputed
IEP, and that their delay results in a time-bar from all relief.
We have already decided that a mere expression of
dissatisfaction with a proposed IEP and placement is not
sufficient to guarantee retroactive reimbursement for the cost of
a reasonable unilateral placement, even where the IEP is
ultimately found to have been inappropriate. Even a liberal
understanding of the operative policies of the IDEA cannot
obviate the practical necessity for a reasonable timeframe for
filing due process claims. Nevertheless, we find no precedent
for applying the 90-day rule to special education matters, though
undoubtedly that limitation applies to disputes arising under
school laws other than special education matters. The district
court accurately noted that the rules which expressly pertain to
special education do not contain a time limit, and no caselaw has
adopted the 90-day rule in the context of the IDEA. The district
court correctly rejected the 90-day rule here.
Under the facts of this case in light of all the
equities, recognizing the operative policies of the IDEA and
acknowledging all relevant statutes and regulations, we believe
that J.H.'s parents adequately placed in issue their
dissatisfaction with J.H.'s IEP for purposes of reimbursement at
the time they requested an administrative hearing in September of
1989. Due process procedures were not activated at that time
only because the parties were attempting to negotiate a
settlement. A formal request for due process was eventually made
when it became apparent that a resolution could not otherwise be
negotiated. Although we cannot award compensation for
Bernardsville's past failure to provide J.H. a free appropriate
public education, we believe substantial justice can be achieved
by awarding reimbursement for tuition costs incurred while in
attendance at Landmark for the 1989-90 academic year. We will
affirm the district court's award of reimbursement tuition costs
for the 1989-90 school year, excluding the costs associated with
room and board.16
16
. We reject the Board of Education's argument that
reimbursement for academic year 1989-90 should be precluded on
the ground that it was incapable of formulating a timely IEP for
that year, given the unilateral action of J.H.'s parents.
Bernardsville's long history with J.H. and its continued contact
with him and educational assessments of his progress after the
III.
In light of the IDEA, 20 U.S.C. § 1415(e)(4)(B), which
provides that "the court, in its discretion, may award reasonable
attorneys' fees as part of the costs to the parents or guardian
of a handicapped child or youth who is the prevailing party," and
consistent with our holding, we must vacate the district court's
February 2, 1994 order awarding full attorneys' fees in the
amount of $91,494.85. We find, however, that the district court
was correct in its rejection of the Board of Education's
contention that the court should disallow those fees associated
with J.H.'s parents' motion for summary judgment pertaining to a
statute of limitations issue on appeal. We find that counsel for
J.H. has made "a good-faith effort to exclude from [the] fee
request hours that are excessive, redundant, or otherwise
unnecessary," and has exercised sound billing judgment as
required in Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)
(citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)
(en banc)). We also find that the district court did not err in
its acceptance of the $235 hourly billing rate charged by counsel
for J.H. as reasonable in light of comparable prevailing rates.
Furthermore, we agree with the district court that the
award of fees should not be reduced to reflect J.H.'s counsel's
(..continued)
unilateral act belie this contention. Under a just and proper
consideration of the equities and the court's discretionary power
to grant "appropriate" relief, which includes a qualified power
to grant retroactive reimbursement, we are convinced of the
appropriateness of an award for the 1989-90 year.
partial success by virtue of the district court's refusal to
award reimbursement costs for room and board as requested. The
issue of reimbursement for residential costs involved a "common
core of facts" relative to the issue of tuition reimbursement,
was based on "related legal theories," and cannot be viewed as a
discrete claim capable of disassociation from the tuition claim
for purposes of awarding attorneys' fees. Id. at 435.
Nevertheless, since J.H. has failed to prevail on his claim for
reimbursement costs for academic years 1987-88 and 1988-89, we
must remand to the district court to calculate an appropriate
reduced fee award to reflect the adjusted scope of J.H.'s
success.
IV.
Lastly, the Board of Education argues that the district
court erroneously excluded the testimonies of Dr. Lynn Caravello,
the Director of Special Services at the time J.H. reentered the
Bernardsville School District in 1990, and Ms. Joanne Seelaus,
school psychologist, from the de novo hearing the district court
held. The Board of Education sought to admit a joint report
prepared by Dr. Caravello and Ms. Seelaus which included a
reevaluation of J.H. in anticipation of his return and other
information relevant to the 1990-91 IEP prepared for J.H.
During the prior administrative law hearing, the
administrative law judge had excluded this report. Nevertheless,
Ms. Seelaus had offered testimony at the hearing on the Board's
behalf exclusive of matters concerning J.H.'s post-reentry
experience. Dr. Caravello had also been present and available to
testify before the administrative law judge on June 4, 1991,
although she did not testify.
At the district court hearing, the court excluded their
testimony in part on the ground that the IEP subsequently
developed for J.H. in 1990-91, which was not at issue in the
present litigation, was irrelevant to the issue of the
appropriateness of the public education offered to J.H. in the
prior contested years. The district court further held that the
testimony would be cumulative and would improperly embellish
testimony previously given at the administrative hearing. Order
of the District Court, Civ. No. 92-3694 (D.N.J. Sept. 9, 1993).
See Burlington v. Department of Education, 736 F.2d 773, 790-91
(1st Cir. 1984) ("additional evidence" under 20 U.S.C. §
1415(e)(2) "does not authorize witnesses at trial to repeat or
embellish their prior administrative hearing testimony"; the
trial court in its discretion must not allow "such evidence to
change the character of the hearing from one of review to a trial
de novo"), aff'd, 471 U.S. 359 (1985); Egg Harbor Township Board
of Education v. S.O., by his Guardian ad litem, R.O., Civil
Action No. 90-1043, slip op. at 3 n.1 (D.N.J. Aug. 19,
1992)("additional evidence" under 20 U.S.C. § 1415(e)(2) should
not be cumulative, introduced to impeach credibility of
administrative hearing witnesses, nor embellish testimony from
the administrative hearing, and should not have been available
for proffer during the administrative hearing).
We do not find any error of law or abuse of discretion
in the district court's decision to exclude the joint report on
J.H.'s parents' motion in limine. The Bernardsville School
District's performance with regard to the IEP it developed for
J.H. for the 1990-91 school year and for prospective years are
not at issue here and admission of the joint report would not
affect the disposition of this case.
V.
We will thus vacate that portion of the district
court's November 15, 1993 judgment which awards J.H.'s parents
reimbursement for tuition at the Landmark School for the academic
years 1987-88 and 1988-89, and we will affirm that portion which
awards J.H.'s parents reimbursement for tuition at the Landmark
School for academic year 1989-90. Although we agree with the
district court's designation of J.H.'s parents as a "prevailing
party" pursuant to 20 U.S.C. § 1415(e)(4)(B), we will vacate the
amount of attorneys' fees set by the district court by order
dated February 2, 1994, and remand to the district court for
recalculation.
BERNARDSVILLE BOARD OF EDUCATION V. J.H., ET AL.
NO. 93-5767
MCKEE, Circuit Judge, concurring in part and dissenting in part.
I concur with Part IV of the majority opinion. In
addition, I agree that J.H.'s parents are entitled to
reimbursement for the 1989-90 academic year and thus concur with
Part II B of the majority opinion. However, I believe that
J.H.'s parents are entitled to be reimbursed for 1987-88 and
1988-89 as well. Therefore, I respectfully dissent from Part II
A of the majority opinion.
I.
The majority errs by allowing the timeliness of
the parents' request for due process to define and control its
analysis.17 The majority states:
[W]here proceedings were initiated more than
two years after J.H.’s transfer, we must
place into our equation the practical
opportunity afforded the school district to
modify its IEP or to determine definitively
whether expenditures occurred outside the
district could have been obviated by the
filing of a prompt complaint. . . . We, of
course, recognize that the school district
has the duty in the first instance to provide
an appropriate IEP, and moreover, to
demonstrate by a preponderance at a due
process hearing that the IEP it offered was
indeed appropriate. With that foremost in
mind, we must nevertheless also recognize
that as a practical reality, and as a matter
of procedural law of which J.H.’s parents
were fully apprised, the right of review
contains a corresponding parental duty to
17
Because I agree with much of the majority’s assessment of
this case, I take the liberty of quoting at length from the
majority opinion in explaining my reasons for dissenting.
unequivocally place in issue the
appropriateness of an IEP. This is
accomplished through the initiation of review
proceedings within a reasonable time of the
unilateral placement . . . . We think more
than two years, indeed, more than one year,
without mitigating excuse, is an unreasonable
delay.
Majority opinion at 20-22 (footnote omitted).
I do not agree that the Act "contains a
corresponding parental duty." The Act does not state that the
parental right to reimbursement is conditioned upon the parents'
request for a due process hearing. Further, the Act does not
specify a time frame within which parents must seek evaluation of
an IEP upon pain of forfeiting their child’s right to the
benefits of the Act. “[B]oth the parents and the district have
an interest in assuring that a handicapped child receives an
appropriate education." Lascari v. Board of Educ., 560 A.2d
1180, 1188 (N.J. 1989) (emphasis added). I fail to see where the
Act imposes the unilateral parental obligation to which the
majority refers and it clearly does not impose a time limitation
upon the district court's authority to grant retroactive
reimbursement. The majority has effectively amended the Act in a
manner which is inconsistent with its purpose and with the
remedial authority that the Act vests in a district court.
A district court's power to award retroactive
reimbursement arises from its authority to grant relief that
effectuates the provisions of the Act.
The statute directs the court to ‘grant such
relief as [it] determines is appropriate.'
The ordinary meaning of these words confers
broad discretion on the court. The type of
relief is not further specified, except that
it must be 'appropriate.' Absent other
reference, the only possible interpretation
is that relief is to be 'appropriate' in
light of the purpose of the Act.
School Comm. of Burlington v. Department of Educ., 471 U.S. 359,
369 (1985) (emphasis added). The purpose of the Act is "'to
assure that all handicapped children have available to them . . .
a free appropriate public education which emphasizes special
education . . . designed to meet their unique needs [and] to
assure that the rights of handicapped children and their parents
. . . are protected.'" Id. at 367 (citing 20 U.S.C. § 1400(c)).
The Supreme Court in Burlington unequivocally declared that “a
free appropriate public education” means “special education and
related services which [] have been provided at public expense,
under public supervision and direction, and without charge . . .
.” Id. at 367-68 (quoting 20 U.S.C. § 1401(18)) (internal
quotation marks omitted).
The Act clearly requires that a school district
provide a free appropriate education for eligible students.
Thus, the issue before us is not "whether J.H.'s parents
requested due process for their son within an appropriate time
limitation," as the majority states. See majority opinion at 3.
Rather, the issue we should address is whether the requested
relief is "appropriate" in light of the purposes of the Act.
Accordingly, we must examine the circumstances
surrounding the request for reimbursement. Our analysis should
examine the length of the delay in requesting formal due process
and the number of years for which compensation is requested, the
adequacy of the IEP that caused the parents to withdraw J.H., the
bona fides of the parties, and the school district's notice of
the problem and of the likelihood that it may be asked to
reimburse J.H.'s parents.
The Length of the Delay.
This is not a case of parents seeking
reimbursement for an entire elementary and secondary education
after allowing many years to pass before requesting a due process
hearing. The delay in commencing due process was not exorbitant.
Moreover, "[t]he fact that here the regulations do not specify a
time limitation within which to bring a due process hearing, as
well as the very nature and social significance of the education
of children with disabilities, [should] incline us to equitable
considerations." Majority opinion at 19. Furthermore, although
the school district would no doubt prefer to avoid any additional
expenditures, the school district does not claim that the cost of
having to reimburse J.H.'s parents for J.H.'s entire three years
at Landmark will interfere with its ability to educate other
children.
The IEP.
The IEP that caused J.H.'s parents to withdraw him
from Bernardsville was, indeed, woefully inadequate. The
majority opinion sets forth at length the inadequacy of that
IEP18 and appropriately concludes that “[t]he record bespeaks an
appalling failure on the part of the educational bureaucracy to
develop and implement an appropriate IEP.” Majority opinion at
16-17. Moreover,
the district court concluded that the
Bernardsville School District failed to
confer upon J.H. even the minimally
satisfactory educational benefit under the
least stringent standard which could arguably
have been applied, and that the IEPs
developed for J.H. during the relevant school
years were not reasonably calculated to
confer an educational benefit. . . . [T]he
district court affirmed the administrative
law judge’s specific findings, including that
the IEPs did not contain adequate statements
of current educational status or measurable
annual goals, were virtually redundant from
year to year and hence unresponsive to J.H.’s
apparent difficulties . . . .
Majority opinion at 14. In short, "the IEP developed for [J.H.]
was both procedurally and substantively inadequate." Majority
opinion at 20. It is thus little wonder that J.H. failed to
progress educationally, socially, or developmentally from
kindergarten to seventh grade when his parents finally said
“enough” and withdrew him from the Bernardsville district.
The Good Faith of the Parties.
18
See majority opinion at 10-11.
"There is no evidence whatsoever that J.H.’s
parents acted in bad faith, and given the severe deficiencies in
the IEPs developed for J.H. at Bernardsville, it is clear that
J.H.’s parents acted reasonably . . . .” Majority opinion at 19-
20. Indeed, given their concern for their child, they had no
option but to withdraw J.H. from the Bernardsville district.
The good faith of J.H.’s parents is in stark
contrast to the attitude and behavior of the school district.
J.H.’s placement at Bernardsville was "inappropriate and not
reasonably calculated to confer educational benefit on J.H.”
Majority opinion at 7. “Year after year the School District
failed to design an Individualized Educational Program suitable
to J.H.’s special needs, and failed to intervene responsibly in
his quite apparent trend of academic and social deterioration.”
Majority opinion at 2. Thus, the school district almost totally
disregarded its duty to J.H. and his welfare.
Notice.
The Bernardsville District had been aware of
J.H.’s developmental problems since J.H.'s enrollment in
kindergarten. J.H. had been evaluated and assessed by the
appropriate school personnel since J.H.’s earliest days in the
Bernardsville School District. Accordingly, “it is untenable for
the school district to maintain the argument that it was not
aware of a problem with the IEP it offered, virtually unmodified,
to J.H. year after year despite his lack of academic progress,
and in the face of his social regression.” Majority opinion at
20. Quite naturally, J.H.'s parents were dissatisfied, and the
school district was well aware of their dissatisfaction. In
August of 1987, J.H.’s parents requested that school officials
place J.H. at Landmark. Upon the district’s refusal to do so the
parents unilaterally withdrew J.H. and placed him at Landmark
themselves.
II.
The majority's analysis fails to adequately
consider the totality of these factors which weigh so heavily in
favor of the parents. Instead, the majority leans with sufficient
force upon the parents' delay in requesting due process hearings
to tip the equitable balance in favor of the school district:
We are cognizant of the fact that the school
district serves a very large student
population, and in light of the numerous
contacts it has with parents seeking the
individual welfare of their respective
children, mere notice of parental
"dissatisfaction" does not alone put the
Board on reasonable notice that the parents
will challenge a particular IEP in the future
and seek reimbursement for an interim
unilateral placement in a private
institution.
Majority opinion at 20-21. J.H.’s situation presents far more
than “mere notice of parental ‘dissatisfaction.’" This is not a
case of disgruntled and unrealistic parents who are concerned
that the school’s curriculum is not sufficiently challenging
their child. Furthermore, the size of the student population and
the number of parental contacts is not pertinent to our inquiry.
An eligible child in a large urban school district is entitled to
the same free appropriate education as a child in the smallest
rural community. The Act does not distinguish based upon the
size of the student population and we should not allow that
distinction to influence our analysis. The school district’s
size is no excuse for its conduct in this case.
The Bernardsville District was clearly on notice,
albeit not through a formal due process request, that J.H.’s
parents wanted the school district to pay for the cost of
Landmark. The district could have requested hearings in order to
have the adequacy of its IEP promptly determined and thereby
prevented the very problem it now complains of, notwithstanding
the majority’s conclusion that the Act imposes a unilateral
obligation on the parents. "When a dispute arises between the
board and the parents, either party has the right to resolve the
matter through an administrative proceeding known as an
`impartial due process hearing.'" Lascari, 560 A.2d at 1183
(citing 20 U.S.C. § 1415(b)(2)).
Courts have routinely held that equity requires
the burdens of the Act be placed on the school district and not
on the parents. See McKenzie v. Smith, 771 F.2d 1527, 1531 (D.C.
Cir. 1985) (where district sought to change child's IEP, it had
the burden of proving that the proposed placement complied with
the requirements of the Act); Grymes v. Madden, 672 F.2d 321, 322
(3d Cir. 1982) (affirming district court's decision that the
district had "failed to sustain its burden of proof that an
appropriate public program existed"); Cf. S-1 v. Turlington, 635
F.2d 342, 348-49 (5th Cir.) (burden on district to question
whether student's misconduct is due to handicap because parents
lack expertise to develop an appropriate IEP for their child),
cert. denied 454 U.S. 1030 (1981), abrogated on other grounds by
Honig v. Doe, 484 U.S. 305 (1988). It is understandable that a
school district may be reluctant to initiate formal proceedings
against a parent. However, the district’s failure to do so ought
to be considered when it asserts that parental delay exonerates
it from its failure to provide a student with a free appropriate
public education.
Moreover, an argument similar to that accepted by
the majority was rejected by the Supreme Court in Burlington.
The town in Burlington argued that the parents had forfeited
their claimed right to reimbursement for alternative placement by
removing their child from public school during the pendency of
administrative proceedings in violation of 20 U.S.C. §
1415(e)(3).19 The Supreme Court responded by stating:
We do not agree with the Town that a parental
violation of § 1415(e)(3) constitutes a
waiver of reimbursement. The provision says
nothing about financial responsibility,
waiver, or parental right to reimbursement at
the conclusion of judicial proceedings.
19
Section 1415(e)(3) states in part: "During the pendency
of any proceedings conducted pursuant to [§ 1415], unless the
State or local educational agency and the parents . . . otherwise
agree, the child shall remain in the then current educational
placement . . . ." 20 U.S.C. § 1415(e)(3) (1988).
Moreover, if the provision is interpreted to
cut off parental rights to reimbursement, the
principal purpose of the Act will in many
cases be defeated in the same way as if
reimbursement were never available. . . . The
Act was intended to give handicapped children
both an appropriate education and a free one;
it should not be interpreted to defeat one or
the other of those objectives.
Burlington, 471 U.S. at 372. This case is different because we
are concerned with parents who withdrew their child prior to
requesting administrative hearings. Yet, the situation before us
is analogous to Burlington and the difference does not allow us
to abandon the Supreme Court's reasoning.
III.
We do not achieve “substantial justice” by
awarding reimbursement for the 1989-90 academic year and
requiring the parents to pay the remaining two thirds of J.H.’s
tuition expense. See majority opinion at 26-27. These parents
are seeking reimbursement, not damages. “Reimbursement merely
requires the [Bernardsville School District] to belatedly pay
expenses that it should have paid all along and would have borne
in the first instance had it developed a proper IEP."
Burlington, 471 U.S at 370-71.
The parents' request for the 1987-88 and 1988-89
academic years is appropriate and should be granted. Our failure
to affirm the district court effectively shifts most of the
obligation of providing an appropriate education from the Board
to the shoulders of J.H.'s parents. Accordingly, I respectfully
dissent from Part II A of the majority opinion.