The opinion
Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
4-17-1996
M.C. v. Cent Regional Sch
Precedential or Non-Precedential:
Docket 95-5606,95-5623
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________
NO. 95-5606
___________________
M. C.; AND G. C.,
ON BEHALF OF THEIR SON, J.C.
v.
CENTRAL REGIONAL SCHOOL DISTRICT
Appellant
_____________________
NO. 95-5623
M. C.; AND G. C.,
ON BEHALF OF THEIR SON, J.C.
Appellants
v.
CENTRAL REGIONAL SCHOOL DISTRICT
______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 93-cv-04752)
_______________________________________
Argued: November 14, 1995
Before: BECKER, SCIRICA, Circuit Judges, and
COHILL, District Judge1
(Filed April 17, l996)
REBECCA K. SPAR, ESQUIRE
(ARGUED)
Cole, Schotz, Meisel, Forman
1
The Honorable Maurice B. Cohill, Jr., United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
1
& Leonard, P.A.
25 Main Street, 3rd Floor
P.O. Box 800
Court Plaza North
Hackensack, NJ 07601
Attorney for M. C; G. C., on
behalf of their son, J. C.
Appellees in No. 95-5606
Appellants in No. 95-5623
RICHARD J. KAPLOW, ESQUIRE
(ARGUED)
53 Elm Street
Westfield, NJ 07090
FRANK N. YURASKO, ESQUIRE
63 Route 206 South
P.O. Box 1041
Somerville, NJ 08876
Attorney for Central Regional
School District
Appellant in No. 95-5606
Appellee in No. 95-5623
_______________________________
OPINION OF THE COURT
_______________________________
BECKER, Circuit Judge.
This case arises under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1415(e)(2).
Pursuant to IDEA, a school district is required to provide a
disabled child with a "free appropriate education." 20 U.S.C.
§1400(c). J.C., a severely mentally retarded sixteen-year-old
male, has attended the Ocean County Day Training Center ("OCDTC")
since 1987. In 1992, concerned about the appropriateness of
their son's instruction, J.C.'s father and stepmother, M.C. and
2
G.C. ("plaintiffs"), began proceedings to secure both a
residential placement for J.C. and compensatory education beyond
his twenty-first year to make up for what they believed to be
long-standing deficiencies in his program. In 1995, the district
court ordered that J.C. be relocated to a residential school, but
refused to award compensatory education because it found that the
defendant, Central Regional School District ("Central Regional,"
"school district," or "district"), had, in good faith, provided
J.C. with some educational program. Central Regional now appeals
the residential placement, and plaintiffs cross-appeal the
determination regarding compensatory education.
Rejecting Central Regional's challenge, we hold that
the district court used the proper legal standard when it granted
residential placement, and that its factual findings regarding
that claim are supported in the record. We will therefore affirm
the award. The cross-appeal requires us to revisit an issue
reserved in our recent decision, Carlisle Area School v. Scott
P., 62 F.3d 520, 537 (3d Cir. 1995), and to decide the proper
standard for an award of compensatory education. A school
district that knows or should know that a child has an
inappropriate Individualized Education Program (IEP) or is not
receiving more than a de minimis educational benefit must, of
course, correct the situation. We hold that, if it fails to do
so, a disabled child is entitled to compensatory education for a
period equal to the period of deprivation, excluding only the
time reasonably required for the school district to rectify the
problem. Because the district court applied an incorrect "good
3
faith" standard, we will reverse on the cross-appeal and remand
for further proceedings consistent with this opinion.
I. Factual Background/ Procedural History
A. Factual Background
J.C.'s IEP stresses personal and self-help goals such
as toileting and eating as well as more general communication,
domestic, recreation, vocation, and community training skills.
His preschool records reflect that he progressed well during his
initial years of education. Following J.C.'s placement at OCDTC
in 1987, his development slowed. Since 1989, J.C. has made
little consistent improvement and in some aspects has even
regressed.
For example, in 1988 and 1989, J.C.'s teachers, Juanita
Jones and Susan Trainor, reported that J.C. could remove his
shirt independently. In 1990, Trainor indicated that J.C. could
remove his shirt only after it was started for him. By 1992,
J.C.'s school records did not reflect any independent disrobing
efforts. Trainor related only that J.C. was "cooperative" and
would "extend [his] arm/leg for dressing."
Likewise, pulling his pants up and down in preparation
for toileting has been a self-help goal in J.C.'s IEP since 1989.
By February 1991, J.C. was reportedly pulling his pants down with
"moderate" physical assistance on two out of five days. In May
1991, J.C. continued to lower his pants with "moderate"
assistance. In May 1992, J.C. had regressed to where he was able
to pull his pants down on two out of five days only with
"maximum" physical assistance. Similar reversion occurred in
4
J.C.'s ability to spear food, to drink from a cup, to
communicate, and to pay attention.
Not only did J.C. perform poorly on stated IEP goals,
but his IEP also failed to include several important objectives.
For example, Central Regional's records indicate that J.C.'s
self-stimulatory behavior, like chewing his shirt, was a serious
problem impairing his educational progress. Despite this fact,
J.C.'s IEP contained no strategies to reduce the incidence of
this behavior.
Another gap in J.C.'s IEP was parent training.
According to Trainor, in order for J.C. to make steady progress,
his program needed to be consistently implemented both inside and
outside of the classroom throughout all his waking hours.
Nevertheless, the IEP did not include parent training. Minutes
of the March 15, 1990, IEP meeting indicate that the plaintiffs
requested someone from the school to come to their home to help
with toileting and independent feeding. They were never told
that parent training was a related service that could be provided
under J.C.'s IEP.
B. Procedural History
1. The Administrative Hearing
Concerned that J.C. was not receiving a free
appropriate education as guaranteed under IDEA, M.C. and G.C.
wrote to Central Regional to request that J.C.'s 1992-93 IEP be
revised and that he be placed in a residential school. When
Central Regional refused to change the IEP, M.C. filed a Petition
for Hearing with the New Jersey Department of Education.
5
Following a hearing, an Administrative Law Judge (ALJ)
found that OCDTC had provided an "appropriate education" for J.C.
To give form to the "appropriate education" standard, the ALJ
applied the Supreme Court's holding in Board of Education v.
Rowley, 458 U.S. 176, 200 (1982), that a school district must
provide instruction "sufficient to confer some educational
benefit upon the handicapped child." According to the ALJ, a
child with J.C.'s disabilities was not capable of more than very
"limited and varied progress." As such, the ALJ concluded that
J.C.'s slight improvement "at times" in his ability to prepare
himself to toilet, eat with a spoon, and drink from a cup
satisfied Rowley's requirement that his schooling provide him
"some educational benefit." In his view, any residential
placement went far beyond J.C.'s educational needs.
2. The District Court Hearing
M.C. and G.C. appealed the ALJ's decision to federal
district court. The court agreed with the ALJ's conclusions that
J.C.'s achievements appeared to be de minimis as well as
inconsistent and scattered, and that in some areas J.C. had even
regressed. However, the court could not determine, based on the
evidence presented at the administrative hearing, whether J.C.'s
inadequate progress was a reflection of his (lack of) potential
or of the inappropriateness of his placement at OCDTC.
Accordingly, it convened a hearing to receive supplemental
evidence.
In the wake of this hearing, the district court
reversed the decision of the ALJ and ordered residential
6
placement. The district court concluded that the ALJ had applied
the wrong legal standard in reaching his determination. The ALJ
had relied on the Rowley formulation that a disabled child need
only receive "some educational benefit" from his instruction.
However, according to the district court, the ALJ failed to
consider our cases interpreting that decision. See Polk v. Cent.
Susquehana Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988),
cert. denied, 488 U.S. 1030 (1989); Bd. of Educ. v. Diamond, 808
F.2d 987 (3d Cir. 1986). Both Polk and Diamond make clear that
an appropriate IEP must result in more than de minimis benefits
to satisfy Rowley's "some educational benefit" standard. As we
wrote in Diamond, a plan for a severely handicapped student will
satisfy the IDEA only if it is "likely to produce progress, not
regression or trivial educational advancement." Id. at 991.
According to the district court, the "limited and varied"
progress that the ALJ found was de minimis and therefore not
sufficient to satisfy IDEA.
In determining that residential placement was
appropriate for J.C., the court credited the testimony of the
plaintiff's expert, Dr. Dana Henning.2 According to Dr. Henning,
J.C.'s IEP did not sufficiently address his needs. She testified
that J.C. was capable of more than the de minimis results he had
realized at OCDTC, but that he needed the intensive, round-the-
2
Dr. Henning has eighteen years of experience in teaching,
assessing, evaluating and making educational recommendations for
persons with severe or profound handicaps and challenging
behaviors. She estimated that she had evaluated close to a
thousand severely and profoundly retarded children, one-third of
whom had self-stimulatory behavior problems.
7
clock instruction of a residential school to receive meaningful
benefit from his education. Central Regional now appeals the
residential placement order. We review the district court's
legal standard de novo and its factual findings for clear error.
The district court denied the plaintiffs' request for
compensatory education, and plaintiffs now appeal that
determination. At issue is the legal standard used by the court,
over which we exercise de novo review.
II. The Residential Placement
Central Regional launches a three-pronged attack upon
the district court's order of residential placement. First, it
argues that the district court misapplied Rowley, the principal
authority establishing the standard of education services
required under IDEA. We conclude that the district court did not
misconstrue the Rowley rule. As this Court explained at length
in Polk and Diamond, Rowley does not mean that IDEA is satisfied
by affording the student a de minimis benefit. The record
supports the district court's conclusion that if J.C. received
any value from the education afforded by the defendant, it was
trivial and that is not sufficient.3
Second, Central Regional contends that the district
court erred in finding that J.C. had "untapped potential," and in
basing its order for residential placement upon that
determination. We hold that the court's conclusion that J.C had
3
We therefore do not need to address J.C.'s argument that, even
if the Rowley standard were satisfied, New Jersey obligates
Central Regional to meet a higher standard. See Geis v. Bd. of
Educ., 774 F.2d 575, 583 (3d Cir. 1985).
8
untapped potential was not clearly erroneous. As we have
explained in Kruelle v. New Castle County School District, 642
F.2d 687, 693 (3d Cir. 1981), special education for a low-
functioning child stresses (at least initially) basic life skills
such as dressing, eating, and communicating. The record reflects
that J.C. had much potential in these areas. For instance, Dr.
Henning testified that J.C., on his own, would attempt to
communicate his wants and needs to others by leading them where
he wanted to go, an action which she concluded showed motivation
and promise.
The court's decision to use its finding of untapped
potential as a basis for residential placement was also not in
error. Dr. Henning, upon whom the court appropriately relied,
attributed J.C.'s minimal progress at OCDTC to an inadequate
program which, among other deficiencies, failed to address his
self-stimulatory behaviors, and to an inappropriate placement,
which did not allow him to practice his skills beyond the school
day. She testified that J.C. would develop more fully in a
residential school. The court was entitled to rely on her well-
supported conclusions.
Third, Central Regional asserts that the district court
incorrectly concluded that the least restrictive educationally
appropriate setting for J.C. was a full-time residential
facility. In essence, the school district argues that the order
for residential placement conflicts with the statutory preference
for inclusion. Cf. Oberti v. Bd. of Educ., 995 F.2d 1204, 1220
(3d Cir. 1993). On the record in this case, we are satisfied
9
that a residential program is required for J.C. to make
meaningful educational progress and that it meets the
requirements of IDEA.
As we have detailed above, in view of the deficiencies
in J.C.'s past program, he could no longer make adequate progress
in a day setting. The evidence supports the district court's
conclusion that any attempts to reduce J.C.'s severe self-
stimulatory behavior or improve his toileting, eating, and
communication skills would succeed only in the intense atmosphere
of a round-the-clock residential setting where a consistent
educational program could be enforced throughout all of J.C.'s
waking hours. A residential setting would also allow J.C. to
learn skills in their natural atmosphere. According to Dr.
Henning, effective instruction for J.C. (as well as many other
severely disabled children) requires that skills be presented in
their usual environment and at the natural time of day. For
instance, J.C. could be better taught to cook in the residence's
kitchen than in the artificial setting of a daytime classroom
because he had trouble "generalizing" or transferring the skills
learned in one environment to another. The trial record, thus
supports the conclusion that a residential setting is the least
restrictive placement for J.C. at this time. Our case law also
supports this result. See, e.g., Diamond, 808 F.2d at 992 (3d
Cir. 1986) (residential placement is "least restrictive"
environment for severely disabled child); Kruelle, 642 F.2d at
693-95 (3d Cir. 1981) (residential placement is only "appropriate
education" for seriously disabled child).
10
Decisions from other circuits also bolster our refusal
to disturb the district court's determination that placement in a
residential center is appropriate here, where a less structured
environment cannot do the job. See Drew P. v. Clarke County Sch.
Dist., 877 F.2d 927, 930 (11th Cir. 1989) (residential placement
necessary for child with mental retardation and infantile autism
to "make meaningful educational progress"), cert. denied, 494
U.S. 1046 (1990); Abrahamson v. Hershman, 701 F.2d 223 (1st Cir.
1983) (residential placement authorized if essential for student
to make educational progress); see also 20 U.S.C. § 1401(16); 34
C.F.R. §§ 300.302, 300.551.
The district court's order, insofar as it requires
residential placement, will therefore be affirmed. We will not
direct modification of the order in response to plaintiffs'
further contention that the district court erred in not directing
Central Regional to place J.C. in a specific residential school.
We find no abuse of discretion in that regard, though the
district court is free to reconsider the matter of placement on
remand. We note, in conclusion, that the residential placement
may only be temporary. Once J.C. accumulates the life skills
that he did not acquire while at OCDTC, he may well be able to
return to a day placement. This will appear from the required
yearly IEP evaluation.
III. Compensatory Education
A. Definition/ Historical Background
We now turn to the more difficult aspect of this case -
- the cross-appeal of J.C. from the district court's order
11
denying compensatory education. Under IDEA, a disabled student
is entitled to free, appropriate education until he or she
reaches age twenty-one. 20 U.S.C. § 1412(2)(b). A court award
of compensatory education requires a school district to provide
education past a child's twenty-first birthday to make up for any
earlier deprivation.4
Federal courts began awarding compensatory education
after the Supreme Court determined in School Committee of
Burlington v. Department of Education, 471 U.S. 359, 370-71
(1985), that tuition reimbursement was appropriate under the
Education of the Handicapped Act, 20 U.S.C. §§ 1401-1461 (1982)
(IDEA's predecessor). In a typical reimbursement scenario, a
parent who believed that a child was not receiving an appropriate
public education would place the child in private education at
his or her own expense. Under Burlington, if a court later
determined that the private placement was the appropriate one,
the school district would have to reimburse the parent.
Tuition reimbursement was the Court's vehicle for
satisfying both IDEA's pronouncement that children are entitled
4
At least one federal court, see Johnson v. Bismarck Pub. Sch.
Dist., 949 F.2d 1000, 1002 (8th Cir 1991), and numerous
administrative law judges have upheld or awarded compensatory
education during the summer months rather than after age twenty-
one. See Perry A. Zirkel, Compensatory Education -- Questions
and Answers, 10 The Special Educator 1, 147 (Dec. 10, 1994).
Parenthetically, the term compensatory education may
also be used in a different sense to refer to special programs
and services provided to "at-risk" students who are not
succeeding in school but do not qualify for special education.
Such programs include alternative schools, pregnancy and
parenting programs, and group counseling programs. See, e.g.,
Catherine P. Clark, Compensatory Education in Texas (1993).
12
to a free appropriate education and the congressional intent to
provide relief for the deprivation of this right. See Lester H.
v. Gilhool, 916 F.2d 865, 872 (3d Cir. 1990), cert. denied, 499
U.S. 923 (1991). Extending the Burlington decision, the Eighth
Circuit in Miener v. Missouri, 800 F.2d 749, 754 (8th Cir. 1986),
cert. denied, 459 U.S. 909 (1982), awarded compensatory
education. The court reasoned that, like retroactive tuition
reimbursement, compensatory education required school districts
to "'belatedly pay expenses that [they] should have paid all
along.'" Id. at 753 (quoting Burlington, 471 U.S. at 370-71).
The court "was confident that Congress did not intend the child's
entitlement to free education to turn upon her parent's ability
to 'front' its costs." Id. In Lester H., we adopted the
position of the Miener court and approved a compensatory remedy.
916 F.2d at 873.5
B. Formulating a Standard
In the case at bar, the court devoted only one
paragraph of its opinion to compensatory education and disposed
of the issue in the following manner:
With respect to plaintiffs'
request for compensatory education,
the Court concludes that such
relief is inappropriate under the
facts of this case. Plaintiffs
rely on Lester H. by Octavia P. v.
Gilhool, 916 F.2d 865 (3d Cir.
1990), cert. denied, 488 U.S. 923
(1991), in which the school
district knew before the child
entered the school system that the
5
In the process, we made clear that compensatory education could
be awarded to plaintiffs who had already reached age twenty-one.
Lester H. v. Gilhool, 916 F.2d 865, 872 (3d Cir. 1990).
13
district would be unable to provide
an appropriate education. Id. at
873. The decision to permit
compensatory education was premised
on the district's failure to fulfil
what it knew or should have known
were its obligations. Id. The
facts of the present case are
easily distinguishable. Defendant
provided J.C. with an education
which it believed in good faith was
appropriate. A difference of
opinion as to the adequacy of an
educational program is not
equivalent to a complete and total
failure to provide a child with an
education. Therefore, this Court
will not grant plaintiffs' motion
with respect to this issue.
Thus, the district court applied a "good faith" standard in
determining whether to award compensatory education. We review
this approach de novo.
In order to define the correct standard for granting
compensatory education, we must delineate the threshold of
deficiency in the school board's stewardship necessary to trigger
an award. Unfortunately, there is little caselaw or legal
commentary to guide us. Likewise there are no New Jersey or
federal regulations to direct our inquiry. While this is not the
first time we have contemplated this issue, the facts of our
previous cases have made our past analyses relatively
straightforward.
In Lester H., 916 F.2d at 873, we upheld an award of
two-and-one-half years of compensatory education due to the
school district's outrageous behavior. In the fall of 1984, the
district admitted that the twelve-year-old plaintiff was not
14
receiving an appropriate education. Despite the existence of at
least six suitable schools, the district did not locate an
appropriate placement until January of 1987. Id. at 873. We
wrote:
[W]e hold that the district court did not
abuse its discretion when it fashioned this
remedy for Lester. The court's award merely
compensates Lester for what everyone agrees
was an inappropriate placement from 1984
through January, 1987 and belatedly allows
him to receive the remainder of his free and
appropriate public education.
Id.
In Carlisle Area School v. Scott P., 62 F.3d 520 (3d
Cir. 1995), we reviewed a district court's decision to grant six
months compensatory education. We reversed the award because the
record contained no evidence indicating that the relevant IEP was
inappropriate. We concluded that, while we did not need to
define the precise standard for awarding compensatory education,
we could at least determine that it was necessary -- though not
sufficient -- to show that some IEP was actually inappropriate.
Id. at 537. We noted that most cases awarding compensatory
education had involved quite culpable conduct6 but determined
6
See, e.g., Burr v. Ambach, 863 F.2d 1071, 1073 (2d Cir. 1988)
(awarding compensatory education where state institution
disqualified a student because of its purported inability to
accommodate his multiple handicaps without mentioning or
considering placement in an extant special program for multiple
handicapped students); Jefferson County Bd. of Educ. v. Breen,
853 F.2d 853, 857-58 (11th Cir. 1988) (awarding compensatory
education to deter states from unnecessarily prolonging
litigation); Miener v. Missouri, 800 F.2d 749, 754 (8th Cir.
1986) (reversing denial of compensatory education for a child who
spent three years in mental health ward of a state hospital after
15
that a grant of compensatory education did not require bad faith
on the part of the school district. Id. We left our analysis
there, but must now flesh out the standard left sparse by
Carlisle.
The Second Circuit has conditioned an award of
compensatory education on the presence of a "gross" deprivation
of the right to free and appropriate education. See Garro v.
Connecticut, 23 F.3d 734, 737 (2d Cir. 1994) (requiring "gross
procedural violation"); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d
Cir. 1990) (requiring "gross violation," defined as coercion of
disabled child into terminating his right to further education).
We reject this formulation because, in addition to being
imprecise, it is not anchored in the structure or text of IDEA.
If the compensatory education standard is to spring
from the Act, it must focus from the outset upon the IEP -- the
road map for a disabled child's education. See 20 U.S.C.
§1414(a)(5). When an IEP fails to confer some (i.e., more than
de minimis) educational benefit to a student, that student has
been deprived of the appropriate education guaranteed by IDEA.
It seems clear, therefore, that the right to compensatory
education should accrue from the point that the school district
knows or should know of the IEP's failure.7
district failed to provide any educational services
notwithstanding its own evaluation recommending such services).
7
This precept is consistent with our decision in Carlisle Area
School v. Scott P., 62 F.3d 520, 537 (3d Cir. 1995), where we
held that an award of compensatory education required a finding
that an IEP was inappropriate.
16
The school district, however, may not be able to act
immediately to correct an inappropriate IEP; it may require some
time to respond to a complex problem. Thus, our holding can be
summarized as follows: a school district that knows or should
know that a child has an inappropriate IEP or is not receiving
more than a de minimis educational benefit must correct the
situation. If it fails to do so, a disabled child is entitled to
compensatory education for a period equal to the period of
deprivation, but excluding the time reasonably required for the
school district to rectify the problem. We believe that this
formula harmonizes the interests of the child, who is entitled to
a free appropriate education under IDEA, with those of the school
district, to whom special education and compensatory education is
quite costly.
Obviously the case against the school district will be
stronger if the district actually knew of the educational
deficiency or the parents had complained. But a child's
entitlement to special education should not depend upon the
vigilance of the parents (who may not be sufficiently
sophisticated to comprehend the problem) nor be abridged because
the district's behavior did not rise to the level of slothfulness
or bad faith. Rather, it is the responsibility of the child's
teachers, therapists, and administrators - and of the multi-
disciplinary team that annually evaluates the student's progress
- to ascertain the child's educational needs, respond to
deficiencies, and place him or her accordingly.
17
While we have little hard data on compensatory
education, we do know that administrative law judges in this
Circuit have awarded it. Our new standard meshes with the
approach taken by these judges. See In Re Jeremy H., No. 593,
slip op. at 27 (Special Education Appeals Review Panel Pa. May
21, 1993) (upholding compensatory education in order to rectify
an inappropriate IEP). Our holding also accords with the
conclusions of a recent article reviewing federal court
strategies for awarding compensatory education. See Perry A.
Zirkel, The Remedy of Compensatory Education under the IDEA, 95
Ed. Law Rep. 483 (1995). That article maintains that, in
general, the prerequisite of a compensatory education award has
not been the gross, egregious, or bad faith conduct of the school
district but rather a simple finding that a child has received an
inappropriate education.
Since the district court applied an incorrect standard,
its order denying compensatory education must be reversed. The
court found that J.C.'s IEP was inappropriate. It determined
that the majority of the skills that J.C. possessed at the time
of Dr. Henning's evaluation were gained before J.C. was placed at
OCDTC in 1987, that the same rate of progress did not continue
after he was placed at OCDTC, and that J.C. plateaued in 1989.
Thus, J.C.'s educational deprivation appears to have lasted a
long time. On remand, the district court should determine when
the Central Regional knew or should have known that J.C.'s IEP
was inappropriate or that he was not receiving more than de
minimis educational benefit; it should also define the reasonable
18
time within which the district should have done something about
it. Compensatory education should accrue from that point
forward.
The order of the district court will therefore be
affirmed in part and reversed in part and the case remanded for
further proceedings consistent with this opinion.
_____________________
19