T.R. v. Bd Ed Kingwood Twp

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-9-2000

T.R. v. Bd Ed Kingwood Twp

Precedential or Non-Precedential:

Docket 99-5021

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Filed March 9, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5021

T.R.; E.M.R., ON BEHALF OF THEIR MINOR CHILD, N.R.,

Appellants

v.

KINGWOOD TOWNSHIP BOARD OF EDUCATION,

HUNTERDON CO., NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

(No. 97-2129 (MLC))

District Judge: Honorable Mary L. Cooper

Argued: November 18, 1999

Before: ALITO, BARRY, and STAPLETON, Circuit Judges.

(Opinion Filed: March 9, 2000)

MICHAELENE LOUGHLIN (Argued)

Loughlin & Latimer

131 Main Street, Suite 235

Hackensack, NJ 07601

JANET J. STOTLAND

The Education Law Center

of Pennsylvania

Philadelphia, PA

Counsel for Appellants

LINDA D. HEADLEY

CANDICE SANG-JASEY

New Jersey Protection and

Advocacy, Inc.

210 South Broad Street, Third Floor

Trenton, NJ 08608

Counsel for Amici Curiae

in Support of Appellants

BRIAN J. DUFF, ESQ. (Argued)

Lamb, Hartung, Kretzer, Reinman

& DePascale

601 Pavonia Avenue

Jersey City, NJ 07306

Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Plaintiff N.R., through his parents, T.R. and E.M.R.,

brought this action against the Kingwood Township Board

of Education ("the Board") under the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C.SS 1400-91

(1994), requesting reimbursement for private school tuition

and support services. N.R. claims that the Board's proposed

placement failed to provide him with a meaningful

educational benefit in the least restrictive environment, as

required by the IDEA. The District Court granted summary

judgment in favor of the Board.

We affirm the District Court's holding that the Kingwood

placement provided N.R. with a sufficient educational

benefit to constitute a "free and appropriate public

education." However, we vacate the court's holding that the

Kingwood placement constituted the least restrictive

environment, and we remand for a determination of

whether the Board failed to consider any appropriate, state-

qualified alternate placements within a reasonable distance

of N.R's residence.

2

I.

N.R. was born on September 7, 1991, and was classified

as preschool handicapped in 1994. During the summer of

1996, N.R.'s parents met with Board officials to discuss an

Individualized Education Program ("IEP") for N.R. for the

1996-97 school year. The Board's child study team

determined that N.R. had the skills to begin kindergarten in

the fall of 1996 and recommended his placement in the

Kingwood School's regular kindergarten program. On

August 2, 1996, however, T.R. and E.M.R. rejected this

proposed placement, stating that they planned to send N.R.

to preschool for another year.1

At that time, Kingwood Township did not offer a regular

preschool program for non-disabled children. Rather, the

Township offered a single, half-day preschool class

composed of half disabled children and half non-disabled

children. The Board drafted a new IEP which provided for

N.R.'s placement in this class, with afternoon placement in

the school's resource room. N.R.'s parents rejected this

proposal and informed the Board that they planned to have

N.R. spend the next year at the Rainbow Rascals Learning

Center ("Rainbow Rascals"), a private daycare center that

N.R. had attended the previous year. At the time, Rainbow

Rascals was not accredited as a preschool by the State of

New Jersey or by any independent educational

accreditation agency. Nevertheless, T.R. and E.M.R.

requested that the Board pay for N.R.'s tuition at Rainbow

Rascals and provide supplemental special education

services there.

The Board filed for due process, seeking a determination

that its 1996-97 IEP provided N.R. with a free appropriate

public education in the least restrictive environment as

required by the IDEA. The Administrative Law Judge found

that Kingwood Township's kindergarten program satisfied

the IDEA's requirements and that the Board should not be

liable for the parents' decision to keep N.R. at Rainbow

Rascals.

_________________________________________________________________

1. N.R. would have turned five the week that school began, and New

Jersey law does not require a parent to enroll a child in kindergarten

until the child has reached the age of six.

3

In April 1997, N.R.'s parents filed suit on his behalf in

District Court. They alleged, inter alia, that the ALJ had

erred in finding that the Board's proposed IEPs had offered

N.R. a free appropriate public education in the least

restrictive environment. The parties filed cross-motions for

summary judgment, and the District Court granted

summary judgment in favor of the Board. The District

Court found that the 1996-97 IEP (consisting of placement

in Kingwood's half-day preschool class and resource room)

provided N.R. with a free, appropriate public education by

offering more than a trivial education benefit. See T.R. v.

Kingwood Township Bd. of Educ., 32 F. Supp. 2d 720, 728-

29 (D.N.J. 1998). The court pointed to testimony by the

Board's expert witnesses, Dr. Frances Hobbie and Dr. Leslie

Callanan, who stated that the Kingwood program would

meet N.R.'s educational needs. The court also referenced

the testimony of Darlene Johnson, the teacher of the

Kingwood preschool class, who stated that she was familiar

with N.R.'s IEP and would work to implement it on a daily

basis.

In addition, the District Court found that the Kingwood

class constituted the least restrictive environment for N.R.

under the IDEA. See id. at 730. Finally, the court held that

Rainbow Rascals could not be considered as a possible

placement for N.R. because it was not accredited by the

state. See id. at 730-31.

N.R. and his parents appeal, seeking reimbursement for

N.R.'s tuition at Rainbow Rascals and for his therapy costs

for the 1996-97 school year.

We exercise jurisdiction pursuant to 20 U.S.C.

S 1415(i)(2). We exercise plenary review of the legal

standard applied by the District Court. See Polk v. Central

Susquehanna Intermediate Unit 16, 853 F.2d 171, 181 (3d

Cir. 1988). However, we must accept the District Court's

findings of fact unless they are clearly erroneous. See Oberti

v. Board of Educ. of Borough of Clementon Sch. Dist. , 995

F.2d 1204, 1220 (3d Cir. 1993).

II.

The IDEA requires states receiving federal funding under

the Act to have "in effect a policy that ensures all children

4

with disabilities the right to a free appropriate public

education." 20 U.S.C. S1412(1). Where a state fails to

satisfy this statutory mandate, parents have a right to

reimbursement for private school tuition. See Burlington v.

Department of Educ. of Commonwealth of Mass., 471 U.S.

359, 370 (1985). Appellants argue that the District Court

erred in finding that the Board's 1996-97 IEP provided N.R.

with a free appropriate public education because the Court

applied an incorrect legal standard and failed to conduct an

independent review of the record. We reject this argument.

Although it appears that the District Court did apply an

incorrect legal standard, it is also apparent that the Board

introduced more than sufficient evidence to prove, under

the proper standard, that the Kingwood preschool

placement provided a free and appropriate education

(hereinafter "FAPE") for N.R.

The Supreme Court has construed the statute's FAPE

mandate to require "education specially designed to meet

the unique needs of the handicapped child, supported by

such services as are necessary to permit the child`to

benefit' from the instruction." Hendrick Hudson Dist. Bd. of

Educ. v. Rowley, 458 U.S. 176, 188-89 (1982). The

education provided must "be sufficient to confer some

educational benefit upon the handicapped child," id. at

200, although the state is not required to "maximize the

potential of handicapped children." Id. at 197 n.21. Prior to

the District Court's decision in this case, our Court

interpreted Rowley to require that an IEP offer "more than

a trivial or de minimis educational benefit." Oberti, 995

F.2d at 1213; see also Polk, 853 F.2d at 179 (IDEA "calls

for more than a trivial educational benefit"). Specifically, we

said that a satisfactory IEP must provide "significant

learning" and confer "meaningful benefit." Polk, 853 F.2d at

182, 184.

The District Court, in apparent reliance on these

precedents, focused its review on "whether [N.R.'s] IEP was

sufficient to confer an educational, nontrivial benefit on

him," and concluded that it was. T.R., 32 F. Supp. 2d at

728. However, in our most recent explication of the FAPE

standard, our Court squarely held that "[t]he provision of

merely `more than a trivial educational benefit' does not

5

meet" the meaningful benefit requirement of Polk.

Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir.

1999). By failing to inquire into whether the Board's IEP

would confer a meaningful educational benefit on N.R., the

District Court applied the incorrect legal standard on this

issue.2

Nevertheless, we believe that the evidence on which the

District Court relied amply satisfies the somewhat more

stringent "meaningful benefit" test. As the District Court

noted, both Dr. Callanan and Dr. Hobbie testified to the

benefits N.R. would receive from resource-room work in the

areas of communication and motor skills. (App. 32, 45.) Dr.

Hobbie also noted the educational advantages of the

Kingwood preschool program, including small class size, a

full-time aide, and the presence of supplemental staff and

a child study team on premises. (App. 38-39.) Darlene

Johnson, the teacher of the Kingwood preschool class,

testified that she would implement N.R.'s IEP on a daily

basis in her class. (App. 34-35.) The District Court's

decision to credit this testimony is a finding of fact and is

entitled to deference in the absence of clear error. See

Oberti, 995 F.2d at 1220. In light of this credible evidence,

we believe that the Board satisfied its burden to show that

N.R. would receive a meaningful educational benefit from

the Kingwood preschool program.

Appellants also argue that the District Court failed to give

adequate consideration to N.R.'s individual potential in

concluding that the Kingwood IEP was appropriate. In

Ridgewood, this Court reiterated that the educational

benefit of an IEP "must be gauged in relation to a child's

potential." 172 F.3d at 247 (quoting Polk, 853 F.2d at 185).

To fulfill this mandate a district court must"analyze the

type and amount of learning" of which the student is

capable. Ridgewood, 172 F.2d at 248.

Contrary to appellants' suggestion, the District Court did

address N.R.'s specific needs in its analysis. The Court

noted that "Dr. Frances Hobbie stated that the[Kingwood]

_________________________________________________________________

2. Although the District Court did cite to Polk, it explicitly--and

erroneously--applied a "more than trivial benefit" standard. See T.R., 32

F. Supp. 2d at 728.

6

preschool program would . . . suit N.R.'s needs," and the

Court cited to the portion of Dr. Hobbie's testimony that

specifically discussed those needs. T.R., 32 F. Supp. 2d at

728. For example, Dr. Hobbie discussed the specific

benefits that N.R. could obtain from resource room work:

I like some individual attention to the areas of need.

. . . I would definitely think that it would be

tremendously beneficial for [N.R.] to have some speech

language therapy individually . . . certainly in the

resource center I would like to see him get some really

individual work on speech language.

As far as the motor component where he has some

difficulty, that again could be worked on in that special

program.

(App. 45.)

The District Court also cited Dr. Callanan's testimony, in

which she further addressed N.R.'s specific needs and

capabilities. See T.R., 32 F. Supp. 2d at 729. Dr. Callanan

opined that "N.R.'s particular difficulties" did not

necessitate a full-day preschool program. (App. 8.) She

noted that N.R.'s participation in lunch and recess in the

Kingwood program would provide "additional time for

socialization." (App. 8.) She further testified that N.R. would

benefit from time in the resource center at Kingwood

because of "his need for additional time to rehearse skills"

(App. 20) and noted that "N.R.'s motoric [sic] difficulties and

his communication difficulties could be greatly benefitted

by resource center placement." (App. 32.) This testimony--

which was referenced by the District Court in support of its

holding--explicitly assessed the Kingwood IEP in light of

N.R.'s individual needs and potential.

In sum, the District Court's failure to enunciate the

correct "meaningful benefit" test is not fatal to its

determination that the 1996-97 IEP offered N.R. a free

appropriate public education. Even under the proper

standard, the evidence in the record is more than sufficient

to support a finding that the Kingwood program would

confer on N.R. a meaningful educational benefit in light of

his individual needs and potential.

7

III.

A.

The IDEA also contains a "mainstreaming" component,

which requires states to establish "procedures to assure

that, to the maximum extent appropriate, handicapped

children . . . are educated with children who are not

handicapped." 20 U.S.C. S 1412(5)(B) (1994).3 We have

interpreted this mandate to require that a disabled child be

placed in the least restrictive environment (hereinafter

"LRE") that will provide him with a meaningful educational

benefit. "The least restrictive environment is the one that,

to the greatest extent possible, satisfactorily educates

disabled children together with children who are not

disabled, in the same school the disabled child would

attend if the child were not disabled." Carlisle Area Sch. v.

Scott P., 62 F.3d 520, 535 (3d Cir. 1995). Appellants

contend that the District Court erred in finding that the

Kingwood preschool program was the LRE for N.R. We

agree with the appellants that the Court failed adequately

to investigate potential alternative placements, and we

remand for consideration of this issue.

In Oberti, this Court adopted a two-part test for assessing

compliance with the LRE requirement. First, the Court

must determine "whether education in the regular

classroom, with the use of supplementary aids and

services, can be achieved satisfactorily." Oberti, 995 F.2d at

1215. Factors the Court should consider in applying this

prong are: (1) the steps the school district has taken to

accommodate the child in a regular classroom; (2) the

child's ability to receive an educational benefit from regular

education; and (3) the effect the disabled child's presence

has on the regular classroom. See id. at 1215-17. Second,

if the Court finds that placement outside of a regular

_________________________________________________________________

3. In 1997, Congress amended the IDEA, recodifying the definition of

least restrictive environment at 20 U.S.C. S 1412(a)(5)(A) (1998 Supp.)

and adding a new provision that requires that state special education

funding formulas not result in restrictive or segregated placements, see

20 U.S.C. S 1412(a)(5)(B) (1998 Supp.). Because the Kingwood IEP was

formulated prior to 1997, the amendments do not apply in this case.

8

classroom is necessary for the child's educational benefit, it

must evaluate "whether the school has mainstreamed the

child to the maximum extent appropriate, i.e., whether the

school has made efforts to include the child in school

programs with nondisabled children whenever possible." Id.

at 1215. These requirements apply to preschool children,

see 34 C.F.R. S 300.552, and the Board bears the burden

of proving compliance with the IDEA's mainstreaming

requirement. See Oberti, 995 F.2d at 1215.

B.

The peculiar facts of this case make a mechanical

application of the Oberti test difficult. As the District Court

correctly noted, the Kingwood preschool program"cannot

be described as a typical `regular class,' nor is it a typical

special education class; half of the children in the class are

handicapped, and any preschool child living in Kingwood

Township may apply to attend the program." T.R., 32 F.

Supp. 2d at 730. Nevertheless, it is clear that the Kingwood

preschool class is, under the terms of the IDEA, more

restrictive than a "regular," fully-mainstreamed preschool

class would be. Indeed, the Kingwood program's statement

of philosophy states that it "has been designed to meet the

needs of Kingwood Township students ages three through

five who have an identified disabling condition or a

measurable developmental impairment and who would

benefit from special education." (App. 100) (emphasis

added).

Certainly, the IDEA does not contemplate "an all-or-

nothing educational system in which handicapped children

attend either regular or special education." Oberti, 995 F.2d

1204, 1218 (quoting Daniel R.R. v. State Bd. of Educ., 874

F.2d 1036, 1050 (5th Cir. 1989)). However, we believe that,

under the IDEA's strict mainstreaming requirement, a

hybrid preschool program like Kingwood's would ordinarily

provide the LRE only under two circumstances: first, where

education in a regular classroom (with the use of

supplementary aids and services) could not be achieved

satisfactorily or, second, where a regular classroom is not

available within a reasonable commuting distance of the

child.

9

The record contains no indication that N.R. could not

have been educated satisfactorily in a regular classroom.

Indeed, the Board's own experts admit that N.R.'s

placement in Kingwood's regular kindergarten class (which

was rejected by the parents) would be fully appropriate.

(App. 31-32, 40-41, 46-47, 50-51.) Based on this

undisputed testimony, it seems clear that N.R. could have

received a meaningful educational benefit from a regular

classroom. Moreover, there is no contention that his

behavior would have been disruptive to other students.

Of course, a district that does not operate a regular

preschool program is not required to initiate one simply in

order to create an LRE opportunity for a disabled child. See

34 C.F.R. S 300.552, Note (1996). However, the school

district is required to take into account a continuum of

possible alternative placement options when formulating an

IEP, including "[p]lacing children with disabilities in private

school programs for nondisabled preschool children." Id.

Under these circumstances, the District Court erred in not

inquiring into whether regular classroom options were

available within a reasonable distance to implement N.R.'s

IEP, and we remand so the District Court may consider this

question.

C.

We next address the appellants' contention that the

Board and the District Court erred specifically in failing to

include Rainbow Rascals in the continuum of available

programs. Appellants claim that Rainbow Rascals would

have provided N.R. with a free and appropriate public

education in the least restrictive environment and that the

state's placement of N.R. in the Kingwood preschool

program, rather than in Rainbow Rascals, was in error.

As a substantive matter, it seems likely that the Rainbow

Rascals program, aside from its lack of accreditation, could

have provided N.R. with an FAPE. For example, the Board's

experts admitted that N.R. had made substantial gains

during his 1995-96 placement at Rainbow Rascals. (App.

25, 48.) In addition, Rainbow Rascals' classroom was fully

mainstreamed and thus less restrictive under the IDEA

10

than the Kingwood preschool program. Therefore, unless

the state was barred from considering Rainbow Rascals on

its continuum of alternative placements for some other

reason, the Board would have been required to approve the

Rainbow Rascals placement as the one providing an FAPE

in the LRE.

Nevertheless, we agree with the District Court's

conclusion that the Board was not required to consider

placement in Rainbow Rascals because that program was

not properly accredited under New Jersey law. Under 20

U.S.C. S 1401(a)(18)(D), the "free and appropriate public

education" required under IDEA must "meet the standards

of the State educational agency." Although federal

regulations envision placing disabled children in"regular"

private school classes, the universe of private programs

that a state may consider is at least partly defined by state

law.

Under the state regulations in place at the time the 1996-

97 IEP was formulated, New Jersey's program options for

IDEA placement included "[a]n approved private school for

the handicapped," and "[a]n accredited nonpublic school

which is not specifically approved for the education of

children with educational disabilities." N.J.A.C.S 6:28-4.2

(1997).4 The regulations defined an "approved private school

for the handicapped" as "an incorporated entity approved

by the Department of Education . . . to provide special

education and related services to pupils with educational

disabilities." N.J.A.C. S 6:28-1.3 (1997). It is undisputed

that Rainbow Rascals lacked such approval.

The regulations also permitted placement in a non-

approved, accredited private school "with the consent of the

Commissioner [of Education] or by an order of a court of

competent jurisdiction." N.J.A.C. S 6:28-6.5(a) (1997).

Accreditation under this regulation required "the on-going,

on-site evaluation of a nonpublic school by a governmental

or independent educational accreditation agency which is

based upon written evaluation criteria that address

_________________________________________________________________

4. The sections of the New Jersey Administrative Code dealing with

special education were repealed and recodified as amended in 1998.

However, the pre-amendment regulations govern this case.

11

educational programs and services, school facilities and

school staff." N.J.A.C. S 6:28-6.5(b)(1) (1997). Rainbow

Rascals was not accredited as a preschool by any state or

independent agency at the time the IEP was formulated,

and there is no showing that its personnel possessed the

professional certifications and licenses required by N.J.A.C.

S 6:28-6.5(b)(5). Indeed, Rainbow Rascals' only license at

the time was as a daycare center. (App. 119.) Accordingly,

it was not eligible for placement under this regulation, even

with the consent of the state Department of Education.5

Because Rainbow Rascals was neither approved nor

accredited as a preschool under New Jersey law, it was

ineligible for placement consideration by the state under

S 1401(a)(18)(D).6 Accordingly, the Board did not err by

failing to consider it when preparing N.R.'s IEP.

_________________________________________________________________

5. The special education regulations in force in 1996 did contain what

was apparently a general waiver provision, which provided that

"[e]xceptions to the requirements of this chapter shall be [m]ade only

with prior written approval of the Department of Education through its

county office . . . for a period not to exceed one year." N.J.A.C. S

6:28-4.6

(1997). Nevertheless, we do not believe that the IDEA required New

Jersey to make an exception for an unaccredited, unapproved program

like Rainbow Rascals. Requiring a state to ignore its substantive

educational standards by forcing it to make an exception whenever a

non-qualifying school provides a somewhat less restrictive environment

than an approved school (which also offers the student an FAPE) would

effectively replace state standards with the federal courts' case-by-case

determinations of educational appropriateness. Such a reading would

render S 1401(a)(18)(D) a virtual nullity. As the Supreme Court

emphasized in Rowley, the IDEA was not intended to "displace the

primacy of states in the field of education" but rather "to assist them in

extending their educational systems to the handicapped." 458 U.S. at

208.

6. The dissent suggests that New Jersey's accreditation requirement was

a mere formality, unconnected to any substantive criteria. This is

untrue. The accreditation regulations in effect at the time required,

inter

alia, that there be ongoing, on-site evaluation of the school by a

government or independent accreditation agency based on written

evaluation criteria, see N.J.A.C. S 6:28-6.5(b)(1) (1997); that personnel

providing educational or related services hold appropriate educational

certifications, see N.J.A.C. S 6:28-6.5(b)(5) (1997); and that the pupil

receive a program comparable to that required to be provided by the

12

D.

Finally, appellants contend that, even if Rainbow Rascals

was not an available option for state placement, they are

nevertheless entitled for reimbursement for their own

unilateral placement under Florence County School District

Four v. Carter, 510 U.S. 7 (1993). In Florence, the school

district proposed a placement which the court found failed

to provide the child with an FAPE. The parents rejected the

placement, and enrolled the child in a private program

which was not on the state's "approved list," but which did

provide a substantive FAPE. The Supreme Court held that

the parents were entitled to reimbursement even though

the school lacked state approval, because the state

standards requirement of 20 U.S.C. S 1401(a)(18)(D) applies

only to placements made by a public authority. See id. at

13-14; see also Warren G. v. Cumberland County Sch. Dist.,

190 F.3d 80 (1999).

Florence does not require reimbursement for appellants'

Rainbow Rascals placement. Both Florence and Warren G.

involved disputes over the FAPE requirement. They did not

address the situation we face in this case, where both the

state-chosen (accredited) school and the parent-chosen

(unaccredited) school would provide an FAPE, but where

the unaccredited school would arguably provide a less

restrictive environment. Extending Florence to these

circumstances would require a state to ensure the

maximally optimal LRE placement for each child, even if

such a placement is not available in any qualifying school

within a reasonable distance.

_________________________________________________________________

public schools under the relevant statutes and regulations, see N.J.A.C.

S 6:28-6.5(b)(6) (1997). There is no record evidence that Rainbow Rascals

met any of these substantive criteria. Moreover, the dissent's contention

that "the State at the relevant point in time was not accrediting private

preschools" is without basis in the record. Even if the state had imposed

some sort of accreditation moratorium, Rainbow Rascals would still have

been free to qualify for IDEA placement by obtaining accreditation from

a private agency--as it in fact did the following year. In short, there is

no evidence that New Jersey's accreditation and approval standards were

being used systematically to avoid the state's affirmative obligations

under the IDEA.

13

Florence's own language forecloses such an

537<!>interpretation. Florence gives parents the right to

reimbursement for a unilateral placement in a non-

qualifying school only "if a federal court concludes both

that the public placement violated IDEA and that the private

school placement was proper under the Act." Florence, 510

U.S. at 15 (emphasis added). By its terms, this is a two-

pronged inquiry. The threshold question here focuses on

the first prong--viz., whether the Board's proposed

placement violated the IDEA by failing to consider Rainbow

Rascals. The parental reimbursement mandate comes into

play only if we answer yes to this initial question.

Florence, while holding that parents are not bound by

S 1401(a)(18)(B)'s state standards requirement, did not

suggest that the state is required--or even permitted--to

overlook that statutory mandate and consider placements

that do not meet its substantive educational standards.

Such a reading would go against the plain language of the

statute and render the state standards requirement of

S 1401(a)(18)(D) a nullity. Because we have found that the

Board did not err in rejecting Rainbow Rascals as a

potential placement, we cannot find that the "public

placement violated IDEA" on these grounds. Of course, if

the District Court on remand finds that the Board

improperly failed to consider other potential placements

that met New Jersey's substantive standards (see part

III(B), supra), the state may have failed to meet its

obligations under the IDEA and reimbursement for the

Rainbow Rascals placement may be available under

Florence.

IV.

We affirm the holding of the District Court that the 1996-

97 Kingwood IEP provided N.R. with an FAPE. We vacate

the District Court's holding that the Kingwood placement

constituted the least restrictive environment, and remand

for additional proceedings consistent with this opinion.

14

STAPLETON, Circuit Judge, Dissenting:

The Court concludes that, although "public agencies that

do not operate programs for non-disabled preschool

children are not required to initiate such programs," the

federal regulations do impose upon them an affirmative

duty to make all reasonable efforts to find alternatives that

will provide the LRE. 34 C.F.R. S 300.552 Note (1987); see

also 34 C.F.R. S 300.551. This includes the alternative of

"[p]lacing children with disabilities in private school

programs for non-disabled preschool children." 34 C.F.R.

S 300.552 Note. I agree.

The Court also concludes, quite properly, that Rainbow

Rascals was available to provide N.R. with a free and

appropriate public education in a wholly integrated

environment. It nevertheless relieves the Board of

Education of any duty to provide N.R. access to that

education because Rainbow Rascals was not "accredited or

approved" under the applicable state regulation at the time

the placement decision was made. I would have no quarrel

with this holding if the record indicated that Rainbow

Rascals failed to meet educational criteria established by

the State. See 20 U.S.C. S 1401(a)(18)(D) (the FRAP required

under IDEA must "meet the standards of the State

educational agency."). The record in this case, however,

does not suggest there are any such criteria that Rainbow

Rascals failed to meet. What the record does affirmatively

establish is that the State at the relevant point in time was

not accrediting private preschools, and that although state

law provided for a waiver of the "accredited or approved"

requirement, see N.J. Admin. Code S 6:28-4.6 (Supp. 1994),

no request for a waiver was made.1 If a state can so easily

avoid its affirmative duty to provide a free and appropriate

public education in the least restrictive environment, the

promise of the IDEA will be illusory for many. For that

reason, I respectfully dissent. I would reverse and remand

with instructions to grant tuition reimbursement.

_________________________________________________________________

1. In addition to placement in accredited private schools, state law also

authorized placement in preschools "in approved facilities." N.J. Admin.

Code S 6:28-1.1(e)(3) (Supp. 1994). The record does not reflect, however,

that the State maintained any list of preschools in"approved facilities."

15

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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