Lauren W. Ex Rel. Jean W. v. Deflaminis

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

3-22-2007

Lauren W. v. DeFlaminis

Precedential or Non-Precedential: Precedential

Docket No. 05-3774

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 05-3774, 05-4008, 05-4009

LAUREN W., BY AND THROUGH HER PARENTS,

JEAN AND JAMES W.; JEAN W.; JAMES W.,

ON THEIR OWN BEHALF,

Appellants in No. 05-3774

v.

JOHN A. DEFLAMINIS, DR., IN HIS INDIVIDUAL

CAPACITY; KITTY LUGAR, DR., IN HER INDIVIDUAL

CAPACITY; RADNOR TOWNSHIP SCHOOL DISTRICT,

Appellants in Nos. 05-4008 & 05-4009

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 03-cv-01526)

District Judge: Honorable Legrome D. Davis

Argued December 13, 2006

BEFORE: FISHER, CHAGARES and GREENBERG,

Circuit Judges

(Filed: March 22, 2007)

1

Stephen G. Rhoads

Catherine M. Reisman (argued)

Katherine Skubecz

Montgomery, McCracken, Walker & Rhoads

123 South Broad Street

Philadelphia, PA 19109

Attorneys for Appellants in No. 05-3774

and Appellees in No. 05-4008 and No. 05-4009

Ellis H. Katz (argued)

Sweet, Stevens, Tucker & Katz

331 Butler Avenue

P.O. Box 5069

New Britain, PA 18901

Attorneys for Appellees in No. 05-3774 and

Appellants in No. 05-4008 and No. 05-4009

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before the court on an appeal and

cross-appeals from orders the district court entered on June 3,

2005, and July 21, 2005, which became final upon entry of

judgment on August 1, 2005, in this case arising in a special

education context. See Lauren W. v. DeFlaminis, Civ. No. 03-

1526, 2005 WL 1353643 (E.D. Pa. June 1, 2005); Lauren W. v.

DeFlaminis, Civ. No. 03-1526, 2005 WL 2989712 (E.D. Pa. July

20, 2005). The suit arose from long-lived and recurring

disputes between the Radnor Township School District and the

parents, James and Jean W., of a daughter, Lauren W.

(collectively, appellants), entitled to and provided with a special

2

education by the school district.1 In addition to bringing this

action against the school district, the appellants joined Dr. John

DeFlaminis, the school district superintendent, and Dr. Kitty

Lugar, its director of pupil services, as defendants in their

individual capacities. When we refer to the “District” we are

referring to all three defendants unless the context of the

reference is such that it is clear that we are referring only to the

school district or the individuals, as the case may be.

One of the principal issues in dispute is whether the

District is obligated to reimburse appellants for Lauren’s private

school tuition that they incurred after Lauren’s parents

unilaterally withdrew her from public school, and, if so, whether

the District also must provide compensatory education for

services it did not provide during Lauren’s private school

education. Appellants’ other main contention is that the District

denied Lauren special education services in retaliation for their

attempts to enforce Lauren’s rights under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,

and thus is liable in damages to the appellants for that reason.

The District has counterclaimed seeking to recover a portion of

the private school tuition that it paid on Lauren’s behalf.

Moreover, in its counterclaim the District appeals from an

administrative decision requiring it to reimburse appellants for

tuition they paid for other years. For the reasons that follow, we

will affirm the orders and judgment of the district court.

II. FACTS AND PROCEDURAL HISTORY

The following historical and procedural events have

taken the case to its present posture. Lauren is a 20-year old

student who resides within the Radnor Township School

District. She suffers from a variety of conditions that have

effects entitling her to a free and appropriate education

1

Because Lauren was a minor at the time appellants commenced

this litigation, Lauren’s parents sued on her behalf as well as on their

own behalf.

3

(“FAPE”) pursuant to the IDEA. It is undisputed that the

District is the local education agency responsible for providing a

FAPE to Lauren.

Lauren attended private school until the fifth grade, but

in 1996, when she was ten years old, she entered schooling

programs that the District directly provided and attended Radnor

Middle School through the seventh grade. Thereafter, however,

Lauren’s parents, apparently dissatisfied with the Individual

Education Program (“IEP”) that the District proposed,

unilaterally placed her at the Hill Top Preparatory School (“Hill

Top”), a private school in Rosemont, Pennsylvania, for the 1999-

2000 school year, her eighth grade.

Lauren’s parents paid the Hill Top tuition for the 1999-

2000 school year but requested a special education due process

hearing in which they could seek reimbursement from the

District for that tuition. The parties, however, negotiated a

settlement of that claim and consequently the hearing was

discontinued. Under the settlement, the District agreed to pay

the Hill Top tuition for the 1999-2000 school year and certain of

her parents’ attorney’s fees in lieu of its obligation to provide a

FAPE for that year. On the other hand, Lauren’s parents waived

all of their federal and state claims relating to Lauren’s

placement through the 1999-2000 school year. In accordance

with its agreement, the District issued a check to appellants for

$21,975 on November 15, 2000, to cover the 1999-2000 Hill

Top tuition.2

By the time the District issued the tuition check,

Lauren’s ninth-grade (2000-2001) school year had begun.

Lauren remained at Hill Top that year and her parents again paid

her tuition and again sought reimbursement from the District. In

November 2000 the school board approved reimbursement for

2

In their statement of facts in their opening brief appellants

contend that the District never properly authorized execution of the

settlement agreement but they nevertheless do not contend in their

argument that for this reason it is not valid. Indeed, as we will explain

later, they contend that the District rescinded the agreement by not

complying with it, thus suggesting that it initially was valid.

4

Lauren’s ninth grade at Hill Top but from December 2000 until

February 2002 the parties could not reach a final agreement with

respect to the terms for the District to reimburse appellants for

the tuition for the 2000-2001 school year because appellants

would not agree to a waiver-of-rights clause for that year similar

to the one in the 1999-2000 agreement. In particular, appellants

objected to waiving Lauren’s right to “related services”3 beyond

the Hill Top curriculum, as they believed that Lauren needed

these services to meet her educational needs. The District,

however, would not accept the agreement to fund the 2000-2001

Hill Top placement without the waiver clause. As the dispute

continued, Lauren began the tenth grade at Hill Top with her

parents paying the 2001-2002 tuition.

With resolution of the dispute over reimbursement of

Lauren’s parents for the 2000-2001 and 2001-2002 school years

in limbo, the District on May 28, 2002, proposed an IEP for the

2002-2003 school year (eleventh grade). This IEP proposed

placing Lauren in a public school Bridge Program. Appellants,

however, were not satisfied with the proposed IEP and

consequently sought a due process hearing to address their

concerns.

Inasmuch as the District refused to fund the Hill Top

placement pending due process review, on July 18, 2002,

Lauren’s parents filed an action in the district court petitioning

for a judgment declaring that Hill Top was Lauren’s “pendent

placement” under 20 U.S.C. § 1415(j)4 and seeking injunctive

3

Under the IDEA a district must provide a FAPE which entails

both “special education” and “related services.” 20 U.S.C. § 1401(9).

“The term ‘related services’ means transportation, and such

developmental, corrective, and other supportive services . . . as may be

required to assist a child with a disability to benefit from special

education . . . .” Id. § 1401(26)(A). Related services include items such

as speech and audiology services, psychological services, and physical

and occupational therapy.

4

Section 1415(j) states: “[D]uring the pendency of any

proceedings conducted pursuant to this section, unless the State or local

educational agency and the parents otherwise agree, the child shall

5

relief requiring the District to fund Lauren’s placement at Hill

Top until they resolved the dispute over the 2002-2003 tuition.

This action was successful and the district court granted

appellants the relief they sought. Lauren W. v. Bd. of Educ. of

Radnor Twp. Sch. Dist., Civ. No. 02-4775, 2002 WL 32130764

(E.D. Pa. Sept. 12, 2002). On September 16, 2003, in further

proceedings the district court clarified that the District’s

responsibility to pay Lauren’s tuition at Hill Top extended to the

2003-2004 school year pending final judicial review as to the

appropriateness of the IEP. Lauren W. v. DeFlaminis, Civ. No.

03-1526, 2003 WL 22387406 (E.D. Pa. Sept. 16, 2003). In

compliance with the district court’s pendency decisions, the

District paid the Hill Top tuition for the 2002-2003 and 2003-

2004 school years.

The parties engaged in an administrative due process

hearing extending over five separate sessions from July 22,

2002, until October 22, 2002, relating to the years after the 1999-

2000 school year. This hearing culminated in a hearing officer

making the following determinations: (1) the 2000 settlement

agreement barred litigation of claims that pre-dated the

execution of the agreement; (2) the District was responsible for

Lauren’s Hill Top tuition for the 2000-2001 and 2001-2002

school years that appellants had advanced to Hill Top; (3) the

proposed IEP for the 2002-2003 school year was appropriate;

and (4) Lauren was not entitled to related services or

compensatory education for the time she spent at Hill Top. Both

parties appealed from the hearing officer’s decision to the

Pennsylvania Special Education Appeals Panel which, on

January 22, 2003, affirmed the hearing officer’s decision.

On March 11, 2003, appellants initiated the civil action

leading to this appeal in the district court seeking review of the

administrative decision (Count I); a declaratory judgment

regarding Lauren’s pendent placement (Count II); damages

under 42 U.S.C. § 1983 for the District’s alleged retaliation

against them in violation of the First Amendment (Count III);

remain in the then-current educational placement of the child . . . .”

6

damages for retaliation in violation of section 504 of the

Rehabilitation Act, 29 U.S.C. § 794(a) (Count IV); and claims

pursuant to section 504 of the Rehabilitation Act and 42 U.S.C. §

1983 for the District’s violation of its “child find” duty (Count

V). The District answered and filed the two counterclaims that

we already have described. The District predicated one

counterclaim on an unjust enrichment theory in which it sought

the return of a portion of the Hill Top tuition that it paid pursuant

to one of the district court’s orders to which we refer above. The

District predicated its second counterclaim, constituting an

appeal from the administrative decision awarding appellants

reimbursement of the 2000-2001 and 2001-2002 Hill Top

tuition, on the theory that the Hill Top placement was not

appropriate. On October 19, 2004, the parties filed cross-

motions for disposition of Count I of the complaint on the

administrative record. The District also sought summary

judgment on appellants’ remaining counts.

On June 3, 2005, the district court upheld the

administrative decision in all aspects. The court, however,

deemed Count II of appellants’ complaint seeking a declaratory

judgment with respect to the expenses of Lauren’s pendent

placement to be moot because the court already had granted

appellants all the relief they could obtain on that count and

because Lauren no longer was a student at Hill Top. Further, the

court granted the District’s motion for summary judgment

dismissing the retaliation claims in appellants’ Counts III and IV

brought under 42 U.S.C. § 1983 and the First Amendment and

section 504 of the Rehabilitation Act, respectively, and

dismissing the “child find” duty claim raised in Count V.

Finally, the court requested that the District’s counsel advise it

as to the status of the District’s counterclaims.

The parties subsequently filed cross-motions for

summary judgment on the counterclaims and the district court on

July 21, 2005, granted appellants’ motion on them. Pursuant to

Federal Rule of Civil Procedure 58, on August 1, 2005, the court

entered judgment in favor of the District on Counts I, III, IV, and

V and dismissed Count II of the complaint and entered judgment

for appellants on the District’s counterclaims. Thus, the district

court disposed of all aspects of the complaint and counterclaims.

7

The parties have appealed and cross-appealed to this court from

the court’s orders of June 3, 2005, and July 21, 2005, and from

the judgment of August 1, 2005. The parties do not, however,

challenge the order dismissing Count II of the complaint as

moot.

III. JURISDICTION AND STANDARD OF REVIEW

This action arose pursuant to the IDEA, 42 U.S.C. §

1983, the First Amendment, and section 504 of the

Rehabilitation Act of 1973. The district court had jurisdiction

under 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. §§ 1331,

1343(a)(3). We have jurisdiction over the appeal pursuant to 28

U.S.C. § 1291.

We exercise plenary review over orders granting

summary judgment. Elliot & Frantz, Inc. v. Ingersoll-Rand Co.,

457 F.3d 312, 318 (3d Cir. 2006). Thus, we will affirm those

orders if our review reveals that “there is no genuine issue of

material fact and that the moving party is entitled to judgment as

a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). In

determining whether summary judgment is warranted, we review

the facts in the light most favorable to the non-moving parties,

id., and draw all reasonable factual inferences in their favor,

Doby v. DeCrescenzo, 171 F.3d 858, 867 (3d Cir. 1999).

“If a non-moving party fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case on which it bears the burden of proof at trial,

there is no issue as to a genuine issue of a material fact and thus

the moving party is entitled to judgment as a matter of law.” In

re Ikon Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir. 2002)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 2510 (1986)). “Moreover, a party will not be able to

withstand a motion for summary judgment merely by making

allegations; rather, the party opposing the motion must go

beyond its pleading and designate specific facts by use of

affidavits, depositions, admissions, or answers to interrogatories

showing there is a genuine issue for trial.” Id. (citing Celotex

8

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553

(1986)). “Only evidence sufficient to convince a reasonable

factfinder to find all of the elements of [the] prima facie case

merits consideration beyond the Rule 56 stage.” Id. (internal

quotation marks omitted).

We exercise plenary review over the legal conclusions

the district court reached in our review of an administrative

adjudication in IDEA cases. L.E. v. Ramsey Bd. of Educ., 435

F.3d 384, 389 (3d Cir. 2006); S.H. v. State-Operated Sch. Dist.

of Newark, 336 F.3d 260, 269 (3d Cir. 2003). The district court,

however, exercised a “modified de novo” standard of review of

the factual findings in the administrative adjudication in this

IDEA case giving those factual findings “due weight.” See id. at

269-70. Consequently, the district court considered the findings

in the administrative proceedings to be “prima facie correct,” see

id. at 270, and deferred to the hearing officer’s credibility

determinations. See id. We, in turn, review the district court’s

findings for clear error. See L.E., 435 F.3d at 389.

IV. DISCUSSION

A. Counts III & IV: Retaliation

Appellants argue that the District retaliated against them

for enforcing Lauren’s rights to a FAPE in violation of the First

Amendment, a claim they assert under 42 U.S.C. § 1983, and in

violation of section 504 of the Rehabilitation Act5 by refusing to

5

Section 504 of the Rehabilitation Act states:

No otherwise qualified individual with a

disability in the United States, . . . shall,

solely by reason of her or his disability,

be excluded from the participation in, be

denied the benefits of, or be subjected to

discrimination under any program or

activity receiving Federal financial

assistance . . . .

9

release tuition reimbursement money unless they executed a

settlement agreement containing a waiver-of-rights provision.

The appellants further contend that the District retaliated against

them by refusing to provide related services to Lauren while she

was a student at Hill Top. Though appellants concede that

eventually the District reimbursed them for the tuition money

that they were due, they contend that the District’s insistence

that they execute the waiver nevertheless “placed them in a

worse position for having engaged in protected activity,” Holder

v. City of Allentown, 987 F.2d 188, 196 (3d Cir. 1993), because

of the time and expense spent litigating several suits they filed

seeking an injunction to compel the funding.

The elements of a retaliation claim under 42 U.S.C. §

1983 predicated on the First Amendment and under the

Rehabilitation Act are the same. In both cases plaintiffs must

show (1) that they engaged in a protected activity, (2) that

defendants’ retaliatory action was sufficient to deter a person of

ordinary firmness from exercising his or her rights, and (3) that

there was a causal connection between the protected activity and

the retaliatory action. See Thomas v. Independence Twp., 463

F.3d 285, 296 (3d Cir. 2006) (First Amendment); Estate of Smith

v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (First

Amendment); Robinson v. Potter, 453 F.3d 990, 994 (8th Cir.

2006) (Rehabilitation Act); Weixel v. Bd. of Educ. of N.Y., 287

29 U.S.C. § 794(a). The anti-retaliation regulation implementing section

504 states:

No recipient or other person shall

intimidate, threaten, coerce, or

discriminate against any individual for

the purposes of interfering with any right

or privilege secured by [the Act], or

because he has made a complaint,

testified, assisted, or participated in any

manner in an investigation, proceeding or

hearing . . . .

34 C.F.R. § 100.7(e).

10

F.3d 138, 148 (2d Cir. 2002) (Rehabilitation Act).6 A defendant

may defeat the claim of retaliation by showing that it would have

taken the same action even if the plaintiff had not engaged in the

protected activity. See Ambrose v. Twp. of Robinson, 303 F.3d

488, 493 (3d Cir. 2002).

This appeal does not turn on a question of whether

appellants engaged in a protected activity or whether the District

engaged in the conduct that the appellants ascribe to it,7 but

rather whether there was a causal relationship between the two.

After all, if there was not a causal relationship then the District

could not have engaged in its conduct in retaliation for

appellants having engaged in a protected activity. To establish

the requisite causal connection a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between

the protected activity and the allegedly retaliatory action, or (2) a

pattern of antagonism coupled with timing to establish a causal

link. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503-

04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913,

920-21 (3d Cir. 1997). In the absence of that proof the plaintiff

must show that from the “evidence gleaned from the record as a

whole” the trier of the fact should infer causation. Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

A court must be diligent in enforcing these causation

requirements because otherwise a public actor cognizant of the

possibility that litigation might be filed against him, particularly

in his individual capacity, could be chilled from taking action

that he deemed appropriate and, in fact, was appropriate.

Consequently, a putative plaintiff by engaging in protected

activity might be able to insulate himself from actions adverse to

him that a public actor should take. The point we make is not

6

Weixel stated the requirements more expansively but its

formulation does not change the substance of the requirements.

7

The District does not deny that appellants in seeking to enforce

Lauren’s IDEA rights were engaging in a protected activity, or that it

refused funding absent the waiver on which it insisted, or that it rejected

appellants’ claims for related services. Of course, the District denies

that it had a retaliatory motive for engaging in its conduct.

11

theoretical as we do not doubt that public actors are well aware

that persons disappointed with official decisions and actions

frequently bring litigation against the actors responsible for the

decisions or actions in their individual capacities, and the actors

surely would want to avoid such unpleasant events.8 Thus, it

would be natural for a public actor to attempt to head off a

putative plaintiff with the unwarranted expenditure of public

funds. Courts by their decisions should not encourage such

activity and, by enforcing the requirement that a plaintiff show

causation in a retaliation case, can avoid doing so as they will

protect the public actor from unjustified litigation for his

appropriate conduct. In this regard we recognize that often

public actors such as those in this case must make a large

number of decisions in charged atmospheres thereby inviting

litigation against themselves in which plaintiffs ask the courts to

second guess the actors’ decisions.

Appellants do not allege that the timing of the alleged

retaliatory action can support an inference that their protected

activity caused the District to engage in the so-called retaliatory

action and, in any event, the timing of the District’s actions

cannot support such an inference because the District made its

determinations with respect to Lauren at the time that it needed

to do so. Rather, appellants contend that “the record as a whole”

creates an inference that the District retaliated against them.

Appellants’ br. at 29. The district court rejected this argument as

it held that there was no causal connection between appellants’

assertion of Lauren’s rights and the District’s insistence on a

waiver, refusal to release tuition money, and rejection of

appellants’ requests for related services. Instead, the court held

that the evidence showed that the District insisted on the waiver

because it was not in a position to ensure that the private school

program at Hill Top would comply with the IDEA as the

Commonwealth of Pennsylvania had not approved it. The

District’s concern in this regard was understandable because

Lauren’s parents unilaterally placed her in Hill Top, which was a

8

We also are aware that in employment situations employees

sometimes threaten to bring retaliation actions if the employer takes

adverse action with respect to them.

12

non-approved private school.9 Therefore the District believed

that it did not have the authority or ability to supervise the

private school program or recognize any need for related

services.

Appellants argue that the district court erroneously

concluded that there was no genuine issue of material fact with

respect to the causal link between the protected activity and the

District’s alleged retaliatory conduct. In particular, they believe

that the court overlooked or undervalued five particular

categories of evidence in reaching its decision. We will address

those arguments in turn.

1. Direct evidence

Appellants first argue that the district court wrongly

overlooked direct evidence that the District’s refusal to fund the

pendent placement without a waiver of rights was related

causally to their enforcement of Lauren’s rights. In support of

this argument appellants point to what they regard as the

District’s admissions stating that it would not consent to the

funding of the pendent placement without a satisfactory waiver

of rights. These “admissions,” however, were not direct

evidence, or, indeed, evidence at all with respect to the relevant

inquiry regarding causation, which is whether the District’s

refusal to fund the placement and insistence on the waiver

provision was connected causally to appellants’ enforcement

actions. Rather, appellants only have produced evidence that the

District refused to fund the placement because appellants would

not consent to the waiver of rights. We are at a total loss to

comprehend how this evidence could support appellants’

causation argument for the District was in an ongoing dispute

with the appellants and wanted to protect itself from their

possible claims. Appellants’ argument amounts to nothing more

than an assertion that a party to a controversy that resists

demands against it is engaging in retaliatory conduct by doing

9

It appears that even though the Commonwealth had not

approved Hill Top, at least with respect to Lauren, it was a very

competent provider of the services it rendered.

13

so. If we permitted a trier of the facts to accept appellants’ view

of the so-called direct evidence we would allow it to conclude

that when parties are in a dispute and are discussing its

resolution, one side, in advancing its position is negotiating, and

the other is retaliating. We will not place our imprimatur on

such an unbalanced view.

2. Disparate treatment

Appellants believe that the district court erred in

disregarding evidence showing that another student was placed

in a private school at the District’s expense and was provided

with related services but nevertheless was not compelled to sign

a waiver. Lauren W., 2005 WL 1353643, at *21-22. The

district court did not find the comparison useful because the so-

called similarly-situated student was placed in the private school

in accordance with a provision in an IEP and not, as in the case

of Lauren, as the result of a settlement agreement following a

unilateral placement.

Plainly the district court was correct. The comparison

between the two students did not have evidentiary value on the

retaliation issue as they were not similarly situated. A student

placed in a private school pursuant to an IEP is there by reason

of a bilateral agreement between the parties in which they agree

that the placement satisfied the requirements of a FAPE.

Accordingly, in such circumstances a school district would not

need a waiver of rights or a waiver of related services in addition

to those provided for in the IEP. In contrast, in Lauren’s

situation her parents unilaterally placed her in the non-approved

private school, and because the District’s supervision was

inhibited and it could not guarantee the satisfaction of the

conditions of a FAPE, the District sought to insulate itself from

liability or further educational obligations by obtaining the

waiver. Thus, the motivation for a request for a waiver in one

situation but not the other arising in the private school placement

context was entirely justified and cannot fairly be regarded as

being related to Lauren’s parents having engaged in a protected

activity. Clearly, appellants have failed to isolate the relevant

variable and thus the comparison between the students has no

evidentiary value on the nexus issue.

14

3. Individual appellees’ deposition testimony

Third, appellants believe Drs. DeFlaminis’s and Lugar’s

testimony raises a genuine issue of material fact on the

retaliatory animus issue. Dr. DeFlaminis testified at his

deposition that lawsuits in special education have become a

“waste land” because of their complexity requiring advice of

counsel for compliance. App. at 314. Moreover, he viewed the

litigious nature of the parents in the Radnor Township School

District as “outrageous and heinous.” App. at 321. Finally, he

stated that he wished that his handicapped son for whose entire

education Dr. DeFlaminis had paid “had had the benefit of this

counsel in the law because then he would have received services

that I provided.” App. at 317.10 Plainly these comments are not

evidence that Dr. DeFlaminis refused to provide the funding to

Lauren because of appellants’ attempts to enforce Lauren’s

IDEA rights.11 Indeed, the comments have nothing to do with

10

In appellants’ brief they extract snippets of Dr. DeFlaminis’s

deposition which misconstrue what he was saying. The district court

supplied the appropriate context.

11

Based on our considerable experience in these types of cases

we can understand the reason for Dr. DeFlaminis’s view of the special

education litigation landscape, though we do not place the blame for the

situation on the appellants or the District in this case or, in general, on

parents or school districts in such litigation. In this regard we point out

that in this case each side of the controversy is prevailing in part and

losing in part.

Regardless of where the responsibility for the litigation may be,

a fair-minded person interested in the welfare of disabled or

handicapped children viewing special education litigation naturally

would believe that it would be better to expend the money and energy

now devoted to lawsuits on the education of children, particularly those

needing special education services. Indeed, it is not easy to understand

how anyone could have a different view unless he believes that the

purpose of litigation is to generate legal fees.

In this case we cannot help but wonder whether since the start of

the disputes more money has been spent on Lauren’s education or on

legal fees concerning the resolution the disputes regarding her education.

15

Dr. DeFlaminis’s treatment of Lauren. After all, appellants were

in no way involved in what happened to Dr. DeFlaminis’s son.

Thus, contrary to the situation in the cases of San Filippo v.

Bongiovanni, 30 F.3d 424, 434 (3d Cir. 1994), and Hill v. City

of Scranton, 411 F.3d 118, 133 (3d Cir. 2005), that the

appellants raise, a trier of the fact simply cannot draw an

inference that Dr. DeFlaminis engaged in retaliatory conduct

from these post hoc, general comments.

Appellants also believe that Dr. Lugar’s continued

insistence that they sign an agreement with a waiver even after

the District’s agreement to pay the 2000-2001 tuition at Hill Top

suggests a retaliatory animus. Dr. Lugar testified at her

deposition that she believed the school board’s approval was

conditioned on execution of the agreement. The district court

held that Dr. Lugar’s “mistaken apprehension about the legal

ramifications of the events of the November Board meeting does

not automatically transform her efforts to have the parents sign a

settlement agreement into retaliatory ones. There is no other

evidence in the record to indicate a material question of fact as to

Dr. Lugar’s motivations.” Lauren W., 2005 WL 1353643, at

*22.

Appellants argue that the summary judgment standard,

which requires that all reasonable inferences be drawn in their

favor as the non-moving parties, precluded the district court

from conclusively inferring that Dr. Lugar’s “mistaken

apprehension” was non-retaliatory. We find this argument

In mentioning this point we observe that there have been four separate

district court cases, two initial administrative proceedings, one

administrative appeal, and one judicial appeal, arising from this

controversy with steps within the proceedings too numerous to recount

in full. Moreover, resolution of the parties’ ongoing disputes has

required substantial public expenses for the employment of hearing and

administrative appeals officers and for federal judges and for related

expenditures. Clearly, it is unfortunate that the providing of educational

services, which surely should be done on a nonconfrontational basis,

frequently has become, like practically everything else in our society, a

matter for resolution by courts and administrative agencies, often in

heated proceedings.

16

unpersuasive as this evidence cannot support a conclusion that

the District’s actions were retaliatory inasmuch as appellants

have failed to put forth even one specific fact to support an

inference that Dr. Lugar took her actions in retaliation for

appellants’ conduct in engaging in a protected activity.

4. Inconsistencies in explanations

Fourth, appellants contend that inconsistencies in Dr.

Lugar’s explanations for the District’s refusal to provide related

services support an inference of retaliatory causation. Dr. Lugar

initially testified at the administrative hearing that the District

could not provide related services at Hill Top because the

Pennsylvania Department of Education prohibited it from

providing such services at non-approved private schools.

Appellants, however, point out that Dr. Lugar subsequently

testified at her deposition that she did not know if the District

was prohibited from providing related services in all cases of

placements in non-approved private schools (testimony that was

consistent with her prior testimony) or whether the District may

have refused to do so in this particular case because of Lauren’s

specific placement.

We have reviewed Dr. Lugar’s deposition. In fact,

although she initially waivered on the question of whether the

District “couldn’t” or “wouldn’t” provide the related services in

Lauren’s situation (the deposition was years after the relevant

events), she concluded that counsel advised her that she

“couldn’t” provide the related services. App. at 335. This

conclusion was consistent with her testimony before the hearing

officer and thus there is no basis on which to draw an inference

of retaliation from her testimony.

5. Interested witnesses

Fifth, appellants contend that the district court

improperly relied upon the testimony of interested witnesses,

Drs. DeFlaminis and Lugar, in concluding that the District did

not act by reason of a retaliatory intent when it denied Lauren

tuition funding and related services. Appellants rely on Hill,

which states that “when drawing all reasonable inferences in

17

favor of the non-movant [for the purposes of summary

judgment] the courts must disregard evidence the jury is not

required to believe, including testimony of interested witnesses.”

Hill, 411 F.3d at 129 n.16 (citing Reeves v. Sanderson Plumbing

Prods. Inc., 530 U.S. 133, 149-51, 120 S.Ct. 2097, 2109-10

(2000)).

Appellants, however, misconstrue the district court’s

decision. In this case on the retaliation counts they had the

burden as the non-moving party on the District’s motion for

summary judgment “to make a showing sufficient to establish

the existence of [each] element essential to [their] case.” Ikon

Office Solutions, 277 F.3d at 666. To satisfy the causation

element of retaliation, appellants brought the district court’s

attention to Drs. DeFlaminis’s and Lugar’s depositions. The

district court concluded that this testimony did not say what

appellants claim that it said. That is, the testimony did not

provide evidence of retaliatory intent.

We also point out that appellants sued Drs. DeFlaminis

and Lugar individually so they were more than interested

witnesses, they were parties facing the threat of substantial

judgments being entered against them.12 We cannot believe that

the law precludes a party from presenting his own testimony on

a summary judgment motion which, of course, is not to say that

when there is conflicting testimony the court may accept the

testimony of one witness, even if a party, rather than another.

Indeed, in Hill which appellants cite, we made our comment

regarding disregarding testimony of interested witnesses after we

explained that the case involved contradictory evidence. The

fact is that in considering a motion for summary judgment the

court should believe uncontradicted testimony unless it is

inherently implausible even if the testimony is that of an

interested witness.13

12

We do not know whether if there had been such judgments they

would have been protected by insurance or a right of indemnification

from the District.

13

For example in a controlled intersection traffic accident case if

the moving party on a motion for summary judgment presents his

18

In sum, appellants have failed to produce sufficient

evidence to establish that there was a genuine issue of material

fact on their charge that the District denied funding and related

services for Lauren without the required waiver for a retaliatory

reason. There is simply no basis in the evidence to link

appellants’ campaign to secure funding and related services and

the District’s delay in satisfying or rejecting their requests.

Because appellants have failed to make a showing sufficient to

survive a motion for summary judgment on the causation

element of a retaliation claim, the district court correctly granted

summary judgment against them on that claim.14

B. Count I: Compensatory Education and Related

Services

Appellants appeal from the district court’s order

denying their request for reversal of the administrative decision

holding that Lauren was not entitled to compensatory education

while she was at Hill Top during the 2000-2001 and 2001-2002

school years.15 Specifically, appellants seek compensatory

education under both the IDEA and the Rehabilitation Act for

the District’s failure to provide Lauren with related services,

including social skills training, psychology services, and

disposition testimony that the light was green for him and red for the

other party and there is no contrary evidence, and there is nothing

implausible about the deposition, in considering the motion the court

should accept the deposition testimony as true. If it does not do so then,

contrary to all precedent, it would allow the nonmoving party to defeat

the motion with mere allegations.

14

The District as such and Drs. DeFalminis and Luger,

respectively, claim municipal and qualified immunity on appellants’

retaliation claims. In view of our disposition of the causation issue we

do not consider the immunity defenses.

15

In the district court appellants also sought compensatory

education for the District’s failure to provide related services in years

prior to the 2000-2001 school year. The district court denied this claim

but appellants do not appeal that decision.

19

psychiatric services, while she was at Hill Top, as well as

reimbursement for independent evaluations for which they paid.

1. Compensatory education under the IDEA

Under the IDEA a disabled student is entitled to a FAPE

until age 21. 20 U.S.C. § 1412(a)(1)(A). However, “[a]n award

of compensatory education allows a disabled student to continue

beyond age twenty-one in order to make up for the earlier

deprivation of [a FAPE].” Ridgewood Bd. of Educ. v. N.E. ex

rel. M.E., 172 F.3d 238, 249 (3d Cir. 1999). “[A] disabled

student’s right to compensatory education accrues when the

school knows or should know that the student is receiving an

inappropriate education.” Id. at 250. Under the IDEA a student

is receiving an inappropriate education if the program is not

providing “significant learning” and conferring a “meaningful

benefit.”16 Id. at 247.

In determining whether Lauren received an “appropriate

education” at Hill Top during the 2000-2001 and 2001-2002

school years, we review the district court’s findings for clear

error recognizing that the district court gave “due weight” to the

hearing officer’s factual findings which it deemed “prima facie

correct.” In this case, the hearing officer determined that Hill

Top provided Lauren with appropriate social and psychological

services and that she continued making gains in those areas.

Joanne Waber, a teacher at Hill Top, testified that Lauren

received “constant feedback and monitoring” with respect to her

social-skill needs and Lauren attended group counseling twice a

week with a psychologist or a social worker. Lauren W., 2005

WL 1353643, at *13. In addition, Hill Top has a clinical

16

For clarity we point out that 20 U.S.C. § 1412(a)(10)(C)(ii),

dealing with reimbursement for private school placement, is not

involved here because appellants are not seeking reimbursement for

related services for which they paid, except with respect to the private

evaluation which we will address later. Rather, appellants contend that

Lauren is entitled to compensatory education by reason of the District’s

failure to provide related services while Lauren attended Hill Top. Thus,

appellants are seeking prospective injunctive relief rather than

reimbursement for the education Lauren already has received.

20

psychologist on staff and every student has a counselor or

clinician available to her whenever she needs extra support.

Not surprisingly, Lauren progressed under these

conditions. According to Ms. Waber, Lauren “made quite a bit

of progress” while at Hill Top, specifically with respect to her

social skills. Additionally, the District school psychologist,

Richard Doolan, produced a Comprehensive Evaluation Report

on July 24, 2000, indicating that Lauren’s social and emotional

well-being improved dramatically while she was at Hill Top.

Likewise, the proposed IEP for the 2002-2003 school year

indicates that “[s]ince entering Hill Top, Lauren’s experience

has been ‘extremely positive’ with improved grades, self-esteem

and friendships, according to her teachers.” App. at 286.

Moreover, appellants engaged a private psychologist whose

report indicated that Lauren was “doing very well at Hill Top.”

App. at 179. Based on these evaluations the hearing officer

concluded that Lauren was “a successful student making

progress each year and demonstrating good relationships with

her peers.” District’s br. at 42. Lauren’s parents in their

deposition testimony corroborated this assessment of Lauren’s

progress.

While the district court concluded that Lauren’s work

habits and behavior were inconsistent, the record requires that a

court examining it nevertheless conclude that Hill Top provided

“significant learning” and conferred a “meaningful benefit” on

Lauren. Thus, compensatory education for the related services

allegedly not provided at Hill Top is not warranted. Appellants

have failed to offer evidence that demonstrates that the district

court committed clear error.17

2. Related services under the Rehabilitation Act

Appellants next argue that even if Lauren was not

17

We also are troubled by the fact that appellants unilaterally

selected Hill Top for Lauren’s placement. Thus, appellants obtained

exactly what they sought and now the essence of their argument is that

they should have asked for more. We do not find this argument

compelling.

21

entitled to compensatory education under the IDEA, she is

entitled to that relief under section 504 of the Rehabilitation Act.

Appellants rely on Lower Merion School District v. Doe, 878

A.2d 925 (Pa. Commw. Ct. 2005), appeal granted, 899 A.2d

1125 (Pa. 2006), in advancing this argument. In Lower Merion,

the court decided that the Rehabilitation Act entitled a disabled

student attending private school to related services at the public

school so long as the student was enrolled dually in the public

school district and the related services were needed to provide

the disabled student with a FAPE.18 Id. at 927.

Our case, however, differs factually in two important

ways from Lower Merion. First, the court premised Lower

Merion on the fact that the private school student was enrolled

dually in the public school district. In contrast, in our case,

although dual enrollment is permissible under section 502 of the

Pennsylvania Public School Code of 1949, as amended, 24 Pa.

Stat. Ann. § 5-502 (West 1992), there is no evidence of which

we are aware that Lauren continued her enrollment in District

schools after beginning at Hill Top.19

18

The relevant facts of Lower Merion are as follows. The school

district determined after an evaluation of the student that the student

suffered from spastic diplegia, difficulties with fine motor skills, and

visual motor delays, and thus was eligible to receive occupational

therapy services under section 504 of the Rehabilitation Act which

requires the district to provide a FAPE to “each qualified handicapped

person,” 34 C.F.R. § 104.33(a). Lower Merion, 878 A.2d at 926-28 &

n.2. The student’s parents decided to enroll their child in an independent

private school outside of the district (for which they paid and for which

they did not seek tuition reimbursement) and then requested that the

district provide additional occupational services at the public school

where the child was enrolled dually. Id. at 926. Thus, the only issue

before the court was whether the handicapped child by enrolling in the

private school forfeited his right to the occupational services, which the

parties agreed were necessary for a FAPE. The majority determined that

the child’s rights to related services were not waived in those

circumstances. Id. at 933.

19

In appellants’ brief they recite, without reference to the record,

that “Lauren was dually enrolled at Radnor, a public school, and Hill

Top, a private school.” Appellants’ br. at 40. The District answered in

22

Second, and quite independently it was undisputed in

Lower Merion that occupational services were necessary to

provide the disabled child with a FAPE as required under section

504 of the Rehabilitation Act. Lower Merion, 878 A.2d at 926

& n.2. The only issue was whether the student forfeited those

services at the public school by enrolling in the private school,

where the student was not offered occupational therapy. In

contrast, in this case the Hill Top curriculum (without additional

related services) provided Lauren with a FAPE and thus satisfied

the District’s obligations. Compliance with federal law did not

require that the District offer related services to Lauren. Thus,

the principles in Lower Merion would not be implicated in this

case even if Lauren had been dually enrolled in Hill Top and

District schools.

3. Reimbursement for the independent evaluation

Appellants contend that they are entitled to

reimbursement for the cost of an independent educational

evaluation they obtained from Dr. Margaret Kay after appellants

expressed their agreement with the District’s evaluation. Under

34 C.F.R. § 300.502(b)(1), “[a] parent has the right to an

independent educational evaluation at public expense if the

parent disagrees with an evaluation by the public agency.” We

have applied the regulation broadly to permit reimbursement not

only when the parents expressly disagree with the evaluation but

also when “the parents[] fail[] to express disagreement with the

District’s evaluations prior to obtaining their own” evaluation

because unless the regulation is so applied “the regulation

[would be] pointless because the object of parents’ obtaining

their own evaluation is to determine whether grounds exist to

challenge the District’s.” Warren G. ex rel. Tom G. v.

Cumberland County Sch. Dist., 190 F.3d 80, 87 (3d Cir. 1999).

Consequently, we have held that reimbursement may be

warranted where a parent does not take a position with respect to

the district’s evaluation or otherwise “fails to express

discussing Lower Merion, that in that case “the child was enrolled in the

public school to receive the related services [but] [t]here is no evidence

that Lauren did the same.” District’s br. at 44 n.9.

23

disagreement.”

We, however, never have held that parents who

expressly agree with a district’s evaluation but obtain an

independent evaluation are entitled to reimbursement for the

evaluation and we cannot imagine how we could do so. Indeed,

if we reached that conclusion our process would be judicial

alchemy because 34 C.F.R. § 300.502(b)(1) is applicable when a

parent “disagrees” with the public agency’s evaluation. A

holding that “disagrees” includes “agrees” surely would be noted

far and wide and justifiably would subject us to derisive

comments. Of course, in this case inasmuch as Lauren’s parents

both checked “yes” and signed the District’s evaluation they

indisputably agreed with it. Though no doubt their agreement

did not preclude them from obtaining their own evaluation they

could not make a claim on the District to pay for it.

C. Count V: “Child Find” Duty Claim

In Count V of their complaint, appellants seek

compensatory damages for violations of the IDEA’s “child find”

duty which requires the District to have a system in place to

identify, locate, and evaluate all children with disabilities

residing in their district. 20 U.S.C. § 1412(a)(3). Appellants

allege that in 1992 Lauren’s mother spoke to District elementary

school officials about her daughter’s educational needs and they

told her that the District could not accommodate Lauren and that

she should find a private school for her at her parents’ own

expense. The district court held that the settlement agreement

barred the claim as it waived appellants’ federal and state actions

and released the District from any liability relating to Lauren’s

education and placement through the 1999-2000 school year.

Appellants argue that the district court erred because the

District rescinded the settlement agreement by breaching its

obligation under the agreement to pay counsel fees to appellants’

prior counsel. Thus, they contend that the waiver of rights

provision in the agreement is not binding. We find that there is

no genuine issue of material fact with respect to the District’s

24

alleged breach and rescission of the contract. Appellants have

failed to put forth any evidence indicating that the prior attorney

was, in fact, not paid. Even at oral argument before us

appellants’ counsel did not know if he had been paid. Moreover,

even if he was not paid, a breach must be material to allow

rescission, see General Motors Corp. v. New A.C. Chevrolet,

Inc., 263 F.3d 296, 315-17 (3d Cir. 2001), and the District’s

failure to pay the counsel fees, if there was such a failure, would

not be a material breach in these circumstances.20 After all, if

the District did not pay the attorney the problem is his, not

appellants’, inasmuch as appellants do not contend that he is

seeking payment for his services from them even though a

substantial time has elapsed since he performed his services.

Thus, the alleged breach has not been prejudicial to them.

D. Cross-Appeal: Tuition Reimbursement

On cross-appeal, the District argues that the district

court erred in affirming the administrative decision holding that

Lauren’s parents were entitled to tuition reimbursement for the

2000-2001 and 2001-2002 school years.

Under 20 U.S.C. § 1412(a)(10)(C)(ii),

If the parents of a child with a

disability, who previously received a

special education and related

services under the authority of a

public agency, enroll the child in a

private elementary school or

secondary school without the consent

of or referral by the public agency, a

court or a hearing officer may

20

The District also argues that a one-year equitable limitations

period bars the child-find duty claim, citing, inter alia, Bernardsville

Board of Education v. J.H., 42 F.3d 149, 158 (3d Cir. 1994). We have

no need to address this argument as we are barring the child-find duty

claim on other grounds.

25

require the agency to reimburse the

parents for the cost of that

enrollment if the court or hearing

officer finds that the agency had not

made a free appropriate education

available to the child in a timely

manner prior to that enrollment.

In Florence County School District Four v. Carter ex rel. Carter,

510 U.S. 7, 15, 114 S.Ct. 361, 366 (1993), the Supreme Court

determined that a student may be entitled to reimbursement if “a

federal court concludes both that the public placement violated

IDEA and that the private school placement was proper under

the Act.” Thus, under Florence County “a court may award a

disabled student the cost of his private placement if (1) the court

determines the student’s IEP is inappropriate and (2) the student

demonstrates that the private placement he seeks is proper.”

Ridgewood, 172 F.3d at 248. A private placement is “proper” if

it (1) is “appropriate,” i.e., it provides “significant learning” and

confers “meaningful benefit,” and (2) is provided in the least

restrictive educational environment. Id.

The District does not contend that the first prong of the

Florence County test was not satisfied as it concedes that it did

not offer an IEP for Lauren for the 2000-2001 and 2001-2002

school years, nor does it make an argument with respect to the

least restrictive environment. The District challenges only the

“appropriateness” of the Hill Top placement under the second

Florence County prong.21 The District believes that Hill Top

was not appropriate because it did not offer the resources or

training adequate to provide Lauren with “significant learning”

or a “meaningful benefit,” and thus the District should not have

to reimburse Lauren’s parents for the 2000-2001 and 2001-2002

tuition. Specifically, the District argues that Hill Top was not

21

The District does not contend that Lauren’s parents are not

entitled to tuition reimbursement for 2000-2001 and 2001-2002 by

reason of the language set forth in 20 U.S.C. § 1412(a)(10)(C)(ii) that

for the parents to obtain reimbursement for the private school enrollment

the child with a disability “previously [have] received a special

education and related services under the authority of a public agency.”

26

appropriate because it was not a “Pennsylvania approved private

school” and was not licensed to provide special education

programming; the Hill Top teachers lacked certifications in

special education; Hill Top did not provide an IEP; and Hill Top

did not structure an individualized program aimed at Lauren’s

specific academic, social, and behavioral needs.

The Court in Florence County specifically rejected

arguments similar to those that the District presses here. In that

case, the Court held that a private school in the context of a

unilateral parental placement is not required to have an IEP as

“the parents’ rejection of the school district’s proposed IEP is the

very reason for the parents’ decision to put their child in a

private school.” Florence County, 510 U.S. at 13, 114 S.Ct. at

365. Likewise, reimbursement is not “necessarily barred by a

private school’s failure to meet state education standards” or by

the parents’ selection of a program unapproved by the state. Id.

at 14, 114 S.Ct. at 365; see also Warren G., 190 F.3d at 83 (“[A]

private school’s failure to meet state education standards is not a

bar to reimbursement under the IDEA.”).

With respect to the other alleged deficiencies, we defer

to the factual findings of the hearing officer and the district court

that the Hill Top placement was appropriate. As we discussed at

length above, both the hearing officer and district court

concluded that the services provided to Lauren at Hill Top were

appropriate and she continued to make progress in reaching her

academic, social, and behavioral goals. The District has not

provided evidence that overcomes the deference that we must

give to these factual findings. Accordingly, we will affirm the

district court decision that the District is responsible for the

2000-2001 and 2001-2002 Hill Top tuition.

E. Cross Appeal: Unjust Enrichment

The hearing officer and the district court concluded that

the District’s proposed IEP for the 2002-2003 school year and

placement in the public school’s Bridge Program was

appropriate. However, the District already had paid for the

27

2002-2003 Hill Top tuition pursuant to a prior district court

order requiring it to fund the tuition during the pendency of the

dispute as Hill Top was Lauren’s “pendent placement” under 20

U.S.C. § 1415(j). See Lauren W., 2002 WL 32130764. The

District believes that it is entitled to a partial reimbursement for

the 2002-2003 tuition under the theory of unjust enrichment.

The District contends, as it did in the district court, that Lauren’s

parents should reimburse it for the portion of the 2002-2003

tuition after December 20, 2002, the deadline the hearing officer

imposed at which time Lauren was to return to the public school

district where the program was deemed appropriate.22 See

Lauren W., 2005 WL 2989712, at *3. The district court rejected

the argument and so do we.

The elements necessary to prove that a party is entitled

to recovery on the basis of the equitable doctrine of unjust

enrichment are: (1) benefits conferred on one party by another;

(2) appreciation of such benefits by the recipient; and (3)

acceptance and retention of these benefits in such circumstances

that it would be inequitable for the recipient to retain the benefits

without payment of value. Allegheny Gen. Hosp. v. Philip

Morris, Inc., 228 F.3d 429, 447 (3d Cir. 2000). In the

circumstances of this case, considering the applicable law and

facts, it would not be inequitable for Lauren’s parents to retain

the benefits of the tuition payment that the District made to

cover the Hill Top tuition for the entire 2002-2003 school year.

22

We note that the District’s counterclaim for unjust enrichment

sought reimbursement “for the pro-rata share of tuition for the portion

of the 2002-2003 school year, from December 20, 2002 to the end of the

school year in 2003.” Therefore the District was not seeking

reimbursement for the money it advanced to cover the 2003-2004 school

year and the district court properly reached a decision only with respect

to recovery of money the District paid for the second portion of the

2002-2003 school year, see Lauren W., 2005 WL 2989712, at *6. Thus,

the District’s notice of appeal recites that it appeals from the district

court’s denial of the District’s “right to be reimbursed for the tuition

payments at Hill Top Prepatory School from January 2003 until the end

of the 2002-2003 school year.” App. at 3. Therefore, we will not

address whether the District is entitled to reimbursement for the balance

of the 2002-2003 school year or the 2003-2004 school year.

28

During the course of the litigation, the District agreed to drop its

demand for half of the 2002-2003 tuition in exchange for

appellants’ voluntary withdrawal of a motion for preliminary

injunction they filed in the case of Lauren W. v. Radnor

Township School District, No. 03-CV-0665. Appellants

withdrew the motion and the District is bound by this agreement.

As the district court put it, “Defendants . . . received the benefit

of avoiding a certain amount of litigation-related expenditures of

time and money in return for their dropping their request that

Lauren’s parents take financial responsibility for the second half

of the 2002-2003 school year . . . . [I]t cannot be said, under

these factual circumstances, that [Lauren’s parents’] retention of

that tuition was unjust.” Lauren W., 2005 WL 2989712, at *4.

For this reason, we will affirm.

V. CONCLUSION

For the foregoing reasons we will affirm the orders

entered on June 3, 2005, and July 21, 2005, and the judgment

entered on August 1, 2005. The parties will bear their own costs

on this appeal.

29