Ridley School District v. M.R.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-1447

______

RIDLEY SCHOOL DISTRICT

v.

M.R.; J.R., PARENTS OF MINOR CHILD E.R.

v.

JANET CENNAME

M.R.; J.R. Parents of Minor Child E.R.,

Appellants

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-02503)

District Judge: Honorable Mitchell S. Goldberg

______

Argued March 19, 2012

Before: RENDELL, FISHER and

CHAGARES, Circuit Judges.

(Filed: May 17, 2012)

Alan L. Yatvin (Argued)

Popper & Yatvin

230 South Broad Street, Suite 503

Philadelphia, PA 19102

Counsel for Appellants

Jennifer C. Lowman (Argued)

Leonard Rieser

Education Law Center

1315 Walnut Street, Suite 400

Philadelphia, PA 19107

Counsel for Amicus Appellants,

Learning Disabilities Association

of Pennsylvania and Education

Law Center of Pennsylvania

John F.X. Reilly (Argued)

Delaware County Office of District Attorney

201 West Front Street

Media, PA 19063

Counsel for Appellees

______

OPINION OF THE COURT

______

2

FISHER, Circuit Judge.

M.R. and J.R., the parents of E.R., a minor, appeal

from an order of the District Court, granting judgment on the

administrative record in favor of Ridley School District. The

District Court reversed a decision by a Pennsylvania Due

Process Hearing Officer that Ridley School District violated

the Individuals with Disabilities Education Act (“IDEA”), 20

U.S.C. 1400, et seq., and the Rehabilitation Act, 29 U.S.C.

§ 701, et seq. For the reasons set forth below, we will affirm

the order of the District Court.

I. Background

E.R., who is now ten years old, attended kindergarten

(2006-2007) and first grade (2007-2008) at Grace Park

Elementary School (“Grace Park”) in the Ridley School

District (“Ridley”). E.R. has been identified as a child with

numerous learning disabilities, as well as several health-

related problems, including severe food and contact allergies.

During the summer between E.R.’s first and second grade

years, M.R. and J.R. (collectively, “Parents”) determined that

the programs being offered by Ridley were inadequate to

address E.R.’s unique needs, and thus decided to remove her

from Ridley and enroll her at the Benchmark School, a

private school that specializes in instructing students with

learning disabilities. Parents subsequently filed a complaint

with the Pennsylvania Department of Education, seeking

compensatory education for violations of the IDEA and § 504

of the Rehabilitation Act, and tuition reimbursement,

including transportation expenses, for E.R.’s enrollment in

the Benchmark School. A Due Process Hearing Officer

3

awarded Parents compensatory education for the 2007-2008

school year, as well as reimbursement of tuition for the 2008-

2009 school year, and reimbursement for transportation to

and from the Benchmark School. The District Court

reversed, finding that Parents were entitled to neither

compensatory education nor reimbursement for tuition or

transportation expenses.

A. Factual Background

Before E.R. began kindergarten, Parents were

concerned about her ability to grasp pre-academic skills, such

as letters and numbers, and took her to be evaluated at the

Chester County Intermediate Unit (“CCIU”). Although the

testing noted some academic difficulties, the evaluators

concluded that E.R. did not qualify as a child with special

needs. However, in September 2006, shortly after E.R. began

kindergarten, she was identified as needing extra academic

support, and was placed in extended-day kindergarten

(“EDK”). Parents were notified of this placement, and were

advised that it was intended to improve E.R.’s math skills and

reinforce her kindergarten skills generally.

In November 2006, due to E.R.’s academic struggles

and attention problems, Parents requested that Ridley perform

an educational evaluation. Ridley agreed, and an Initial

Evaluation Report was completed on January 31, 2007.

Although the report indicated that math was difficult for E.R.,

consistent with CCIU’s earlier determination, Ridley

concluded that she did not qualify for special education

services because her cognitive ability and academic

achievement levels were both in the average range. Ridley

4

also conducted an occupational therapy (“OT”) evaluation,

which was completed on January 24, 2007. The OT findings,

which were based largely on the input of teachers, identified

the following areas of concern: below grade level ability in

math; lack of concentration; inconsistency in remembering

numbers one through ten; problems with peer interaction;

poor problem-solving skills and desk posture; and difficulty

keeping her place when reading.

On February 7, 2007, Ridley convened a meeting to

review the Initial Evaluation Report. In response to concerns

raised by Parents at the meeting, Ridley agreed to conduct

additional testing using The Children’s Memory Scale, Test

of Auditory Processing Skills, and The Behavior Rating

Inventory of Executive Functioning. The additional testing

resulted in two addendums to the Initial Evaluation Report,

which stated that E.R.’s academic skills were generally in the

average range, but that she demonstrated a relative weakness

in retaining and manipulating numbers. Based on this

information, the school psychologist concluded that E.R. did

not have a specific learning disability. Also in February

2007, a § 504 Service Agreement (“the § 504 Agreement”)

was issued to provide OT services to E.R., and to address her

severe allergies. 1 Under the § 504 Agreement, E.R. was to

receive OT services once a week for thirty minutes and

consultative services to the home and classroom on a regular

1

“§ 504” refers to § 504 of the Rehabilitation Act,

which prohibits discrimination in federally-funded programs,

including public schools, on the basis of disability. 29 U.S.C.

§ 794.

5

basis. Despite her allergies, E.R. was to be included in as

many activities as possible, and Parents were to be contacted

before activities involving food so that appropriate

alternatives could be provided for E.R.

Pursuant to a recommendation made by E.R.’s

kindergarten teacher, Mary Moffatt (“Moffatt”), E.R. was

enrolled in the Summer Steps program in the Summer of

2007 to reinforce her academic skills. The Summer Steps

teacher reported that E.R. made some academic progress, but

that she needed improvement in several areas and had

difficulty recognizing numbers and counting.

The first six weeks of first grade were spent reviewing

kindergarten materials. During this time, E.R. struggled

academically and posted several failing grades. In late

September 2007, J.R., E.R.’s mother, wrote to E.R.’s first

grade teacher, Janet Cenname (“Cenname”), and requested a

meeting to discuss E.R.’s poor grades. Cenname declined the

request to meet at that time, telling J.R. that it would be

premature to meet so early in the year, and that it would be

more appropriate to give E.R. time to develop her skills.

Cenname explained that she would be “happy to meet” a few

weeks later, in early October, if Parents still had concerns.

Parents did not re-contact Cenname, and instead requested a

meeting with the school’s principal. During that meeting,

which was held on November 1, 2007, Parents were informed

that E.R. had been placed on a “reading watch list” in mid-

October. Following the meeting, E.R. was placed in a

reading support group, but according to Parents, she had

difficulty catching up with the other students because the

program had started two months earlier.

6

On November 16, 2007, Parents requested a

comprehensive reevaluation of E.R. Ridley issued a

Permission to Evaluate on November 27, 2007, and the

reevaluation was completed on February 26, 2008. The

Reevaluation Report found that E.R. had learning disabilities

in the areas of reading decoding and comprehension, math

computation, reasoning skills, and written language. E.R.

was also found to have fine motor delays and a language

disability. As part of the Reevaluation Report, Ridley’s

school psychologist prepared recommendations to be

considered by the Individual Education Planning Team (“IEP

Team”). Based on those recommendations, Ridley offered

two alternative placements for E.R.: (1) the learning support

room at her current school, Grace Park, or (2) a self-contained

classroom at a different elementary school. Parents observed

both programs and determined that neither was appropriate

for E.R.

An IEP Team meeting was convened on March 28,

2008 to review a draft Individualized Education Program

(“IEP”) that had been developed to address E.R.’s educational

needs. At Parents’ request, Ridley agreed to make revisions

to the IEP and submit the revisions to Parents for approval.

At the meeting, Ridley’s Special Education Director, Kim

Woods (“Woods”), suggested a program called Project Read

as a possible reading aid for E.R. Woods told Parents that she

would do some research on the program and follow up with

Parents and the IEP Team in a few days. Woods also

provided Parents with a printout from Project Read’s website,

and a review of the program conducted by the Florida Center

for Reading Research.

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A Notice of Recommended Educational Placement

(“NOREP”) was issued on April 2, 2008, but Parents refused

to sign it until all of the agreed-upon revisions had been

made. Another IEP Team meeting was held on April 30 to

address Parents’ continuing concerns regarding the IEP. On

May 9, a revised NOREP was issued, and Parents signed it in

agreement on May 12. However, Parents remained

concerned about Ridley’s proposed reading program, and

requested that Ridley hire someone to provide instruction

using The Wilson Reading System. Ridley did not do so.

On May 13, 2008, in accordance with the revised

NOREP and addendums to the IEP, E.R. began going to

Grace Park’s “resource room” every day for one hour of

reading assistance in the morning and one hour of math

assistance in the afternoon. The resource room reading

curriculum consisted of the following instructional programs:

Read Naturally, Reading Workshop, Writing Workshop, and

Patricia Cunningham’s Systematic Phonics. The resource

room employed a program called Everyday Math for math

instruction. There were five other students in the resource

room, none of whom were first graders. Aimee Hodges

(“Hodges”), the resource room teacher, explained that

although the students were all provided with the same reading

programs, different parts of the programs were used for

different students, such that assistance was geared toward

each student’s individual needs. Hodges also testified that

everything done in the resource room was “multi-sensory,”

which meant that the lessons included visual, oral, and hands-

on components. E.R.’s grades in the resource room improved

dramatically in a short period of time, but Parents attributed

8

the improvement to improper resource room assistance, and

claimed that E.R. was not displaying similar progress at

home. By the time E.R.’s first grade year ended, she had

received eighteen days of resource room assistance.

On June 9, 2008, the IEP Team met to update the IEP

for the 2008-2009 academic year (second grade). The

NOREP from the June IEP Team meeting recommended that

E.R. continue to receive one hour per day of math instruction

and one hour per day of reading instruction in the resource

room. The NOREP indicated that the reading instruction

would include a direct reading program, as well as a direct

phonemic-based program to address E.R.’s needs in decoding

vocabulary, fluency, and comprehension skills. The NOREP

provided that Ridley would train its learning support staff on

Project Read during the summer, and that the program would

be “up and running” before the end of September 2008.

Ridley also agreed to pay for a summer learning program at

the Benchmark School, as well as summer math tutoring three

times per week.

Parents researched Project Read and determined that it

was not appropriate for a student with E.R.’s needs. On

August 14, 2008, Parents informed Ridley that E.R. would be

enrolling at the Benchmark School for the 2008-2009 school

year because it provided the “intensive multi-sensory

approach to reading” that they determined E.R. required.

B. Procedural History

On December 4, 2008, Parents filed a due process

complaint with the Pennsylvania Department of Education,

9

alleging that Ridley violated the IDEA and § 504 of the

Rehabilitation Act. Parents claimed that Ridley failed to

timely identify E.R. as a child in need of special education

services, failed to develop an appropriate IEP, and subjected

E.R. to discrimination by failing to comply with the § 504

Agreement.

Hearings were held before a Due Process Hearing

Officer on January 29, 2009, February 10, 2009, and

March 10, 2009. At the hearings, the Hearing Officer

reviewed documentary evidence provided by the parties and

heard testimony from E.R.’s mother, Linda Heller, Parents’

special education advocate, as well as several teachers and

school officials. On April 21, 2009, the Hearing Officer

issued a written report, finding that: (1) Ridley had not

committed any violations during E.R.’s kindergarten year;

(2) Ridley violated the IDEA and the Rehabilitation Act in

E.R.’s first grade year; and (3) the IEPs proposed for E.R.’s

first and second grade years were inadequate and therefore

denied E.R. a “free appropriate public education” (“FAPE”)

because they “lacked appropriate specially designed

instruction in the form of a research based, peer reviewed

reading program.” The Hearing Officer awarded Parents

compensatory education for the 2007-2008 year (first grade),

reimbursement of tuition at the Benchmark School for the

2008-2009 year (second grade), and reimbursement of

transportation expenses to and from the Benchmark School.

Ridley filed a petition for review in the Pennsylvania

Commonwealth Court, and the case was subsequently

removed to the U.S. District Court for the Eastern District of

Pennsylvania. Parents treated the petition as a complaint and

10

filed an answer and counterclaims, in which they challenged

the Hearing Officer’s conclusion that no violation occurred

during E.R.’s kindergarten year, and asserted additional

claims against Ridley and Cenname, whom Parents added as

a third party defendant. On October 9, 2009, Ridley filed a

motion for judgment on the administrative record. On

February 14, 2011, the District Court affirmed the Hearing

Officer’s finding as to E.R.’s kindergarten year, reversed the

Hearing Officer’s findings as to E.R.’s first and second grade

years, and granted Ridley’s motion for judgment on the

administrative record as to all claims. Ridley Sch. Dist. v.

M.R., No. 09-2503, 2011 WL 499966, at *18 (E.D. Pa. Feb.

14, 2011). Parents filed a timely notice of appeal.

On appeal, Parents raise four arguments. First, they

contend that the District Court improperly placed the burden

of persuasion on them to demonstrate that Ridley violated the

IDEA. Second, they argue that the District Court erred in

reversing the Hearing Officer’s finding that Ridley denied

E.R. a FAPE during first grade by failing to timely identify

her as a student in need of special education services. Third,

they maintain that the District Court misinterpreted a

provision of the IDEA, and improperly reversed the Hearing

Officer’s finding that E.R.’s IEP was deficient in that it

lacked research-based, peer-reviewed specially designed

reading instruction. Finally, Parents argue that the District

Court erred in concluding that Ridley did not violate § 504 of

the Rehabilitation Act.

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II. Jurisdiction and Standard of Review

The District Court had jurisdiction to review the

decision of the state educational agency under 20 U.S.C.

§ 1415(i)(2), and we have appellate jurisdiction over the order

of the District Court under 28 U.S.C. § 1291. When

considering a petition for review challenging a state

administrative decision under the IDEA, a district court

applies “a nontraditional standard of review, sometimes

referred to as ‘modified de novo’ review.” D.S. v. Bayonne

Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (citations

omitted). Under this standard, a district court must give “due

weight” to the findings of the state hearing officer. Bd. of

Educ. v. Rowley, 458 U.S. 176, 206 (1982). “Factual findings

from the administrative proceedings are to be considered

prima facie correct. ‘If a reviewing court fails to adhere to

them, it is obliged to explain why. The court is not, however,

to substitute its own notions of sound educational policy for

those of local school authorities.’” S.H. v. State-Operated

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

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

531 (4th Cir. 2002)). “Within the confines of these standards,

a district court is authorized to make findings based on the

preponderance of the evidence and grant the relief it deems

appropriate.” D.S., 602 F.3d at 564 (citations omitted); see

also Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194,

199 (3d Cir. 2004) (describing a district court’s burden as

“unusual” in that it must make its own findings by a

preponderance of the evidence, but nevertheless afford “due

weight” to the administrative officer’s determinations).

12

We exercise plenary review over the District Court’s

conclusions of law, D.S., 602 F.3d at 564, and “with respect

to the question [of] whether the District Court applied the

correct legal standards under the IDEA,” Shore Reg’l, 381

F.3d at 199 (citation omitted). We review the District Court’s

findings of fact, including a determination as to the

appropriateness of an IEP, under a clearly erroneous standard.

D.S., 602 F.3d at 564.

III. Discussion

A. Statutory Framework

The IDEA requires states receiving federal education

funding to provide every disabled child with a “free

appropriate public education.” 20 U.S.C. § 1412(a)(1). 2 A

2

“The term ‘free appropriate public education’ means

special education and related services that--

(A) have been provided at public expense,

under public supervision and direction, and without

charge;

(B) meet the standards of the State educational

agency;

(C) include an appropriate preschool,

elementary school, or secondary school education in

the State involved; and

13

FAPE “consists of educational instruction 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.” Rowley, 458 U.S. at 188-89.

Although a state is not required to maximize the potential of

every handicapped child, it must supply an education that

provides “significant learning” and “meaningful benefit” to

the child. D.S., 602 F.3d at 556 (citing Ridgewood Bd. of

Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). “[T]he

provision of merely more than a trivial educational benefit” is

insufficient. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390

(3d Cir. 2006) (internal marks and citations omitted). When a

state is unable to provide a FAPE, the state must reimburse

the child’s parents for the costs of attendance at a private

school that is able to provide a FAPE. D.S., 602 F.3d at 557.

The core of the IDEA is the collaborative process that

it establishes between parents and schools. Schaffer v. Weast,

546 U.S. 49, 53 (2005). The IEP is the “central vehicle” for

this collaboration, id., and the “primary mechanism” for

delivering a FAPE, W.B. v. Matula, 67 F.3d 484, 492 (3d Cir.

1995), abrogated on other grounds by A.W. v. Jersey City

Pub. Sch., 486 F.3d 791 (3d Cir. 2007) (en banc). Under the

IDEA, school districts must work with parents to design an

IEP, which is a program of individualized instruction for each

(D) are provided in conformity with the

individualized education program required under [20

U.S.C. § 1414(d)].”

20 U.S.C. § 1401(9).

14

special education student. 20 U.S.C. §§ 1412(a)(4), 1414(d).

“Each IEP must include an assessment of the child’s current

educational performance, must articulate measurable

educational goals, and must specify the nature of the special

services that the school will provide.” Schaffer, 546 U.S. at

53 (citing 20 U.S.C. § 1414(d)(1)(A)). Although the IEP

must provide the student with a “basic floor of opportunity,”

it does not have to provide “the optimal level of services,” or

incorporate every program requested by the child’s parents.

D.S., 602 F.3d at 557 (citations omitted); Tucker v. Bay Shore

Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)

(explaining that the IDEA guarantees to a disabled child “an

education that is appropriate, not one that provides everything

that might be thought desirable by loving parents” (internal

marks and citations omitted)). “[A]t a minimum, the IEP

must be reasonably calculated to enable the child to receive

meaningful educational benefits in light of the student’s

intellectual potential,” Chambers v. Sch. Dist. of Phila. Bd. of

Educ., 587 F.3d 176, 182 (3d Cir. 2009) (citation omitted),

and “individual abilities,” Ridgewood Bd. of Educ., 172 F.3d

at 248. See Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d

Cir. 1986) (stating that an IEP must “be likely to produce

progress, not regression or trivial educational advancement”)

(citation omitted).

If parents believe that an IEP fails to provide their

child with a FAPE, they may seek an administrative

“impartial due process hearing.” 20 U.S.C. § 1415(f). A

school district may also request such a hearing, if, for

example, it wants to change an existing IEP and the parents

refuse, or if the parents refuse to allow their child to be

15

evaluated at all. Schaffer, 546 U.S. at 53. Although state

authorities have limited discretion in determining who

conducts the hearings and establishing hearing procedures,

Congress has legislated the “central components” of the

administrative hearings by providing minimal pleading

standards, and affording all parties the right to counsel, the

right to present evidence, and the right to cross-examine

witnesses. Id. at 54. “Any party aggrieved by the findings

and decision” made in the administrative proceeding “shall

have the right to bring a civil action” in state or federal court.

20 U.S.C. § 1415(i)(2)(A).

A threshold issue we are asked to consider in this case

is which party bears the burden of persuasion before the

district court. The IDEA does not specify which party bears

the burden of persuasion at the district court level or at the

administrative hearing level. Before 2005, we had always

placed the burden of demonstrating compliance with the

IDEA at the administrative hearing on the school district.

L.E., 435 F.3d at 391 (citing T.R. v. Kingwood Twp. Bd. of

Educ., 205 F.3d 572, 579 (3d Cir. 2000); Oberti v. Bd. of

Educ., 995 F.2d 1204, 1219 (3d Cir. 1993)). However, in

2005, in Schaffer v. Weast, 546 U.S. at 62, the Supreme Court

held that the burden of persuasion in an administrative

hearing under the IDEA lies with the party seeking relief.

The Court explained that it saw no reason to depart from “the

ordinary default rule that plaintiffs bear the risk of failing to

prove their claims.” Id. at 56 (citing 2 J. Strong, McCormick

on Evidence § 337, at 412 (5th ed. 1999)); see L.E., 435 F.3d

at 391 (discussing the significance of Schaffer).

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However, Schaffer did not address which party should

bear the burden of persuasion when a party aggrieved by the

decision of the administrative hearing officer challenges that

decision in district court. Nor have we explicitly decided this

issue in articulating the district court’s standard of review.

We now join our sister circuits in holding that the party

challenging the administrative decision bears the burden of

persuasion before the district court as to each claim

challenged. 3 See J.W. v. Fresno Unified Sch. Dist., 626 F.3d

431, 438 (9th Cir. 2010); Marshall Joint Sch. Dist. No. 2 v.

C.D., 616 F.3d 632, 636 (7th Cir. 2010); District of Columbia

v. Doe, 611 F.3d 888, 897 (D.C. Cir. 2010). As the Supreme

Court noted in Schaffer, “[t]he burdens of pleading and proof

with regard to most facts have been and should be assigned to

3

Our conclusion today that the burden lies with the

party challenging the administrative decision is entirely

consistent with our previous cases, in which we held that the

burden was properly placed on the parents before the district

court. In those cases, the parents were the losing party before

the hearing officer and challenged the hearing officer’s

decision in district court. See Andrew M. v. Del. Cnty. Office

of Mental Health & Mental Retardation, 490 F.3d 337, 345

(3d Cir. 2007); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384,

392 (3d Cir. 2006). We did not specify, however, whether the

parents bore the burden because they initially challenged the

IEP (and the burden carried to the district court) or because

they lost at the administrative hearing level. As our decision

today makes clear, the relevant consideration is the outcome

of the administrative proceeding, not which party requests an

administrative hearing.

17

the [party] who . . . seeks to change the present state of

affairs.” 546 U.S. at 56 (quoting McCormick on Evidence

§ 337, at 412). Under the IDEA, it is the party “aggrieved by

the findings and decision” of the hearing officer that seeks to

change the present state of affairs. See 20 U.S.C.

§ 1415(i)(2)(A). “Absent some reason to believe that

Congress intended otherwise,” we conclude that the burden of

persuasion falls where it usually does, on the party seeking

relief. See Schaffer, 546 U.S. at 57-58; see also S.H., 336

F.3d at 270 (explaining that factual findings from the

administrative proceeding are to be considered prima facie

correct).

In this case, Parents argue that the District Court

committed reversible error by placing the burden of

persuasion on them as to all claims. We disagree. Although

the District Court did, in fact, err by placing the burden on

Parents with respect to the findings of the Hearing Officer

that were challenged by Ridley, the error was harmless. 4 We

will deem an error to be harmless if it is “highly probable”

that it did not affect the outcome of the case. Forrest v. Beloit

Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citation omitted). In

a non-criminal case, an error regarding the placement of the

burden of persuasion will frequently be harmless. Schaffer,

4

We note that Parents filed counterclaims, in which

they challenged the Hearing Officer’s conclusion that Ridley

did not violate the IDEA or the Rehabilitation Act during

E.R.’s kindergarten year. Parents appropriately bore the

burden of persuasion as to those claims because they were the

party aggrieved by the Hearing Officer’s decision.

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546 U.S. at 56, 58. As the Supreme Court has explained, in a

non-criminal case, the burden of persuasion only comes into

play where the evidence is “closely balanced,” id. at 56, i.e.,

in cases “in evidentiary equipoise,” id. at 58. In this case, as

we explain below, no factual issues are so “closely balanced”

that the burden of persuasion would have affected the

outcome of the case. See id. at 56. Although some of the

disputed issues involve questions of fact, the Hearing

Officer’s errors stemmed largely from mistakes or omissions

regarding the application of law to those facts. Questions of

law, of course, are unaffected by the burden of persuasion. El

v. Se. Pa. Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir.

2007) (stating that the burden of persuasion is the burden “to

persuade the factfinder that one’s propositions of fact are

indeed true” (citing Black’s Law Dictionary 190 (7th ed.

1999))). Thus, we hold that it is “highly probable” that the

District Court’s error regarding the placement of the burden

of persuasion did not affect the outcome. Forrest, 424 F.3d at

349.

B. “Child Find” Requirement

Parents contend that the District Court erred in

reversing the Hearing Officer’s determination that Ridley’s

failure to identify E.R. as a child in need of special education

services in the beginning of first grade denied her a FAPE.

We disagree. “School districts have a continuing obligation

under the IDEA . . . to identify and evaluate all students who

are reasonably suspected of having a disability.” P.P. v. West

Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009)

(citation omitted); see 20 U.S.C. § 1412(a)(3) (explaining that

states must “identif[y], locate[], and evaluate[]” all children

19

with disabilities who are in need of special education, and

must develop “a practical method . . . to determine which

children with disabilities are currently receiving needed

special education and related services”). This is referred to as

the IDEA’s “child find” requirement. Matula, 67 F.3d at 492.

Each state must establish procedures to fulfill this statutory

directive. 34 C.F.R. § 300.111. Pennsylvania’s “child find”

procedures are set forth in 22 Pa. Code. §§ 14.121 through

14.125.

Neither the IDEA, its implementing regulations, nor

the applicable Pennsylvania regulations establish a deadline

by which children who are suspected of having a qualifying

disability must be identified and evaluated. Accordingly, we

have previously “infer[red] a requirement that this be done

within a reasonable time after school officials are on notice of

behavior that is likely to indicate a disability.” Matula, 67

F.3d at 501. 5 In adopting the “reasonable time” standard, we

noted the budgetary constraints and staffing pressures facing

school officials, and emphasized that we were not

5

In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), we

were dealing with a challenge to a school district’s

compliance with child find obligations under the IDEA and

New Jersey law. However, because nothing in the

Pennsylvania regulations establishes a specified timeline for

identifying and evaluating students, we will apply the

“reasonable time” standard to school districts in Pennsylvania

as well. See id. at 501 (inferring the “reasonable time”

requirement because neither the IDEA nor the applicable

New Jersey regulations established such a deadline).

20

establishing any “bright-line rule” as to what constitutes a

reasonable time. Id. Rather, we employ a case-by-case

approach and assess whether the school district’s response

was reasonable “in light of the information and resources

possessed” by the district at a given point in time. Id.

Here, in finding that Ridley denied E.R. a FAPE by

failing to identify her as a student in need of special education

services at the outset of first grade, the Hearing Officer never

acknowledged that Ridley must be given a reasonable time to

identify students as disabled. Rather, the Hearing Officer

simply stated that Ridley had provided a number of

intervention programs to E.R. during kindergarten, and

because E.R. continued to struggle academically in first

grade, Ridley should have known that further evaluation was

required at the very start of the next school year. The Hearing

Officer was particularly critical of E.R.’s first grade teacher,

Janet Cenname, explaining that Cenname was “extremely

nervous and uptight” when testifying, she had to refer to

notes, and she frequently tried to explain her actions in a

“non-sensical way.” The Hearing Officer concluded that,

based on E.R.’s struggles during the first month of first grade,

much of which was spent reviewing kindergarten materials,

Cenname should have identified E.R. as a student in need of

special education services at the very beginning of the year,

and thus should have recommended to Ridley that it conduct

another evaluation. Accordingly, the Hearing Officer

determined that Ridley denied E.R. a FAPE “from the

beginning of first grade to the time that the evaluation was

completed” in February 2008.

21

As the District Court observed, the Hearing Officer’s

finding that Ridley violated the IDEA by failing to identify

E.R. as a child in need of special education services at the

outset of first grade is difficult to reconcile with the Hearing

Officer’s finding that Ridley complied with the IDEA during

E.R.’s kindergarten year. E.R. was evaluated during

kindergarten, and although areas of weakness were found,

E.R.’s academic skills were generally considered to be in the

average range. The Hearing Officer concluded that the

kindergarten evaluation was “substantively appropriate,” and

noted that “just because a child has an area of weakness, it

doesn’t necessarily mean that [she has] a disability.” The

Hearing Officer also noted that Ridley “appeared to be

invested in addressing [E.R.’s] needs and providing

appropriate instruction and interventions before rushing to

special education identification.” As a result, the Hearing

Officer properly determined that Parents’ claim that Ridley

violated the IDEA’s “child find” requirements during E.R.’s

kindergarten year “lack[ed] any basis in the testimony or

documents.” 6

In light of the fact that E.R.’s kindergarten evaluations

were appropriate, and she did not qualify as a student in need

of special education services in June 2007 (the end of

kindergarten), we cannot agree with the Hearing Officer that

Ridley violated the IDEA and denied E.R. a FAPE by failing

to immediately reevaluate her in September 2007. When a

6

Parents do not appeal the District Court’s decision

affirming the Hearing Officer’s finding regarding E.R.’s

kindergarten year.

22

school district has conducted a comprehensive evaluation and

concluded that a student does not qualify as disabled under

the IDEA, the school district must be afforded a reasonable

time to monitor the student’s progress before exploring

whether further evaluation is required. See Matula, 67 F.3d at

501. We assess whether a school district identified and

evaluated a student suspected of having a qualifying disability

within a reasonable time “in light of the information and

resources possessed” by the district. Id. Here, although E.R.

struggled during the beginning of first grade, all prior

evaluations showed that she did not require special education

services. Moreover, as Cenname testified, first grade was the

“first time that the children ever ha[d] a chance to be in a test

taking situation” and “[t]here were other children that also

had difficulty . . . taking a test.” It was reasonable for

Cenname to assess E.R.’s progress throughout the first

marking period of first grade before recommending that E.R.

again be evaluated to determine if she had a learning

disability. The IDEA does not require a reevaluation every

time a student posts a poor grade. Accordingly, we hold that

Ridley complied with its “child find” obligations, and E.R.

was not denied a FAPE at the beginning of first grade. 7

7

Parents contend that the District Court did not accord

the proper deference to the Hearing Officer’s factual findings,

particularly her finding that Cenname was not a credible

witness. Where a hearing officer “has heard live testimony

and determined that one witness is more credible than another

witness, [the hearing officer’s] determination is due special

weight.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d

23

Cir. 2010) (citation omitted). A district court must accept the

hearing officer’s credibility determinations “unless the non-

testimonial extrinsic evidence in the record would justify a

contrary conclusion.” Id. (citations omitted). Here, central to

the Hearing Officer’s conclusion that E.R. was denied a

FAPE during the beginning of first grade was that Cenname

“put off” meeting with E.R.’s mother when E.R.’s mother

expressed concern that her daughter had failed a math test.

However, Cenname responded to E.R.’s mother’s request for

a meeting by sending back the following note:

Dear Mrs. [R],

I appreciate your concern about [E.R.’s] test,

but it is very early in the year. We need to give her

some time. Continue to work with her at home and

reinforce what we are doing in class. I will probably

be out from Oct. 2 – Oct. 15. If you still have

concerns at that time, I will be happy to meet.

24

C. E.R.’s IEP

Parents next contend that the District Court erred in

reversing the Hearing Officer’s finding that E.R.’s IEP was

inadequate. For the reasons set forth below, we disagree.

First, to the extent Ridley violated the IDEA’s procedural

requirements by failing to include the requisite statement of

specially designed instruction in the IEP, the violation was

not actionable because it did not have any impact on the

substantive rights of E.R. or Parents. Second, contrary to the

Hearing Officer’s findings, E.R.’s educational plan included a

peer-reviewed reading program, which, in conjunction with

the other services that E.R. was scheduled to receive, was

sufficient to provide a FAPE. We will discuss these points in

turn.

1.

An IEP must consist of a detailed written statement

arrived at by a multi-disciplinary team specifying the

Thus, contrary to Parents’ suggestions, Cenname did

not refuse to meet or indicate that a meeting was unnecessary.

She expressed a clear willingness to meet, and simply told

Parents that E.R. should be given some time to get her

bearings. Parents never responded to this note and never met

with Cenname to discuss E.R.’s academic struggles.

Therefore, as the District Court found, non-testimonial

evidence in the record demonstrates that Cenname’s response

to Parents’ request for a meeting was entirely reasonable, and

that it in no way resulted in the denial of a FAPE. See D.S.,

602 F.3d at 564.

25

services, including specially designed instruction, that the

child will receive. Polk v. Cent. Susquehanna Intermediate

Unit 16, 853 F.2d 171, 173 (3d Cir. 1988). Parents contend

that they are entitled to compensatory education because the

IEP developed by Ridley failed to set forth in sufficient detail

the specially designed instruction that would be provided to

E.R. Parents acknowledge that subsequent NOREPs issued

by Ridley included the required specially designed

instruction, but they nevertheless argue that the IDEA

requires that such information be included in the body of the

initial IEP. 8

Parents’ argument presents a challenge to Ridley’s

compliance with the IDEA’s procedural requirements.

Although we have held that “[t]he content of an IEP . . . does

not implicate the IDEA’s procedural requirements for content

is concerned with the IEP’s substance,” D.S., 602 F.3d at 565,

Parents’ argument here does not relate to the substance of the

IEP. Rather, Parents’ argument is essentially that Ridley

violated the IDEA by including a description of specially

designed instruction in the wrong document. We have made

clear that although it is important that a school district comply

with the IDEA’s procedural requirements, compliance is not a

goal in itself; rather, compliance with such procedural

requirements is important because of the “requirements’

impact on students’ and parents’ substantive rights.” Id.

8

Although the District Court did not address this issue,

Parents raised it in their brief before the District Court, and

thus preserved it for review. See Chambers v. Sch. Dist. of

Phila. Bd. of Educ., 587 F.3d 176, 183-84 (3d Cir. 2009).

26

Accordingly, “[a] procedural violation is actionable under the

IDEA only if it results in a loss of educational opportunity for

the student, seriously deprives parents of their participation

rights, or causes a deprivation of educational benefits.” Id.

(citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516,

525-26 (2007)) (second citation omitted).

Here, to the extent that the absence of specially

designed instruction in the IEP constituted a procedural

violation, it did not affect the substantive rights of E.R. or

Parents, and thus does not entitle Parents to an award of

compensatory education. See id. Although Parents correctly

note that the initial IEP did not specify all of the special

education services that E.R. would receive, subsequent

NOREPs contained that information. A NOREP issued on

May 9, 2008, provided that the educational placement

recommended for E.R. was “[r]esource room learning support

for math and reading in which a direct reading program will

be done as well as a direct phonemic based program to

address [E.R.’s] needs in decoding vocabulary, fluency and

comprehension skills.” The May NOREP further stated that

E.R. would receive “at least 60 minutes per day instruction

for reading and at least 60 minutes per day math at Grace

Park Elementary School until June 2008.” The NOREP

indicated that an IEP Team meeting would be convened in

June to review E.R.’s progress and discuss the

implementation of Project Read for the 2008-2009 school

year. Parents signed and approved the May NOREP. On

June 9, 2008, Ridley issued a second NOREP, which

explained that Ridley would provide training to its staff on

Project Read during the summer and the program would be

27

up and running before the end of September 2008. Until

Project Read could be implemented, Ridley would continue

to use the other resource room reading programs. The June

NOREP was never signed by Parents due to their objection to

Project Read.

Because detailed specially designed instruction was set

forth in the NOREPs, it is properly considered part of E.R.’s

overall educational plan. Ridley’s admitted “mistake” in

failing to include such information in the IEP itself did not

deny E.R. any educational opportunity, nor did it deprive her

of any educational benefits. See D.S., 602 F.3d at 565.

Moreover, Parents were intimately involved in the process of

crafting E.R.’s IEP and do not contend that they were

unaware of the services E.R. was scheduled to receive. Thus,

they were not denied their participation rights. See id.

Accordingly, any deficiency in Ridley’s compliance with the

procedural requirements of the IDEA is not a basis for

granting relief to Parents. Whether the specially designed

instruction set forth in the IEP and the NOREPs was adequate

to provide a FAPE is a separate question, which we will

address next.

2.

Parents’ next argument presents an issue of first

impression in this circuit. The Hearing Officer found that

E.R.’s IEP was inadequate, both for the end of the 2007-2008

school year (first grade), and all of the 2008-2009 school year

(second grade) primarily because it “fail[ed] to provide a

scientifically research-based, peer reviewed reading program,

which [E.R.] needed in order to make meaningful progress.”

28

The Hearing Officer stated that although Project Read, the

reading program chosen for E.R., “was designed to be

research based,” there were “flaws in the research supporting

it.” These statements were made in conclusory fashion,

without elaboration, in a footnote of the Hearing Officer’s 20-

page opinion. They were not well-explained or well-

supported.

The District Court reversed the Hearing Officer’s

decision that the IEP was inappropriate, reasoning that the

lack of a peer-reviewed instructional program was not

automatically fatal to an IEP, and even if it was, Project Read

was research-based and peer-reviewed. On appeal, we need

not decide whether the lack of a peer-reviewed reading

program alone may result in the denial of a FAPE because we

agree with the District Court that Project Read was based on

peer-reviewed research. We will, however, consider Parents’

contentions that Ridley denied E.R. a FAPE because the

available research regarding Project Read was flawed and did

not adequately demonstrate that Project Read would be

effective for a student with E.R.’s learning disabilities. As we

explain below, Parents’ arguments are unavailing; the peer-

reviewed specially designed reading instruction in E.R.’s IEP

was “reasonably calculated to enable [her] to receive

meaningful educational benefits in light of [her] intellectual

potential.” Chambers, 587 F.3d at 182 (citation omitted).

Ridley was not required to choose the reading program based

on the optimal level of peer-reviewed research, or to

implement the specific program requested by Parents.

We begin our analysis by reviewing the statutory

provision at issue. In 2004, Congress added the following

29

provision to the IDEA: “[t]he term ‘individualized education

program’ or ‘IEP’ means a written statement for each child

with a disability . . . that includes . . . a statement of the

special education and related services and supplementary aids

and services, based on peer-reviewed research to the extent

practicable, to be provided to the child.” 20 U.S.C.

§ 1414(d)(1)(A)(i)(IV) (emphasis added). This provision was

incorporated into the revised IDEA regulations in 2006,

which state that an IEP “must include . . . [a] statement of the

special education and related services and supplementary aids

and services, based on peer-reviewed research to the extent

practicable, to be provided to the child.” 34 C.F.R.

§ 300.320(a)(4). Congress amended the IDEA in 1997 and

2004, in part, to respond to concerns that the statute “ha[d]

been impeded by low expectations, and an insufficient focus

on applying replicable research on proven methods of

teaching and learning for children with disabilities.” 20

U.S.C. § 1400(c)(4). The IDEA’s statement of congressional

findings explains that “[a]lmost 30 years of research and

experience has demonstrated that the education of children

with disabilities can be made more effective by” training

teachers on “the use of scientifically based instructional

practices, to the maximum extent possible,” and providing

incentives for “scientifically based early reading programs.”

Id. § 1400(c)(5)(E) and (F).

Unfortunately, neither the text of the IDEA nor the

IDEA regulations provide much guidance as to the effect of

§ 1414(d)(1)(A)(i)(IV)’s peer-reviewed research provision in

this case. Therefore, we will look to other instructive

regulatory materials. See Auer v. Robbins, 519 U.S. 452, 462

30

(1997) (explaining that when interpreting a statute and its

implementing regulations, we may look to the agency’s

interpretation of its own regulations); United States v.

Occidental Chem. Corp., 200 F.3d 143, 151-52 (3d Cir. 1999)

(stating that we must defer not only to interpretations

supported by notice-and-comment rulemaking, but also

“informal interpretations”); Cleary v. Waldman, 167 F.3d

801, 808 (3d Cir. 1999) (“[I]f an agency has been granted

administrative authority by Congress for a statute, its

interpretation—despite arising in an informal context—will

be given deference as long as it is consistent with other

agency pronouncements and furthers the purposes of the

Act.”). In conjunction with its promulgation of the 2006

IDEA regulations, the U.S. Department of Education

(“DOE”) issued an Analysis of Comments and Changes to the

2006 IDEA Regulations (“Analysis of IDEA Regulations”),

71 Fed. Reg. 46,540 (2006). In response to a comment

requesting “clear guidance on the responsibilities of States,

school districts, and school personnel to provide special

education and related services . . . that are based on peer-

reviewed research,” the DOE stated that “States, school

districts, and school personnel must . . . select and use

methods that research has shown to be effective, to the extent

that methods based on peer-reviewed research are available.”

71 Fed. Reg. at 46,665. The agency made clear, however,

that a student’s IEP team retains flexibility in devising an

appropriate program. The Analysis of IDEA Regulations

explained that the changes implemented by the 2004 IDEA

amendments and the 2006 updated regulations

31

“do[] not mean that the service with the greatest

body of research is the service necessarily

required for a child to receive FAPE. Likewise,

there is nothing in the Act to suggest that the

failure of a public agency to provide services

based on peer-reviewed research would

automatically result in a denial of FAPE. The

final decision about the special education and

related services . . . that are to be provided to a

child must be made by the child’s IEP Team

based on the child’s individual needs.”

Id.

In response to a comment requesting that the DOE

require programs provided to a disabled child to be research-

based with demonstrated effectiveness in addressing the

particular needs of a child, the Analysis of IDEA Regulations

stated, “[w]hile the Act clearly places an emphasis on

practices that are based on scientific research, there is nothing

in the Act that requires all programs provided to children with

disabilities to be research-based with demonstrated

effectiveness in addressing the particular needs of a child

where not practicable.” Id. The DOE declined to adopt the

recommended change because “ultimately, it is the child’s

IEP Team that determines the special education and related

services that are needed by the child in order for the child to

receive FAPE.” Id. The DOE also rejected as “overly

burdensome” a requirement that all IEP team meetings

include a focused discussion of research-based methods and a

proposed regulation that would force schools to provide

32

written notice when an IEP team does not provide

documentation of research-based methods. Id. 9

We can discern two key principles from these

administrative materials and our prior decisions interpreting

the IDEA. First, although schools should strive to base a

student’s specially designed instruction on peer-reviewed

research to the maximum extent possible, the student’s IEP

team retains flexibility to devise an appropriate program, in

light of the available research. See D.S., 602 F.3d at 557; 71

Fed. Reg. at 46,665. Second, under the IDEA, courts must

accord significant deference to the choices made by school

officials as to what constitutes an appropriate program for

each student. See D.S., 602 F.3d at 556-57; Ridgewood Bd. of

Educ., 172 F.3d at 247; 71 Fed. Reg. at 46,664-65.

With these principles in mind, we will consider the

two objections that Parents raise to the portion of E.R.’s IEP

that addresses her reading and language disabilities. First,

echoing the findings of the Hearing Officer, Parents argue

that “there were flaws in the research [regarding the

9

Commenters also requested a more explicit definition

of “peer-reviewed research.” The DOE stated that “‘[p]eer

reviewed research’ generally refers to research that is

reviewed by qualified and independent reviewers to ensure

that the quality of the information meets the standards of the

field before the research is published.” 71 Fed. Reg. 46,540,

46,664 (2006). However, the agency made clear that there

was no single definition of “peer-reviewed research” and it

declined to include a specific definition for purposes of the

IDEA. Id.

33

effectiveness of Project Read] which made it impossible to

attribute the reading growth the students experienced [in the

studies] to Project Read alone.” Second, they contend that

none of the studies regarding Project Read demonstrated that

the program was effective for students with E.R.’s specific

disabilities. Both arguments miss the mark. Given that the

IDEA does not require an IEP to provide the “optimal level of

services,” D.S., 602 F.3d at 557 (citations omitted), we

likewise hold that the IDEA does not require a school district

to choose the program supported by the optimal level of peer-

reviewed research. Rather, the peer-reviewed specially

designed instruction in an IEP must be “reasonably calculated

to enable the child to receive meaningful educational benefits

in light of the student’s intellectual potential.” Chambers,

587 F.3d at 182 (citation omitted).

According to a 2007 review of Project Read published

by the Florida Center for Reading Research (“FCRR”):

“Project Read is a comprehensive language arts

program designed to provide explicit instruction

in a structured reading curriculum. The goal of

the program is to help all students become

thoughtful, purposeful, and independent

readers. Project Read Curriculum may be

implemented in the regular classroom, special

education classes, and Title I classes. It may

also be used as an intervention reading program

for first through sixth graders or with

adolescents and adults who struggle with

reading or language learning. Whole or small

group instruction is delivered by a classroom

34

teacher, a special education teacher, or a

reading teacher. Lessons are intended to occur

daily within an extended block of time devoted

to reading instruction. Emphasis is placed on

systematic, direct instruction of concepts and

skills supported and enhanced by a teaching

approach that includes visual, kinesthetic,

auditory and tactile strategies (VAKT), and the

use of body language.”

After discussing several studies on the effectiveness of

Project Read, and citing relevant articles, at least one of

which was published in a peer-reviewed journal, the FCRR

review concluded that the research “[was] promising and the

instructional strategies of Project Read [we]re aligned with

current research. Future studies with sound experimental

designs including control groups and random assignment may

contribute more definitive information about the efficacy of

Project Read.” The FCRR review then listed numerous

strengths of the Project Read program, and found no

weaknesses in Project Read’s curriculum.

We understand Parents’ concern that the available

studies did not test Project Read’s effectiveness for students

with E.R.’s unique combination of disabilities. However, the

research discussed in the FCRR review involved children of

E.R.’s age who struggled with reading, and indicated that

Project Read was helpful in improving the reading skills of

such students. Additionally, Hodges, Grace Park’s resource

room teacher, and Woods, Ridley’s director of special

education, both of whom have expertise in the field of special

education, testified that Project Read was an appropriate

35

reading program for E.R. 10 Woods explained that, “Project

Read is a multi-sensory program that is based on Orton

Gillingham’s principles that support learning disabled

students. The research from Florida was very promising in

terms of these students doing quite well.” Woods further

testified that “[t]he program . . . had a lot of components that

learning disabled students learn by [including] what we called

VAKT program, visual, auditory, kinesthetic, and touch. And

most learning disabled students do very well when you bring

all of the senses into the learning process.” Hodges also

testified that Project Read was a research-based program and

similar to other reading programs, such as The Wilson

Reading System.

Parents argue that, in contrast to Project Read, the

program they requested, The Wilson Reading System, has

been shown to be effective for teaching students with learning

disabilities similar to those of E.R. However, Ridley did not

have to choose the specific program requested by Parents.

See D.S., 602 F.3d at 557. Nor did it have to choose the

program supported by the optimal level of peer-reviewed

research. See id.; 71 Fed. Reg. at 46,665 (explaining that a

school does not have to choose the program supported by the

“greatest body of research”). “The IDEA accords educators

discretion to select from various methods for meeting the

individualized needs of a student, provided those practices are

reasonably calculated to provide h[er] with educational

benefit.” R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117,

10

The Hearing Officer did not discuss the assessments

of Project Read provided by Hodges and Woods.

36

1122 (9th Cir. 2011) (citations omitted); see Rowley, 458 U.S.

at 207 (explaining that school districts have “[t]he primary

responsibility for formulating the education to be accorded a

handicapped child, and for choosing the educational method

most suitable to the child’s needs”). In selecting special

education programs, a school district must be able to take into

account not only the needs of the disabled student, but also

the financial and administrative resources that different

programs will require, and the needs of the school’s other

non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d

60, 70 (2d Cir. 2000) (explaining that, in the context of the

Rehabilitation Act, courts must be aware of the “need to

strike a balance” between the rights of the disabled student

and fiscal and administrative concerns); 71 Fed. Reg. at

46,665 (rejecting a proposed requirement on an IEP team as

“overly burdensome”).

We will not set forth any bright-line rule as to what

constitutes an adequately peer-reviewed special education

program; hearing officers and reviewing courts must continue

to assess the appropriateness of an IEP on a case-by-case

basis, taking into account the available research. We

recognize that there may be cases in which the specially

designed instruction proposed by a school district is so at

odds with current research that it constitutes a denial of a

FAPE. See, e.g., Waukee Cmty. Sch. Dist. v. D.L., No. 07-

00278, 51 IDELR 15 (LRP) (S.D. Iowa Aug. 7, 2008)

(explaining that a student was denied a FAPE, in part,

because the school district frequently employed strategies

which contradicted the relevant research and were even

inconsistent with the school’s own assessment of the

37

appropriate program for the student). 11 Additionally, if it is

practicable for a school district to implement a program based

upon peer-reviewed research, and the school fails to do so,

that will weigh heavily against a finding that the school

provided a FAPE. However, that is not the case here. Ridley

relied on available peer-reviewed research in crafting the IEP

for E.R., and proposed a program with specially designed

instruction that was “reasonably calculated” to enable her to

achieve meaningful educational benefits in light of her

intellectual potential and individual abilities. See Rowley,

458 U.S. at 207. Thus, we conclude that the District Court

11

The IDEA’s peer-reviewed research requirement is

not set forth in isolation; it is part of a broader section

discussing the content of the IEP, which requires “a statement

of the special education and related services . . . that will be

provided for the child” to meet certain specified objectives,

namely “to advance appropriately toward attaining the

annual goals[,]” “to be involved in and make progress in the

general education curriculum . . . and to participate in

extracurricular and other nonacademic activities[,]” and “to

be educated and participate with other children with

disabilities and nondisabled children in” educational

activities. 20 U.S.C. § 1414(d)(1)(A)(i)(IV).

38

properly reversed the Hearing Officer’s finding that the IEP

was inadequate to provide a FAPE. 12

12

The Hearing Officer also awarded Parents

compensatory education for the end of the 2007-2008 school

year, despite the fact that Project Read was not yet

implemented, and Ridley was continuing to use its existing

“resource room” reading program. The Hearing Officer did

not explain this conclusion, and based on the record, we

cannot agree. Pursuant to E.R.’s IEP and the May NOREP,

both of which Parents agreed to, for the last eighteen days of

first grade, E.R. received one hour of reading instruction in

the resource room. The resource room reading curriculum

consisted of Reading Naturally, Reading Workshop, Writing

Workshop, and Patricia Cunningham’s Systematic Phonics.

Hodges testified that although the same programs were used

for all students in the resource room, she tailored the

programs to each student’s individual needs. Moreover,

E.R.’s evaluations all indicated that she would benefit from

multi-sensory learning, and Hodges explained that all

activities done in the resource room were multi-sensory. She

also explained that “all of the research points to a balanced

literacy program which is hammering away at phonemic

awareness, phonics, comprehension, fluency, and vocabulary.

And with the repertoire that we were using throughout the

week, I think we hit all those schools.” We can find no

evidence in the record that rebuts this testimony. In light of

the fact that reviewing courts must be mindful not to

substitute their views of what constitute preferable

educational methods for those of school officials, who have

39

D. Section 504 of the Rehabilitation Act

Parents next contend that the District Court erred in

reversing the Hearing Officer’s determination that Ridley

violated § 504 of the Rehabilitation Act during E.R.’s first

grade year. We disagree. The Rehabilitation Act provides

that “[n]o otherwise qualified individual with a disability . . .

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 that receives

federal funds. 29 U.S.C. § 794(a). This prohibition was

extended to public school systems through § 504. Id.

§ 794(b)(2)(B). To establish a violation of § 504 of the

Rehabilitation Act, Parents were required to prove that

(1) E.R. was disabled; (2) she was “otherwise qualified” to

participate in school activities; (3) Ridley received federal

financial assistance; and (4) E.R. was excluded from

participation in, denied the benefits of, or subject to

expertise in the area, D.S., 602 F.3d at 564, we agree with the

District Court that the Hearing Officer erred in determining

that Ridley denied E.R. a FAPE during the end of first grade.

Because we hold that the resource room instruction

provided during the end of the 2007-2008 school year was

sufficient to provide a FAPE, we likewise hold that the

Hearing Officer erred in finding that the IEP was inadequate

for September 2008 (the first month of second grade). The

same programs that were used during the end of first grade

were scheduled to be used in September, until Project Read

was ready to be implemented.

40

discrimination at Ridley. Ridgewood Bd. of Educ., 172 F.3d

at 253. Here, the parties dispute only the fourth element.

As we have explained, § 504’s “negative prohibition”

is similar to the IDEA’s “affirmative duty” and also requires

schools that receive federal financial assistance to “provide a

free appropriate public education to each qualified

handicapped person who is in the recipient’s jurisdiction.”

Matula, 67 F.3d at 492-93 (quoting 34 C.F.R. § 104.33(a)).

To offer an “appropriate” education under the Rehabilitation

Act, a school district must reasonably accommodate the needs

of the handicapped child so as to ensure meaningful

participation in educational activities and meaningful access

to educational benefits. See J.D., 224 F.3d at 70 (citing

Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985)); D.S.,

602 F.3d at 556 (explaining that under the IDEA, a state must

supply an education that provides “significant learning” and

“meaningful benefit”) (citation omitted); Ridgewood Bd. of

Educ., 172 F.3d at 253. 13 However, § 504 does not mandate

“substantial” changes to the school’s programs, Se. Cmty.

Coll. v. Davis, 442 U.S. 397, 405 (1979), and courts “should

be mindful of the need to strike a balance between the rights

of the student and h[er] parents and the legitimate financial

13

The regulations implementing § 504 of the

Rehabilitation Act state: “the provision of an appropriate

education is the provision of regular or special education and

related aids and services that (i) are designed to meet

individual educational needs of handicapped persons as

adequately as the needs of nonhandicapped persons are met.

. . .” 34 C.F.R. § 104.33(b)(1).

41

and administrative concerns of the [s]chool [d]istrict,” J.D.,

224 F.3d at 70-71 (internal marks and citation omitted). But

“[t]he fact that it is more convenient, either administratively

or fiscally, to provide services in a segregated manner, does

not constitute a valid justification for separate or different

services.” Helen L. v. DiDario, 46 F.3d 325, 338 (3d Cir.

1995) (quoting H.R. Rep. No. 485, reprinted in 1990

U.S.C.C.A.N. at 473).

In June 2006, prior to E.R.’s kindergarten year, Ridley

prepared an Allergy Treatment Plan, which alerted school

staff to E.R.’s allergies and the signs of an allergic reaction,

and explained how school officials should react if E.R. were

to have an allergic reaction. In February 2007, a § 504

Service Agreement was implemented to further address

E.R.’s health issues. The Service Agreement reflected

Parents’ request that E.R. be included in as many activities as

possible, and provided that because E.R. was “only to eat

foods provided by parents,” Parents were to be contacted

before activities involving shared food so that appropriate

alternatives could be provided. The Service Agreement also

required all students in the classroom to wash their hands

before and after meals, required E.R. to wash her hands after

touching physical education or OT equipment, mandated that

E.R. wear gloves provided by Parents when handling glue,

and provided that E.R. would only use supplies and utensils

provided by Parents.

Parents allege that Cenname “stubbornly and

persistently” refused to implement the Service Agreement,

which led to E.R. being “singled out, isolated and denied full

participation with her classroom peers.” The Hearing Officer

42

cited the following incidents as evidence of Ridley’s

discrimination against E.R. First, as part of a “Clifford the

Dog” celebration, E.R.’s classmates were given brownies

with red icing and red juice, but because E.R.’s allergies

prevented her from eating that food, she was given a cupcake

from the nurse’s freezer that had been provided by her

mother. Second, a program on nutrition was offered, along

with a specific snack. Although Parents were notified of the

program in advance, they were not told what the snack would

be, and therefore, E.R. ended up having to eat a snack from

home. Third, according to E.R.’s mother, Cenname cancelled

an Earth Day project rather than design an alternative snack

for E.R. E.R.’s mother testified that Cenname commented

that she did not understand why the other students in class

should have to accommodate one child when E.R.’s parents

could provide separate food. Fourth, due to her allergies,

E.R. was required to wear loose cotton clothes. E.R.’s mother

testified that she often had difficulty locating reasonably

priced clothing that complied with Ridley’s dress code: green

shirts, khaki pants, and a white sweater. Despite this

difficulty, on two occasions, Cenname remarked to E.R. that

her clothes were not in compliance with the dress code, which

according to Parents, caused E.R. to “feel[] humiliated.”

Fifth, students in E.R.’s first grade class participated in an

activity in which they worked with partners to sift sand,

pebbles, and gravel, and compare the various shapes and

sizes. Due to her severe allergies, E.R. was not permitted to

touch dirt without using gloves. Cenname testified that she

had forgotten about the sand activity when preparing her

update to E.R.’s mother, and thus, was unsure whether E.R.

could touch any of the materials. “To be safe,” Cenname

43

instructed E.R. to let her partner handle the materials, but

E.R. was allowed to participate in the project in every other

way. Finally, E.R. was given several poor grades on

penmanship tests. Parents blame this on Cenname’s failure to

notice that E.R.’s chair did not allow her to brace herself for

writing tasks.

We agree with the District Court that although each of

these incidents “may illustrate how E.R.’s daily school

routine necessarily had to be different than her classmates,”

they do not constitute § 504 violations. Ridley, 2011 WL

499966, at *17. There is no evidence in the record that E.R.

was excluded from participation in educational activities,

denied educational benefits, or otherwise subjected to

discrimination. See Ridgewood Bd. of Educ., 172 F.3d at 253.

E.R. was not denied meaningful participation in the food-

related activities; she simply had to eat something slightly

different than the food eaten by her classmates. Parents argue

that Cenname could have complied with the Rehabilitation

Act by allowing E.R.’s mother to prepare snacks for the entire

class that were suitable to E.R.’s dietary needs. The statute

simply does not require that. See Davis, 442 U.S. at 410

(explaining that the Rehabilitation Act distinguishes “between

the evenhanded treatment of qualified handicapped persons

and affirmative efforts to overcome the disabilities caused by

handicaps”). Similarly, E.R. was not denied the educational

benefit of the sand, pebbles, and gravel lesson, even though

she was not allowed to touch the materials. Contrary to

Parents’ suggestions, this case does not involve a situation in

which a school district attempted to provide separate-but-

equal services to a disabled student. See Helen L., 46 F.3d at

44

338. Ridley took reasonable steps to accommodate E.R.’s

disabilities and include her in all class activities; it was not

required to grant the specific accommodations requested by

Parents or otherwise make substantial modifications to the

programs that were used for all other students. J.D., 224 F.3d

at 70. Additionally, although Cenname may have exercised

poor judgment in commenting on E.R.’s clothes, in the

absence of evidence that E.R. was excluded from

participation in educational activities or denied educational

benefits, two isolated comments do not rise to the level of a §

504 violation. See Ridgewood Bd. of Educ., 172 F.3d at 253.

Nor does Cenname’s alleged failure to identify the position of

E.R.’s chair as the source of her struggles on penmanship

tests.

E. Other Claims

Finally, Parents argue that the District Court erred in

dismissing their claim for damages under the Rehabilitation

Act, their claim under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., and a state law claim

against Cenname for “outrageous conduct causing severe

emotional distress.” Parents contend that these claims were

not the subject of Ridley’s motion for judgment on the

administrative record, and thus were not before the District

Court. Accordingly, Parents ask us to remand to the District

Court to consider their remaining claims. We decline to do

so; although the District Court did not address the claims, we

can affirm based on any grounds supported by the record.

45

Chambers, 587 F.3d at 183-84. 14 First, because Parents’

Rehabilitation Act claim fails, they are not entitled to

damages. Second, the substantive standards for determining

liability under the Rehabilitation Act and the ADA are the

same, McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d 92,

94-95 (3d Cir. 1995), and thus the District Court did not err in

disposing of Parents’ claim under the ADA. Finally, because

no federal claims remained, dismissal of Parents’ state law

claim was proper under 28 U.S.C. § 1367(c)(3).

IV. Conclusion

For the foregoing reasons, we will affirm the order of

the District Court.

14

Although the principle that an appellate court may

affirm on any grounds supported by the record has previously

been articulated in the summary judgment context, it is based

on considerations of judicial efficiency, and we see no reason

not to apply the same principle to a district court’s grant of

judgment on the administrative record.

46