appropriate to bar plaintiff from raising these claims now.
Having concluded that the Pennsylvania administrative process, particularly as it was applied in plaintiff's case, contravenes federal law, the issue becomes what is the next appropriate step in this action. Plaintiff contends that given the procedural flaws I should order the payment of tuition reimbursement for the years in which his son has been at the private Landmark School and should order defendants to continue such payments in the future, i.e. to order that Alexander's appropriate placement is the Landmark School. In support of this position, plaintiff contends that the first decision of Hearing Officer Trent, the decision favoring plaintiff, should be given great weight; plaintiff also contends that defendants have never appealed from this first decision. However, it is my understanding that the first appeal to the Secretary was a cross appeal filed by both plaintiff and the School District.
As the court noted in Grymes v. The State Board of Education, No. 79-55, slip op. at 7-8 (D.Del. January 7, 1971), procedural errors in an administrative proceeding may often require the remanding of the action to the agency to take corrective action. However, the EAHCA provides for a form of judicial review which makes remand unnecessary. Pursuant to Section 1415(e)(2), the court may make an independent decision based on the administrative record and any additional evidence submitted by a party and based on the preponderance of the evidence. Moreover, in this action, I am very concerned by the excessive delays which have occurred which may have operated to plaintiff's detriment. I do not believe it is appropriate for me to order tuition reimbursement without first holding a hearing to determine whether the I.E.P. the School District had proposed would have provided plaintiff's son with an appropriate free education.
In order to put this case in the same position it would have been in if the procedural flaws had not occurred, I will treat the hearing as an appeal from Officer Trent's first decision by the School District. The School District will therefore have the burden of going forward and establishing that the I.E.P. they proposed would be appropriate. The failure of the state and the School District to comply with the procedural requirements of the EAHCA including the excessive delays will certainly be a factor for me to consider when determining what relief, if any, is appropriate.
An appropriate order follows.
NOW, June 2, 1986, upon consideration of plaintiff's motion for summary judgment, defendant's responses, and for the reasons stated in the accompanying memorandum, IT IS ORDERED that plaintiff's motion for summary judgment is GRANTED IN PART. Judgment is entered in favor of plaintiff and against defendants as to plaintiff's claim that the Pennsylvania administrative procedure contravenes federal law. IT IS FURTHER ORDERED that a conference shall be held in the case on June 24, 1986 at 1:30 p.m., in chambers (Room 12614), U.S. Courthouse, Phila., PA.
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