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Bernardsville Bd. of Educ. v. J.H.

filed: November 22, 1994.

BERNARDSVILLE BOARD OF EDUCATION APPELLANT
v.
J. H., INDIVIDUALLY AND ON BEHALF OF THEIR MINOR SON J.H.; E. H., INDIVIDUALLY AND ON BEHALF OF THEIR MINOR SON, J.H.; J. H., INDIVIDUALLY



Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 92-cv-03694).

Before: Mansmann, Cowen and McKEE, Circuit Judges.

MANSMANN, Circuit Judge.

Through the exercise in "cooperative federalism" which is the hallmark of the implementation of the Education of the Handicapped Act, 20 U.S.C. §§ 1400 et seq., now known as the Individuals with Disabilities Education Act, local school boards are mandated to provide a free, appropriate public education for handicapped children alongside their peers who are not so impaired. The Act authorizes federal assistance to states and localities for educational programs which confer an educational benefit on disabled students. The Bernardsville School District receives an allocation of funds under this Act and thus incurs the responsibility to confer an educational benefit on learning disabled students enrolled in a public school within its jurisdiction.

J.H., the child who is the subject at the heart of this case, was denied the benefit of a free appropriate public education throughout his several years as an elementary school student within the Bernardsville School District. Year after year the School District failed to design an Individualized Educational Program suitable to J.H.'s special needs, and failed to intervene responsibly in his quite apparent trend of academic and social deterioration. Observing their son's educational predicament and dissatisfied with the school program in Bernardsville, J.H.'s parents unilaterally removed J.H. from the School District and enrolled him in a private out-of-state residential school, where J.H. improved significantly under a program responsive to his needs. More than two years later, J.H.'s parents sought reimbursement from the Bernardsville School District for tuition and expenses for J.H.'s private education. J.H.'s parents argued that Bernardsville was by law obliged to provide J.H. with a free appropriate public education, that it failed utterly in this regard, and that they were virtually forced to enroll J.H. in an out of district school in order to ensure him an appropriate educational benefit. The Act and the implementing regulations offer no guideline with regard to the timeliness of this claim for retroactive reimbursement.

We must decide whether J.H.'s parents requested due process for their son within an appropriate time limitation. Notwithstanding an acknowledgement of good cause for the frustration of J.H.'s parents and the reasonableness of their educational decision, we conclude that the request for reimbursement for the first two years after J.H. was removed from Bernardsville and enrolled in a private institution was untimely. We will award reimbursement only for J.H.'s third year of private education and for partial attorney's fees.

I.

J.H. entered the Bernardsville School District in September, 1980, after he had completed kindergarten at a parochial school and it had become apparent that his academic progress was not commensurate with the other children in his class. In the Bernardsville School District, J.H. repeated kindergarten, at the end of which it was again apparent that J.H.'s academic skills were significantly deficient and that he had not progressed much during the academic year. By November of academic year 1981-82, while J.H. was in the first grade, J.H.'s parents still observed a lack of progress in their son, and hired a private tutor for reading and math once a week. In January, 1982, a private learning consultant advised Mr. and Mrs. H. that J.H. required one-on-one academic assistance. In January, 1982, the Bernardsville School District, also well aware of J.H.'s academic difficulties, referred J.H. to their Child Study Team,*fn1 and on April 8, 1982, classified J.H. as perceptually impaired. The District placed J.H. in a small resource room reading and math group, and mainstreamed J.H. for other subjects. J.H. also attended summer school in the Bernardsville school district after completing the first grade.

J.H. remained in resource room instruction in the Bernardsville school through the end of the third grade, showing very limited progress and great difficulty keeping academic pace with his peers. The Individualized Educational Program (IEP) reports created by the Bernardsville district for the years 1982-83, 1983-84 and 1984-85, as well as Bernardsville's psychological evaluations of J.H., attest to J.H.'s lack of academic progress and a disturbing deterioration in his confidence, self-esteem and social interaction with peers. The district court found that academic frustration and social isolation marked J.H.'s education experience in Bernardsville.

As early as October of 1982, J.H.'s resource room teacher, Mrs. Garland, recorded Mrs. H.'s "persistent anxiety" regarding the efficacy of the IEP. Mr. Walter Mahler of the Bernardsville Child Study Team was also apprised in 1982 of an audiological evaluation and assessment of central auditory functioning performed by a private neurologist, which revealed that J.H. was experiencing significant difficulty with auditory figure-ground discrimination ability,*fn2 auditory closure ability*fn3 and appeared also to suffer with auditory memory deficits.*fn4 A. 2126-2128. That report recommended optimal listening conditions for J.H. in order to enhance his academic development. The report recommended specifically a quiet learning room with few distractions, preferential seating in a classroom, eliciting frequent feedback from J.H., certain speech and common memory training techniques, and counseled against a phonetics approach to reading. Phonetics was nevertheless emphasized in J.H.'s IEPs for reading.*fn5 Moreover, Mrs. H. testified before the administrative law Judge that J.H.'s resource room was not reasonably free from background noise which could sabotage efforts to educate this attention deficit child.

In academic year 1986-87, at the end of J.H.'s sixth grade, his reading level, as measured by the Woodcock Johnson Psychoeducational Battery, had only progressed from 1.0 in the first grade to 2.9. Notwithstanding J.H.'s lack of success in prior years, the IEP provided by the district for the 1987-88 school year, J.H.'s grade 7, was virtually identical to the prior unsuccessful IEPs. Dr. Howard Margolis, testifying as an expert on behalf of J.H. at trial, characterized J.H.'s placement as inappropriate and not reasonably calculated to confer educational benefit on J.H.

In September of 1987, J.H.'s parents unilaterally removed J.H. from the Bernardsville school system and placed him at the Landmark School in Massachusetts, a residential school for handicapped children. J.H. attended school at Landmark for academic years 1987-88 through 1989-90, J.H.'s grades 7, 8 and 9. In December of 1987 and November of 1988, at the request of J.H.'s parents, the Bernardsville District conducted educational assessments of J.H., but never approved J.H.'s placement at Landmark.

In September of 1989, after J.H. had been in attendance at Landmark for more than two years, the parents of J.H. petitioned for an administrative hearing concerning J.H.'s placement and program from September 1987 to his current situation, and sought retroactive reimbursement for J.H.'s out-of-district residential schooling at Landmark. The Board of Education denied J.H.'s parents' request for reimbursement and defended their proposed IEP for academic year 1987-88. J.H.'s parents filed a new request for an administrative hearing on November 17, 1989.

Between November and December of 1989, the parties negotiated and reached various agreements, and the matter did not proceed to a hearing at that time. The parties agreed that Deputy Public Advocate for the State of New Jersey, David Harris, would provide a release for Bernardsville to obtain the current records of J.H., that J.H. would be evaluated by the Bernardsville Child Study Team on December 22, 1989, that in early January, 1990, the Bernardsville school psychologist would visit Landmark to observe and evaluate J.H., that a meeting would be held to discuss the recommendations of the Child Study Team and that, if necessary, due process procedures could be activated.

Pursuant to the agreement, the Child Study Team did conduct a reevaluation of J.H. in order to develop an appropriate IEP. On April 11, 1990, Lynn Caravello, Ed.D., Director of Special Services, advised J.H.'s parents that a new IEP had been developed for J.H. and recommended that J.H. be placed in the Bernards High School as a ninth grader eligible for part-time special education.

In May of 1990, J.H.'s parents removed J.H. from the eighth grade at Landmark and reenrolled him in the Bernardsville School. Bernards High School implemented the newly developed IEP for the balance of the 1989-90 school year, and appeared to be responsive to Dr. Margolis' revisional recommendations for the 1990-91 academic year.

On September 4, 1990, Mr. H. authorized J.H.'s placement in Bernards High School conditioned upon pending agreement on the IEP, and "upon agreement by the Bernardsville Board of Education that such placement [would] not thereby become the current educational placement of [J.H.] within the meaning of federal or state statutes and regulations pertaining to special education." J.H. in fact completed the 1990-91 academic year as a tenth grader at Bernards High School.

On January 4, 1991, J.H.'s parents through their attorney filed a request for due process and for the matter to be transmitted to the office of administrative law for trial. The petition contended that the Bernardsville Board of Education had offered an inappropriate program for J.H. through June of 1987, forcing J.H.'s parents to place J.H. at the Landmark School so as not to deprive him of his statutory right to a free appropriate public education. The petition alleged among other things that the IEPs prepared by the Board of Education prior to J.H.'s enrollment at Landmark did not comply with the requirements of New Jersey Administrative Code 6:28-3.6 in that they were not reasonably calculated to confer any educational benefit upon J.H., and did not contain specific or measurable goals or instructional objectives. The petition requested reimbursement for all monies expended on behalf of J.H. relative to his placement at the Landmark school commencing in the summer of 1987 through May of 1990. The matter was forwarded to the Office of Administrative Law on January 16, 1991, and hearings began on February 19, 1991.

On June 24, 1992, the administrative law Judge decided the case against the Bernardsville Board of Education, ordering reimbursement to the parents of J.H. for Landmark tuition expenses for the academic years 1987-88 through 1989-90, excluding the cost of J.H.'s room and board. Decision of Administrative Law Judge, OAL Dkt. No. EDS 576-91 (June 24, 1992), A. 24-50. In pertinent part, the administrative law Judge found:

The [IEPs] were not compliant with the New Jersey Administrative Code as it then existed and, did not enable J.H. to receive either an appropriate education, or to best achieve educational success.[*fn6 ] Specifically, J.H.'s IEP's were severely lacking in adequate statements of current educational status, the annual goals were vague, non-specific and incapable of being measured, and repeated themselves, for the most part, in each succeeding year.

The IEP's . . . did not enable J.H. to improve in any meaningful way in his reading . . . .

Despite parental concern and intervention through regular contact and communication with the District and the hiring of tutors, J.H.'s lack of progress in reading caused him to suffer emotionally, and significantly affected his self-esteem.

As a result, J.H. had significant problems with his peers and socialization . . . .

Although one-to-one instruction in reading was recommended by independent evaluations . . . with little exception, the same was not offered to J.H. . . . .

The program offered to J.H for seventh grade . . . was a continuation of prior programs which did not address J.H.'s handicapping condition.

Petitioners were justified in seeking a free, appropriate public education under the circumstances recognizing that J.H.'s reading handicap was not being addressed.

The program at Landmark School was appropriate for J.H. to meet his needs, and offered the best opportunity to enable J.H. to achieve educational success and benefit from his education.

OAL Dkt. No. EDS 576-91, pp.19-20; A. 42-43.

The Bernardsville Board of Education appealed the matter to the United States District Court for the District of New Jersey on September 2, 1993 pursuant to 20 U.S.C. § 1415(e)(2).*fn7 Bernardsville Board of Education v. J.H., Civil No. 92-3694 (D.N.J. March 22, 1993). The parents of J.H. moved for summary judgment on the ground that the Board of Education's appeal was untimely under 20 U.S.C. § 1415(e)(2). Following the opinion of this circuit in Tokarcik v. Forest Hills School District, 665 F.2d 443, 450-54 (3d Cir. 1981) (30-day state limitation statute for state administrative appeals to state courts does not apply to federal claim brought in federal court under Education of Handicapped Act), cert. denied, 458 U.S. 1121 (1982), the district court dismissed J.H.'s parents' summary judgment motion. The district court denied the Board of Education's cross-motion for summary judgment brought on the ground that J.H.'s parents waived their right to reimbursement by unilaterally placing J.H. in Landmark and failing to initiate review proceedings prior to seeking reimbursement. The district court also denied the Board of Education's alternative argument for summary judgment that J.H.'s parents failed to comply with the 90-day statute of limitations contained in N.J.A.C. 6:24-1.2(c), which the Board argued should be applied to challenges to IEPs. The court noted that the New Jersey Administrative Code does not contain any explicit time limitation within which a party must request a due process hearing in the special education context, and no caselaw has held that the 90-day time limit would be applicable.

Prior to trial, on September 9, 1993, the district court ruled on the parties' motions in limine. J.H.'s parents had filed a motion seeking to limit the testimony of two expert witnesses for the Board of Education, Joanne Seelaus, school psychologist and Supervisor of Special Education, and Dr. Lynn Caravello, Director of Special Services for the Bernardsville Board of Education. Seelaus and Caravello had prepared a joint report which contained references to the IEP prepared for J.H. for the 1987-88 school year, references to testimony previously given during the administrative hearing, and references to the reevaluation of J.H. preparatory to his return to the district in 1990. The court excluded these portions of their testimony on the ground that such evidence would have been cumulative and improper "additional evidence" pursuant to 20 U.S.C. § 1415(e)(2),*fn8 and with ...


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