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DRINKER v. COLONIAL SCH. DIST.

February 13, 1995

DANIEL DRINKER, et al.
v.
COLONIAL SCHOOL DISTRICT, et al.



The opinion of the court was delivered by: STEWART DALZELL

 Dalzell, J.

 February 13, 1995

 I. Introduction

 Plaintiff, Daniel Drinker, is nine years old and suffers from Down's Syndrome and cerebral palsy, conditions that qualify him as an "exceptional" child, see 22 Pa. Code § 14.1. In Count II of their complaint, he and his parents seek a permanent injunction requiring defendants, the Colonial School District and others (whom we shall collectively call "Colonial"), to keep Daniel at Gladwyne Elementary School in the Lower Merion School District. *fn1" They base their claim on the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485. *fn2"

 The Drinkers moved to the Colonial School District in 1992. At that time, Colonial placed Daniel in the Gladwyne Elementary School in the Lower Merion School District because Colonial lacked the means to educate Daniel in its own schools (AR 873a & n.3). *fn3" Thus, Daniel lives in the Colonial School District but travels to Gladwyne for school. It costs roughly $ 25,000 per year to send Daniel to Gladwyne (AR 477a (testimony of Ned Drinker)).

 Colonial eventually developed a program into which they wished to place Daniel. On July 30, 1993, Colonial told Daniel's parents that it intended to move him to Whitemarsh Elementary School, a school within the Colonial School District. The Drinkers protested the change and invoked their hearing rights under Pennsylvania law. *fn4" Dr. Carroll Redfern conducted a hearing on November 1, 1993. In his decision of that month, Dr. Redfern concluded that Colonial could proceed with Daniel's transition, but not until the fall of 1994 and not until it completed a transition plan. Colonial thought the delay before transition was overlong and appealed the decision. The Drinkers did not appeal.

 On March 17, 1994, a three-judge administrative appeals panel affirmed Dr. Redfern's decision, as amended. The appeals panel agreed with the District's assessment of the delay before transition and held that (1) the parties were to develop a transition plan by April 1, 1994; (2) Daniel could remain at Gladwyne through April 22, 1994; and (3) the parties could move Daniel to Whitemarsh on April 25, 1994, where Colonial would continue to implement his transition plan. *fn5"

 The parties did not develop Daniel's transition plan in accordance with the first appeals panel's schedule because the parents refused to cooperate. *fn6" On April 25, 1994, Colonial stopped paying for Daniel's education at Gladwyne. Thus, Daniel remains at Gladwyne, but Colonial refuses to pay the bill. The Drinkers paid $ 6,000 to Gladwyne for Daniel's education but have now exhausted their resources. *fn7"

 In June, 1994, the parties finally met to discuss Daniel's transition. The parents again refused to discuss the development of a transition plan and, on August 1, 1994, requested another due process hearing. Dr. Carole Welch conducted a three-day hearing in October, 1994, at which Daniel's parents sought to raise the issue of Daniel's placement.

 On October 30, 1994, Dr. Welch issued an opinion and order (AR 742a-753a). The opinion and order contains two holdings. First, Dr. Welch found that the issue of Daniel's placement was barred by principles of res judicata because Daniel's parents had not sought judicial review of the March, 1994 appeals panel's decision. Second, because the parties before her could not develop a transition plan, Dr. Welch created a transition plan for moving Daniel from Gladwyne to Whitemarsh. Daniel appealed Dr. Welch's opinion and order to an administrative appeals panel on November 21, 1994, and, two days later, filed this action. On December 28, 1994, an appeals panel affirmed Judge Welch's decision in full (AR 873a-881a). *fn8"

 Counsel first appeared before this Court on December 2, 1994. The Drinkers sought a preliminary injunction so that Daniel could remain at Gladwyne at Colonial's expense. At that time, however, the administrative process was incomplete: Dr. Welch had issued her decision, but Daniel's appeal before the three-judge panel was still pending. *fn9" Thus, with the parties' consent, we continued the hearing until after the second appeals panel issued its decision. We held a hearing on February 3, 1995.

 The parties agreed to consolidate the hearing with a trial on the merits, pursuant to Federal Rule of Civil Procedure 65(a)(2). We heard testimony from Ned Drinker, Daniel's father; Cheri Settani, Daniel's learning support teacher at Gladwyne; Rita M. Greeley, Director of Special Education in the Colonial School District; and Fred G. Shipman, Director of Pupil Services in the Colonial School District. The parties also agreed that the Drinkers could submit a supplemental affidavit of C. Wayne Jones, their family psychologist, who was unable to attend the hearing; we received Dr. Jones's submission on February 10. Pursuant to 20 U.S.C. § 1415(e)(2), we also received the record of the administrative proceedings below.

 This Memorandum will constitute our Rule 52(a) factual findings and legal conclusions.

 II. Analysis

 A. Scope of Review

 The IDEA grants the Drinkers the right to limited judicial review of the administrative proceedings below. 20 U.S.C. § 1415(e)(2) governs the scope of our review:

 
In any action brought under this paragraph the court shall receive the record of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

 Although we retain the discretion to consider "additional evidence", the Third Circuit has emphasized that the trial court "must not allow 'such evidence to change the character of the hearing from one of review to a trial de novo '". Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, slip op. at 23 (3d Cir. 1994) (citation omitted). Our primary focus must be on the administrative record. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982) ("The fact that § 1415(e) requires that the reviewing court 'receive the records of the [state] administrative proceedings' carries with it the implied requirement that due weight shall be given to those proceedings.").

 In the clearest exposition of the relationship between "additional evidence" and the administrative record, the First Circuit has instructed courts to allow parties to supplement ...


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