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CHRISTEN G. v. LOWER MERION SCH. DIST.

February 21, 1996

CHRISTEN G., by her guardian and next friend, LOUISE G., and LOUISE G.
v.
LOWER MERION SCHOOL DISTRICT, ET AL.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 February 21, 1996

 This is an action brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Christen G. ("Christen") and her mother, Louise G., assert that Christen has Attention Deficit Hyperactivity Disorder (ADHD) and that the Defendants failed to offer a free appropriate public education to Christen as required by law. Plaintiffs seek reimbursement for private school education costs incurred by Louise G. when she placed Christen at Delaware Valley Friends School during the years in which Plaintiffs allege Lower Merion School District failed to provide a free appropriate public education.

 Defendant Lower Merion School District ("Lower Merion") and other Lower Merion school officials named as Defendants have asserted that they did not fail to offer Christen a free appropriate public education, and that any reimbursement of costs for Christen's attendance at Delaware Valley Friends School is barred by the First Amendment of the United States Constitution because DVFS is a sectarian school. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

 Trial was held by the Court on August 7 and 8, 1995. In accordance with 20 U.S.C. § 1415(e)(2) of the IDEA, the Court is also in receipt of the records of earlier administrative proceedings in which Plaintiffs sought review of decisions by the Lower Merion School District regarding Christen's educational placement.

 For the reasons stated below, which are Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a), judgment will be entered in favor of Defendants on Plaintiffs' IDEA claims arising from the 1993-94 school year. For IDEA claims arising from the 1994-95 school year, the Court will enter judgment in favor of Plaintiffs against Lower Merion School District and award tuition reimbursement to Louise G. equal to the cost of Christen's education at Delaware Valley Friends School for the 1994-95 school year.

 I. INTRODUCTION

 Before discussing the detailed facts and procedural history of this case, a brief overview of the legal framework underlying the contentions of the parties as well as the meaning of several statutory terms at issue will be helpful.

 Under the Individuals with Disabilities Education Act ("IDEA"), a state receiving federal funds for the education of handicapped children must provide those children with a "free appropriate public education." 20 U.S.C. § 1412(a). "'Free appropriate public education' consists of educational instruction 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." Board of Education v. Rowley, 458 U.S. 176, 188-89, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690 (1982). The benefit conferred by this special education must be "meaningful" and not trivial or de minimis. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988).

 The "centerpiece" of the IDEA's education delivery system for disabled children is the Individualized Education Program or ("IEP"). Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 598, 98 L. Ed. 2d 686 (1988). "'The IEP consists of a detailed written statement arrived at by a multi-disciplinary team summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive.'" Oberti v. Board of Educ., 995 F.2d 1204, 1213 n.16 (3d Cir. 1993) (quoting Polk, supra, at 173). In order to satisfy the requirements of the IDEA, the instruction and services offered by the state "must be provided at public expense, must meet the state's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's IEP." Rowley, supra, at 204-05, 3049.

 The IDEA provides extensive procedural protections to the parents of disabled children, including participation of parents in the development of the IEP, the right to review all relevant school records, and "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child." 20 U.S.C. § 1415(b)(1). When a parent has a complaint, she may request an "impartial due process hearing." 20 U.S.C. § 1415(b)(2). States have flexibility in choosing to implement a one or two-tier administrative review system, and Pennsylvania has chosen to offer "a two-tier system in which the initial hearing occurs at the local educational agency level followed by an 'independent' review of that hearing at the state educational agency level." Carlisle Area School District v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995).

 A party aggrieved by the final determination of the state agency is entitled to bring an action "in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 20 U.S.C. § 1415(e). In any such action, "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, grant such relief as the court determines is appropriate." Id. As will be discussed infra, a court must give "due weight" to the state administrative proceedings in making its decision. See Rowley, supra, at 206, 3051.

 "In administrative and judicial proceedings, the school district bears the burden of proving the appropriateness of the IEP it has proposed." Carlisle, supra, at 533. If a court determines that a school has offered an inappropriate education for a child, and an aggrieved parent has unilaterally chosen to place her child in an appropriate placement, appropriate relief may be ordered. Courts have often approved relief in the form of tuition reimbursement to the parent for the costs of educating her child during the period in which the school district failed to offer a free appropriate public education in accordance with its obligations under the IDEA. See Florence County School District Four v. Carter, 126 L. Ed. 2d 284, 114 S. Ct. 361, 366 (1993); School Committee of Burlington v. Department of Education, 471 U.S. 359, 370-71, 105 S. Ct. 1996, 2003, 85 L. Ed. 2d 385 (1985). However, a parent who chooses to educate her child in a placement other than that offered by the school does so at her own financial risk in the event that the school's offered placement is determined to be appropriate. See id.

 In this action, Plaintiffs have also sought relief under the Rehabilitation Act of 1973. Section § 504 of the Rehabilitation Act provides that:

 
No otherwise qualified individual with a disability in the United States as defined in section 706(8) of this title shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .

 29 U.S.C. § 794(a). To establish a violation of this section, a plaintiff must demonstrate that: (1) she is disabled as defined by the Act; (2) she is otherwise qualified to participate in school activities; (3) the school receives federal financial assistance; and (4) she was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. See W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995). A plaintiff need not establish that there has been an intent to discriminate by defendants in order to prevail, but defendants must know or be reasonably expected to know of her disability. See id.

 The Third Circuit has noted that "there appear to be few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition. Indeed, the regulations implementing § 504 adopt the IDEA's language, requiring that schools which receive or benefit from federal financial assistance 'shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction.'" Id. (citing 34 C.F.R. § 104.33(a)). Monetary damages are also available under the Rehabilitation Act. See id.

 Finally, Plaintiffs have also sought relief under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. However, as Plaintiffs submitted proposed conclusions of law to the Court related only to their IDEA and Rehabilitation Act claims, the Court will deem Plaintiffs to have waived their ADA claim.

 II. Factual Background

 A. Kindergarten through 8th Grade

 Christen G. was born on June 18, 1979. She attended Abington Friends School from kindergarten through grade 4. A:15 (indicating Administrative Record at 15). Christen was then enrolled in the Lower Merion School District, and began 5th grade at the Cynwyd School in September 1989. A:17.

 During 5th grade, Christen began to experience some difficulties and her mother, an experienced educator and subsequently a member of the Lower Merion School Board from 1991 to 1995, noticed that Christen seemed anxious and depressed. A:17-18; 66-68. A psychological evaluation of Christen was performed for Lower Merion School District in March 1990 by Dr. Janice Schulman, who concluded that Christen was scoring in the "high average range of intelligence, with evidence of both neurological and emotional factors intruding on somewhat higher intellectual potential." Dr. Schulman also noted "some auditory processing weakness, perceptual deficits, and impulsivity; anxiety and emotional confusion also impair her concentration and divert her reasoning." Parent Exhibit 1.

 Following this report, Christen was classified as "exceptional" and the School District developed an Individualized Education Program (IEP) for Christen to commence in the 6th grade. A:22. This first IEP provided that Christen would be in "regular" 6th grade, with "Mixed Category Learning Disabled Resource Room for English and daily support 5 times per week." Parent Exhibit 2. Louise G. participated in the development of this first IEP and all subsequent IEPs as Christen's parent throughout Christen's education. A:69-70, 74.

 Christen participated in 6th grade with resource room support and was promoted to 7th grade. Nevertheless, Louise G. felt that Christen was experiencing "decline" in both her academic performance and in her self-esteem. A:27. Christen continued to experience difficulties in 7th grade, including an inability to complete assignments; she failed math in the second quarter. A:31.

 Revised IEPs for the seventh and eighth grade prescribed special instruction for Christen, including smaller classes to help her maintain attention and extended time for taking tests. Parent Exhibits 4, 5. Louise G. and Christen believe Lower Merion did not implement many IEP components; Lower Merion officials assert that they did implement Christen's IEP, and that Christen was unable or unwilling to cooperate with review sessions, extended time for exams, individualized assignments, and other special instruction provided to her. See, e.g., A:26, 36-37, 40, 277, 304-07, 582-584, 586, 613, 618-19, 643-44.

 In December 1992, during her eighth grade year, Christen was evaluated at a medical facility known as Children's Seashore House. After a physical examination, review of Christen's history and various psychological tests, the examining physician summarized her diagnosis as Attention-Deficit Hyperactivity Disorder ("ADHD") with "learning differences." The physician recommended increased dosage of ritalin and counseling for behavioral management. Parent Exhibit 18. Christen subsequently began private therapy in February 1993 with Dr. Susan Anderer, a certified school psychologist with a doctorate in clinical psychology. A:207-08. Dr. Anderer saw Christen once a week until the summer of 1993 when Christen took a break to attend summer camp; counseling resumed in the fall of 1993, and has continued to the present. A:233, 240.

 In the latter part of eighth grade, Christen's academic and behavior problems at school became severe. Although Christen received an "Outstanding" for her resource room work at the beginning of eighth grade, she was in danger of failing math, science and social studies by the third quarter. A:37-38; 392. The record shows that she eventually did fail history for that year. Parent Exhibit 19.

 In the second part of the school year, Christen was reported to school authorities for causing disturbances in class and was suspended; school officials also suspected her of various acts of vandalism. Parent Exhibit 19; A:37-38, 637-638. Christen herself testified that she believed her teachers "didn't care" and "wouldn't try any effort to teach me" and that she had "just sort of given up and got suspended." A:279. Christen was restricted from participating in class trips and after school activities, and removed from music class for two weeks on the ground that the teacher was unable to conduct class because Christen's behavior was so disruptive. Parent Exhibit 19. On at least one occasion outside of school, Christen was picked up by the local police. A:37, 53.

 In light of Christen's actions and parental concern, Christen was fully evaluated again by the School District. A Multidisciplinary Evaluation ("MDE") was performed with input from Christen's resource room teacher, William Dolton; Margery Anderson, assistant principal at Bala Cynwyd; Dr. Betsy Granite, a school psychologist working at Bala Cynwyd; and other school officials. School Exhibit 22; A:380. Louise G. was also given the opportunity to provide input as a member of this Multidisciplinary Team ("MDT"). A:74. As part of this evaluation, Dr. Granite administered a number of psychological tests to Christen in April 1993. The May 17, 1993 MDE, of which Dr. Granite was the primary author, made the following recommendation to the IEP team:

 School Exhibit 22. Louise G. felt that this report was "excellent" overall. A:76. The MDE report was subsequently provided to an IEP team, of which Louise G. was also a member, to develop an IEP for Christen's ninth grade year. A:74, 399.

 During this time, Louise G. had also taken steps to enroll Christen at Delaware Valley Friends School (DVFS). DVFS is a private school for children in grades 7 through 12 with learning differences, offering small class sizes (4 to 10 children) and a college preparatory curriculum. DVFS is operated "under the care of the Philadelphia Quarterly Meeting of the Religious Society of Friends." School exhibits 10, 11. Louise G. had first attended an open house at DVFS while Christen was in seventh grade, and Dr. Anderer, after treating Christen, recommended that Christen apply to DVFS for ninth grade. A:55; 211. Louise G. testified before this Court that she sent an application and check for $ 60.00 to DVFS on April 26, 1993, and Christen filled out a student application as part of the DVFS admissions process and visited DVFS sometime in May 1993. A:123. Louise G. also contacted the School District on June 4, 1993 to ask that the May 17, 1993 MDE report be sent to DVFS. Notably, Louise G. requested that the District make some deletions in the MDE before sending it to DVFS because she "was afraid that [Christen's] behavior would keep her out of Delaware Valley Friends." A:75-76; School Exhibit 25.

 Meanwhile, based on the May 17, 1993 MDE, a new IEP was developed which recommended that Christen be educated outside the school district at an approved private school beginning in ninth grade in September 1993. This IEP, dated June 11, 1993, further specified that the level of intervention which would be implemented for ninth grade at the approved private school would consist of full-time learning support for instruction as well as behavioral and emotional support. This IEP included similar provisions incorporated in earlier IEPs, as well as new provisions which were specifically designed to address Christen's ADHD. A behavior management program was also required. See School Exhibit 9.

 Louise G. attended an IEP review meeting and submitted additional comments on July 31, 1993, which were later incorporated into a revised IEP dated September 7, 1993. A:56, 89; Parent Exhibits 11, 17. However, Louise G. believed that Christen did not need emotional help and that the IEP was flawed in its inclusion of an emotional support component in Christen's education. A:89-91.

 Based on the June 11, 1993 IEP, Lower Merion issued a Notice of Recommended Assignment (NORA) dated July 7, 1993. This NORA recommended placement of Christen in a full-time learning support class outside regular school. Lower Merion subsequently identified three potential placements for Christen: The Wordsworth Academy, the Devereux Day School, and the Project School, which is operated by Montgomery County. Wordsworth Academy and the Devereux Day School were each certified by the State of Pennsylvania as an "approved private school" for placement of exceptional students.

 Louise G. made a phone call to each of these schools in July 1993. Based on these phone conversations, Louise G. concluded that each school provided a "therapeutic" environment oriented towards emotional support and that "in all three situations the population of students were students who were emotionally disturbed, that only 10 percent sounded like they might be like my daughter out of the population there, and that the kids had social and emotional difficulties." A:52. Louise G. also concluded that college attendance by students in these programs was "low." See id. Based on these conclusions, Louise G. believed that these schools were not appropriate placements for Christen. See id. Louise G. and Christen did not visit any of the three proposed placements or take any further steps in the admissions processes for these schools. A:93-96; School Exhibits 15-21. In testimony before this Court, Louise G. stated that she believed that her daughter needed an academic program that would prepare her for college, with emphasis on learning differences and not emotional problems.

 Louise G. communicated to Lawrence Sweigert, director of pupil services for Lower Merion School District, that she did not believe the proposed placements were appropriate. A:627. Louise G. also testified before this Court that Sweigert told her that those were the only schools that Lower Merion could offer.

 Correspondence between the recommended schools, Lower Merion, and Louise G. indicates that school officials expected to proceed with evaluation of Christen for admission. For example, the principal of Wordsworth Academy wrote Louise G. on August 11, 1993, stating that after review of Christen's records Wordsworth officials believed their program offered Christen an "excellent chance for success." School exhibit 18. The Wordsworth principal urged Louise G. to schedule an intake interview as soon as possible. See id. Sweigert testified that Lower Merion did not formally designate one of the three placements for Christen because Louise G. and Christen did not proceed with school interviews, and the schools wanted an opportunity to interview the student and parent before commenting "on their ability to implement a particular educational plan." A:623. Louise G. ultimately rejected the 1993-94 IEP because of the schools offered by Lower Merion. A:89. When asked at the administrative hearing which part of the IEP she disagreed with in addition to the recommended placements, Louise G. identified only the emotional development component of the IEP as another reason for her rejection, stating that she would have to "read the whole thing" to answer the question. A:91.

 In July 1993, Louise G. sent an additional $ 600.00 check to Delaware Valley Friends School, and Christen was subsequently enrolled as a full-time student for the 1993-94 school year.

 B. Delaware Valley Friends School

 As described supra, Delaware Valley Friends School (DVFS) is a private school for children with learning differences. Located in Bryn Mawr, Pennsylvania, the school has over 100 students among grades 7 through 12. See School exhibits 10, 11.

 DVFS materials describe the school's mission as follows:

 
The mission of Delaware Valley Friends School is to prepare students who have learning differences for future work and study. The school develops those personal strengths which enable students to succeed in its college preparatory curriculum. In keeping with Quaker beliefs and values, the school fosters a desire to learn, a spirit of creativity, a strong sense of self-worth, and a respect for the worth of others.

 Id. DVFS maintains that all of its graduates have been accepted into college, and often have a choice of which college they might attend. The DVFS materials also state that DVFS does not discriminate on the basis of sex, race, religion, sexual orientation, or on the basis of national or ethnic origin, in admissions and financial programs, in the administration of its educational program, or in employment policies. See id.

 The DVFS admissions process requires student and parent questionnaires and interviews, a complete and current psychological evaluation of the student, and the student's current school records. An admissions committee composed of board members, faculty and staff evaluate the student's admissability, which includes a decision as to whether the student's emotional or behavioral difficulties are such that the DVFS program cannot provide an appropriate education for that student. A:122-123. DVFS does not accept children with identified emotional problems. A:260.

 Once admitted, DVFS offers students a low student-to-teacher ratio of 4 to 10 students in each class and a variety of individualized instruction and assistance. DVFS develops and revises its own IEP. A:160. Teachers are certified in their content areas and continually trained by the school in learning styles and teaching strategies to address the learning differences of students, but teachers are not generally certified as special education teachers. A:120. DVFS provides extensive and varied feedback to students, including separate grades for "effort" as well as "in-house" grades every three weeks. Students are also educated in the nature of their disabilities and learning styles, and are encouraged to take responsibility for themselves. A:121, 154.

 DVFS is not certified by the State of Pennsylvania as an approved private school for public school placement of exceptional children. According to the testimony of Irene McHenry, who was head of DVFS since its founding in 1987 through the 1993-94 school year, DVFS is classified by the state of Pennsylvania as a non-public school with a religious affiliation. A:120. No students are funded by public monies, although DVFS does receive public funding for textbooks and for transportation of students within a 10-mile radius of the school. As a Friends School, 50% of the board members of DVFS must be Quakers. A:133, 136.

 A student's education at DVFS includes a mandatory weekly "meeting for worship." The structure of this meeting for worship is in accordance with Quaker religious practices, and is similar to the format used by Quaker religious groups in the Philadelphia area. As described by Ms. McHenry at the administrative hearing:

 
MCHENRY: The entire school community, including all faculty, staff, and students, gather together in one room and sit in silence for half an hour.
 
At the beginning of the year I explain to everyone that the purpose of that sitting is to get in touch with -the Quakers believe that there is that of God in every person. Sitting in silence is to be in touch with that of God or that inner spirit that is within each of us.
 
If someone feels moved by a matter of heart or a matter of conscience to speak out loud to the community in that spirit, that is acceptable during a meeting for worship.
 
Often the meeting is silent. Occasionally, a staff or faculty member or a student will speak to something that is important, issues like death and dying, AIDS, good sportsmanship, friendship, respect for people who are different, sometimes things that are happening in the world at large, such as when the Wall came down, the Persian Gulf War. Sometimes people speak about those things.
 
SCHOOL COUNSEL: Would you agree that the meetings are an integral part of the school culture?
 
MCHENRY: Yes.

 A:134-135. Ruth Greenberger, who is the current head of DVFS, testified in a deposition as follows:

 
SCHOOL COUNSEL: Now, the meetings that are held is (sic) held once a week?
 
GREENBERGER: Yes.
 
SCHOOL COUNSEL: Who attends?
 
GREENBERGER: All of the students and all of the faculty and staff.
 
SCHOOL COUNSEL: Is it mandatory?
 
GREENBERGER: Yes.

 Defendants' Proposed Findings of Fact and Conclusions of Law, Exhibit C, at 21.

 At the administrative hearing, Ms. McHenry stated that it was "unfortunate" that the word "parochial" was being used to describe DVFS. She stated that a Friends School does not have religion classes per se, and that "a mission of a Friends School is not to make someone a Quaker or specifically teach Quakerism." A:121-122. Ms. McHenry added:

 
MCHENRY: The mission of a Friends School is to model and teach good human values like integrity, honesty, responsibility, respect.
 
In our missions statement we say that one of our missions is to help people develop a sense of respect for themselves and for others, a sense of ...

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