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CHELTENHAM SCH. DIST. v. JOEL P.

December 24, 1996

CHELTENHAM SCHOOL DISTRICT, Plaintiff,
v.
JOEL P., a minor, by his parents and next friends, SUZANNE P. and ROBERT P., SUZANNE P., individually and on her own behalf, and ROBERT P., Defendants.



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 December 24, 1996

 Plaintiff Cheltenham School District ("Cheltenham") brought this action against Defendants Joel P. ("Joel"), a minor, and Suzanne P. and Robert P., Joel's parents, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. §§ 1400-1491o (West 1990 & Supp. 1996). Cheltenham seeks review under § 1415(e)(2) of a decision by the Special Education Due Process Appeals Review Panel of Pennsylvania ("Appeals Panel"), an administrative tribunal, in which the Appeals Panel ruled that Cheltenham must provide a special education Life Skills Support program for Joel within the Cheltenham school district. Cheltenham asks me to vacate the Appeals Panel's decision and reinstate the order of Special Education Hearing Officer Vernard M.W. Trent ("Hearing Officer Trent"), which approved placement of Joel in a Life Skills Support program but which did not identify any particular location for the placement. Cheltenham seeks to place Joel in an existing Life Skills Support program located in a nearby school district, rather than to create such a program within its own school district. Defendants ask me to affirm the decision of the Appeals Panel and require Cheltenham to create a Life Skills Support program for Joel within its own district.

 The IDEA provides a parent of a child with disabilities "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 public education to such child." 20 U.S.C.A. § 1415(b)(1)(E) (West 1990). Any parent making such a complaint must "have an opportunity for an impartial due process hearing" before a designated state educational agency. 20 U.S.C.A. § 1415(b)(2) (West 1990). The IDEA allows states to adopt a two-tiered level of agency review, § 1415(b)(2), (c), which Pennsylvania has done. "Any party aggrieved by the findings and decision" made by the state educational agency conducting or reviewing the due process hearing may bring a civil action in any competent state court or in federal court. 20 U.S.C.A. § 1415(e)(2) (West 1990).

 In reviewing the decision of the state educational agency (the Appeals Panel here), a district 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, shall grant such relief as the court determines is appropriate." 20 U.S.C.A. § 1415(e)(2). The Supreme Court has explained that § 1415(e)(2) allows a court to make "'independent decisions based on a preponderance of the evidence,'" Board of Educ. v. Rowley, 458 U.S. 176, 205, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982) (alteration in original) (quoting S. Conf. Rep. No. 455, 94th Cong., 1st Sess. 50 (1975), reprinted in 1975 U.S.C.C.A.N. 1480, 1503), but that in arriving at an independent decision, a court must give "due weight" to the administrative proceedings being reviewed, id. at 206. Courts may not "substitute their own notions of sound educational policy for those of the school authorities which they review." Id. Although the court must consider the administrative proceedings and give them due weight, it "is free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the Act." Oberti v. Board of Educ., 995 F.2d 1204, 1220 (3d Cir. 1993).

 Although I am reviewing the decision of the Appeals Panel and thus must give its findings due weight, I note that the issue involved in this action differs from the issue involved in the administrative proceedings. In the administrative proceedings, the question was whether Joel should be placed in a Life Skills Support program or remain in the Learning Support program that he is currently placed in. A review of the administrative record reveals no indication that the parties argued about the geographical location of the Life Skills Support program before Hearing Officer Trent or the Appeals Panel, nor have the parties shown me any evidence that geographical location was specifically at issue in the administrative proceedings. It appears that the Appeals Panel raised the issue sua sponte in ordering Cheltenham to provide the Life Skills Support program in its own district. Cheltenham appealed solely that portion of the Appeals Panel's ruling concerning the geographical location of the placement, and the parties have limited their arguments in this proceeding to that issue. *fn1" For purposes of this appeal, both parties accept the decisions of Hearing Officer Trent and the Appeals Panel that Joel's appropriate placement is in a Life Skills Support program. Thus, much of the evidence pertinent to the resolution of this case has been presented for the first time in these judicial proceedings.

 After consideration of the records from the administrative proceedings, presentation of additional evidence by both parties at a bench trial held on December 17, 1996, and the parties' pretrial and trial memoranda, I make the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. Joel is a nine-year-old child who was born on March 20, 1987 and who has Down's Syndrome. Pl.'s Ex. 2, at 682; Pl.'s Ex. 3, at 689; Pl.'s Ex. 5, at 698.

 2. Joel resides in the Cheltenham School District and currently attends Wyncote Elementary School in the District. Pl.'s Ex. 3, at 689.

 3. Joel has been placed in a special education Learning Support program since first grade. *fn2" Pl.'s Ex. 2, at 682; Pl.'s Ex. 3, at 689.

 4. Joel is now in his fourth year with the Cheltenham School District, which would chronologically place him in the fourth grade, although he is not actually placed in a grade in the Learning Support program. Testimony of Carol Giersch, Local Education Agency Representative (Special Education), December 17, 1996.

 5. At a meeting held on June 13, 1995, in which Alice W. Johnson, Ed.D., Director of Pupil Services; Ken Roos, Esq., attorney for Cheltenham; Carol Giersch, L.E.A. Representative; Paul Ferrer, Ed.D., Psychologist; Karen Tecosky, Joel's Teacher; Catherine Feskanin, Language Therapist; Elaine Hrynko, School Nurse; Robert Prince, Joel's parent; and Robin M. Torrence, MH/MR Case Manager participated, an Individualized Education Program ("IEP") was proposed in which Joel would be placed in a Life Skills Support program, a different special education program than the Learning Support program he was currently enrolled in. Pl.'s Ex. 5, at 698-706.

 6. Cheltenham does not operate a Life Skills Support program within its own district. Pl.'s Ex. 2, at 9; Testimony of Charles Stefanski, Superintendent of Cheltenham, December 17, 1996.

 7. By a separate letter dated June 20, 1995, Alice W. Johnson, Ed.D., Director of Pupil Services, informed Suzanne P. that the IEP team recommended placing Joel in a full-time Life Skills Support program in a neighboring school district. Copies of the proposed IEP and Notice of Recommended Assignment ("NORA") were enclosed, and Suzanne P. was asked to indicate on the NORA her approval or disapproval of the IEP. Pl.'s Ex. 35, at 842; Pl.'s Ex. 36, at 843; Pl.'s Ex. 4, at 696-97.

 8. Suzanne P. signed the NORA on July 1, 1995, and indicated that she disapproved the proposed IEP and requested a due ...


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