United States District Court, E.D. Pennsylvania
April 17, 2003
GREGORY R., a minor by and through his parents, Gregory R. and Marion R., and GREGORY R. and MARION R., individually and on their own behalf, Plaintiffs,
THE PENN DELCO SCHOOL DISTRICT, Defendant.
The opinion of the court was delivered by: J. CURTIS JOYNER, Judge
MEMORANDUM AND ORDER
Presently before the Court are the Cross-Motions for Summary Judgment
of Defendant Penn Delco School District ("District") and of Plaintiffs
Gregory R., a minor by and through his parents, and Marion R. and Gregory
R., individually and on their own behalf. In this case, Plaintiffs
brought claims for compensatory education, tuition reimbursement and
[262 F. Supp.2d 490]
monetary damages for the District's failure to provide a "free
appropriate public education" as required by the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.A. §§ 1400 et seq.
Plaintiffs bring this action under IDEA, Section 504 of the
Rehabilitation Act, and 42 U.S.C. § 1983. For the reasons that
follow, the Court will grant Defendant's motion for summary judgment and
deny Plaintiffs' motion for summary judgment.
Gregory R. is a child with disabilities under the IDEA. He resides with
his parents in the Penn Delco school district. In 1995-96, Gregory
attended kindergarten and the first half of first grade at a private
school. Delaware County Intermediate Unit ("DCIU") had been providing
Gregory with speech and language therapy since June 1994.
At the parents' request, the District evaluated Gregory and found him
to be eligible for special education services. On November 27, 1996, the
District developed an Individualized Educational Program ("IEP") and a
Notice of Recommended Educational Placement ("NOREP"). The parents
approved the IEP and NOREP and enrolled Gregory for the second half of
first grade in a district school, Aston Elementary.
Dissatisfied with Gregory's progress at Aston Elementary, the parents
unilaterally placed Gregory in Centreville School, an independent special
education day school, at the start of the 1997-98 school year. Gregory
attended Centreville School from second grade (1997-98) through sixth
On October 31, 2000, the parents contacted the District's director of
special education to initiate discussions about middle school. At a
meeting on November 28, 2000, the parents orally requested that District
support Gregory's tuition at the Centreville School. On April 25, 2001,
the parents made a written request for an evaluation for special
education services. Due to inexcusable delay, the District did not
prepare and develop an IEP and NOREP until April 18, 2002. On May 14,
2002, the parents rejected the IEP and requested a due process hearing.
Until this time, the parents had not expressed any dissatisfaction to the
District regarding Gregory's IEP or his education.
At the administrative hearing, the state hearing officer found the
proposed IEP inappropriate and granted tuition reimbursement for the
2001-02 school year and 2001 summer school. The hearing officer,
however, denied relief prior to the 2001 school year. On November 12,
2002, the state Appeals Panel affirmed the hearing officer's
Plaintiffs bring this action claiming that federal law in this Circuit
justifies granting further relief prior to the 2001-02 school year.
Defendant now moves for summary judgment, claiming that there are no
genuine issues of material fact and that it is entitled to judgment as a
matter of law. Plaintiffs also filed a motion for summary judgment.
I. Legal Standard
In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a
court must determine "whether there is a genuine issue of material fact
and, if not, whether the moving party is entitled to judgment as a matter
of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.
1999) (internal citation omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn therefrom, in the
light most favorable to the non-moving party. See, e.g., Matsushita
[262 F. Supp.2d 491]
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). For its
part, the non-moving party must, through affidavits, admissions,
depositions, or other evidence, demonstrate that a genuine issue exists
for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In
making its showing, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts," id. at
586, and must produce more than a "mere scintilla of evidence in its
favor" to withstand summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). If the non-moving party fails to create
"sufficient disagreement to require submission [of the evidence] to a
jury," the moving party is entitled to judgment as a matter of law.
Liberty Lobby, 477 U.S. at 251-52.
II. Plaintiffs' IDEA Claims
Plaintiffs allege that the District failed to provide nondiscriminatory
and appropriate education under IDEA. Plaintiffs seek tuition
reimbursement, compensatory education and monetary damages for the
District's alleged violations from September 1996 through June 2001.
1. Retroactive Tuition Reimbursement Claim
Defendant argues that an equitable time limitation in which to initiate
administrative proceedings bars Plaintiffs from additional tuition
reimbursement before June 2001. "As a practical reality, and as a matter
of procedural law . . . the right of review contains a corresponding
parental duty to unequivocally place in issue the appropriateness of an
IEP. This is accomplished through the initiation of review proceedings
within a reasonable time of the unilateral placement for which
reimbursement is sought. We think more than two years, indeed, more than
one year, without mitigating excuse, is an unreasonable delay."
Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 (3d Cir. 1994).
"Absent initiation of review proceedings within a reasonable time of a
unilateral decision to transfer a child to a private institution, a
school district would not know to continue to review and revise an IEP."
The School District issued an IEP on April 18, 2002. Gregory's parents
subsequently rejected the IEP and timely requested a due process hearing
on May 14, 2002. Before the request for an administrative hearing, the
parents had not squarely placed the appropriateness of an IEP in issue. In
balancing the equities, however, we find that the District unreasonably
delayed the initiation of review proceedings by issuing the IEP
approximately one year after the parents made their written request.
Because we find the District's dilatory carelessness to be a mitigating
excuse, as did the state hearing officer, we agree with the
administrative award for tuition reimbursement for the 2001-02 school
year and for one year of Extended School Year summer school/tutoring
during the 2001-02 school year.
Although we find a mitigating excuse, we disagree with Plaintiffs'
contention that there are "extraordinary circumstances" that favor
extending the tuition reimbursement award back to the 1997-98 school
year. Plaintiffs Brief at 42. We also find that any tuition reimbursement
award springing from the 1996 IEP would be unreasonable because using the
May 2002 hearing to review the appropriateness of the 1996 IEP would
clearly be inappropriate and untimely. Therefore, we deny Plaintiffs'
claim for further relief in the form of retroactive tuition reimbursement
for the school years prior to June 2001.
[262 F. Supp.2d 492]
2. Compensatory Education Claim
Plaintiffs argue that Ridgewood Bd. of Ed. v. N.E. for M.E., 172 F.3d 238
(3d Cir. 1999) and M.C. on Behalf of J.C. v. Cent. Reg'l Sch. Dist.,
81 F.3d 389 (3d Cir. 1996), provide the proper Third Circuit standard for
compensatory education claims. Plaintiffs distinguish between parental
rights to tuition reimbursement and a child's right to compensatory
education as a result of being deprived of a free appropriate public
education. Plaintiffs contend that under Ridgewood, Third Circuit
precedent does not impose a statute of limitations on a disabled child's
compensatory education claim during the child's minority. Defendant
maintains that Bernardsville continues to control in both tuition
reimbursement and compensatory education claims. Even under the standard
articulated by Ridgewood, however, we find that Plaintiff Gregory is not
entitled to compensatory education prior to June 2001.*fn1
"Under IDEA, a disabled student is entitled to a free appropriate
education until the student reaches age twenty-one." Ridgewood, 172 F.3d
at 249. "An award of compensatory education requires a school district to
provide education past a child's twenty-first birthday to make up for any
earlier deprivation." M.C., 81 F.3d at 395. Compensatory education, like
retroactive tuition reimbursement, requires "school districts to
belatedly pay expenses that [they] should have paid all along." Id.
(quoting Sch. Comm. of Burlington v. Dep't of Ed., 471 U.S. 359, 370-71
"[T]he denial of an appropriate education and not merely the
denial of an appropriate IEP creates the right to compensatory
education." Ridgewood, 172 F.3d at 250. "Therefore, a disabled student's
right to compensatory education accrues when the school knows or should
have known that the student is receiving an inappropriate education."
In Ridgewood, the Third Circuit remanded to the District Court "to
determine whether the child received an appropriate education in each
school year, and if it concludes he did not, determine when Ridgewood
knew or should have known of that fact." Ridgewood, 172 F.3d at 251.
Plaintiffs argue that Gregory was denied a free appropriate education
because the District violated its "child find" obligations and failed to
continually offer IEPs. As a threshold matter, based on a thorough review
of the record, we find no showing that Gregory received an inappropriate
education during the school years at issue. First, we find that there was
no violation of "child find" obligations because Gregory was properly
located and evaluated through DCIU and subsequently, through the
District's November 27, 1996 IEP. Second, we find that the District did
not violate IDEA by failing to continually offer IEPs. Plaintiffs'
reliance on OSEP Memorandum 00-14 is misplaced. Even according to OSEP
Memorandum 00-14, Question 9, which in turn relies on
34 C.F.R. § 300.536, periodic reevaluation requirements would not
apply in this case because "before additional assessments are conducted,
parents must give informed consent." Memorandum 00-14 from Kenneth
[262 F. Supp.2d 493]
R. Warlick, Director of Office of Special Education Programs, to Chief
State School Officers (May 4, 2000). In addition, reevaluations are
required "if conditions warrant a reevaluation, or if the child's parent
or teacher requests a reevaluation." Id. The record does not indicate that
the conditions warranted reevaluation, that the parents gave informed
consent for reevaluation, or that the parents requested a reevaluation
until April 2001 after initiating discussions for middle school.
Therefore, we find that there were no violations of IDEA based on
Plaintiffs' "child find" obligation and failure to continue to offer IEP
Even assuming arguendo that Gregory's education was found inappropriate
during the school years in question, we find that the District did not
know or should have known of that fact. The District had provided
Plaintiffs with an IEP on November 27, 1996 but the parents did not
object or complain. The record indicates that the parents unilaterally
removed Gregory from the school district at the end of the 1996-97 school
year and placed him in a private school. The parents neither challenged
the IEP nor indicated that Gregory's education was inappropriate. We note
that "mere notice of parental `dissatisfaction' does not alone put the
Board on reasonable notice that the parents will challenge a particular
IEP in the future." Bernardsville, 42 F.3d at 158. Parents simply claim
in their motion that they transferred Gregory because they were
dissatisfied with the District's IEP and Gregory's lack of progress. In
this case, however, even mere notice of parental dissatisfaction with the
1996 IEP or Gregory's education is conspicuously absent up until the
request for a due process hearing in May 2002. The parents' unilateral
transfer of the child without a stated reason or any expression of
dissatisfaction in any form does not put the District on reasonably
adequate notice that it knew or should have known that Gregory was not
receiving an appropriate education. Thus, even if Gregory was not
receiving an appropriate education, the record does not indicate that the
District knew or should have known of that fact. Therefore, we find that
the District did not know or should have known that Gregory was receiving
an inappropriate education from September 1996 through June 2001.
3. Monetary Damages
Since we find no violation of IDEA for the time period at issue, we
also deny Plaintiffs' claims for monetary damages. Similarly, we deny the
claims under 42 U.S.C. § 1983; 42 U.S.C. § 1985; § 504 of the
Rehabilitation Act; and the Fourteenth Amendment of the Constitution.
Therefore, since this Court finds that there is no genuine issue of
material fact and that Defendant is entitled to judgment as a matter of
law, we will grant Defendant's Motion for Summary Judgment and deny
Plaintiffs' Motion for Summary Judgment. Although Plaintiffs' claims
after June 2001 are not at issue in this case, we agree with the
administrative award granted by the state hearing officer and affirmed by
the state appeals panel.
An appropriate Order follows.
AND NOW, this 17th day of April, 2003, upon consideration of Defendant
Penn Delco School District's Motion for Summary Judgment (Document No. 8)
and Plaintiff's Cross-Motion for Summary Judgment (Document No. 11) and
the responses thereto, it is hereby ORDERED that, for the reasons set
forth in the accompanying Memorandum, it is hereby ORDERED as follows:
1) Defendant's Motion for Summary Judgment is GRANTED; and
2) Plaintiffs' Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that JUDGMENT is ENTERED in the above action for
Defendant and against Plaintiffs.