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D.S. v. Bayonne Board of Education

April 22, 2010


On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 2:08-CV-01726) Honorable William J. Martini, District Judge.

The opinion of the court was delivered by: Greenberg, Circuit Judge


Submitted March 9, 2010




This matter comes on before this Court on an appeal from an order of the District Court, entered on November 19, 2008, terminating the obligation of Appellee Bayonne Board of Education ("Bayonne") to pay the tuition of Appellants' son D.S. at the Banyan School, a private school for learning disabled children in Little Falls, New Jersey, and denying Appellants' motion for attorney's fees, costs, and interest. The District Court's order reversed a decision of a New Jersey administrative law judge ("ALJ") who held Bayonne liable for the cost of D.S.'s tuition at the Banyan School. The ALJ ordered relief because of her conclusions that Bayonne had failed to provide D.S. with a free and appropriate public education during the 2006-2007 school year in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and that D.S.'s placement at the Banyan School would satisfy the IDEA. The District Court adjudicated the case on the record compiled before the ALJ but reached a conclusion opposite of that of the ALJ as the Court believed that Bayonne had provided D.S. with a free and appropriate public education. For the reasons that follow, we will reverse the order of the District Court and will reinstate the decision of the ALJ. We will provide, however, that the Court on remand determine the details of the relief to be granted to Appellants.


Before setting forth a detailed analysis of the proceedings and evidence and addressing Appellants' claims on the merits, we will outline the framework of the IDEA pursuant to which states provide education to children with disabilities.

A. Statutory Framework

The IDEA requires that states to receive federal education funding make available a free and appropriate public education to all children with disabilities residing within their borders. 20 U.S.C. § 1412(a)(1). In particular the IDEA specifies that the education the states provide to these children "specially [be] 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." Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 3042 (1982) (internal quotation marks omitted). Although a state is not required to supply an education to a handicapped child that maximizes the child's potential, it must confer an education providing "significant learning" and "meaningful benefit" to the child. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). Thus, "the provision of merely more than a trivial educational benefit" is insufficient. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006) (quoting T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 3d Cir. (2000) (internal quotation marks omitted)). In addition to establishing educational standards, the IDEA includes a "mainstreaming" component requiring the placement of a student with disabilities in the least restrictive environment that will provide the child with a meaningful educational benefit. Id.

The IDEA contemplates that school districts will achieve these goals by designing and administering a program of individualized instruction for each special education student set forth in an Individualized Education Plan ("IEP").

20 U.S.C. §§ 1412(a)(4), 1414(d). The IEP is so significant that the courts have characterized it as the "centerpiece" of the IDEA's system for delivering education to disabled children. Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 598 (1988)). "An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services." Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000) (citing 20 U.S.C. § 1401(a)(20)). A team consisting of the student's parents and teachers, a curriculum specialist from the local school district, and, if requested, a person with special knowledge or expertise regarding the student must develop an IEP. 20 U.S.C. § 1414(d)(1)(B). The IEP team will review the IEP at least annually to determine whether the stated goals for the student are being achieved. 20 U.S.C. § 1414(d)(4). When appropriate the team will revise the IEP to address, among other things, lack of progress, necessary changes arising from reevaluation of the child, and parental input. 20 U.S.C. § 1414(d)(4).*fn1

Though the IEP must provide the student with a "basic floor of opportunity," it need not necessarily provide "the optimal level of services" that parents might desire for their child. See Holmes, 205 F.3d at 590 (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34 (3d Cir. 1995)). Nevertheless, "at a minimum, '[t]he IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential.'" Chambers v. Philadelphia Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009) (quoting Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)). When a state is unable to provide a free and appropriate public education to a child but a private school can provide that education, the state must reimburse the child's parents for the private school costs. Ramsey Bd. of Educ., 435 F.3d at 389-90 (citing Kingwood Twp. Bd. of Educ., 205 F.3d at 577).

If parents believe that an IEP fails to provide their child with a free and appropriate public education, they may challenge the IEP in an administrative proceeding. 20 U.S.C. § 1415(b)(6). But in the apparent interest of minimizing the stress and expense of an adjudicatory administrative proceeding, New Jersey requires parents and a school board disputing the adequacy of an IEP initially to mediate their dispute. Then, if mediation is unsuccessful, there will be a "due process hearing" held before an ALJ to seek a resolution of their dispute. Shore Reg'l High Sch. Bd. of Educ., 381 F.3d at 198. At an administrative hearing challenging an IEP, the party seeking relief bears the burden of proof.*fn2 Ramsey Bd. of Educ., 435 F.3d at 392 (citing Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 537 (2005)). A party to the due process hearing aggrieved by its outcome has the right to bring a civil action challenging the decision in any state court of competent jurisdiction or in a federal district court, without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2).

B. Factual Background

When D.S. was six years old, he began to suffer from epileptic seizures attributable to brain tumors. The treatment for the seizures included the use of large quantities of anti-epileptic medicine. Unfortunately D.S.'s condition and treatment combined to place severe limits on his cognitive abilities as demonstrated by the circumstance that he had a full scale IQ within the mentally retarded range. D.S. began attending Bayonne public schools in the second grade. After D.S. repeated the second grade, Bayonne classified him as "other health impaired" and provided him with a special education program in the third grade during the 2000-2001 school year. D.S. underwent brain surgery in 2001 and 2003, in which the tumors were removed successfully. D.S.'s seizures abated completely following the 2003 operation allowing him to cease taking preventive medication. As a result, although he still suffered from significant learning difficulties, his condition improved. Thereafter D.S. remained a student in the Bayonne schools into the ninth grade during the 2006-2007 school year. At that level the Bayonne schools placed D.S. in the school's self-contained "cluster" program in which special education teachers educate special education students in a classroom environment distinct from that of the general student population.

1. Report of Neuropsychologist Maria DiDonato

Notwithstanding D.S.'s placement in the cluster program, Appellants obviously were dissatisfied with D.S.'s progress in the Bayonne schools for they retained the services of several professionals to evaluate D.S. for a better understanding of his educational needs and abilities. Thus in April and May of 2006, they retained a neuropsychologist, Dr. Maria DiDonato, to administer a series of aptitude and achievement tests to D.S. while he was in the eighth grade. Based on an evaluation of D.S.'s cognitive reasoning skills using the Wechsler Intelligence Scale for Children IV ("WISC IV"), DiDonato determined that D.S. had a full-scale IQ score of 81, within the low average range of intellectual functioning, signaling that his intellectual capacity had improved following the surgeries. Nevertheless, D.S. evidenced below grade level achievement and in the Wechsler Individual Achievement Test II ("WIAT") scored at the 6.6 grade level for basic reading skills, the 4.2 grade level for reading comprehension, the 7.2 grade level for numerical operations, the 5.4 grade level for math reasoning, the 5.5 grade level for spelling, and the 6.2 grade level for written expression.

DiDonato also administered the Standard Reading Inventory-Second Edition test to D.S. which yielded results indicating that his reading comprehension skills were at the third-grade level and showed that he experienced fourth-grade level frustration when reading. In addition, DiDonato determined, based on answers that D.S. and his parents supplied in response to a behavioral health questionnaire, that D.S.'s emotional health reflected clinically significant signs of withdrawal, problems with attitude towards his school and teachers, and internalization of problems causing feelings of depression and inadequacy.

Predicated on these evaluations, DiDonato recommended, inter alia, moving D.S. away from distracting stimuli during instruction, providing written instructions verbally as well as on the blackboard, using repetition and overlearning of novel information, rephrasing or representing information in different words when there is evidence that D.S. might not understand what is being asked or presented, using multi-sensory instruction whenever possible, breaking assignments into shorter tasks, teaching encoding strategies such as mnemonics and "chunking," allowing extra time for tests, and, when possible, giving tests orally.

2. Report of Speech-Language Pathologist Inna Levine

DiDonato referred D.S to a speech-language pathologist, Inna Levine of the Robert Wood Johnson University Hospital. Levine examined D.S. in June of 2006, administering a series of tests to determine his strengths and weaknesses in a variety of linguistic tasks. The results of these tests led Levine to conclude that although D.S. displayed strengths in a number of areas-including comprehension of direct commands, practical verbal reasoning, problem solving, sentence comprehension, and spelling-he had significant problems understanding oral communications consisting of more than a sentence or two. Levine found that D.S. struggled in that function to such an extent that he was unable to process and retain any information presented in a short one-paragraph narrative of ...

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