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C.H. v. Cape Henlopen School District

May 25, 2010


On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-07-cv-00193) District Judge: Honorable Mary Pat Thynge.

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


Submitted Pursuant to Third Circuit LAR 34.1(a) April 12, 2010.

Before: FISHER, HARDIMAN and COWEN, Circuit Judges.


This appeal arises from an order of the District Court, entered July 22, 2008, granting summary judgment in favor of the Cape Henlopen School District (the "District") and denying appellants' claim for reimbursement of private school tuition and other related costs for their disabled child under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. Appellants claim that the District's failure to have an individualized educational program (IEP) in effect for their child on the first day of classes warranted their unilateral decision to remove their child from the public school and place him in a private residential school for students with disabilities. Because procedural violations of the IDEA do not merit tuition reimbursement absent a showing of substantive harm, and because unreasonable parent conduct warrants equitable reduction of an award under the IDEA, we will affirm the order of the District Court.


Plaintiff, C.H., was a minor child during the 2006-2007 school year.*fn1 C.H. has been diagnosed with dyslexia, dysgraphia, and a severe language disorder and may also suffer from Attention Deficit Hyperactivity Disorder (ADHD) and a central auditory processing disorder. C.H. has thus been identified as a child with a learning disability under 20 U.S.C. § 1401 and 29 U.S.C. § 705 since the 1998-1999 school year. In the relevant time period, C.H. and his parents resided in the Cape Henlopen School District.

The dispute between C.H.'s parents (the "Parents")*fn2 and the District over the provision of adequate educational resources for C.H. is longstanding. Since 2000, the Parents have unilaterally withdrawn C.H. from the District and placed him in private school on two separate occasions -- once in 2002 and again in 2004. In both instances the Parents sought reimbursement from the District for private school tuition and in both instances the District opposed reimbursement. Ultimately, the District and the Parents entered into a Settlement Agreement regarding only the 2005-2006 school year under which the District agreed to pay C.H.'s tuition and certain educational costs at the Gow School, a private residential school for boys with language-based learning disabilities. The Agreement provided that the placement was the sole decision of the Parents, that the District's tuition obligations pertained only to the 2005-2006 year, and that the District was under no obligation to monitor C.H.'s performance or develop an IEP for C.H. while he was enrolled at the Gow School.

During the 2005-2006 school year, the Parents discussed with the District C.H.'s potential return to the District for the following year and the need to develop an IEP for C.H. However, the Parents never definitively stated that C.H. would return to the District for the 2006-2007 school year, and had in fact already enrolled C.H. in the Gow School for the 2006-2007 school year as of March 2006. Despite this uncertainty, the District determined that it should evaluate C.H. and develop an IEP in the event C.H. returned to the District. Accordingly, in May 2006, the District sought authorization from the Parents to evaluate C.H. The Parents returned the initial permission form without properly checking the box authorizing the evaluation. The District notified the Parents of this oversight and obtained the properly executed authorization on July 6, 2006. A District Psychologist contacted the Parents on July 24, 2006, to schedule the evaluation. The Psychologist evaluated C.H. on August 7 and 14, 2006, and completed an evaluation report on August 15, 2006.*fn3

On August 18, the District sent a notice to the Parents that an IEP team meeting was scheduled for August 22 to review the results of the evaluation and to develop or revise an IEP for C.H. Although the notice came less than ten days before the meeting, in violation of the IDEA notice requirements, C.H.'s mother signed a written waiver of the notice requirement in order to permit the meeting to proceed.

The IEP meeting took place as scheduled on August 22 with C.H.'s mother in attendance. The District Psychologist reviewed his findings and concluded that C.H. remained eligible for special services. However, because of scheduling conflicts of certain members of the IEP team, the meeting concluded before C.H.'s IEP was finalized. Although the District expressed its willingness to promptly schedule a continuation of the meeting, C.H.'s mother indicated that her travel schedule made her unable to meet again until after the start of the 2006-2007 school year. The District proposed that the meeting be continued on September 11, 2006, five days after the first day of classes in the District. C.H.'s mother stated that she had a scheduling conflict with the proposed date, but agreed to tentatively schedule the meeting for September 11. She testified that she anticipated notice of the rescheduled meeting. The District did not send the Parents a written notice confirming the continuation of the IEP meeting.

C.H. did not report to class in the District on the first day of the public school year, September 6, 2006. Rather, his Parents had unilaterally chosen to have him begin classes at the Gow School on September 5, 2006. The Parents did not notify the District at any point in advance of placing C.H. in the Gow School that they intended to seek reimbursement for his tuition from the District.

On September 7, 2006, one day after the start of District classes, the Parents filed a request for a due process hearing before the Department of Education Hearing Panel (the "Hearing Panel"). Despite this due process request, the District intended to proceed with the September 11 meeting. On September 8, the District sent a letter to the Gow School inviting a representative to participate in person or by conference call. C.H.'s mother was sent a copy of this letter. On the morning of September 11, approximately one hour before the scheduled meeting time, the District received a phone call from the Gow School indicating that its representative would not participate in the meeting because C.H.'s mother had informed them that she would not be attending. The Parents later advised the District that, in light of their due process complaint, they would no longer participate in IEP meetings with the District. Additionally, the Parents refused to give the District permission to conduct a speech and language evaluation of C.H., which was necessary in order to develop his IEP.

The Hearing Panel convened in December 2006 to consider the Parents' due process complaint. As the Hearing Panel parsed it, the Parents raised five claims. The first four the Panel treated as alleged procedural violations: the District failed to develop an IEP during the 2005-2006 year while C.H. was at the Gow School, the District failed to provide an IEP for the 2006-2007 year as of the first day of the school year; the District failed to provide the required ten-day notice of the proposed IEP meetings; and the District failed to provide the speech and language evaluation necessary to develop an IEP. The final claim the Panel treated as substantive: the District failed to review and consider the appropriate documentation of C.H.'s performance in conducting his psychological evaluation. As a remedy, the Parents sought the full cost of tuition and all related costs for C.H.'s enrollment in the Gow School for the 2006-2007 school year.

The Hearing Panel conducted a two-day evidentiary hearing, which included testimony from the District Supervisor of Special Programs, the District Psychologist, the Cape Henlopen Principal, the District Special Education Coordinator, the Director of the middle school at Gow School, the Director of the upper school at Gow School, and the District Supervisor of Instructional Support for Special Programs. C.H.'s mother also testified.

Prior to the inception of the hearings, and again in between the two days of testimony, the Parents sought the recusal of the members of the Hearing Panel based on allegations of bias and the Panel members' supposed inability to understand the IDEA. Each member of the Panel considered the recusal request and determined that he/she was not biased and could ably render a decision in the matter.

On January 6, 2007, the Panel issued its decision. The Hearing Panel concluded that all of the Parents' claims -- both procedural and substantive -- failed under the IDEA because the alleged deficiencies on the District's part did not act to deprive C.H. of a free and appropriate public education.

On April 5, 2007, the Parents filed a Complaint in the United States District Court for the District of Delaware seeking review of the Hearing Panel decision.*fn4 The parties filed cross- motions for summary judgment. The District Court granted summary judgment to the District and denied summary judgment to the Parents, joining in the reasoning of the Hearing Panel and noting that the Parents' conduct in delaying and then refusing to participate in the IEP meetings, and subsequent refusal to authorize the speech and language evaluation, was a substantial contributing factor to any alleged delays in the IEP development. This timely appeal followed.


The District Court had jurisdiction pursuant to 20 U.S.C. ยง 1415(i)(2)(A). We have jurisdiction ...

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