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J.K., et al. v. the Council Rock

December 14, 2011

J.K., ET AL.

The opinion of the court was delivered by: Dalzell, J.


Plaintiff J.K. and her parents, M.K. and F.K., bring this suit against the Council Rock School District ("Council Rock" or "the District"), alleging claims under the Individuals with Disabilities Education Improvement Act (the "IDEA" or "Act"),*fn1 20 U.S.C. §§ 1400, et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 729, as well as under the state common law of contract. The plaintiffs assert three causes of action: (1) failure to provide J.K. a free and appropriate education ("FAPE") in violation of 20 U.S.C. §§ 1412(a), 1414(d), and 1415(j); (2) violation of § 504 of the Rehabilitation Act (codified at 29 U.S.C. § 729); and (3) a state-law claim for breach of contract arising out of the alleged breach of a settlement agreement between the parties. With respect to all three claims, plaintiffs urge the reversal of a decision issued on November 16, 2010 by Special Education Hearing Officer William F. Culleton, Esq. in which Hearing Officer Culleton declined to enforce the parties' agreement and ruled that the District had provided J.K. with a FAPE. Plaintiffs also ask that the Court assert jurisdiction over their breach of contract claim.

Plaintiffs have filed a motion for judgment on the administrative record, as to which Council Rock has filed a response in opposition, and plaintiffs have filed a reply in support. Because plaintiffs not only seek review of Hearing Officer Culleton's ruling, but an independent exercise of our jurisdiction over their contract claim, we must apply a summary-judgment standard to this latter claim and thus plaintiffs' motion has a hybrid character. For the reasons explained below, we will deny plaintiffs' motion and instruct the parties to brief us on the continued viability of plaintiffs' claims.

I. Factual Background

Our Court of Appeals has characterized "the burden of proof that a District Court must apply when an IDEA decision by a state agency is challenged [as] unusual," explaining that Although the District Court must make its own findings by a preponderance of the evidence, the District Court must also afford due weight to the [hearing officer's] determination. Under this standard, factual findings from the administrative proceedings are to be considered prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why. In addition, if a state administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contradictory testimony of another witness, that determination is due special weight. Specifically, this means that a District Court must accept the state agency's credibility determinations unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.

Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (emphasis in original) (quotation marks, brackets, and citations omitted). "A federal district court reviewing the administrative fact finder in the first instance is similarly required to defer to the [hearing officer's] factual findings unless it can point to contrary non-testimonial extrinsic evidence on the record." S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). Finally, "we must view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." D.R. v. East Brunswick Bd. of Educ., 109 F.3d 896, 898 (3d Cir. 1997) (quotation marks and citations omitted).

As noted, however, plaintiffs not only challenge Hearing Officer Culleton's decision but also independently seek to enforce a settlement agreement with the District. The proper standard to apply to such a motion is what we use for summary judgment. Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011). In evaluating a Rule 56 motion, we "'must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence.'" Eisenberry v. Shaw Bros., 421 Fed. Appx. 239, 241 (3d Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

With respect to plaintiffs' challenge to the state educational agency's decision, we must accord deference to Hearing Officer Culleton's findings of facts. As for plaintiffs' breach of contract claim, we will consider only the undisputed facts and those factual allegations that the parties support with citations to the record. We will thus recite the facts of this case in three parts: (1) the parties' stipulated facts; (2) Hearing Officer Culleton's factual findings; and (3) plaintiffs' additional supported factual allegations. While this method of presenting the facts sacrifices some narrative coherence, it will ease the task of applying differing standards to plaintiffs' motion.

A. The Stipulated Facts

J.K. is a student with a learning disability who is eligible for special education services under the IDEA; M.K. and F.K. are her parents. Stip. of Facts ¶¶ 1-2. Council Rock is a public school district established under the Pennsylvania School Code that is the local educational agency ("LEA") responsible for providing J.K. with a FAPE under the IDEA. Id. ¶ 3.

Though the parties appear to have a history that precedes 2009, they begin their story on January 25, 2009, when the District produced a re-evaluation report of J.K. that summarized her many previous evaluations and identified her educational needs. Id. ¶ 5. At some point, J.K. had been "placed" at The Quaker School at Horsham,*fn2 a private school specializing in the education of children with learning disabilities. Id. ¶ 6. On March 23, 2009, a meeting regarding J.K.'s individualized education program ("IEP") "was convened" at which the "IEP team"*fn3 presented M.K. and F.K. with a proposed IEP that would return J.K. to the District and place her at either a middle school or a high school within the District. Id. ¶ 7.

The parties did not reach an agreement at that meeting as to a placement and program for J.K., so J.K.'s parents enrolled her at The Lewis School, a private school in Princeton, New Jersey specializing in the education of children with various learning disabilities. The parties did agree, however, to attend a resolution meeting to resolve their disagreements as to J.K.'s placement and program. Id. ¶¶ 8-9.

The resolution meeting convened on July 15, 2009, "facilitated by a former special education hearing officer, Dr. Max Wald." Id. ¶ 10. The meeting resulted in an agreement between the parties providing that J.K. would be placed in The Lewis School for the 2009-2010 school year. Id. J.K. attended this school during that year. Id. ¶ 11.

Around December 18, 2009, in the absence of any communication from the District, J.K.'s parents contacted the District's Director of Special Education to inquire about the scheduling of another IEP meeting. Id. ¶ 12. An IEP meeting then convened on January 21, 2010, at which District personnel proposed a re-evaluation of J.K. to explore whether she should be identified as a student with mental retardation instead of her long-standing identification as a student with learning disabilities. Id. ¶ 13. Though the meeting focused on this proposed re-evaluation, the parties did not reach an agreement as to whether such a re-evaluation was needed. Id. ¶¶ 13-14. Four days later, the District sent M.K. and F.K. a request for permission to evaluate J.K. Id. ¶ 15.

At the completion of the "agreed upon observations of J.K." -- a term that the parties do not define, but which does not appear to include the District's proposed evaluation -- a second IEP meeting occurred on March 15, 2010. Id. ¶ 16. On March 17, 2010, the parents e-mailed Dr. Charles Lambert, the District's Director of Special Education, to express concerns about the IEP process. Id. ¶ 17. The District then sent to the parents an amended permission to evaluate form on March 31, 2010, which they signed and returned to the District. Id. ¶¶ 18.

On April 8, 2010, M.K. and F.K.'s counsel sent a letter to counsel for the District that raised concerns about the District's request for permission to evaluate J.K., and on May 19, 2010, M.K. and F.K. filed a due process complaint pursuant to 20 U.S.C. § 1415(f). Id. ¶¶ 19-20. Another IEP meeting nonetheless occurred on July 14, 2010 at which the District proposed an IEP for J.K. for the 2010-2011 school year. M.K. and F.K. rejected that proposal. Id. ¶ 21. A due process hearing convened before Hearing Officer Culleton on August 12, 2010 and concluded, after three sessions, on October 29, 2010. Hearing Officer Culleton issued his decision on November 16, 2010. Id. ¶ 22.

B. The Hearing Officer's Findings of Facts

We turn now to Hearing Officer Culleton's findings of fact to supplement the facts as to which the parties agree. Hearing Officer Culleton explains that the January, 2009 evaluation identified J.K. as having a specific learning disability involving significant impairment in receptive and expressive language skills. Culleton's FF ¶ 1. The IEP that the District presented on March 23, 2009, moreover, offered specially designed instruction regarding not only reading, writing, and mathematics, but "on task behavior, organization, verbal reasoning, following complex instructions and social skills" as well as "oral expression, intonation, processing speed, and working memory," id. ¶ 2 -- which suggests that J.K. had specialized needs regarding these faculties as well.*fn4 According to Hearing Officer Culleton, "the IEP addressed the educational needs identified in the prior evaluation report and set forth in the present levels section of the IEP." Id. ¶ 3.

Hearing Officer Culleton found that M.K. and F.K. rejected the District's proposed IEP involving placements at a public middle school or high school because J.K. would interpret the former placement as a retention and hence be discouraged, id. ¶¶ 6-7, while the high school placement would require one-to-one attendance by an educational aide, thus reducing the Student's independence and constituting a less*fn5 restrictive environment than a private school with a student body consisting entirely of children with learning differences. Parents concluded that the Student would be unable to navigate in a large high school setting without an attendant. They indicated a lack of confidence that the District could differentiate teaching throughout the day sufficient to implement the specially designed instruction offered in the IEP. . . . The Parents knew that the goal for teaching the Student to navigate the high school building included fading of support as much as possible consistent with safety and academic progress.

Despite this rejection of the proposed IEP, Hearing Office Culleton noted that "District personnel and Parents had a practice of working out disagreements in IEP meetings. District personnel were available to meet at parent request. The District was ready to revise the IEP as needed." Id. ¶ 9.

According to Hearing Officer Culleton, the settlement agreement that the parties executed in September of 2009 -- after M.K. and F.K. enrolled J.K. at the Lewis School in June of that year and after the July 15, 2009 resolution meeting "facilitated" by Dr. Wald -- provided that "the District did not agree to a pendent placement outside the District, and that . . . the pendent placement would be deemed to be the last program and placement proposed by the District." Id. ¶¶ 11-13. Following execution of the settlement agreement, J.K.'s parents received repeated communications from the Lewis School between December 2009 and April 2010 asking them to declare whether they intended to re-enroll J.K. at the school. Id. ¶ 14. The Lewis School stated that it could not hold open a placement for J.K. after the end of April of 2010. Id.

Meanwhile, following the IEP meeting held in January of 2010, J.K. attended Intensive Learning Support classes in Council Rock North High School in February of that year. J.K. participated in these classes on Wednesday afternoons while still attending the Lewis School. Id. ¶ 16. District personnel observed that though J.K. at first required assistance to navigate the Council Rock high school building, she made progress in accomplishing this task and this support was consequently faded. Id. at 17. District personnel further observed that J.K. had been able to engage in friendly social interactions while at the high school, id., and J.K. herself reported enjoying the time she spent at the District's high school. Id. ¶ 19.

At the same time, M.K. and F.K. were attempting to get teacher response forms from Lewis School teachers that the District sought in order to evaluate J.K. Id. ¶ 20. The Lewis School teachers did not respond quickly to these requests, and the District only received these teachers' responses on April 9, 2010. Id. On February 25, 2010, and again in March of that year, District personnel observed J.K. at the Lewis School but "[d]ue to the participation of Lewis School personnel, the observations did not yield sufficient data for District evaluation purposes as of the end of March 2010." Id. ¶ 21.

After J.K.'s parents contacted Dr. Lambert on March 17, 2010 to request that IEP planning move forward, a series of email messages ensued, some of which broached the possibility that M.K. and F.K. might file a due process complaint. Id. ¶ 22. On March 30, 2010, Dr. Lambert informed the parents that though the evaluation of J.K. would proceed without cognitive testing, "the March 2009 IEP . . . placement would be the program and placement offered to the Parents for the 2010-2011 school year." Id. On April 8, 2010, M.K. and F.K.'s attorney gave the District written notice that they would re-enroll J.K. at the Lewis School "unless a satisfactory offer were provided." Id. ¶ 23. M.K. and F.K. received no response to this letter, and on April 26, 2010, they re-enrolled J.K. at the Lewis School and executed a binding contract to pay the full tuition. Id. ¶¶ 23-24. M.K. and F.K. paid a deposit to the Lewis School in early May of 2010, and paid the tuition in full in May and June of 2010. Id. ¶ 25.

C. Plaintiffs' Factual Disputes

Plaintiffs provide additional factual detail in their brief regarding an array of subjects, but their account materially differs from, or adds to, the parties' stipulated facts and Hearing Officer Culleton's findings of fact in only three respects.

First, though plaintiffs concede that their settlement agreement with the District provided that "the program and placement that was proposed in March, 2009 would be considered the pendent placement, for purposes of 20 U.S.C. § 1415(j), in the event of a dispute between the parties over the 2010-2011 program," plaintiffs assert that "[t]he agreement further provided that an[] IEP meeting was to be convened by November 30, 2009, [and] that an IEP was to be proposed by March 30, 2010." Pls.' Br. at 5 (citing Ex. 6 to Admin. R. at P-1). Plaintiffs aver that "[t]he timelines specified in the settlement agreement for the creation of an IEP for the 2010-2011 school year were critical to the parents because they needed sufficient time in which t[o] consider the proposed IEP before having to decide whether to enroll J.K. in the Lewis School for that year." Id. at 5-6 (citing Ex. 5 to Admin. R. at 77-78). Second, plaintiffs explain that they "expected that they would be contacted by the district prior to the November 30, 2009 date, in light of the fact that the District typically did initiate IEP meetings." Id. at 6 (citing Ex. 5 to Admin. R. at 79-80). Finally, though Hearing Officer Culleton found that Dr. Lambert's March 30, 2010 letter explained that "the March 2009 IEP . . . placement would be the program and placement offered to the Parents for the 2010-2011 school year," Culleton's FF ¶ 22, plaintiffs aver that Dr. Lambert only noted, in this letter, that the March 9, 2009 IEP would serve as J.K.'s pendent placement while a new IEP was being developed. The letter does not state that the March, 2009 IEP was being offered as J.K.'s placement for the 2010-2011 school year. To the contrary, the letter indicates that the District did not, at that time, have sufficient data to draft a new IEP.

Pls.' Br. at 7 (citing Ex. 6 to Admin. R. at P-6).

II. Analysis

To explain the standard that we will apply to review the hearing officer's determination, we begin with the IDEA itself. 20 U.S.C. § 1415(f)(1)(A) explains that Whenever a [due process] complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.

Section 1415(f)(3)(E) further provides that (i) In general

Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child ...

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