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Pocono Mountain School District v. T.D.

United States District Court, M.D. Pennsylvania

July 20, 2018

T.D., by and through his Parent S.D.L. Defendant


          Robert D. Mariani United States District Judge

         I. Introduction

         Presently before the Court is a Report and Recommendation ("R&R") (Doc, 74) by Magistrate Judge Carlson recommending granting the parties' cross-motions for judgment on the administrative record in part and denying the motions in part, and affirming the Hearing Officer's decision below in all respects. Docs. 42 and 54. Plaintiff Pocono Mountain School District (the "District") filed Objections to the R&R, to which Defendant TD, by and through his parent S.D.L, responded. Docs. 79, 83. The District also filed a reply to TD's response. Doc. 84. For the reasons that follow, upon de novo review of the R&R, the Court will adopt the R&R in part and overrule it in part.

         II. Factual Background

         On April 20, 2015, the District initiated this action to appeal a decision issued by a Pennsylvania Snerial Education Hearina Officer ("Hearina Officer") involvina TD, a former student of the District. Doc. 1. At the administrative level, the Hearing Officer, after receiving evidence and hearing testimony from the parties, made 146 findings of fact. Doc. 10-2 ¶¶ 1-146 (hereinafter "Fact Findings"). The Fact Findings detailed the series of efforts by the District and TD's parent to provide adequate education and related services to TD, who was diagnosed with conversion disorder and anxiety disorder.

         Around the end of 2011 to the beginning of 2012, when TD was in the third grade, a female student touched TD's private parts on multiple occasions. Id. ¶¶ 1-2. After TD informed his mother of this, the mother notified the school. The school immediately conducted an investigation and determined that TD and the female student should be separated at all times for the rest of the school year. Id. ¶¶ 15, 19. For unknown reasons, the female student withdrew from the school the following week. Id. ¶ 20. For the few months after the investigation, TD exhibited behavioral and social issues, such as disciplinary notices and vision problems, though he maintained strong grades. Id. ¶¶ 22-28, 48. He also began seeing a consultant for victims of sexual abuse in the spring of 2012. Id. ¶ 25. In May 2012, the District conducted a meeting between District officials and TD's parent, during which the District's central office personnel opined that the school's initial investigation into the touching incidents did not comply with District protocol, but that they were confident that there were procedures in place to ensure TD's safety and a smooth transition into the fourth grade. Id. ¶¶ 36-38. The District also agreed to evaluate TD for special education services; the evaluation report, issued in July 2012, concluded that he did not have a disability under IDEA. Id. ¶¶ 40, 47.

         However, during TD's fourth grade year (fall of 2012 to spring of 2013), he continued to exhibit behavioral and social problems at school, such as an altercation with other students, frequent nurse visits and missing class time, and disrespectful behavior towards his teacher, as well as continued vision problems. Id. ¶¶ 51-56. In January of 2013, the Parent arranged for an independent neuropsychological evaluation to be conducted by Dr. Heather Hoover, who diagnosed TD with conversion disorder (based on his vision problems that lacked any physical or organic etiology), and anxiety disorder for the first time. Id. ¶¶ 60, 62, 81. The mother sent Dr. Hoover's report to the District, and the school met with the mother again in May 2013. Id. ¶¶ 92, 94. In the summer of 2013, a private school began contacting the District requesting TD's records, and the District dis-enrolled TD. However, after the mother requested yet another meeting with the District and informed the District that she had not yet decided if she were transferring TD into private school, the District re-enrolled TD. Id. ¶¶ 101, 107-08, 111. The mother ultimately decided to place TD in private school, where he attended fifth grade. Id. ¶¶ 113-15. In November 2013, the mother retained a private school psychologist to evaluate TD, who concluded that TD "appeared to be a student who qualified for services under the IDEA as a student with an emotional disturbance and who required special education/ related services" but recommended further evaluation. Id. ¶ 122. The mother shared this report with the District, which agreed to conduct yet another independent evaluation at the District's expense. Id. ¶ 127. In May 2014, the independent evaluator retained by the District concluded that TD did not qualify as "an eligible student under IDEA," but did find that he had a disability-namely, "conversion disorder and anxiety disorder/not otherwise specified"-and that he qualified for Section 504 accommodations. Id. ¶ 129. The District agreed to implement and devise a Section 504 plan for TD, should he return to the District's schools. Id. ¶ 136. However, TD remained in private school as of the time his mother filed the special education complaint that led to the administrative proceedings. Id. ¶ 137.

         Based on documentary evidence and witness testimony during the administrative hearings, the Hearing Officer found that (1) TD was not eligible for a free and appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., because he "does not qualify as a student with a disability under the IDEA"; (2) but TD was disabled (due to his conversion disorder and anxiety disorder) under Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. § 794 ("Section 504"), and that he was denied FAPE under Section 504 as of May 14, 2013, which entitled him to one hour of compensatory education per school day for a period of 26 school days, as well as tuition reimbursement for the 2013-14 and 2014-15 school years; and (3) the District demonstrated deliberate indifference towards TD on the basis of his disability. Doc. 10-2 at 38-49 (hereinafter "Hearing Op.").

         The parties filed cross-motions for judgment on the administrative record or, in the alternative, for summary judgment. Docs. 42 and 54. They agreed that they would not "seek to supplement the administrative recommend" and that their motions "shall be decided by the Court on the basis of the administrative record previously this action." Doc. 35 at 1-2. Neither party's motion clearly specifies the relief requested or what findings below they would ask this Court to affirm or overturn in their proposed orders. See Docs. 42-1, 54-1 (merely asking the Court to grant their respective motions for summary judgment, or in the alternative, judgment on the administrative record). The Court surmises from the parties' briefs that the District asks the Court to overturn the Hearing Officer's findings of disability, denial of FAPE, finding of deliberate indifference, and consequent compensatory education and tuition reimbursement damages under Section 504, and affirm the finding that TD is not disabled under IDEA, while TD requests the opposite relief, that is, affirming the Hearing Officer's findings as to the Section 504 analysis, and even extending the compensatory education "from the period March 2012 to May 14, 2013." Docs. 43, 54.[1]

         The parties' motions were referred to Magistrate Judge Carlson on September 25, 2017. After consideration of the parties' briefs and the record, Magistrate Judge Carlson issued the R&R, recommending that the parties' cross-motions each be granted in part and denied in part, and that the Hearing Officer's decision be affirmed in all respects.

         The District objected to the R&R in a scattered brief, arguing that the R&R failed "to consider the record as a whole"; that it "merely incorporates the Hearing Officer's Decision without analysis necessary to this Appeal"; that it failed "to consider the extensive evidence and testimony provided by the District's 'educational professionals' greater expertise with educational matters'" (though the District fails to name who these "educational professionals" are or where their opinions can be found on the record); that it "proceeds by implication and is unclear as to the significance or relevance of its Statements [of Facts]"; that it conflates the legal standards under Section 504 and IDEA; that it "fails to address the hearing officer's application of the poisoned waters doctrine"; and that it unfairly dismissed the holding of T.F. v. Fox Chapel Area School Dist, 589 Fed.Appx. 594, 598 (3d Cir. 2014). See Doc. 79 (hereinafter "Objections"), generally.

         At the outset, the Court notes that the District's "Objections" do little to engage in a meaningful analysis of the R&R, but instead relies on either patently false statements (for example, claiming the Magistrate Judge failed to consider the "poisoned waters" argument and T.F. v. Fox Chapel's holding when the R&R addressed both) or on empty rhetoric. See e.g., Objections at 6 (stating "The objective of the R&R appears to be to get rid of this case, not to deal with it" without citation or further analysis); id. at 3 (claiming that "[t]he R&R's adoption of the Decision renders it tautological" and that "the failures of the R&R put the District back to square one" without additional support or explanation); id. (stating that instead of "having to make the same arguments by way of Objection to the R&R," the District "incorporates by reference as if fully set forth herein the District's brief in support of the Motion for Judgment on the Administrative Record, or, in the Alternative, for Summary Judgment, dated April 25, 2016," even though incorporation of prior briefs is not permitted under Local Rule 7.8)[2]; id. at 22 (arguing that the R&R "could be accused of the fairly common fallacy of relating things in time and therefore in cause: nunc pro tunc. But things related in time are not therefore related in cause...")[3]. The Objections also repeatedly accuse the Magistrate Judge of failing to consider the oral argument transcript as evidence, id., at 2, 4-5, 26, despite the fact that oral argument is only a means for counsel to address what is already contained in the record, not a conduit for the parties to introduce new evidence. See Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109-10 (3d Cir. 1985) ("Legal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion."), cert. denied, 475 U.S. 1013 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996) (same).

         More bizarrely, the Objections include an email from a college professor criticizing the R&R's legal reasoning. Doc. 79 at 16. The Court is baffled by the inclusion of a post hoc opinion on the R&R's soundness from a person unrelated to this case. The inclusion of the email is not only irrelevant, but is also, as a general matter, highly inappropriate, as not even expert witnesses involved in the case are permitted to opine on the legal issues of the case. See, e.g., Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) ("Although Federal Rule of Evidence 704 permits an expert witness to give expert testimony that 'embraces an ultimate issue to be decided by the trier of fact,' an expert witness is prohibited from rendering a legal opinion.") (citing United States v. Leo, 941 F.2d 181, 195-96 (3d Cir. 1991)). Moreover, the email offers cursory statements with no citations to the record or the R&R. The Court will therefore disregard any arguments based on the third-party email.

         Notwithstanding the above, upon de novo review of the R&R and a modified de novo review of the Hearing Officer's fact findings, the Court will overrule the R&R in part because the record does not support the Hearing Officer's findings of deliberate indifference by the District, and because the Hearing Officer erred in determining TD to be disabled under Section 504, but not disabled under IDEA.

         III. Analysis

         A district court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report & Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); Local Rule of the Middle District of Pennsylvania 72.3.

         "When deciding an IDEA case, the District Court applies a modified version of de novo review and is required to give due weight to the factual findings of the ALJ." L£ v. Ramsey Bd. of Educ, 435 F.3d 384, 389 (3d Cir. 2006) (collecting cases). Under this standard, "[f]actual findings from the administrative proceedings are to be considered prima facie correct," and ¶]f a reviewing court fails to adhere to them, it is obliged to explain why." S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir.2003) (citing MM. v. Sen. Dist. of Greenville County, 303 F.3d 523, 530-31 (4th Cir.2002)).[4] "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." Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (internal citations omitted). "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.'" id. (quoting Carlisle Area School v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995)) (emphasis in original).

         "The district court's review of the hearing officer's application of legal standards and conclusions of law, on the other hand, is subject to plenary review." Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist, 39 F.Supp.3d 584, 594 (M.D. Pa. 2014) (citing Warren G. v. Cumberland Cnty. Sch. Dist, 190 F.3d 80, 83 (3d Cir.1999)). See also M.S.-G v. Lenape Reg'l High Sch. Dist Bd. of Educ, 306 Fed.Appx. 772, 773 n. 1 (3d Cir. 2009) ("Although the District Court must employ a modified de novo review of the decisions of an administrative fact finder, and we, in turn, review the District Court's factual findings for clear error, no such deference is called for when the decisions of the ALJ and District Court involve only questions of law.") (internal citations omitted).

         In the administrative proceeding below, TD's parent filed a special education complaint alleging that TD was eligible for special education services and accommodations under both IDEA and Section 504. IDEA imposes an affirmative duty for the school district to provide every disabled child with a "free appropriate public education," i.e. FAPE, 20 U.S.C. § 1412(a)(1), while Section 504 is a negative prohibition on discrimination against students based on their disabilities. Both Acts require a school to provide FAPE to disabled students and are often treated analogously. M.R. v. Ridley Sch. Dist, 744 F.3d 112, 116 (3d Cir. 2014) ("§ 504's negative prohibition is similar to the IDEA'S 'affirmative duty' and also requires schools that receive federal financial assistance to provide qualified students with a FAPE.").

         Under IDEA, "[a] FAPE...includes both 'special education" and "related services.'" Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 994, 197 L.Ed.2d 335 (2017) (quoting 20 U.S.C. § 1401(9)). '"Special education' is 'specially designed instruction ... to meet the unique needs of a child with a disability'; 'related services' are the support services 'required to assist a child ... to benefit from' that instruction." Id. (quoting 20 U.S.C. §§ 1401(26), (29)). Although a state is not required to maximize the potential of every handicapped child, it must supply an education that provides 'significant learning' and 'meaningful benefit' to the child." Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012) (citing D.S. v. Bayonne Bd. of Educ, 602 F.3d 553, 556 (3d Cir.2010)).

         To prevail on a Section 504 claim, a plaintiff must establish that: "(1) he is 'disabled' as defined by the Act; (2) he is 'otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999). An individual is defined as having a "disability" if he or she has "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment...." 42 U.S.C. § 12102(1).

         Due to the similar standards between IDEA and Section 504, "a party may use the same conduct as the basis for claims under both the IDEA and [Section 504] of the RA [i.e. Rehabilitation Act]." Andrew M. v. Delaware Cty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 349 (3d Cir. 2007). See also P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist, 585 F.3d 727, 735 (3d Cir. 2009) ("The IDEA and § 504 of the Rehabilitation Act do similar statutory work....Section 504 of the Rehabilitation Act is parallel to the IDEA in its protection of disabled students: it protects the rights of disabled children by prohibiting discrimination against students on the basis of disability, and it has child find, evaluation, and FAPE requirements, like the IDEA."); D.K. v. Abington Sch. Dist, 696 F.3d 233, 253 (3d Cir. 2012) ("As under the IDEA, providing a FAPE in accordance with § 504 requires a school district to reasonably accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access to educational benefits. Consequently, our finding that the School District did not deny D.K. a FAPE is equally dispositive of Plaintiffs' § 504 claim.") (internal quotation marks omitted).

         However, this does not mean "that a violation of the IDEA is a perse violation of [Section 504 of] the RA... even in cases also brought under the IDEA... a plaintiff must still prove that there was a violation of [Section 504 of] the RA." Andrew M., 490 F.3d at 349 (internal citation omitted).

         A. The Hearing Officer Erred in Awarding Compensatory Damages Under Section 504 Because the Record Does Not Support a Finding of Deliberate Indifference

         Based on his finding that TD was deprived of FAPE under Section 504, the Hearing Officer awarded an hour of compensatory education for every school day from May 14, 2013 to the end of that school year. Hearing Op. at 42-43. He separately awarded the parent tuition reimbursement for school years 2013-2014 and 2014-2015 "as a result of the District's denial of FAPE to [TD] under Section 504/Chapter 15 [i.e. Pennsylvania Code's regulation implementing Section 504]." Id. at 46. Before awarding compensatory damages under Section 504 however, there must be a finding of deliberate indifference on the part of the school district. S.H. ex rel. Durrell v. Lower Marion School District, 729 F.3d 248, 262- 63 (3d Cir. 2013). See also Fox Chapel, 589 Fed.Appx. at 599 ("To recover compensatory damages under Section 504, Appellants must establish intentional discrimination.") (quoting S.H., 729 F.3d at 262).

         In their motion for judgment on the administrative record, the District argued that tuition reimbursement under Section 504 is a form of compensatory damages and therefore requires a showing of deliberate indifference. Doc. 43, at 24-26. However, TD's counsel argues that no such showing is required because tuition reimbursement is equitable relief, not compensatory damages. TD's brief cited two Supreme Court cases from 1985 and 1993, both of which addressed only appropriate remedies under IDEA, not Section 504. See Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 374, 105 S.Ct. 1996, 2005, 85 L.Ed.2d 385 (1985) and Florence County School Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). See also Forest Grove Sch. Dist. v. TA, 557 U.S. 230, 238, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009) (noting that Burlington and Carter held that IDEA authorizes courts to award parents reimbursement costs for special education costs).

         In at least two recent (albeit non-precedential) opinions, the Third Circuit squarely addressed the question of whether tuition reimbursement constituted compensatory damages under Section 504 and answered in the affirmative. See Fox Chapel, 589 Fed.Appx. at 599 (in the context of discussing Section 504, noting that "[t]o recover compensatory damages under Section 504, Appellants must establish intentional an effort to avoid the heightened burden of proof for compensatory damages, Appellants contend that tuition reimbursement is an equitable remedy. We are not persuaded by this argument. It is hard to imagine what would constitute compensatory damages in these circumstances if not tuition reimbursement...As such, we agree with the District Court's application of the higher intentional-discrimination standard."); Sch. Dist. of Philadelphia v. Kirsch, 722 Fed.Appx. 215, 228 (3d Cir. 2018) (in the context of ADA an Section 504 claims, noting that the "Parents fail to articulate why reimbursement for money they have paid constitutes equitable relief rather than compensatory damages. In essence, tuition reimbursement compensates parents for education expenses. Thus it is properly classified as compensatory damage relief.").

         In an attempt to extend equitable authority for tuition reimbursement to Section 504, TD's brief cites only nonbinding district court cases that touch on the possibility of reimbursement under both IDEA and Section 504 without finding deliberate indifference. See Doc. 55 at 18 (citing Lauren G. v. West Chester Area School Dist,906 F.Supp.2d 375 (E.D. Pa. 2012); Molly L v. Lower Merion School Dist,194 F.Supp.2d 422 (E.D. Pa. 2002);[5]Kevin M. v. Bristol Twp. School Dist, 2002 WL 73233 (E.D. Pa. Jan. 16, 2002); Borough of Palmyra., Bd. Of Educ. v. F.C., 2 F.Supp.2d 637 (D.N.J. 1998)). Not only are these cases not binding on this Court, they were also decided before Fox Chapel and Kirsch, the latter of which was issued this year. Thus, the Court will follow the Third Circuit's recent guidance that tuition ...

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