Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2003

H. v. State Operated Schl
Precedential or Non-Precedential: Precedential

Docket No. 01-2358




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                           PRECEDENTIAL

                                      Filed July 14, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 01-2358


            S.H., INDIVIDUALLY AND ON
                   BEHALF OF I.H.,
                          Appellant
                          v.
        STATE-OPERATED SCHOOL DISTRICT
            OF THE CITY OF NEWARK.

APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE DISTRICT OF NEW JERSEY
                 (D.C. No. 00-cv-02559)
District Judge: The Honorable Joseph A. Greenaway, Jr.

                Argued June 6, 2002
     BEFORE: SLOVITER, NYGAARD, and BARRY,
                 Circuit Judges.

                 (Filed July 14, 2003)

                   Cynthia H. Levy, Esq. (Argued)
                   15 Prospect Street
                   Paramus, NJ 07652
                     Counsel for Appellant
                              2


                      Arsen Zartarian, Esq. (Argued)
                      Office of General Counsel
                      Board of Education
                      2 Cedar Street, 10th Floor
                      Newark, NJ 07102
                        Counsel for Appellee


                OPINION OF THE COURT

NYGAARD, Circuit Judge.
  This Individuals with Disabilities Act case concerns the
continuing placement of a hearing impaired child, I.H., in
an out-of-district public school. At issue is the Newark
School District’s proposed individual education plan for I.H.
for the 1999-2000 school year, which returned her to in-
district placement. I.H. and her mother, S.H., prevailed in
their due process hearing at the state administrative level,
wherein the Administrative Law Judge concluded that the
School District failed to meet its burden in proving that the
change in placement would provide a meaningful
educational benefit. After S.H. sought attorneys’ fees in
federal District Court, the School District counterclaimed
challenging the administrative decision. The District Court
reversed the administrative decision. Central to this case is
the appropriate standard of review a District Court should
employ when reviewing state administrative proceedings
under the Individuals with Disabilities Act. We hold that
the appropriate standard is modified de novo review.
Because the District Court did not apply the correct
standard of review, we will reverse.

                      I.   Background

         A.   The Individuals with Disabilities Act
  This case arises under a confluence of state and federal
disabilities law. Therefore, it is useful to review the
statutory framework before proceeding to the facts. Federal
funding of state special education programs is contingent
on the states providing a “free and appropriate education”
                               3


to all disabled children. 20 U.S.C. §1412. The Individuals
with Disabilities Act (IDEA) is the vehicle Congress has
chosen to ensure that states follow this mandate. 20 U.S.C.
§1400 et seq. “A free, appropriate public education consists
of educational instruction specially 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.” Susan N. v. Wilson Sch. Dist., 

, 756 (3d Cir. 1995) (citations omitted).
   As we noted in Susan N., an Individual Education
Program (IEP) is the primary vehicle for providing students
with the required free and appropriate education. 

is a written statement developed for each child that
must include several elements. 20 U.S.C. § 1414(1)(A). It
must include a statement of the child’s current level of
performance, and how her disability affects her
performance. 

It must set measurable annual
goals relating both to progress in the general curriculum
and additional educational needs arising from her
disability. 

The IEP must detail those special
education services and supplementary aids that the school
will provide, explain how they will contribute toward
meeting the annual goals, how they will allow the child to
progress in both the general curriculum and participate in
extracurricular activities, and describe how the child will
interact with disabled and nondisabled children. 

In measuring the child’s progress, the IEP must
explain whether standard student assessments will be
used. If not, the IEP must explain why not and how the
school will assess the child. 

  Besides setting out the required content of an IEP, the
IDEA explains how the school is to develop an IEP. An IEP
team meets and writes the IEP considering the strengths of
the child, the concerns of the parent, and the most recent
evaluation of the child. 

As to hearing impaired
children, the IEP team is to:
    (iv) consider the communication needs of the child,
    and in the case of a child who is deaf or hard of
    hearing,   consider   the   child’s  language    and
    communication     needs,  opportunities  for   direct
    communications with peers and professional personnel
                                   4


     in the child’s language and communication mode,
     academic level, and full range of needs, including
     opportunities for direct instruction in the child’s
     language and communication mode; and
     (v) consider whether the child               requires   assistive
     technology devices and services.

team is to be composed of the child’s parents,
at least one special education teacher of the child, a
specialist in developing curriculum from the local district,
and at the request of the parent or the school district,
anyone with special knowledge or expertise related to the
child’s education. 

   In addition to the general requirements set out in the
IDEA,    state    and   federal    regulations  detail   the
implementation of the statute. See, e.g., 34 C.F.R.
§ 300.340-300.350 (setting out requirements for IEP);
N.J.A.C.    § 6A:14-1.3   (defining   IEP).   New    Jersey’s
requirements for developing an IEP follow the federal
requirements. Fuhrmann v. East Hanover Bd. Educ., 

, 1035 (3d Cir. 1993). The regulations require a
child study team (CST) evaluate the child. The members of
the CST are a school psychologist, a learning disabilities
teacher-consultant, and a school social worker. N.J.A.C.
§ 6A:14-3.1. The CST, parents, a teacher familiar with the
student, and other appropriate personnel then meet.
N.J.A.C. § 6A:14-2.3. Members from this group then work
together to formulate, review, or revise the child’s IEP. 34
C.F.R. § 300.344-300.345; N.J.A.C. § 6A:14-2.3.
  The IEP team is required to review the IEP at least
annually to determine whether the child is reaching the
stated goals. In addition, the IEP team is to revise the IEP
to address lack of progress, necessary changes arising from
reevaluation of the child, and parental input, among other
things. 20 U.S.C. § 1414(1)(A)(4).
  In addition, the IDEA includes a mainstreaming
component in its description of a free and appropriate
education, requiring education in the least restrictive
environment. See 20 U.S.C. § 1412(a)(5)(A).1 We have

1. The IDEA describes “least restrictive environment” as:
    In general. To the maximum extent appropriate, children with
                                   5


interpreted this mainstreaming requirement as mandating
education “in the least restrictive environment that will
provide [her] with a meaningful educational benefit.” T.R. v.
Kingwood Township Bd. Educ., 

, 578 (3d Cir.
2000). “The least restrictive environment is the one that, to
the greatest extent possible, satisfactorily educates disabled
children together with children who are not disabled, in the
same school the disabled child would attend if the child
were not disabled.” Carlisle Area Sch. v. Scott P., 

, 535 (3d Cir. 1995).
  The issue here is not whether I.H. should receive special
education, nor is it whether the School District afforded her
due process. Rather, the only issue is whether the School
District’s proposed IEP, changing I.H.’s placement, would
provide her a meaningful educational benefit. 

.

                      B.     Factual Background
  The Appellant, S.H., brings this appeal individually and
on behalf of her daughter I.H. I.H. has severe to profound
sensorineural hearing loss. When she was two years old,
the Newark Public School District identified I.H. as eligible
for its preschool handicapped program. After determining
that there was no suitable program in I.H.’s home School
District, the School District placed I.H. at the Lake Drive
School for Deaf and Hard of Hearing Children. I.H. began
attending Lake Drive School in the summer of 1997 when
she was three years old.
  The Lake Drive School is a public school outside the
Newark School District. In justifying this placement, the

    disabilities, including children in public or private institutions or
    other care facilities, are educated with children who are not
    disabled, and special classes, separate schooling, or other removal
    of children with disabilities from the regular educational
    environment occurs only when the nature or severity of the
    disability of a child is such that education in regular classes with
    the use of supplementary aids and services cannot be achieved
    satisfactorily.
20 U.S.C. § 1412(a)(5)(A).
                             6


School District noted that I.H. required a special program
unavailable in her home district. Specifically, she required
a small, specialized, and highly structured education
program tailored to her functioning levels, hearing
impairment, and specific sensory deficit. This program
would provide “developmentally appropriate curriculum,
teachers specialized in working with hearing-impaired
children, presentation of auditory training, sensory
utilization skills and facilitation of communication
skills.” S.H. v. Newark Bd. Educ., No. EDS7639-99, at 3
¶1 (N.J. OAL, Oct. 4, 1999) available at http://
lawlibrary.rutgers.edu/oal/word/initial/eds7639-99-1.doc
  The School District developed a new IEP the next year,
revisiting I.H.’s placement. This IEP specified placement at
the Bruce Street School for the Deaf in Newark beginning in
September 1998. The Bruce Street School is a self-
contained school for the deaf placed within a larger school,
the George Washington Carver School. This is the
neighborhood school that I.H. would have attended if she
had not been hearing impaired. The Bruce Street School
was available for I.H.’s initial placement in 1997, and the
School District explains neither why it was not appropriate
for the initial placement, nor what changed in the interim
making it appropriate.
  S.H. challenged the School District’s change in I.H.’s
placement. Following mediation, I.H. was allowed to remain
at the Lake Drive School. As a result, I.H. attended the
Lake Drive School preschool handicapped program from
1997 to 1999. An interim IEP developed in January 1999
also resulted in I.H.’s continuing placement at Lake Drive
School. The Lake Drive School’s evaluations of I.H.
conducted in January 1999 concluded that she should
remain in the school for summer school and the 1999-2000
school year.
  In the spring of 1999, the School District reevaluated I.H.
to decide the appropriate placement for the 1999-2000
school year, the year she would start kindergarten. In this
June 1999 proposed IEP, the School District found that the
least restrictive environment for I.H. was the Bruce Street
School for the Deaf. In finding that it was the least
restrictive environment, the School District noted that
                                7


Bruce Street School is near I.H.’s home, and differs from
Lake Drive in that I.H. could have interaction with
nonhandicapped children between classes (e.g., lunch and
recess). Because she wanted I.H. to continue attending
school at Lake Drive, where the District initially placed I.H.,
S.H. requested a due process hearing challenging I.H.’s
placement for the 1999-2000 school year.

                   C.    Procedural History

                        1.   ALJ Decision
   New Jersey’s process for resolving disputes arising in
special education cases starts with mediation. N.J.A.C.
§ 1:6A-4.1. If mediation fails, the case is forwarded to the
Office of Administrative Law and assigned to an
Administrative Law Judge (ALJ). After the hearing, the ALJ
has forty-five days to issue his decision. There is no
additional review under New Jersey’s administrative
system, and the case can be directly appealed to New
Jersey superior court or federal district court. N.J.C.A.
§ 1:6A-18.1-18.3.
   At the administrative hearing, S.H. sought to have I.H.’s
placement continue at the Lake Drive School for the 1999-
2000 school year. The ALJ held hearings for three days,
received evidence from both the School District and S.H.,
and heard testimony from several witnesses for both
parties. In his opinion, the ALJ made extensive factual
findings. The ALJ had before him multiple evaluations of
I.H, including Lake Drive School’s annual review prepared
in January, and the School District’s June proposed IEP.
The ALJ made his factual findings based on these reports,
in addition to other documentary evidence, and the
testimony of several witnesses.
  The primary witness for S.H. was Dr. Laura McKirdy, the
principal at Lake Drive School. Besides being principal of
Lake Drive since 1978, Dr. McKirdy is a speech language
pathologist and developmental psychologist, and is a
certified elementary school teacher. The ALJ accepted Dr.
McKirdy as an expert on deaf education based on her
training, education, and experience. The ALJ heavily relied
                             8


on the testimony of Dr. McKirdy in reaching his decision.
Explaining this, he noted:
       In this particular matter, as in most, the credibility
    and persuasiveness of the testimony is of paramount
    concern. While I found all of the witnesses who testified
    were credible, I was most persuaded by the testimony
    of Dr. McKirdy. With regard to her resume, suffice it to
    say that she is impeccably credentialed in the area of
    deaf education. However, her credentials did not form
    the entire basis of my decision to give controlling
    weight to her testimony — it was the manner in which
    she testified. It was abundantly clear to me, after
    listening to her on both direct and cross-examination
    and comparing her responses to those of the other
    witnesses, that no one connected with the hearing
    knew more about deaf education than she.
    Furthermore, her knowledge of I.H., while admittedly
    not as personal as others who may have testified, was
    sufficiently informed to lead me to conclude that her
    opinions took into account I.H.’s unique needs.
S.H. v. Newark Bd. Educ., No. EDS7639-99 at 10.
  Both parties and the witnesses agreed that I.H. was a
good student, and was making progress toward her
educational goals. In his decision, the ALJ summarized the
conclusions from the Lake Drive School’s evaluation. The
Lake Drive evaluation recommended continuing speech and
language therapy of four thirty-minute-sessions a week.
The evaluation found that I.H.’s progress was directly
related to the frequency and planning of the speech and
language programs. Lake Drive’s review concluded that
continuing I.H.’s “tightly structured” program was
necessary for her language development.
  The ALJ contrasted Lake Drive School’s comprehensive
evaluation to the proposed IEP. It is through the IEP that
the School District must prove that it will confer a
meaningful educational benefit on I.H. in transferring her to
Bruce Street. The School District carries the burden of
showing this IEP is appropriate. See, e.g., 

(“[I]t is quite clear that when a change in
a child’s IEP is sought, regardless of whether the party
                                9


seeking the change is the school district or the parents, the
burden of showing that the placement is ‘appropriate’ rests
with the school district.”).
   A Child Study Team (CST) from Bruce Street developed
the June proposed IEP. Although the CST that placed I.H.
in the Lake Drive School in 1999 was also from the Newark
School District, the members of each team were different.2
The CST drafted the proposed IEP after observing I.H. both
in and out of Lake Drive School. However, the ALJ found
that the School District drafted the IEP with little or no
input from the staff at Lake Drive. In his findings of fact,
the ALJ noted several deficiencies in the IEP. Because the
ALJ heard the witnesses and weighed the evidence in light
of their testimony and credibility, reviewing these factual
findings is instructive.
  The ALJ noted that the proposed IEP failed to recognize
that I.H. retained some residual hearing in her left ear.
Testimony before the ALJ suggested that this residual
hearing might be used to help I.H. develop some
understandable oral communication. The ALJ found this
omission from the IEP to be significant. The proposed IEP
also failed to reference the appropriate standardized tests
for evaluating I.H. The test noted in the IEP was not
normed for hearing impaired children as young as I.H.
  The ALJ considered the “supplementary aides and
services and instructional modifications” in the proposed
IEP and found them to be inappropriate for I.H. The IEP
specified the use of the “Kendall Demonstration Elementary
School Curriculum.” However, the ALJ found that the
Kendall Curriculum are guidelines for a curriculum, not a
curriculum; that they may be outdated; and, since not
developed for New Jersey, that they may be inappropriate
for enabling deaf children to compete academically in New
Jersey. Instead, the ALJ found that the appropriate
curriculum would focus on New Jersey’s educational
requirements and standards. In contrast, the Lake Drive
School uses New Jersey standards and materials for the
education of hearing impaired children.

2. Perhaps explaining why the current CST could not explain why the
School District initially placed I.H. at Lake Drive School.
                              10


   Although the School District placed much emphasis on
Bruce Street as the least restrictive environment because it
offered extracurricular activities, the ALJ found that the
proposed IEP did not support this assertion. Specifically,
the proposed IEP noted that I.H. would be able to
participate in “art with sign interpreter.” However, the ALJ
found that I.H. would receive little benefit from this art
class because focusing on both the teacher and the sign
interpreter, and understanding that the message and
deliverer are distinct, is difficult for young deaf children. In
comparison, the art teacher at Lake Drive is a fluent signer.
The School District emphasized the “mainstreaming”
opportunities available at Bruce Street, but the ALJ found
the “mainstreaming” provided at Bruce Street to be de
minimis at best. The students are segregated for classes,
and although they attend assemblies and recess with
hearing children, they are further segregated by the
uniforms the Bruce Street children wear, which
differentiate them from the rest of the Carver School
children.
  Lake Drive’s evaluation of I.H. suggested that she needed
to participate in an extended school year (summer school).
The ALJ found that for I.H., the extended school year was
particularly important in her language acquisition. The
proposed IEP did not call for an extended school year. In
addition, the ALJ found that the proposed IEP lacked many
specifics necessary to find that it would confer a
meaningful education benefit on I.H.
   Finally, the ALJ found that the School District failed to
prove that the “total communication” philosophy employed
at Bruce Street would confer a meaningful benefit to I.H.
Total communication is a process of incorporating all
means of communication with the children, which in
practice can differ between institutions. The ALJ accepted
the testimony that consistent use of signs and word order
was important for teaching I.H. The total communication
practiced at Bruce Street is apparently different from that
used at Lake Drive, and to the extent that they are
different, the ALJ found that it would be detrimental to I.H.
Based on his extensive factual findings, the ALJ concluded
that the School District did not prove “by a preponderance
                             11


of the credible evidence that it can provide I.H. with an
appropriate education.” S.H. v. Newark Bd. Educ., No.
EDS7639-99 at 11.

              2.   District Court Proceedings
   The ALJ issued his decision on October 4, 1999. S.H.
went to U.S. District Court seeking fees for the cost of the
administrative action on May 24, 2000. On June 8, 2000,
eight months after the ALJ’s decision, the School District
filed an answer and counterclaim, for the first time
challenging the ALJ’s decision. The matter was referred to
a Magistrate Judge on cross-motions for summary
judgment. In recommending a decision, the Magistrate
Judge took no new testimony.
  In his recommendation, the Magistrate Judge reviewed
the facts and arguments of the parties, and summarily
rejected the testimony of Dr. McKirdy, whose testimony the
ALJ found most persuasive and credible. After recognizing
that the standard of review called for giving due weight to
the ALJ, the Magistrate Judge conducted a one-paragraph
“analysis”:
      On the record before me, I conclude that the defense
    motion should be granted. I recognize that “due weight”
    must be afforded to the Administrative Law Judge’s
    determination. But even granting that weight, I believe
    the Court’s independent judgment based on a
    preponderance of the evidence requires a determination
    that the Administrative Law Judge in this case simply
    “got it wrong.” It is entirely clear to me that a free and
    appropriate public education will be provided at the
    Bruce Street School while affording the least restrictive
    environment for I.H., as mandated by the applicable
    law. . . . In short, I find the defendant District’s
    arguments more persuasive in this case.
S.H. v. State-Operated Sch. Dist. of Newark, No. 00-2559,
Mag. R & R. at 18-19 (D. N.J. Mar 13, 2001).
  The District Court adopted the conclusion of the
Magistrate in a letter opinion. In adopting the
recommendation, the District Court added little to the
                               12


Magistrate Judge’s recommendation. It found that Bruce
Street was the least restrictive environment because of its
proximity to I.H.’s home and its opportunities for
interaction with nondisabled children. In addition, the
District Court noted that the CST members evaluated I.H.
and recommended that she attend Bruce Street.

                               II.

                          A.   Issues
   On appeal, S.H. argues that the District Court did not
afford the ALJ proper deference as to his findings of fact.
S.H. also challenges the District Court’s conclusion that the
proposed IEP would confer a meaningful educational
benefit. Finally, S.H. questions whether the School
District’s counterclaim appealing the ALJ decision was
timely.

                   B.   Standard of Review
   We exercise jurisdiction over IDEA cases pursuant to 20
U.S.C. §1415. Our review of the legal standard the District
Court applied is plenary. See 

. District
Courts are to give due weight to the factual findings of the
ALJ in IDEA cases. We have outlined the meaning of “due
weight” through several cases, although we have not
definitively addressed what constitutes “due weight.” See
Susan 

; see also Holmes v. Millcreek Twp.
Sch. Dist., 

, 591-92 (3d Cir. 2000) (“We must
give ‘due weight’ to the underlying state administrative
proceedings. . . . [A]lthough we must consider
administrative fact findings, we have not interpreted Rowley
as requiring us to accept such findings.”); D.R. v. East
Brunswick Bd. Educ., 

, 898 (3d Cir. 1996)
(“The Third Circuit has interpreted the Supreme Court’s
instruction in Rowley to require that a court consider—
although not necessarily to accept—the administrative fact
findings.”); Carlisle Area Sch. v. Scott P., 

, 527
(3d Cir. 1996) (“[A]lthough the district courts must consider
the administrative findings of fact, they are free to accept or
reject them. . . . But if the district court chooses to depart
                                  13


from the agency’s ruling, it               should     provide    some
explanation for its departure.”).
   In Susan N., we noted the Tenth Circuit’s description of
the “due weight” requirement as “modified de novo 

(citing Murray v. Montrose County Sch. Dist.,

, 927 (10th Cir. 1995)). Since then, several
other cases have elucidated the contours of “due weight,”
and described the standard of review as “modified de novo
review.” Under the IDEA, the reviewing court “is obliged to
conduct a modified de novo review, giving ‘due weight’ to
the underlying administrative proceedings.” MM v. Sch. Dist.
of Greenville County, 

, 530-31 (4th Cir. 2002)
(citations omitted). Factual findings from the administrative
proceedings are to be considered prima facie correct. 

“[I]f a reviewing court fails to adhere to them, it is
obliged to explain why. The court is not, however, to
substitute its own notions of sound educational policy for
those of local school authorities.” 

  Although we have not referred to the proper standard of
review as modified de novo before, our cases call for this
standard. In discussing Pennsylvania’s two-tier system of
administrative review in IDEA cases, we stated that the
appeals panel “should defer to the hearing officer’s findings
based on credibility judgments unless the non-testimonial,
extrinsic evidence in the record would justify a contrary
conclusion or unless the record read in its entirety would
compel a contrary conclusion.” 

. A
federal district court reviewing the administrative fact finder
in the first instance is similarly required to defer to the
ALJ’s factual findings unless it can point to contrary non-
testimonial extrinsic evidence on the record.3
  In Oberti v. Board of Education of the Borough of the
Clementon School District, we noted that where the District
Court hears additional evidence it is “free to accept or reject
the agency findings depending on whether those findings
are supported by the new, expanded record and whether

3. Under the IDEA, the District Court could have taken additional
evidence. 20 U.S.C. §1415(e)(2). This case concerns those situations
where the District Court did not hear additional evidence and based its
decision on the factual record as developed at the administrative level.
                             14


they are consistent with the requirements of the Act.” 

, 1220 (3d Cir. 1993). In contrast, where the
District Court does not hear additional evidence it must
find support for any factual conclusions contrary to the
ALJ’s in the record before it. Moreover, the court must
explain why it does not accept the ALJ’s findings of fact to
avoid the impression that it is substituting its own notions
of sound educational policy for those of the agency it
reviews. See Susan 

.
   In addition to the Tenth Circuit and Fourth Circuit’s use
of the modified de novo standard, the Sixth Circuit has
described the appropriate standard of review as modified de
novo as well. See Knable v. Bexley City Sch. Dist., 

, 764 (6th Cir. 2001) (“According to this ‘modified’ de
novo standard of review, a district court is required to make
findings of fact based on a preponderance of the evidence
contained in the complete record, while giving some
deference to the fact findings of the administrative
proceedings.”). We agree with these other courts that the
appropriate review of the administrative hearing is modified
de novo.

                             III.

        A.   Application of modified de novo review
  In cases where we have upheld a District Court’s decision
to overrule the administrative fact finder, the District Court
has fully explained its reasons for departing from the state
decision. For example, in Wexler v. Westfield Board of
Education, “The district court, in a very thorough opinion,
analyzed the evidence in a responsible and sensitive
fashion. It reviewed all the test results, and all the
administrative proceedings, including the transcripts and
reports. Its findings are detailed and supported by the
evidence.” 

, 181 (3d Cir. 1986). Similarly in
Geis v. Board of Education, we noted that “In a thorough
opinion, the district court [made an independent
determination based on a preponderance of the evidence],
specifically citing the evidence in its record and the
administrative record that supported its conclusion, as well
                             15


as discussing the conflicting evidence.” 

, 583
(3d Cir. 1985). In Oberti, the District Court held a three day
trial and took new evidence before concluding that the ALJ

.
  In contrast, the Magistrate Judge here concluded that the
ALJ “simply got it wrong.” Although the report and
recommendation adopted by the District Court does set
forth the arguments from the School District and S.H., it
does not explain why the District Court reached the
conclusion that the ALJ “simply got it wrong.” The District
Court did not address any of the extensive factual findings
noted above regarding the deficiencies with the proposed
IEP. Under the modified de novo standard of review, this
does not accord sufficient deference to the factual
conclusions of the ALJ.

                B.   Appropriateness of IEP
   The issue of whether an IEP is appropriate is a question
of fact. 

. Even if the District Court
applied the wrong standard of review, we may still uphold
its decision if correct under the appropriate standard of
review. See 

(finding that although the
district court applied the wrong test, its decision could
nevertheless be upheld under application of the correct
standard.). We review the decision of the ALJ under the
modified de novo standard, giving due weight to the ALJ’s
decision. The issue is the appropriateness of the IEP
changing I.H.’s placement to the Bruce Street School, and
the burden is on the School District. We will defer to the
ALJ’s credibility determinations unless countered by non-
testimonial evidence on the record.
  As discussed above, the ALJ noted several deficiencies in
the proposed IEP. Taking the ALJ’s factual findings as
prima facie correct, we must decide whether the record
contradicts those factual findings. As the School District
correctly points out, the issue is not a comparison between
the Lake Drive School and the Bruce Street School. The
IDEA does not require the School District to provide I.H.
with the best possible education. However, the School
District does not meet its burden by simply showing that
                              16


an appropriate program may be available. Instead, the
School District must show that the proposed IEP will
provide I.H. with a meaningful educational benefit. This is
an individual determination personal to I.H. See

   (determining   the
appropriateness of an IEP requires “a student-by-student
analysis that carefully considers the student’s individual
abilities.”). The Lake Drive School and its program are only
an issue as far as they relate to I.H.’s specific situation.
Here, the School District initially placed I.H. in the Lake
Drive School. Now, one factor of I.H.’s individual situation
is her placement at Lake Drive. In other words, if a change
in her placement will be detrimental, this is a factor in
determining whether the new placement will achieve a
meaningful educational benefit.

             1.   Least Restrictive Environment
  The School District premises much of its argument on
the idea that Bruce Street is the least restrictive
environment (LRE). The ALJ found that although Bruce
Street is contained within a neighborhood school with
nondisabled children, its mainstreaming opportunities were
actually de minimis.
   We have adopted a two-part test for determining whether
a School District complies with the LRE requirement. The
first step is for the court to determine whether the school
can educate the child in a regular classroom with the use
of supplementary aids and services. If, as here, the child
cannot be educated in a regular classroom, the next step is
to decide whether the school is mainstreaming the child to
the maximum extent possible. 

.
Before we reach this two-part test though, we note that the
child must be educated in the LRE that will provide a
meaningful educational benefit. See 

.
  In Carlisle, we noted that the LRE would ideally be the
same school the child would have attended if she were not

. However, we prefaced that
statement by noting that such placement is only
appropriate to the extent that it “satisfactorily educates” the
disabled child. 

District and District Court’s
                             17


emphasis on the LRE requirement here is misplaced. The
School District must first prove that the IEP will provide a
meaningful educational benefit. The School District cannot
bootstrap the meaningful educational benefit with the LRE
requirement. The “IDEA requires that disabled students be
educated in the least restrictive appropriate educational
environment.” 

(emphasis
added). If the educational environment is not appropriate,
then there is no need to consider whether it is the least
restrictive.
   Even considering the mainstreaming opportunities the
School District points to, we agree with the ALJ that they
are de minimis. Other than potential interaction at lunch or
recess (in a uniform segregating the Bruce Street students
from the nondisabled students), the School District points
to art with sign interpreter and “after school sports with
late bus” proving Bruce Street is the LRE. App. at A458.
The LRE should be considered in light of I.H.’s specific
educational needs. Geis v. Bd. Educ., 

, 583
(3d Cir. 1985). As the ALJ noted, art with sign interpreter
would provide almost no educational benefit to I.H.
Therefore, any value from mainstreaming is marginal. As to
the “after school sports with late bus,” the School District
does not detail to what extent I.H., in kindergarten, would
even be able to use this program.

            2.   Meaningful Educational Benefit
   Taking each deficiency noted by the ALJ in turn, the
evidence on the record does not overcome the ALJ’s factual
conclusions. For several deficiencies, the School District
does not present any rebuttal and none can be found in the
record. The proposed IEP does not address I.H.’s residual
hearing, nor does the School District explain why the ALJ’s
finding that this is a significant omission is incorrect. The
IEP refers to use of the Stanford Achievement Test “normed
on the Hearing Impaired.” App. at A455. The School District
does not rebut Dr. McKirdy’s statement that the SAT is not
an appropriate test for determining I.H.’s performance
levels, as the test is not normed for children younger than
eight.
                                  18


  The proposed IEP recognizes that I.H.’s progress may
suffer without an extended school year. App. at A463
(“Hearing-impaired children lose a great deal of academic
ground during the summer months . . . when they are not
in a structured, academic setting.”). Nevertheless, the
proposed IEP does not address extended school year
services.
   The ALJ found that consistent use of signs, specifically
relating to the word order used and the use of connecting
words and word endings, was one of the most important
aspects of teaching I.H. English. S.H. v. Newark Bd. Educ.,
No. EDS7639-99 at 9-10, ¶ 34-36. A thorough review of the
record supports the ALJ’s conclusion that the School
District did not prove by a preponderance of the evidence
that the communications methods of Bruce Street and Lake
Drive are the same. The parties agree that both schools
adhere to the “total communication” philosophy. The
evidence in the record does not rebut the ALJ’s conclusion
that the execution of the total communication philosophy
was different between the two schools. Dr. McKirdy testified
that Lake Drive stresses the use of connecting words and
word endings because those words are easily missed.4 The
school stresses consistency between teachers and classes to
assure that the appropriate signs are used. In addition, Dr.
McKirdy testified that the school strives for consistency
with words for which there is not a formally accepted sign.
The School District’s witnesses testified that Bruce Street
employs the same philosophy of total communication, but
did not contradict the ALJ’s conclusions that there may be
significant differences in the details of the language used.
Coupled with the ALJ’s finding that I.H. is at an important
stage in her language acquisition, the record supports the

4. Dr. McKirdy gave the following example in her testimony: “putting the
s on the end of a word, three balls, plus the plural marker on the end,
you would mark a past tense, you would mark . . . good, better, and
best, so that the er, est endings on an adjective so that you’re giving
clues for that. Like a sentence, he walks the dog, versus he walked the
dog, has hugely different meaning, which you use a signed marker to
show that it’s either active or happened in the past.”
App. at A276.
                             19


ALJ’s conclusion that differences in the program may be
detrimental to I.H.
  The non-testimonial evidence on the record does not
contradict the ALJ’s factual findings. Therefore, we accept
them as correct. In light of his factual findings, the ALJ’s
conclusion that the School District did not prove by a
preponderance of the evidence that the proposed IEP would
convey a meaningful educational benefit is not in error.

                       C.   Timeliness
   S.H. also challenges the timeliness of the School
District’s challenge to the ALJ’s decision. The District Court
did not address this issue. The IDEA does not contain a
statute of limitations relating to these suits. In Tokarcik v.
Forest Hills School District, 

(3d Cir. 1981), we
decided that, under Pennsylvania law, either a two-year or
six year statute of limitations applies. We have followed this
decision in later cases. See, e.g., Jeremy H. v. Mount
Lebanon Sch. Dist., 

, 280 (3d Cir. 1996). In
Ridgewood, we held that the appropriate statute of
limitations for a parent to appeal an adverse administrative
decision under the IDEA in New Jersey is two 

. We have also held that the time to initiate the
administrative procedure is a question of equity and that
the parents must initiate proceedings within a reasonable
time. Bernardsville Bd. Educ. v. J.H., 

, 157-60
(3d Cir. 1994).
   S.H. suggests that we should extend this equitable
principle to determining the appropriate time for the school
to appeal from an adverse administrative decision. S.H.’s
concerns are understandable. New Jersey clearly seeks
prompt settlement of these disputes by imposing a 45-day
limit on the time the ALJ may take to decide. Here, the ALJ
promptly issued a decision as to the 1999-2000 IEP early in
the school year. It was not until May 26, 2000 that S.H.
sought attorneys’ fees. This was after the May 16, 2000 IEP
development meeting for the 2000-01 school year where the
School District apparently suggested continuing placement
at Lake Drive. Only after S.H. sought attorneys’ fees did the
School District challenge the ALJ’s decision. Nevertheless,
                              20


we are not inclined to parse our earlier decisions in an
attempt to carve out a new statute of limitations here.
   While we do not adopt S.H.’s suggestion to impose a
shorter statute of limitation, we do note that the School
District’s delay should have an impact on the remedy. The
School District suggests that if we uphold the ALJ’s
decision that the IEP is inappropriate, the proper remedy is
to allow it to revise its IEP to properly address the
placement at Bruce Street. Were we to follow the School
District’s suggestion, we would strip the attorney fee
provisions of the IDEA of any effectiveness in similar cases.
We are addressing only the 1999 proposed IEP. If the
School District can “correct” the IEP in 2003 (or any time
after the 1999-2000 school year) and then claim that the
student has not prevailed, plaintiffs in these cases could
never recover attorneys’ fees. This is clearly not the
intention of Congress in providing for attorneys’ fees in the
IDEA. Had the School District promptly appealed the case
following the ALJ decision, and had it lost, it may have
been able to present an IEP showing that I.H. would receive
a meaningful educational benefit at Bruce Street.

                              IV.
   The School District did not prove by a preponderance of
the evidence that the proposed IEP would afford I.H. with a
free and appropriate education. Therefore, the judgment of
the District Court in favor of the School is reversed and we
remand this case with instructions to enter judgment in
favor of S.H.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit