Filed: Aug. 20, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Shore Regional High v. P.S. Precedential or Non-Precedential: Precedential Docket No. 03-3438 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Shore Regional High v. P.S." (2004). 2004 Decisions. Paper 360. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/360 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Shore Regional High v. P.S. Precedential or Non-Precedential: Precedential Docket No. 03-3438 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Shore Regional High v. P.S." (2004). 2004 Decisions. Paper 360. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/360 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-20-2004
Shore Regional High v. P.S.
Precedential or Non-Precedential: Precedential
Docket No. 03-3438
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Shore Regional High v. P.S." (2004). 2004 Decisions. Paper 360.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/360
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PRECEDENTIAL (Opinion Filed: August 20, 2004 )
UNITED STATES COURT OF MICHAELENE LOUGHLIN (argued)
APPEALS Loughlin and Latimer
FOR THE THIRD CIRCUIT 131 Main Street, Suite 235
____________ Hackensack, NJ 07601
No. 03-3438 Counsel for Appellant
____________
DAVID M. HAWKINS (argued)
SHORE REGIONAL HIGH SCHOOL NATALIE S. SHAHINIAN
BOARD OF EDUCATION CHRISTOPHER LAZAS
Purcell, Ries, Shannon, Mulcahy &
v. O’Neill
One Pluckemin Way
P. S., ON BEHALF OF P.S., P.O. Box 754
Bedminster, NJ 07921
Appellant
Counsel for Appellee
____________________ ____________________
ON APPEAL FROM THE UNITED OPINION OF THE COURT
STATES DISTRICT COURT _____________________
FOR THE DISTRICT OF NEW
JERSEY
District Court Judge: Honorable Mary L. ALITO, Circuit Judge:
Cooper
(D.C. No. 01-cv-5758) This is an appeal from a District
____________________ Cou rt order overturning a state
administrative law judge’s decision
Argued: June 16, 2004 holding that a school district failed to
provide a “free appropriate public
Before: ALITO, SMITH, and DuBOIS,* education” within the meaning of the
Circuit Judges Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400-1487,
for a student who had been subjected to
severe and prolonged harassment by other
*
The Honorable Jan E. DuBois, District students. We hold that the District Court
Judge of the United States District Court improperly failed to give “due weight” to
for the Eastern District of Pennsylvania, the ALJ’s determination, and we therefore
sitting by designation. reverse.
I. appreciable improvement. After P.S.’s
grades slipped badly, Maple Place
P.S. was born in 1986 and attended
evaluated him and classified him as
public schools in the Oceanport (New
eligible for special education and related
Jersey) School District from kindergarten
services based on perceptual impairment.
through eighth grade. In elementary
The Oceanport Child Study Team (“CST”)
school, P.S. was teased by other children
then developed an Individualized
who viewed him as “girlish,” but when
Education Program (“IEP”) that placed
P.S. began to attend the Maple Place
P.S. in the “resource room” for math and
Middle School in fifth grade, the bullying
gave him extra teacher attention to help
intensified. In the words of the District
with his organizational skills. The CST
Court, P.S “was the victim of relentless
manager believed that P.S.’s poor
physical and verbal harassment as well as
academic work was due to the bullying
social isolation by his classmates.” App.
rather than any cognitive deficiencies.
13.
P.S.’s classification remained
Most of the harassment of P.S.
throughout sixth and seventh grade, and
focused on his lack of athleticism, his
his IEP was expanded to include a daily
physique, and his perceived effeminacy.
resource-center literature class and an
Bullies constantly called P.S. names such
alternative physical education class to help
as “faggot,” “gay,” “homo,” “transvestite,”
him with his physical skills and to avoid
“transsexual,” “slut,” “queer,” “loser,”
the locker room changing period, during
“big tits,” and “fat ass.” Bullies told new
which other children ridiculed his
students not to socialize with P.S.
physique. The school also permitted P.S.
Children threw rocks at P.S., and one
to change classes at special times so that
student hit him with a padlock in gym
he would not encounter other students in
class. When P.S. sat down at a cafeteria
the hallways and could thus avoid the
table, the other students moved. Despite
harassment that customarily occurred
r e p e a te d c o m pl a i n ts , th e s c h ool
there. In eighth grade, the harassment
administration failed to remedy the
became so intense that P.S. attempted
situation.
suicide. At the request of his psychiatrist,
The constant harassment began to who told the CST manager that P.S.’s life
cripple P.S. He became depressed, and his and health were at stake, P.S. received
schoolwork suffered. When P.S. was in home schooling for six weeks. In
fifth grade , his m oth er, on the February and March of that year, M aple
r e c o m m e n d a t i o n o f t h e s c h o ol Place changed P.S.’s classification, finding
psychologist, obtained private psychiatric him eligible for special education on the
counseling for him. The psychiatrist basis of emotional disturbance.
diagnosed P.S. with depression and
The public high school serving
prescribed medication, but there was no
P.S.’s community is Shore Regional High
2
School (“Shore”), but P.S.’s parents had weekly counseling. Based on this
begun to look for a different school for program, the Shore authorities concluded
their son some years earlier, and they that their school would be the “least
eventually became interested in Red Bank restrictive environment” for P.S. See 20
High School (“Red Bank”), the public high U.S.C. § 1412(a)(5) (school must
school in a neighboring school district. provide education in least restrictive
Red Bank was attractive both because it environment).
did not enroll students from Maple Place
P.S.’s parents strongly disagreed
and because it had a drama program that
with Shore’s decision and unilaterally
appealed to P.S.’s interests. P.S.
placed him in Red Bank for the ninth
auditioned for the Red Bank drama
grade. Initially, Red Bank did not create
program and was accepted. P.S.’s parents
an IEP for P.S., but did provide him with a
then asked Shore to place him at Red
special education class in algebra and
Bank, and the Oceanport CST concurred.
academic support. While Red Bank did
The CST believed that if P.S. attended
not schedule weekly counseling sessions,
Shore Regional High School he would
it made clear to P.S. that counseling was
experience the same harassment that had
available upon request. Red Bank’s plan
occurred at Maple Place because the
was to mainstream P.S. for all his classes.
bullies who were responsible would also
When P.S. was in ninth grade, Red Bank
be there.
created an IEP for him that maintained his
Shore undertook its own evaluation, academic support center class, but
relying mostly on the Maple Place IEP and mainstreamed him for all other classes.
a surveillance of P.S. in his classes. Like Shore, Red Bank offered a program
Despite the recommendation from the to combat bullying that included discipline
CST, Shore rejected P.S.’s request to and diversity seminars. As the District
attend Red Bank and concluded that he Court not ed, P .S. “thrived both
should attend Shore for ninth grade. Shore academically and socially at Red Bank.”
apparently believed that if it granted P.S.’s App. 23.
request, it would have to grant the request
After Shore rejected P.S.’s request
of non-disabled students who wished to
to attend Red Bank, P.S.’s father filed a
attend Red Bank. Shore’s affirmative
mediation request with the New Jersey
action officer, Dr. Barbara Chas,
Department of Education. Mediation
contended that Shore could contain the
proved unsuccessful, and the action was
bullying by disciplining bullies and by
transferred to the New Jersey Office of
utilizing peer and social worker mediation.
Administrative Law for a “due process
Shore also proposed an IEP in which P.S.
hearing.” Before the hearing, both sides
would attend the resource room for math
agreed to an independent evaluation by the
and would have a supplemental course in
Institute for Child Development at the
learning skills, adaptive gym classes, and
Hackensack University Medical Center
3
(“Hackensack”). Hackensack as the defendant, and P.S.’s father filed a
recommended that P.S. attend a school counterclaim for attorneys’ fees. Relying
such as Red Bank. on the administrative record, the District
Court reversed the ALJ’s decision.
At the due process hearing, the ALJ
Crediting Dr. Chas’s testimony, the
heard testimony from several witnesses,
District Court found that Shore offered
including P.S., his mother, Dr. Chas, Dr.
P.S. a free appropriate public education.
Mina Corbin-Fliger (a member of the
The Court wrote:
Oceanport CST), and Dr. Carol Friedman
(a psychologist at Hackensack). All of the The inability of the Maple
witnesses agreed that P.S. had been Place administration to
subjected to unusual levels of harassment. successfully discipline its
While Dr. Chas testified that she believed students does not make
that Shore could control the bullying, P.S., Shore an inappropriate
his mother, Dr. Corbin-Fliger, and Dr. placement. No school can
Friedman all disagreed. The ALJ also ever guarantee that a student
reviewed several documents relating to will not be harassed by other
P.S.’s case, including his IEPs and students. . . . However, we
recommendations regarding placement. find that, in light of the
s t r u ct u r e d disciplin ary
The ALJ concluded that Shore
mechanism in place at Shore
could not provide P.S. with a “free
and Chas’s op inion
appropriate public education,” as required
regarding the supportive
by the IDEA, see 20 U.S.C. § 1412(a)(1),
nature of students involved
because of the “legitimate and real fear
in drama there, the risk that
that the same harassers who had followed
the harassment wou ld
P.S. through elementary and middle school
continue was not so great as
would continue [to bully him.]” App. 41.
to render Shore
The ALJ was particularly concerned that
inappropriate.
the bullies from P.S.’s area would harass
him during largely unsupervised school App. 31-32 (emphasis in original).
bus rides to Shore and that Shore would be
The District Court did not accept
unable to provide for P.S.’s emotional
the testimony of Dr. Corbin-Fliger and Dr.
needs within its very large student body.
Friedman, stating that they had “focused
App. 42, 47. The ALJ ordered Shore to
on the failure of the Maple Place
reimburse P.S. for the out-of-district
administration to discip line [th e]
tuition and related costs, including P.S.’s
tormenters; they did not address whether
reasonable attorneys’ fees.
the Shore administration would have been
Shore then commenced this action able to address the problem.” App. 23.
in the District Court, naming P.S.’s father The Court also implicitly faulted Dr.
4
Friedman on the ground that she had 20 U.S.C. §1401(8).
“never visited Shore to investigate their
States provide a FAPE through an
disciplinary measures or the type of
individualized education program (“IEP”).
environment supplied by its drama
See 20 U.S.C. 1414(d). The IEP must be
program.” Id. at 30 n. 21. In addition, the
“reasonably calculated” to enable the child
District Court concluded that “Shore was
to receive “meaningful educational
the least restrictive environment for P.S.
benefits” in light of the student’s
because it was his local public high school,
“intellectual potential.” Polk v. Cent
where he would have been educated with
Susquehanna Interm. Unit 16, 853 F.2d
other nondisabled children.” Id. at 33.
171, 181 (3d Cir. 1988).
II.
Under 20 U.S.C. § 1412(5),
All states receiving federal children must also be educated in the least
education funding under the IDEA must restrictive environment. This means that,
comply with federal requirements designed “[t]o the maximum extent appropriate,
to provide a “free appropriate public children with disabilities . . . are [to be]
education” (“FAPE”) for all disabled educated with children who are not
children. See 20 U.S.C. §1412(1). “The disabled” and that ch ildren w ith
term ‘free appropriate public education’ disabilities are not to be placed in special
means special education and related classes or otherwise removed from “the
services that-- regular educational environment” except
when “the nature or severity of the
(A) have been provided at
disability of a child is such that education
public expense, under public
in regular classes with the use of
supervision and direction,
supplementary aids and services cannot be
and without charge;
achieved satisfactorily.” Id.
(B) meet the standards of
As long as a state satisfies the
t h e S t a t e ed u c ati o n al
requirements of the IDEA, the state may
agency;
fashion its own procedures. Under New
(C) include an appropriate Jersey law, a CST composed of a
preschool, elementary, or psychologist, a learning disability teacher-
secondary school education consultant, and a school social worker
in the State involved; and conducts an evaluation of the student. See
N.J.S.A. §18A:46-5.1. Using the CST’s
(D) are provided in
evaluation, the school district determines
conform ity with the
whether the student should be classified as
individualized educa tion
disabled. See N.J.A.C. §6A:14-3.1. If the
program required under
student is found to be disabled, the school
section 1414(d) of this title.”
assembles a team to create an IEP for the
5
child. See N.J.A.C. §6A:14-3.7. This “reasonably calculated” to enable the child
program is reevaluated every year, and the to receive “meaningful educational
child’s eligibility is redetermined every benefits” in light of the child’s
three years. See N.J.A.C. §6A:14-3.8. “intellectual potential.” See Board of
Educ. of Hendrick Hudson Central School
Under 20 U.S.C. § 1415,
Dist., Westchester County v. Rowley, 458
dissatisfied parents may challenge a school
U.S. 176, 206-07 (1982); Ridgewood
district’s determ ination s in an
Bd.of Educ.v. N.E., 172 F.3d 238, 247 (3d
administrative proceeding. In New Jersey,
Cir. 1999). If the IEP did not provide a
the parents and the school board first
FAPE, the District Court must then decide
undergo mediation, and if mediation is
whether the parents took appropriate
unsuccessful, a “due process hearing” is
actions. See Michael C. v. Radnor Twp.
held before a state administrative law
Sch. Dist., 202 F.3d 642, 651 (3d Cir.
judge. See 20 U.S.C. § 1415(e) and (f);
2000).
N.J.A.C. § 6A:14-2.7(c) and (d). Parents
who disagree with their child’s placement The burden of proof that a District
may unilaterally enroll their child in a Court must apply when an IDEA decision
different school and seek reimbursement. by a state agency is challenged is unusual.
N.J.A.C. § 6A:14-2.10)d). However, no Although the District Court must make its
reimbursement is required if the school own findings by a preponderance of the
district offered the student a FAPE. evidence, 20 U.S.C. § 1415 (1)(2)(B)(iii),
N.J.A.C. § 6A14-2.1(a). the District Court must also afford “due
weight” to the ALJ’s determination.
Any party aggreived by a placement
Rowley, 458 U.S. at 206; see also Holmes
decision may bring suit in a state court of
v. Millcreek Tp. School Dist., 205 F.3d
competent jurisdiction or a federal district
583, 591 (3d Cir. 2000). Under this
court. 20 U.S.C. § 1415(i)(2). In a case in
standard, “[f]actual findings from the
which parents seek reimbursement for a
administrative proceedings are to be
unilateral placement, the District Court
considered prima facie correct,” and “[i]f
must first determine whether the IEP
a reviewing court fails to adhere to them,
afforded the student a FAPE. School
it is obliged to explain why.” S.H. v.
Committee of Town of Burlington, Mass.
State-Operated School Dist. of City of
v. Department of Educ. of Mass., 471 U.S.
Newark, 336 F.3d 260, 271 (3d Cir. 2003).
359, 370 (1985). The school has the
In addition, if a state administrative agency
burden of showing that a FAPE was
has heard live testimony and has found the
offered. See Oberti v. Board of Educ. of
testimony of one witness to be more
Borough of Clementon School Dist., 995
worthy of belief than the contradictory
F.2d 1204, 1219 (3d Cir. 1993). To meet
testimony of another witness, that
this burden, the school must establish that
determination is due special weight. Id.;
it complied with the procedures set out in
Carlisle Area School v. Scott P., 62 F.3d
the IDEA and that the IEP was
6
520, 527-29 (3d Cir. 1995). Specifically, a FAPE. The ALJ who heard the
this means that a District Court must witnesses during a hearing that extended
accept the state agency’s credibility over four days credited the witnesses who
determ inatio n s “ u n less the non - opined that placement at Shore would have
testimonial, extrinsic evidence in the exposed P.S. to a continuation of the
record would justify a contrary devastating bullying that had occurred in
conclusion.” Carlisle, 62 F.3d at 529 Middle School. The District Court did not
(emphasis added). In this context the word point to any “nontestimonial evidence”
“justify” demands essentially the same that undermined the testimony of these
standard of review given to a trial court’s witnesses. See S.H., 336 F.3d at 271.
findings of fact by a federal appellate Instead, the Court simply chose to credit a
court. See Anderson v. City of Bessemer witness who expressed a contrary opinion.
City, N.C., 470 U.S. 564, 574 (1985). In taking this approach, the District Court
did not give the requisite deference to the
When a District Court decision in a
ALJ’s evaluation of the witnesses’
case such as this is appealed to us, we of
credibility.
course exercise plenary review with
respect to the question whether the District As noted, Dr. Friedman, a
Court applied the correct legal standards psychologist at the Institute for Child
under the IDEA, see Polk, 853 F.2d at 181, De ve lopme nt a t the Ha c kensack
but we review the District Court’s factual University Medical Center, and Dr.
findings for clear error. T.R. v. Kingwood Corbin-Fliger, a member of the Oceanport
Tp. Bd. of Educ., 205 F.3d 572, 576 (3d CST, testified unequivocally that
Cir. 2000)(citations omitted). “A finding placement at Shore would not have been
of fact is clearly erroneous when, after appropriate due to the threat of
reviewing the evidence, the court of harassment. Dr. Corbin-Fliger was fully
appeals is left with a definite and firm informed about Shore’s program, but she
conviction that a mistake has been testified “a high school situation is even
committed.” Oberti, 995 F.2d at 1204 more unrestrictive than a middle school
(internal quotation marks omitted). situation” and that “no matter what
program” Shore implemented, she did not
III.
believe that P.S. would “be in a safe
The District Court in this case did environment with the same kids” who had
not properly apply the “due weight” previously harassed him. App. 134-5.
standard. Both the ALJ and the District
Dr. Friedman testified that bullying
Court were confronted with conflicting
does not go away on its own, particularly
opinions by experts on the question
when the victim is 12 years of age or older.
whether placement at Shore offered P.S.
App. 198. Indeed, she stated that one
an education that was sufficiently free
could “pretty much guarantee” that the
from the threat of harassment to constitute
bullies would continue to harass P.S. if
7
given the chance. Id. at 215. She stated Shade would be diluted by students who
that, while “intensive interventions” with had attended other middle schools and that
the bullies, the onlookers, and the victim P.S. would receive support from the
“can be he lpful” under some students in the Shore drama club, who
circumstances, this strategy “is most were “a tight-knit group that is accepting
effective at the beginning” of a course of of newcomers.” Id. at 31.
harassment, and she noted that the
As previously noted, the District
harassment of P.S. had been going on for
Court was required under our cases to
years. Id. at 202. As a result, she testified,
provide an explanation for its decision to
the “bullies are . . . used to looking at
reject the ALJ’s decision to credit Dr.
[P.S.] in this manner, and . . . he’s used to
Friedman and Dr. Corbin-Fliger, but the
dealing with them in this manner.” Id. at
District Court’s chief explanation does not
205. She expressed particular concern
accurately characterize these witnesses’
about the “ripe opportunity” that the
testimony. The District Court faulted Dr.
bullies from P.S.’s area would have to
Corbin-Fliger and Dr. Friedman because,
harass him on school bus rides to and from
in the Court’s view, they “focused on the
Shore, id. at 203, and she opined that
failure of the Maple Place administration
neither the presence at Shore of students
to discipline these tormenters” and “did
who had not attended Maple Shade nor
n o t a ddr e ss whe ther the S h o re
participation by P.S. in Shore’s drama
administration would have been able to
program would have been enough to
address the problems.” App. 30. In fact,
protect him. Id. at 210, 219. Finally, she
however, while Drs. Corbin-Fliger and
observed that simply seeing the bullies at
Friedman certainly took into account
Shore would have adversely affected P.S’s
P.S.’s experiences at Maple Shade (as did
self-esteem and his “ability to concentrate
Dr. Chas), they focused upon and squarely
and focus.” Id. at 205.
addressed the question whether Shore
Rejecting the AL J’s decision to would have been able to protect P.S. from
credit these witnesses, the District Court devastating harassment. Fairly read, their
was more impressed by the testimony of collective testimony was that Shore would
Dr. Chas, the Shore affirmative action not have been able to remedy the problem
officer, who opined that Shore would be because, among other things, the same
able to control the bullying problem bullies would be present at Shore; bullies
because it provides “peer mediation” and generally do not stop on their own; even
“counseling and training for both victims “intensive interventions” are often not
and perpetrators of harassment” and effective when they are not begun until
employs “a structured disciplinary system” after a course of harassment has continued
with “a hierarchy of punishments.” App. for some time; the presence at Shore of
30-31. Dr. Chas also maintained that the students who had not attended Maple
influence of the students from Maple Shade would not have shielded P.S.; the
8
bullies would have had a ripe opportunity Shore could prevent the Maple Shade
to harass P.S. on the bus; and, in short, no bullies from having any contact with P.S.
matter what program Shore implemented, Nor did she claim that Shore had ever
P.S. would not have been adequately dealt successfully with a harassment
protected. Thus, the witnesses upon whom problem of this severity in the past. Nor
the ALJ relied directly addressed the did she claim that she knew of cases in
question whether Shore would have been which other high schools had successfully
able to deal with the harassment problem cured problems of this nature by means of
successfully. a program similar to the one that Shore
proposed. In addition, although it appears
In a footnote, the District Court also
that Dr. Chas’s opinion rested heavily on
implicitly criticized Dr. Friedman’s
the view that Shore’s disciplinary system
testimony on the ground that she “never
would deter the bullies, she did not explain
visited Shore to inv estigate their
in concrete terms how that system could
disciplinary measures or the type of
have dealt satisfactorily with a campaign
environment supplied by its drama
of harassment involving a barrage of
program.” App. 30 n. 21. On cross-
abusive conduct of a sort that is difficult to
examination, Dr. Friedman was asked why
prove in a disciplinary proceeding – for
she had not visited Shore, and she
example, constant snickering, shunning, or
responded that the Institute for Child
mumbled epithets that no one other than
Development had based its evaluation on
P.S. claims to have heard.
the information that Shore had released
and that Shore had not suggested that a We do not suggest that Dr. Chas’s
visit to the school was needed. See App. opinion was unworthy of belief or that the
206. Since the District Court did not testimony of Dr. Corbin-Fliger and Dr.
identify any specific and material Friedman was beyond dispute. But the
information that only an actual visit to task of evaluating their conflicting
Shore would have revealed, the Court’s opinions lay in the first instance with the
criticism of Dr. Friedman for not making ALJ in whose presence they testified.
such a visit is largely beside the point. In When the ALJ’s determination in this case
short, the District Court provided no is given its “due weight,” we see no basis
substantial reason for refusing to credit the for overturning that determination. In
witnesses upon whom the ALJ clearly doing so, the District Court did not heed
relied. the “due weight” standard, and the District
Court’s finding that Shore offered FAPE
Moreover, the District Court failed
was clearly erroneous.
to acknowledge weaknesses in Dr. Chas’s
testimony. Dr. Chas provided little IV.
support for her belief that the Shore
For the reasons set out above, we
program could remedy the problem that
reverse the order of the District Court and
P.S. had faced. She did not claim that
9
remand for the entry of summary judgment
in favor of the defendant on the issue of
liability and for a determination of the
amount of reimbursement, attorney’s fees,
and any other costs that the school district
owes.
10
