Filed: Feb. 04, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-4-2009 G.N. v. Bd Ed Twp Livingston Precedential or Non-Precedential: Non-Precedential Docket No. 07-2337 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "G.N. v. Bd Ed Twp Livingston" (2009). 2009 Decisions. Paper 1929. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1929 This decision is brought to you for free and open access by th
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-4-2009 G.N. v. Bd Ed Twp Livingston Precedential or Non-Precedential: Non-Precedential Docket No. 07-2337 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "G.N. v. Bd Ed Twp Livingston" (2009). 2009 Decisions. Paper 1929. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1929 This decision is brought to you for free and open access by the..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-4-2009
G.N. v. Bd Ed Twp Livingston
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2337
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"G.N. v. Bd Ed Twp Livingston" (2009). 2009 Decisions. Paper 1929.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1929
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2337
G. N. and S. N.,
On Behalf of J.N., a minor
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF LIVINGSTON
G.N. and S.N.,
Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 05-cv-03325)
District Judge: The Honorable Joseph A. Greenaway
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2008
Before: BARRY, CHAGARES, Circuit Judges, and COHILL, Jr.,* District Judge
(Opinion Filed: February 4, 2009)
OPINION
*
Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the Western
District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Appellants G.N. and S.N., parents of J.N., brought this action against the Board of
Education of the Township of Livingston (“the Board”), alleging violations of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
Appellants sought reimbursement for the cost of private tuition and other declaratory
relief. They now appeal the order of the United States District Court for the District of
New Jersey which denied their motion for summary judgment and, the parties agree, fully
resolved the matter before the District Court. We will affirm.
I.
Inasmuch as we write primarily for the parties, we reprise only those facts that are
helpful in our discussion of the case.
This case stems from a disagreement between J.N.’s parents and the Child Study
Team (“CST”) at her school as to the appropriate educational setting and services for J.N.
J.N. has been diagnosed with Developmental Reading Disorder (dyslexia),
Developmental Writing Disorder, and Attention Deficit Hyperactivity Disorder
(“ADHD”), though she tests in the high average range for cognitive functioning. From
the second to the sixth grade, J.N., in accordance with successive individualized
education programs (“IEPs”), received special education instruction. The type of
instruction varied from grade to grade, with J.N. receiving exclusively in-class support
during some years and some combination of in-class support and out-of-class or “pull-
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out” remediation in her school’s Resource Center in others. Beginning in September
2003, the start of her sixth grade year, J.N. was enrolled in the school’s general education
program, with in-class resource program services provided in Integrated Reading and
Language Arts (“IRLA”), Social Studies, and Science.
The present controversy arose during the reformulation of J.N.’s sixth grade IEP.
Based upon their consultation with a private learning disabilities expert and their own
assessment of J.N.’s performance under the existing sixth grade IEP, appellants requested
that J.N. continue in mainstream classes with in-class resource support, but also receive
homework accommodations and supplemental multi-sensory reading instruction, both
during the school year and in an extended school year (“ESY”) program. Appellants
stressed that they did not want to return J.N. to pull-out remediation, fearing low self-
esteem and reduced opportunities for socialization. The CST recommended pull-out
placement in small-group Resource Center classes for IRLA to aid her in reading and
written language areas in addition to the in-class support she already received.
The CST brought two draft IEPs to the January 23, 2004 IEP meeting with
appellants. One draft outlined the CST’s recommended pull-out program; the other called
for enhanced mainstream instruction, but not the supplemental reading instruction or
homework accommodation requested by appellants. After some discussion, the CST
provided only the latter, “mainstream” draft IEP for appellants’ review. Although
appellants had pressed for J.N. to continue in mainstream classes, they rejected the
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proposed IEP because it lacked some of their requests and did not contain a statement of
individualized goals and objectives. The CST finalized the “mainstream” draft (the
“January 2004 IEP”).
Appellants filed a mediation request with the New Jersey Department of
Education. When mediation proved unsuccessful, the action was transferred to the New
Jersey Office of Administrative Law for a due process hearing. Appellants’
administrative petition alleged that the Board had violated the IDEA, and sought an order
directing the Board to (1) formulate individualized goals and objectives and monitor
J.N.’s progress, (2) provide the requested supplemental instruction and accommodations,
and (3) provide out-of-school tutoring to compensate for any shortcomings in the school’s
services. In the alternative, appellants requested reimbursement for a private school
placement. Before the hearing could take place, appellants enrolled J.N. in a private
school for her seventh-grade year, a school which, we note, would not appear to have
provided, among other things, the least restrictive educational environment for J.N.
At the due process hearing, the administrative law judge (“ALJ”) heard testimony
from multiple witnesses for each side. The Board’s witnesses, which included several
members of the CST, testified that the January 2004 IEP offered a free appropriate public
education in the least restrictive environment, and pointed to several indicators, including
grades and test scores, to demonstrate that J.N. had obtained a meaningful benefit from
enhanced mainstream instruction. In addition to their own testimony, appellants offered
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outside consultant Dr. Jane Healey and learning disabilities expert Dr. Sandra Newman.
Dr. Healey recommended that J.N. remain in either the mainstream or the Resource
Center for her primary subjects, but that, in either case, she receive multi-sensory reading
instruction. Dr. Newman acknowledged that the Board’s Resource Center was adequate
for J.N.’s needs, and that “virtually all but one of the modifications and accommodations
set forth in the January 2004 IEP would be of educational benefit to JN.” (App. 155.) The
ALJ also reviewed several documents, including the IEP, the correspondence between the
CST and appellants, and performance reviews. Ultimately, the ALJ concluded that the
January 2004 IEP was appropriate and denied appellants’ request for reimbursement.
Appellants then commenced this action in the District Court.1 Relying exclusively
on the administrative record, the Court upheld the bulk of the ALJ’s order, including its
conclusion that the January 2004 IEP addressed J.N.’s unique educational needs and
conferred a meaningful benefit. However, the Court also noted certain factual
inaccuracies in the ALJ’s opinion. For one, appellants did not consent to the January
2004 IEP and, in fact, registered their rejection of the IEP on the document itself. While
appellants preferred mainstream instruction to pull-out remediation, they did so with the
proviso that J.N. receive supplemental reading instruction and the requested homework
accommodation. The Court also disagreed with the ALJ with regard to a procedural
1
As the parties seeking relief, appellants had the burden of establishing that the Board
violated a substantive IDEA right. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 391
(3d Cir. 2006).
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error, pointing out that the January 2004 IEP did not contain a statement of individualized
goals and objectives. The Court concluded, however, that this error did not deprive J.N.’s
parents of the opportunity to participate in the process of formulating the IEP nor result in
the loss of educational opportunity. Accordingly, the Court held that the Board satisfied
its obligation to provide a free and appropriate legal education under the IDEA, and ruled
that appellants were not entitled to reimbursement.
II.
The District Court exercised jurisdiction under 20 U.S.C. § 1415, and we have
jurisdiction under 28 U.S.C. § 1291.
“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.E. v.
Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); see also Shore Reg’l High Sch.
Bd. of Educ. v. P.S.,
381 F.3d 194, 199 (3d Cir. 2004) (noting that the District Court
“must make its own findings by a preponderance of the evidence” but “also afford ‘due
weight’ to the ALJ’s determination”). Where, as here, a district court reviews
administrative fact finding without hearing additional evidence, it is “required to defer to
the ALJ’s factual findings unless it can point to contrary nontestimonial extrinsic
evidence in the record.” S.H. v. State-Operated Sch. Dist. of Newark,
336 F.3d 260, 270
(3d Cir. 2003). We apply “plenary review with respect to the question whether the
6
District Court applied the correct legal standards under the IDEA, but we review the
District Court’s factual findings for clear error.” Shore Reg’l, 381 F.3d at 199.
III.
Appellants argue they are entitled to reimbursement on two theories: (1) the Board
failed to comply with several procedural requirements for the formulation of an IEP under
the IDEA and the New Jersey regulations implementing the IDEA; and (2) the January
2004 IEP did not confer a meaningful educational benefit. We will take these theories in
reverse, as the resolution of the latter bears on the former.
Under the IDEA, an IEP must be individually tailored to meet the needs of a
disabled child such that the child receives a “meaningful benefit” from the instruction.
L.E., 435 F.3d at 390. It does not require school districts to “maximize” the potential of
that child. Bd. of Educ. v. Rowley,
458 U.S. 176, 198 (1982).
Appellants claim that the absence of the requested modifications to J.N.’s
education plan—the homework accommodation and the provision of a supplemental
reading program—rendered the January 2004 IEP ineffective. We disagree. Both the
ALJ and the District Court concluded on the basis of the testimony adduced during the
administrative hearing and several indicators of J.N.’s performance—including grades,
year-to-year progress, and standardized and independent testing—that the January 2004
IEP was reasonably designed to confer a meaningful educational benefit tailored to J.N.’s
specific needs. While appellants disagree strongly with the conclusions to be drawn from
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this evidence, we detect no clear error in the findings of the Court.
Our conclusion necessarily disposes of appellants’ procedure-based
arguments—that the Board violated the IDEA by its failure to: (1) provide J.N.’s parents
with proper notice and access to the alternate draft IEP; (2) offer J.N. a continuum of
alternative placements; (3) consider J.N.’s individual needs in denying ESY reading
instruction; and (4) include goals and objectives in her IEP. These arguments fail if for
no other reason than that, as noted above, there is adequate support in the record for the
conclusion of both the ALJ and the District Court that the January 2004 IEP conferred a
free and appropriate public education.
Pursuant to the IDEA, a procedural violation committed during the formulation of
a child’s IEP is actionable only if that violation: (1) impedes the child’s right to a free
appropriate public education; (2) significantly impedes the parents’ opportunity to
participate in the decisionmaking process; or (3) causes a deprivation of benefits.
Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994, 2001 (2007)
(citing 20 U.S.C. § 1415(f)(3)(E)(i) & (ii)); see also W.G. v. Bd. of Trustees,
960 F.2d
1479, 1484 (9th Cir. 1992) (holding that only “procedural inadequacies that result in the
loss of educational opportunity or seriously infringe the parents’ opportunity to participate
in the IEP formulation process clearly result in the denial of a [free and appropriate public
education]”) (citations omitted); Roland M. v. Concord Sch. Comm.,
910 F.2d 983, 994
(1st Cir. 1990) (en banc) (“Before an IEP is set aside, there must be some rational basis to
8
believe that procedural inadequacies compromised the pupil’s right to an appropriate
education, seriously hampered the parents’ opportunity to participate in the formulation
process, or caused a deprivation of education benefits.”) (citations omitted).
After carefully reviewing the administrative record, the District Court determined
that, contrary to appellants’ claims, the January 2004 IEP was the product of a
collaborative effort between the CST and J.N.’s parents and was designed to address
J.N.’s needs. Appellants’ frustration with the end-product of that collaboration does not
diminish the fact that the IEP—had appellants agreed to its implementation—would have
conferred a meaningful educational benefit. Appellants cite no evidence that compels us
to overturn that conclusion.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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