NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 11-2151
                                  _____________

            UPPER FREEHOLD REGIONAL BOARD OF EDUCATION

                                         v.

                            *T. W.; M. W., o/b/o T.W.,
                                    Appellants

             *Dismissed pursuant to Clerk‟s order of December 22, 2011
                                  _____________

                    Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Civil No. 3-09-cv-01847)
                     District Judge: Honorable Joel A. Pisano
                                  _____________

                                Argued May 22, 2012

          Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges

                        (Opinion Filed: September 7, 2012)
                                 _____________

Pedro De Oliveira, Esq. [ARGUED]
Mark W. Friedman, Esq.
Debevoise & Plimpton
919 Third Avenue
41st Floor
New York, NY 10022

Denise Lanchantin Dwyer, Esq.
5 Duxbury Court
Princeton Junction, NJ 08550
  Counsel for Appellants
Cherie L. Adams, Esq. [ARGUED]
Adams, Stern, Gutierrez & Lattiboudere
1037 Raymond Boulevard
Suite 710
Newark, NJ 07102

Paul C. Kalac, Esq.
Parker McCay
1009 Lenox Drive
Building Four East, Suite 102A
Lawrenceville, NJ 08648
  Counsel for Appellee

                                     _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      This is an appeal from the District Court‟s reversal of a state administrative law

judge‟s (ALJ) award of tuition reimbursement for plaintiffs in an Individuals with

Disabilities in Education Act (“IDEA”) case. We will vacate the judgment below and

remand.

                                     I. Background

      T.W. is a child with learning disabilities. His parents, along with the school

district of Upper Freehold (the “District”), developed an individualized education plan

(“IEP”) for the 2006-07 school year that called for T.W. to split his school days between

the District‟s preschool and the “Project Child” preschool in the Mercer County Special

Services School District. Although T.W. turned four early in the 2006-07 school year, he

was placed in a classroom at Project Child with three-year olds who would turn four in


                                            2
the calendar year 2007. T.W.‟s birthday is in September 2002, shortly before the October

1st date that the District uses as a cut-off for class years. Therefore, if T.W. was placed

in a classroom based on his date of birth, he would be one of the youngest students. In

his Project Child classroom, by contrast, he was one of the oldest students.

       The current dispute relates to a disagreement between T.W.‟s parents and the

District about T.W.‟s education for the 2007-08 school year. Prior to a June 15, 2007

meeting of T.W.‟s IEP team, the District provided T.W.‟s parents with a draft IEP,

proposing that T.W. be placed in kindergarten the following fall and receive certain

additional services and therapies. At the June 15 meeting, the parents urged that T.W. be

placed in preschool for another year. The meeting adjourned without agreement on an

IEP. Another meeting was scheduled for June 29, 2007, but never took place. The

District asserts that T.W.‟s parents cancelled the meeting, whereas the parents contend

that they merely requested a postponement to give a psychologist working with T.W.

time to complete her full report.

       By letter dated June 29, 2007, the District sent T.W.‟s parents an amended IEP for

the 2007-08 school year, again calling for T.W.‟s placement in kindergarten but adding

additional supports and services recommended by a team of Yale researchers that

analyzed T.W. at his parents‟ behest. The cover letter enclosing the amended IEP stated

“[y]ou have 15 days to respond.” (A2109.)

       T.W.‟s parents responded by letter dated July 3, 2007, stating that “the document

purporting to be an IEP was generated without our participation” and that, because the

parties had not discussed their “unresolved issues” at an IEP meeting, “the document [the

                                              3
parents] received could not constitute the district‟s formal proposal.” (A2110.) The

letter concluded by stating, “[w]e look forward to your response.” (A2110.)

      On July 12, 2007, T.W.‟s parents filed a request for mediation and a due process

hearing. They claim they filed their petition when they did because they believed that,

under New Jersey law, the District‟s June 29 IEP placing T.W. in kindergarten would

have gone into effect unless they requested mediation or a due process hearing within 15

days of the IEP proposal. See N.J.A.C. § 6A:14-2.3(h)(3).

      The parties met again in August 2007 to try to resolve their dispute. At that

meeting, the parents presented the district with a letter from T.W.‟s developmental

pediatrician, Dr. Anna Baumgaertel, explaining that she recommended another year of

preschool for T.W. so that he could “work on his significant social deficits.” (A2124.)

The meeting concluded without an agreement.

      In September 2007, T.W.‟s parents unilaterally placed him as a regular student in

the Project Child preschool program. On September 11, 2007, they advised the District

by letter that they would be making the placement immediately and that they were

“unable to wait ten business days to make the placement [pursuant to 20 U.S.C. §

1412(a)(10)(C)(iii)(I)(bb)] because to do so would cause [T.W.] to suffer severe harm.”

(A2125.)

      In the beginning of the 2007-08 school year, T.W. did not receive one-on-one

services and therapies at Project Child. However, on November 19, 2007, T.W.‟s parents

and Project Child agreed on an educational plan for T.W. that called for him to receive



                                            4
additional services and be in a smaller classroom setting. The District did not participate

in the making of this plan.

       An ALJ hearing was conducted over eleven days in 2008 and early 2009. The

ALJ thoroughly described the evidence presented in a 54-page opinion. He found both

the District‟s witnesses and T.W.‟s expert witnesses credible. He found that “[i]f placed

in kindergarten in the 2007-08 school year, T.W. would do „fine academically,‟ but it

could increase his social awkwardness and withdrawal . . . . [F]or the 2007-08 school

year placement in kindergarten pursuant to an IEP with supports and services was

necessary for T.W. to have a FAPE.” (A58 (emphasis added).) The ALJ noted that when

T.W. was placed in Project Child‟s full-day preschool program for the 2007-08 school

year, he “did not receive the therapies and/or related services that the [District] would

have provided pursuant to the draft IEP and I find that this placement in Project Child did

not provide T.W. with a FAPE.” (A58.) However, the ALJ found that “[o]n November

19, 2007, without inviting the [District] educators to participate in an IEP meeting

[T.W.‟s parents] and Project Child agreed to an IEP for T.W.” (A59.)

       The District argued that it offered an IEP for the 2007-08 school year that would

have provided a FAPE and that T.W.‟s parents refused and/or failed to participate

meaningfully in the IEP-development process, so their claim for reimbursement should

therefore be dismissed. The ALJ‟s complete response follows:

       [D]uring the summer of 2007 the parties had reached an impasse: the
       petitioners would not agree to an IEP that provided for placement in
       kindergarten for the 2007-08 school year and, consistent with the findings
       of fact, placement in kindergarten would not have provided a FAPE. On
       the other hand, the placement of T.W., a disabled child, in Project Child as

                                              5
       a regular student and without an IEP also did not provide him with a FAPE.
       T.W. did not have an IEP until after November 19, 2007, and the unilateral
       placement did not provide a FAPE until after November 19, 2007.
       Consequently, the [District] cannot be ordered to reimburse [T.W.‟s
       parents] for the unilateral placement before that time. However, the
       [District] is responsible for the reimbursement for the unilateral placement
       for the period after November 19, 2007, until the end of the 2007-08 school
       year.

(A63.) The ALJ made no specific finding as to whether the District‟s draft amended IEP

offered a FAPE or whether the IEP provided sufficient “supports and services” to make

the placement in kindergarten a FAPE. (See A58 (ALJ opinion) (“[F]or the 2007-08

school year placement in kindergarten pursuant to an IEP with supports and services was

necessary for T.W. to have a FAPE.”).)

       The parties appealed to the District Court for the District of New Jersey and

submitted cross-motions for judgment on the record. Relying on our decision in C.H. v.

Cape Henlopen Sch. Dist., 

(3d Cir. 2010), the District Court held that the

parents were not entitled to reimbursement. The District Court concluded that the

parents‟ actions “deprive the Court of the ability to determine whether the District

proposed an appropriate IEP.” (A8.) Furthermore, the District Court denied

reimbursement on “equitable grounds, as provided for in 20 U.S.C. §

1412(a)(10)(C)(iii),” saying that the parents “did not provide adequate notice to the

District of their unilateral withdrawal of T.W. from the public placement,” and that their

“conduct in delaying, cancelling, or refusing to set up additional meetings with the IEP

team substantially precluded any possibility that the District could timely develop an

appropriate IEP for T.W.” (A9.)


                                             6
                                  II. Standard of Review

       On appeal from an ALJ‟s determination in an IDEA case, the district court is to

“give due weight and deference” to the ALJ‟s findings and consider the ALJ‟s factual

findings to be prima facie correct. D.S. v. Bayonne Bd. of Educ., 

, 564 (3d

Cir. 2010); see also Bd. of Educ. of Hendrick Hudson Ctrl. Sch. Dist. v. Rowley, 

, 206 (1982) (“[D]ue weight shall be given to [state administrative] proceedings.”).

According “due weight” to the ALJ‟s findings means that the district court has an

obligation “to consider—although not necessarily to accept—the administrative fact

findings.” Carlisle Area Sch. v. Scott P., 

, 529 (3d Cir. 1995) (citing Oberti

ex rel. Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 

, 1219

(3d Cir. 1993)). The district court “must independently review the evidence adduced at

the administrative proceedings and can receive new evidence.” 

.

Ultimately, the district court must “„make an independent determination based on a

preponderance of the evidence.‟” 

Bd. of Educ., 

, 583

(3d Cir. 1985)). A district court “should defer to the hearing officer‟s findings based on

credibility determinations 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.” 

.

       We review a district court‟s findings of fact for clear error and exercise plenary

review over the legal standards the district court applies and the legal conclusions it

reaches. Bayonne Bd. of 

. Under a clear error standard of review,

“we accept the District Court‟s ultimate factual determinations unless „that determination

                                              7
either (1) is completely devoid of minimum evidentiary support displaying some hue of

credibility, or (2) bears no rational relationship to the supportive evidentiary data.‟” N.J.

Retail Merchants Ass’n v. Sidamon-Eristoff, 

, 390 (3d Cir. 2012) (quoting

Krasnov v. Dinan, 

, 1302 (3d Cir. 1972)). Where parents allege that “the

district court failed to observe its own proper scope of review, we must determine

whether the district court erred in its interpretation or application of the law governing the

administrative review process, a question over which we exercise plenary review.”

(citing Louis W. Epstein Family P’ship v. Kmart Corp., 

, 765-66 (3d Cir. 1994)).

                                      III. Discussion

       The IDEA authorizes tuition reimbursement for parents who unilaterally decide to

place their child in an out-of-district school if the IEP proposed by the school district

failed to offer the child a FAPE and the placement the parents chose was proper under the

IDEA. Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 

, 370 (1985);

Florence Cty. Sch. Dist. Four v. Carter, 

, 15 (1993). The District Court failed

to analyze these issues and instead relied on Cape Henlopen as the basis for denying

tuition reimbursement to T.W.‟s parents. This was error.1 Cape Henlopen presented a

very unique situation, and the holding in that case simply cannot be applied once the

parties have been working toward formulating an IEP, and then reach an impasse. In

1
 We note that the ALJ did not have the benefit of our decision in Cape Henlopen, which
was issued after his decision in this case. Even so, we do not believe that affects our
analysis. As explained below, we believe that the behavior of T.W.‟s parents was quite
different from the conduct of the parents in Cape Henlopen.

                                              8
Cape Henlopen, the petitioners alleged that the school district committed a procedural

violation of the IDEA when it failed to have an IEP in place for their child on the first

day of 

. We noted that this failure was a result of the parents‟

decision to delay an IEP team meeting until after classes had begun. 

therefore “decline[d] to hold that a school district is liable for procedural violations that

are thrust upon it by uncooperative parents.” 

the parents do not

complain that the school district failed to timely implement an IEP. Rather they

complain that the substance of the proposed IEP, which was developed after meetings

and correspondence between the parties, did not provide a FAPE because it called for

T.W. to attend kindergarten, not preschool, for 2007-08. The alleged problem with the

IEP was not that it could not be developed due to “uncooperative parents.” 

was that the IEP offered would place T.W. in kindergarten for the school

year 2007-08.2 The parents‟ disagreed with that proposal, resulting in what the ALJ

characterized as an “impasse.” (A63.) To say that Cape Henlopen would apply to totally

bar parents from reimbursement after negotiations reached an impasse is to fault them for


2
  While the dissent believes that the procedural versus substantive distinction makes little
difference, we disagree. The reason the parents in Cape Henlopen complained of a
procedural violation—the failure of the school district to have an IEP in place on the first
day of school—was that there was no IEP offered, because the parents refused to attend
meetings or permit testing required in order for an IEP to be prepared. C.H. v. Cape
Henlopen Sch. Dist., 

, 64 (3d Cir. 2010) (“[T]he Parents refused to give the
District permission to conduct a speech and language evaluation of C.H., which was
necessary in order to develop his IEP.”). No mention is made in Cape Henlopen of any
proposed program, or the parents‟ wishes, if any, regarding schooling. We correctly held
that where the parents essentially prevented the formulation of the IEP, the school district
could not be held responsible for the procedural violation.

                                               9
failing to agree to whatever the school district presents, whether justified or not.3 Here,

the District Court erred when it abbreviated its analysis based on the parents‟ conduct and

failed to determine whether the District‟s proposed IEP was appropriate. It should have

considered the substance of the District‟s most recent proposed IEP and determined if it

met the IDEA‟s substantive requirements. See 

(holding that a

state satisfies the IDEA‟s requirement to offer FAPE “by providing personalized

instruction with sufficient support services to permit the child to benefit educationally

from that instruction”); Bayonne Bd. of 

(“Although a state is not

required to supply an education to a handicapped child that maximizes the child‟s

potential, it must confer an education providing „significant learning‟ and „meaningful

benefit‟ to the child.” (quoting Ridgewood Bd. of Educ. v. N.E., 

, 247 (3d

Cir. 1999))). We will remand for the District Court to address that issue.

       Additionally, we find error in the District Court‟s denial of reimbursement on

equitable grounds based on the parents‟ conduct. Again, the District Court‟s reliance on

3
  The dissent suggests that so long as a school district presents its proposed IEP as a
“draft” rather than “final proposal,” a parent who unilaterally places her child in private
school has “short-circuited the IEP-development process” and can be barred from tuition
reimbursement based on Cape Henlopen. (Dissenting op. at 3-4 & n.4.) This cannot be.
Under the dissent‟s proposal, school districts could force parents into perpetual
negotiations and effectively gut a parents‟ right to tuition reimbursement for a unilateral
placement. The IDEA does not permit school districts to hold parents hostage merely by
styling an IEP as a “draft” subject to the possibility of revision, however remote. Parents
who make unilateral placements for their children surely take a risk that they will later be
found to have pulled out of negotiations prematurely. Cf. Sch. Comm. of Burlington v.
Dep’t of Educ. of Mass., 

, 373-74 (1985) (noting that parents who make
unilateral placements “do so at their own financial risk”). However, we disagree with our
dissenting colleague that school districts can unilaterally dictate how long negotiations
must continue by deciding when to call their proposals “final.”

                                             10
Cape Henlopen was misplaced. The ALJ had not considered the parents to be

unreasonable or to have refused to work with the District to develop an IEP. Instead, the

ALJ recounted all of the meetings and correspondence between the parties and then

characterized the situation as an “impasse.” (A63.) This clearly connotes an inability of

both sides to agree, not the arbitrary refusal of one side to come to the table. We agree.

Our review of the record leads us to conclude that the District Court‟s finding “that the

Parents‟ conduct in delaying, cancelling, or refusing to set up additional meetings with

the IEP team substantially precluded any possibility that the District could timely develop

an appropriate IEP for T.W. and provide the necessary services to him” was clearly

erroneous. (A9.) Unlike the parents in Cape Henlopen, T.W.‟s parents did not

“disregard[] their obligation to cooperate and assist in the formulation of an 

. The record clearly indicates that the parents participated in the IEP

development process and tried to work with the District to develop an IEP. However, the

parties reached an impasse based on the parents‟ insistence on preschool and the

District‟s insistence on kindergarten. Denial of reimbursement based on this aspect of the

parents‟ conduct was improper.

       In discussing its alternative holding to deny reimbursement on equitable grounds,

the District Court noted that T.W.‟s parents did not provide adequate notice to the

District, pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii), of their intent to withdraw T.W.

from the District‟s school. The IDEA states that failure to give the statutorily required

notice can justify the “reduc[tion] or deni[al]” of a reimbursement award. 20 U.S.C. §

1412(a)(10)(C)(iii)(I). However, it is unclear to us whether the District Court‟s equitable

                                             11
reduction was tainted by its erroneous determination that T.W.‟s parents acted

unreasonably in the IEP development process. Therefore, on remand, after the District

Court determines whether T.W.‟s parents are eligible for tuition reimbursement, it may

examine to what extent any reimbursement award may be equitably reduced based on §

1412(a)(10)(C)(iii)(I). If the District Court reaches this issue on remand, it should

consider the equities, including the parents‟ argument that delay in placing T.W. in

Project Child would have caused him severe harm and the extent to which the District

was prejudiced by receiving late notice of the parents‟ decision. The District Court may,

of course, take additional evidence on this issue or remand the case to the ALJ for further

fact-finding.

       In sum, the District Court erroneously short-circuited the required analysis by

applying our ruling in Cape Henlopen to deny T.W.‟s parents tuition reimbursement. In

so doing, the District Court did not reach the real issue before it: whether the IEP

proposed by the District offered T.W. a FAPE, and, if not, whether the placement at

Project Child was proper under the IDEA.4 

; 

. The District Court must engage in this analysis on remand.


4
  The District Court stated that “[b]ecause the November [19, 2007] plan [drawn up by
T.W.‟s parents and Project Child] was developed in the absence of the District, it was
legal error for the ALJ to conclude that it was an IEP” and that “[t]herefore, the ALJ
could not find that T.W.‟s placement at the outside program was proper.” (A6-7.) While
it is true that the educational plan was not technically an IEP, this fact alone does not
prevent the parents from receiving tuition reimbursement. The IDEA allows parents of
disabled children to be reimbursed for expenditures on private special education if (1) the
IEP calling for placement in a public school was inappropriate and (2) the private
placement desired by the parents was proper under the Act. 

. To
satisfy the second step of this test, parents seeking reimbursement for the unilateral
                                             12
       We note that there is a paucity of reasoning in the ALJ‟s opinion regarding these

crucial analytical issues. The ALJ‟s opinion states that “placement in kindergarten

pursuant to an IEP with supports and services was necessary for T.W. to have a FAPE,”

but does not explain why kindergarten placement with the support services provided for

in the revised IEP—including all of the recommendations proposed by the Yale

researchers—was insufficient to provide a FAPE. (A58 (emphasis added).)5 The ALJ

embraces the opinion of Dr. Baumgaertel (who never saw the District‟s proposed IEP),

yet never indicates why the opinions of the District‟s experts (whom he credited) were

rejected. If the District Court so desires, it may request a remand to the ALJ so that this

aspect of its opinion can be expanded.

       Accordingly, we will vacate the judgment below and remand for further

proceedings consistent with this opinion.




placement of their child in an out-of-district school need not show that the out-of-district
school provided their child with an IEP; they need only show that the alternative
placement was “proper.” 

require that the out-of-district placement
conform to the statutory requirements of an IEP. 

that the requirement
that an IEP must be designed by a representative of the local educational agency “do[es]
not make sense in the context of a parental placement”).
5
 At oral argument in this case, counsel for the parents suggested that the use of the word
“kindergarten” in the above-quoted language was a typographical error. This argument
was not made in appellants‟ briefs and we are reluctant to infer that a key portion of the
ALJ‟s opinion—the only portion discussing what would be required in 2007-08 to give
T.W. a FAPE—was a mere typographical error.

                                             13
HARDIMAN, Circuit Judge, dissenting.

       My disagreement with the majority‘s effort to distinguish controlling precedent

necessitates this respectful dissent.

                                              I

       In Cape Henlopen, the disabled child attended private school for the 2005–06

school year, and under a settlement agreement the school district reimbursed the parents

for most of the cost of that 

. During that year, the mother and

the school district met to develop an individualized education program (IEP) under which

the child would return to the public school the following year. 

cut

short due to a scheduling conflict and, after the mother indicated she was unavailable for

several weeks, the school district offered to continue the meeting approximately three

weeks later, which was five days into the school year. 

a conflict

but tentatively agreed to that date. 

day of school, before the scheduled date for the continued meeting, the

parents ―unilaterally chose[] to have [the child] begin classes at‖ private school. 

next day, the parents filed a due-process request and thereafter refused to attend the

scheduled meeting. 

panel and the district court both found against

the parents because the school district did not deny the child a free appropriate public

education (FAPE) and because the parents had unduly inhibited the school district from

providing an IEP. 

affirmed, stating:

       Although the IEP was not completed in the first meeting, it was the Parents
       and not the District who delayed the continuation of that meeting until after
       the start of classes, and ultimately terminated the process by filing a due
       process request. Like the court in [MM ex rel. DM & EM v. School District
       of Greenville County, 

(4th Cir. 2002)], we decline to hold that
       a school district is liable for procedural violations that are thrust upon it by
       uncooperative parents.

the child never enrolled in the public school, there was no ―specific

evidence of an educational deprivation.‖ 

the parents‘ decision to

remove their child from the school before a final IEP had been offered deprived this

Court of the opportunity to evaluate whether the school district would have provided a

FAPE. See 

application of Cape Henlopen to the parents‘ conduct in this case is

straightforward. In both cases, the parents participated in a preliminary IEP meeting

regarding the upcoming school year. They also left that initial meeting without resolution

or a final IEP proposal, thwarted the district‘s attempt to hold an additional meeting,1 and

then turned to litigation.2




       1
         The parents in this appeal claim that the District never sought another meeting,
(Reply Br. 4–5), but the record indicates otherwise. The District wrote to the parents: ―It
is [the District‘s] firm and consistent desire that we reach agreement on a least restrictive,
free appropriate public education for [T.W.] Please contact [the District] so that we may
continue to move forward in developing an Individualized Education Plan for [T.W.].‖
(App. 2111.)
       2
         The parents also contend that they filed the due-process petition in order to
protect their rights under New Jersey law. Specifically, they claim that under N.J.
Admin. Code § 6A:14-2.3(h), the District‘s June 29 letter triggered a fifteen-day window
after which the District could have implemented the IEP if they had not filed a request for
mediation or a due-process hearing. I am unconvinced that New Jersey law allows an
IEP to be unilaterally implemented in this way. See N.J. Admin. Code § 6A:14-2.3(a)(2),
(c) (mandating parental consent prior to finalization and adoption of an IEP). But even if
                                             2
       The majority distinguishes Cape Henlopen, correctly identifying that the parents

there alleged a procedural violation of the IDEA, whereas here a substantive claim has

been brought.      In my view, that is a distinction without a difference.      To obtain

reimbursement, a plaintiff alleging a procedural violation still must show that the school

district‘s ―violation can meaningfully be said to have ‗[i]mpeded the child‘s right to a

FAPE‘ or ‗caused a deprivation of [an] educational benefit.‘‖3 

in

original) (quoting 34 C.F.R. § 300.513(a)(2)). Put more simply, even procedural claims

that seek compensatory relief require proof of a substantive violation of the IDEA.

       Consequently, it makes little sense to limit Cape Henlopen‘s rule to procedural

claims.      The Cape Henlopen principle—that parents may not recover compensatory

education or tuition reimbursement under the IDEA where they have short-circuited the

IEP-development process—applies with equal force to procedural and substantive IDEA

lawsuits.4




it does, Cape Henlopen requires parents to continue the IEP-development process even
after availing themselves of procedural safeguards. See Cape 

(―The stay-put provision [in 20 U.S.C. § 1415(j)] does not . . . excuse the Parents, who
based their complaint on the absence of an IEP, from continuing to meet with the District
to rectify the perceived wrong.‖).
       3
         If the plaintiff chooses not to prove substantive harm, he ―may only seek
injunctive relief for prospective compliance.‖ Cape 

(citing
P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 

, 738 (3d Cir. 2009)).
       4
         This principle is useful only where the parents terminate the interactive process
while the IEP is in ―draft‖ form, as was the case here and in Cape Henlopen. If the
District had set forth a final proposal, or if the District‘s own obstinacy had caused a
                                             3
       The majority‘s disagreement arises from its misreading of Cape Henlopen, from

which it incorrectly concludes that the parents there impeded the school district from

initiating the IEP-development process.     In defending its procedure-versus-substance

distinction, the majority writes that in Cape Henlopen, ―the parents refused to attend

meetings or permit [the] testing required‖ for IEP development. Maj. Typescript at 9 n.2.

In fact, the requisite educational evaluation occurred and the mother attended an initial

IEP 

. In addition, the majority asserts that in that case ―[n]o

mention is made . . . of any proposed‖ IEP or the specifics of the parents‘ requested

educational supports. Maj. Typescript at 9 n.2. This reasoning seeks to distinguish Cape

Henlopen by assuming the nonexistence of certain facts regarding the details of the IEP-

development process simply because they were not included in the opinion. But even in

this attempt, the majority misinterprets the case. We noted in Cape Henlopen that the

IEP meeting the parents attended ―concluded before C.H.‘s IEP was 

. The use of the word ―finalized‖ implies that there was a draft proposal. We can

likewise infer that, because the mother attended the IEP meeting but placed her child in

private school, the family and the school district failed to reach an agreement regarding

the child‘s education. In sum, the facts in Cape Henlopen mirror the facts of this case.




break-down in communication, the parents would have been under no continuing
obligation to schedule or attend further meetings. See Cape 

(distinguishing Knable ex rel. Knable v. Bexley City Sch. Dist., 

(6th Cir.
2001)). Thus, I do not advocate, as the majority suggests I do, that ―school districts [can]
force parents into perpetual negotiations.‖ Maj. Typescript at 10 n.3.
                                             4
       Accordingly, I would hold that the District Court properly applied Cape Henlopen.

                                              II

       A second ground for affirmance exists in this case. The majority interprets the

equitable-reduction provision of the IDEA to not allow a denial of the ALJ‘s award as

applied to the parental conduct at issue here. I see it differently. The IDEA allows a

district court to reduce or deny any award, 

(1) the parents failed to reject the

school district‘s placement and indicate their intent to make a private placement ―at the

most recent IEP meeting that the parents attended‖; (2) they did not provide written

notice of their intent to remove the child ten days prior to the removal; or (3) there is a

―judicial finding of unreasonableness with respect to actions taken by the parents.‖ 20

U.S.C. § 1412(a)(10)(C)(iii)(I), (III). There is no question that the parents left the first

and only IEP meeting without rejecting the placement. Nor is there any doubt that the

parents did not provide the requisite notice. Thus, the denial of the ALJ‘s award, like the

District Court‘s ―judicial finding of unreasonableness,‖ was not an abuse of discretion.

       For these reasons, I respectfully dissent.




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