Third Circuit finds that PA school district did not violate IDEA or Section 504 rights of student with learning disabilities and severe allergies
Ridley Sch. Dist. v. M.R., 680 F.3d 260 (3d Cir. 2012).
Abstract: A three-judge panel of the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) has affirmed a Pennsylvania federal district court’s decision that a school district did not deny a student a free appropriate public education (FAPE) in violation the Individuals with Disabilities Education Act (IDEA), as it identified the student as a child in need of special education services within a reasonable time, and developed appropriate IEPs despite the absence of a specific statement in the IEP setting forth the specialized instruction to be afforded the student. The panel also determined that the school district did not violate Section 504 of the Rehabilitation Act (Section 504), because the student was not excluded from educational activities or denied educational benefits by the accommodations provided to the student under a Section 504 Service Agreement designed to respond to the student’s severe food and contact allergies. Finally, the panel agreed that though the district court erred in placing the burden of persuasion on the Parents to prove the school district’s noncompliance with the IDEA, the error was harmless and did not necessitate reversing the district court’s decision on the merits. As to the Parents’ own counterclaims, the burden of persuasion was correctly placed on them.
Facts/Issues: E.R. attended kindergarten (2006-2007) and first grade (2007-2008) at Grace Park Elementary School (Grace Park) in the Ridley School District (RSD). E.R. has several health-related problems, including severe food and contact allergies, and, though not at the beginning of her enrollment, E.R. had been identified as a child with numerous learning disabilities.
Before E.R. began kindergarten, E.R.’s parents were concerned about her development and took her to be evaluated. At that time, E.R. did not qualify as a child with special needs. However, shortly after entering kindergarten in September 2006, E.R. was identified as needing extra academic support and was enrolled in extended-day kindergarten. In November 2006, the Parents requested that RSD conduct an educational evaluation of E.R. RSD agreed, and in late January 2007, the evaluation report indicated that E.R. still did not qualify for special education services because her cognitive ability and academic achievement levels were both in the average range. RSD also completed an occupational therapy evaluation in late January 2007.
After a February 2007 meeting to review the evaluation report with the Parents, RSD agreed to conduct further testing, which resulted in two addendums to the initial evaluation report. However, the school psychologist concluded that E.R. did not have a specific learning disability. Also, in response to the OT evaluation, a Section 504 Service Agreement was issued to provide OT services to E.R. and to address her severe allergies so that she could be included in activities.
Over the summer of 2007, at her teacher’s recommendation, E.R. participated in a summer program to reinforce her academic skills. Continuing to struggle academically during the first six weeks of first grade, the Parents met with RSD staff in early November 2007. In mid-November 2007, the Parents requested a comprehensive reevaluation of E.R., which was completed on February 26, 2008. The reevaluation showed that E.R. had learning disabilities in several areas, fine motor delays, and a language disability. As part of the reevaluation report, two alternative placements were offered for E.R.: a learning support room at Grace Park, or a self-contained classroom at a different school. After observations of both, the Parents determined that neither program was appropriate for E.R.
At the March 28, 2008 IEP Team meeting to review a draft IEP, RSD suggested a program called Project Read as a possible reading aid for E.R. A Notice of Recommended Educational Placement (NOREP) was issued in early April 2008, which the Parents did not sign. After additional IEP Team meetings, and proposed NOREPS and IEPs over the next several months, and after researching Project Read on their own, the Parents determined RSD’s program was not appropriate for E.R. In August 2008, the Parents informed RSD that E.R. would be attending the Benchmark School, “a private school that specializes in instructing students with learning disabilities,” for second grade because it provided a program they determined E.R. required.
In December 2008, the parents filed a due process complaint with the Pennsylvania Department of Education alleging that RSD violated the IDEA and Section 504 by failing to timely identify E.R. as a child in need of special education services, failing to develop an appropriate IEP, and subjecting E.R. to discrimination by failing to comply with the Section 504 Service Agreement. The Parents sought compensatory education and tuition reimbursement, including transportation costs, for E.R. enrollment at Benchmark.
In April 2009, the Hearing Officer (HO) issued a written report, finding that (1) RSD had not committed any violations during E.R.’s kindergarten year; (2) RSD had violated the IDEA and Section 504 in E.R.’s first grade year; and (3) the IEPs proposed for E.R.’s first and second grade years were inadequate and denied her FAPE because they “lacked appropriate, specially designed instruction in the form of a research based, peer reviewed reading program.” The HO awarded compensatory education for the first grade year, tuition reimbursement for the second grade year at Benchmark, and reimbursement of transportation costs to and from Benchmark.
RSD filed a petition for review of the HO’s decision. The Parents counterclaimed, challenging the HO’s conclusion that no violation occurred during E.R.’s kindergarten year, and asserted additional claims against RSD and one of E.R.’s teachers. In October 2009, RSD filed a motion for judgment on the administrative record. In February 2011, the district court affirmed the HO’s decision as to E.R.’s kindergarten year, reversed the HO’s findings as to E.R.’s first and second grade years, and granted RSD’s motion for judgment as to all claims.
The Parents appealed, arguing that the district court: (1) improperly placed the burden of persuasion on them to demonstrate that RSD violated the IDEA; (2) erred in reversing the HO’s finding that RSD denied E.R. FAPE during the first grade year by failing to timely identify her; (3) misinterpreted an IDEA provision and improperly reversed the HO’s finding that E.R.’s IEP was deficient in that it lacked research-based, peer-reviewed specially designed reading instruction; and (4) erred in concluding that RSD did not violate Section 504.
Ruling/Rationale: The Third Circuit panel affirmed the district court’s determination that RSD had not violated the IDEA, that the IEP was adequate, and that Parents were not entitled to relief.
Before addressing the merits of the case, the panel, joining other circuits, held that the party challenging the administrative decision bore the burden of persuasion on appeal to federal district court. In so holding, the panel determined that though the district court had erred in placing the burden on the Parents to show RSD’s non-compliance with the IDEA, the error was harmless and was not grounds for reversal because it was highly probable that the error did not affect the outcome of the case. The panel also noted that the Parents bore the burden of persuasion for allegations raised in their counterclaims, because they were the party aggrieved as to those HO’s findings.
The panel then turned to the issue of whether RSD denied E.R. FAPE during the beginning months of E.R.’s first grade year by failing to identify her as a child in need of special education. Though the IDEA’s “child find” provision requires “[s]chool districts … to identify and evaluate all students [residing within their jurisdiction] who are reasonably suspected of having a disability,” the panel noted that neither the IDEA, its implementing regulations, nor state law imposes a deadline by when these children must be identified and evaluated. As a result, the panel adopted a “reasonable time” standard. The panel agreed with the district court that the HO incorrectly found that RSD denied E.R. FAPE by failing to immediately reevaluate her in September 2007, when the HO also found that E.R.’s kindergarten evaluations were appropriate and she did not qualify as a student in need of special education services in June 2007. Thus, RSD complied with the “child find” requirement, and E.R. was not denied FAPE at the beginning of first grade.
The panel also rejected the Parents’ counterclaim that E.R.’s IEPs were deficient, concluding that the NOREPs containing the detailed written statement regarding services, rather than the IEPs themselves, were properly considered part of E.R.’s overall education plan. The panel found that RSD’s admitted procedural “mistake” in failing to include that information in the IEP did not effect the substantive IDEA rights of E.R., or deny her any educational opportunities or benefits.
The panel also found an argument by the Parents that was an issue of first impression for this circuit to be unavailing: whether RSD denied E.R. FAPE because the available research regarding Project Read was flawed and did not adequately demonstrate that Project Read would be effective for a student with E.R.’s learning disabilities. The panel found sufficient evidence that Project Read was “reasonably calculated to enable E.R. to receive meaningful educational benefits in light of her intellectual potential,” and highlighted that the student’s IEP team retains flexibility to devise an appropriate program, in light of the available research. Consequently, the panel held that the HO’s finding that E.R.’s IEPs were inadequate to provide FAPE was properly reversed.
The panel also rejected the Parents’ argument that RSD violated Section 504 during E.R.’s first grade year in its implementation of the Section 504 Service Agreement. The Parents alleged incidents of RSD’s discrimination, i.e., class activities involving food, which E.R. had to forego due to her food allergies though her Parents provided substitute foods, alleged comments about E.R.’s clothing not complying with the school’s dress code which E.R.’s Parents claim E.R. felt “humiliated”, and an exercise involving touching sand, which E.R.’s allergies prohibited and the teacher devised an accommodation so that E.R. could still participate. The panel found that while, in general, these instances illustrated how E.R.’s daily school routine necessarily had to be different than her classmates’, E.R. was not excluded from participation, denied educational benefits, or otherwise subjected to discrimination, and they did not constitute Section 504 violations.
Finally, the panel chose not to remand the case to the district court for a decision on additional claims seeking damages under Section 504, and relief under the Americans with Disabilities Act (ADA) and a state law against outrageous conduct causing severe emotional distress. The panel found that the Parents were not entitled to damages because their Section 504 claim had failed, that the standards for determining ADA and Section 504 liability were the same, and that the state law claim was properly dismissed because no federal claims remained.
Ridley Sch. Dist. v. M.R., 680 F.3d 260 (3d Cir. 2012).
[Editor's Note: Legal Clips thanks COSA member John F.X. Reilly for bringing this case to our attention.
On May 3, 2012, Legal Clips summarized another Third Circuit decision, D.P. v. Council Rock Sch. Dist., No. 11-2747 (3d Cir. Apr. 27, 2012), which found that the parent of a child with autism and a speech/language impediment was not entitled to tuition reimbursement when the school failed to update the student's IEP after the child was unilaterally placed by his parent in a private school.]
