Federal appellate court finds New Jersey school district did not violate IDEA when student’s IEP did not provide for interaction with non-disabled peers

L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., No. 11–3014 (3d Cir. June 28, 2012).

Abstract: A three-judge panel of the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) affirmed the district court’s decision granting summary judgment in favor of the school district, holding that it did not violate the least restrictive environment (LRE) requirement of the Individuals with Disabilities Education Act (IDEA) when it developed an individualized education plan (IEP) that placed a disabled student in a class with other students with the same disability, and did not provide for interaction with non-disabled peers. The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors. The panel also held that the district court’s exclusion of some of the parents’ evidence was not an abuse of discretion when the evidence would have been merely cumulative of what was already in the record.

Facts/Issues: “L.” is a student with autism spectrum disorder and pervasive developmental disorder. Prior to entering preschool, the Fair Lawn Board of Education (“Fair Lawn”) determined that L. qualified for special education and related services as a preschooler with a disability. Fair Lawn developed an IEP that provided for placement in its Stepping Stones program, a program exclusively for preschoolers with autism spectrum disorders. L.’s IEP did not provide for any interaction with non-disabled children. L.’s mother approved this IEP, and L. started at Stepping Stones in 2007.

At Stepping Stones, L. received approximately three hours per day of one-on-one Applied Behavioral Analysis (ABA) instruction, a research-based system of educating children with autism. Among other strategies, ABA includes a “mainstreaming” component that “occurs only when the child has adequate skills to enable a meaningful interaction with a more typical peer.” For the remainder of the school day, L. participated in group activities with other autistic children including some who were higher functioning than L., who was “one of the lower functioning students” in the class.

In Fall 2007, L.’s parents requested that Fair Lawn consider an alternative placement for L. to provide her with opportunities to interact with typically developing peers. Fair Lawn denied the request in November 2007. The parents then requested a meeting, that was convened in December 2007, to discuss L.’s IEP for the coming year, and their request that L. be placed at the Children’s Center, an inclusive preschool, rather than at Stepping Stones. To support of their placement request, L.’s parents provided Fair Lawn with reports of assessments, and video of L. in an environment that included typically developing peers, which they believed showed that L. was ready for, and would benefit from, interaction with typically developing peers.

Prior to the December 2007 meeting, Fair Lawn staff met to develop a proposed IEP, which was presented to the parents at the December 2007 meeting. Fair Lawn’s draft IEP provided for continued placement at Stepping Stones without specifically providing for any interaction with non-disabled children. According to Fair Lawn, L. did not have the requisite skills to benefit from placement in an inclusion program or from any interaction with typically developing peers. The IEP also provided that Fair Lawn staff would “continue to monitor [L.'s] progress to ensure she has opportunities to interact with non-disabled peers when she is able to benefit from them.” The parents did not sign the proposed IEP.

In late February 2008, Fair Lawn began to include “reverse-inclusion component,” which “allowed a child from outside the classroom, either typical or preschool disabled, to come in to play with the group in order to demonstrate social skills, providing students with the opportunity to emulate.”

In early March 2008, L.’s parents transferred her to the Children’s Center, where she would be placed in a class that included both typically developing children and children with disabilities. Additionally, they initiated administrative proceedings against Fair Lawn, seeking reimbursement of the expenses they incurred in placing L. at the Children’s Center and in privately obtaining other services for L.

In early May 2008, a due process hearing was initiated. On the 11th day of the hearing, the Administrative Law Judge (“ALJ”) determined that the proceedings should be bifurcated: (1) the ALJ would decide first whether Fair Lawn’s placement of L. complied with the IDEA, and (2) if he determined it did not, the ALJ would then consider whether the Children’s Center was an appropriate placement. The ALJ also ruled that he would exclude evidence not relevant to the question of whether Fair Lawn had offered L. a free appropriate public education (FAPE) in the LRE as of March 2008, when L.’s parents transferred her to the Children’s Center.

In his October 2009 decision, the ALJ determined that Fair Lawn had complied with the IDEA. Based on the expert testimony and his independent review of the video of L. that her parents had provided to Fair Lawn, the ALJ found that L.’s disability “renders her incapable of being satisfactorily educated in a regular classroom, and she wouldn’t benefit from the modeling behavior of her peers if she were educated with them.” On this basis, the ALJ concluded that Fair Lawn had met the IDEA’s LRE requirement.

L.’s parents then filed suit in federal district court seeking review of the ALJ’s decision. The parties filed cross-motions for summary judgment, and L.’s parents requested that the district court admit evidence that the ALJ had excluded. In late June 2011, the district court granted summary judgment to Fair Lawn, and denied L.’s request to admit additional evidence relating to the Children’s Center, determining that the evidence was not relevant. L’s parents appealed that decision to the circuit court.

Rationale/Ruling: The Third Circuit panel affirmed the district court’s decision in favor of Fair Lawn, and against the parents, holding that Fair Lawn had complied with the IDEA with respect to L.’s placement, and that the evidence the parents sought to admit was irrelevant to the district court’s inquiry.

Though only mentioned in a footnote, the Third Circuit panel discussed the parents’ argument that the district court erroneously placed the burden of proof for the substantive IDEA issues on them, rather than Fair Lawn. Though Schaffer v. Weast, 546 U.S. 49, 57-58 (2005), had held that the burden of proving challenges to IEPs is placed on the party seeking relief, New Jersey enacted legislation a few months before L’s parents initiated the due process hearing, placing the burden of proof on the school district. The Third Circuit panel noted that the Schaffer Court “declined to address the issue of whether a state could, by statute, place the burden exclusively on the school district,” and the Third Circuit “has yet to rule on whether a state may … shift the burden of proof to the school district by legislation.” Citing the statute, the ALJ placed the burden on Fair Lawn, but the district court, citing Schaffer, placed the burden on L.’s parents. Ultimately, “[f]or purposes of this opinion, [the panel] assume[s] Fair Lawn had the burden of proof because it is more favorable” to the parents.

The Parents’ Reimbursement Claims

The parents sought reimbursement for costs they incurred in placing L. at Children’s Center, alleging that Fair Lawn’s placement of L. violated the IDEA because (1) Fair Lawn excluded them from meaningful participation in the December 2007 placement decision, and (2) Fair Lawn did not provide L. with an education in the LRE in which she could obtain a meaningful benefit.

The panel rejected the parents’ first argument, finding that although the parents ultimately did not sign the December 2007 IEP, they were not excluded from the process and had an opportunity to participate in the IEP’s formulation in a meaningful way. The panel noted that under federal and state regulations, parents “need not be included in ‘preparatory activities [of staff] to develop a proposal or response to a parent proposal that will be discussed at a later meeting.’” The panel found that the staff’s meeting without L.’s parents to develop a proposed IEP did not constitute a procedural violation of the IDEA.

In reviewing the parents’ second argument, the panel noted that courts deciding whether the LRE requirement has been met must evaluate the reasonableness of the school district’s decision at the time it was made. In making that determination, the panel applied the two-part test adopted in Oberti ex rel. Oberti v. Bd. of Educ. of Clementon School District, 995 F.2d 1204, 1215 (3d Cir.1993): (1) “whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily,” and (2) if not, “‘whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with non-disabled children whenever possible.”

Here, the panel found that the ALJ’s findings of fact sufficiently determined that Fair Lawn reasonably concluded that the completely segregated environment provided for in L.’s IEP was the LRE in which L. could obtain a “meaningful educational benefit.” In particular, the ALJ found, among other issues, that L. “did not have the prerequisite skills for a less restrictive environment,” “demonstrated inappropriate and stigmatizing behaviors,” and “would wander aimlessly if not in a highly structured environment.” The panel held that the district court “properly adopted the ALJ’s conclusion that Fair Lawn satisfied” the IDEA’s LRE requirement.

Exclusion of the Parents’ Additional Evidence

Rejecting the parents’ argument that the district court erred in upholding the ALJ’s decision to exclude evidence related to Children’s Center and L.’s progress there, the panel agreed with the district court that, “[g]iven the length of the hearing and size of the record in this case, … the ALJ gave each side ample opportunity to present and examine evidence, and that his ruling did not prejudice [Appellants].” The panel stated that the district court “accepted as fact L.’s parents’ contention that L. was demonstrating significant success at the Children’s Center.” Therefore, additional evidence related to L.’s progress at the Children’s Center “would have been merely cumulative, and the district court’s decision to exclude this evidence was not an abuse of discretion.”

L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., No. 11–3014 (3d Cir. June 28, 2012).

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