M.C. v. Central Regional School District

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

4-17-1996

M.C. v. Cent Regional Sch
Precedential or Non-Precedential:

Docket 95-5606,95-5623

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________

NO. 95-5606
___________________

M. C.; AND G. C.,
ON BEHALF OF THEIR SON, J.C.

v.

CENTRAL REGIONAL SCHOOL DISTRICT

Appellant
_____________________

NO. 95-5623

M. C.; AND G. C.,
ON BEHALF OF THEIR SON, J.C.

Appellants
v.

CENTRAL REGIONAL SCHOOL DISTRICT

______________________________________

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 93-cv-04752)
_______________________________________

Argued: November 14, 1995

Before: BECKER, SCIRICA, Circuit Judges, and
COHILL, District Judge1

(Filed April 17, l996)

REBECCA K. SPAR, ESQUIRE
(ARGUED)
Cole, Schotz, Meisel, Forman

1
The Honorable Maurice B. Cohill, Jr., United States District
Judge for the Western District of Pennsylvania, sitting by
designation.

1
 & Leonard, P.A.
25 Main Street, 3rd Floor
P.O. Box 800
Court Plaza North
Hackensack, NJ 07601
Attorney for M. C; G. C., on
behalf of their son, J. C.
Appellees in No. 95-5606
Appellants in No. 95-5623

RICHARD J. KAPLOW, ESQUIRE
(ARGUED)
53 Elm Street
Westfield, NJ 07090

FRANK N. YURASKO, ESQUIRE
63 Route 206 South
P.O. Box 1041
Somerville, NJ 08876

Attorney for Central Regional
School District
Appellant in No. 95-5606
Appellee in No. 95-5623

_______________________________

OPINION OF THE COURT
_______________________________

BECKER, Circuit Judge.
This case arises under the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1415(e)(2).

Pursuant to IDEA, a school district is required to provide a

disabled child with a "free appropriate education." 20 U.S.C.

§1400(c). J.C., a severely mentally retarded sixteen-year-old

male, has attended the Ocean County Day Training Center ("OCDTC")

since 1987. In 1992, concerned about the appropriateness of

their son's instruction, J.C.'s father and stepmother, M.C. and

2
G.C. ("plaintiffs"), began proceedings to secure both a

residential placement for J.C. and compensatory education beyond

his twenty-first year to make up for what they believed to be

long-standing deficiencies in his program. In 1995, the district

court ordered that J.C. be relocated to a residential school, but

refused to award compensatory education because it found that the

defendant, Central Regional School District ("Central Regional,"

"school district," or "district"), had, in good faith, provided

J.C. with some educational program. Central Regional now appeals

the residential placement, and plaintiffs cross-appeal the

determination regarding compensatory education.

Rejecting Central Regional's challenge, we hold that

the district court used the proper legal standard when it granted

residential placement, and that its factual findings regarding

that claim are supported in the record. We will therefore affirm

the award. The cross-appeal requires us to revisit an issue

reserved in our recent decision, Carlisle Area School v. Scott

P., 62 F.3d 520, 537 (3d Cir. 1995), and to decide the proper

standard for an award of compensatory education. A school

district that knows or should know that a child has an

inappropriate Individualized Education Program (IEP) or is not

receiving more than a de minimis educational benefit must, of

course, correct the situation. We hold that, if it fails to do

so, a disabled child is entitled to compensatory education for a

period equal to the period of deprivation, excluding only the

time reasonably required for the school district to rectify the

problem. Because the district court applied an incorrect "good

3
faith" standard, we will reverse on the cross-appeal and remand

for further proceedings consistent with this opinion.

I. Factual Background/ Procedural History

A. Factual Background

J.C.'s IEP stresses personal and self-help goals such

as toileting and eating as well as more general communication,

domestic, recreation, vocation, and community training skills.

His preschool records reflect that he progressed well during his

initial years of education. Following J.C.'s placement at OCDTC

in 1987, his development slowed. Since 1989, J.C. has made

little consistent improvement and in some aspects has even

regressed.

For example, in 1988 and 1989, J.C.'s teachers, Juanita

Jones and Susan Trainor, reported that J.C. could remove his

shirt independently. In 1990, Trainor indicated that J.C. could

remove his shirt only after it was started for him. By 1992,

J.C.'s school records did not reflect any independent disrobing

efforts. Trainor related only that J.C. was "cooperative" and

would "extend [his] arm/leg for dressing."

Likewise, pulling his pants up and down in preparation

for toileting has been a self-help goal in J.C.'s IEP since 1989.

By February 1991, J.C. was reportedly pulling his pants down with

"moderate" physical assistance on two out of five days. In May

1991, J.C. continued to lower his pants with "moderate"

assistance. In May 1992, J.C. had regressed to where he was able

to pull his pants down on two out of five days only with

"maximum" physical assistance. Similar reversion occurred in

4
J.C.'s ability to spear food, to drink from a cup, to

communicate, and to pay attention.

Not only did J.C. perform poorly on stated IEP goals,

but his IEP also failed to include several important objectives.

For example, Central Regional's records indicate that J.C.'s

self-stimulatory behavior, like chewing his shirt, was a serious

problem impairing his educational progress. Despite this fact,

J.C.'s IEP contained no strategies to reduce the incidence of

this behavior.

Another gap in J.C.'s IEP was parent training.

According to Trainor, in order for J.C. to make steady progress,

his program needed to be consistently implemented both inside and

outside of the classroom throughout all his waking hours.

Nevertheless, the IEP did not include parent training. Minutes

of the March 15, 1990, IEP meeting indicate that the plaintiffs

requested someone from the school to come to their home to help

with toileting and independent feeding. They were never told

that parent training was a related service that could be provided

under J.C.'s IEP.

B. Procedural History

1. The Administrative Hearing

Concerned that J.C. was not receiving a free

appropriate education as guaranteed under IDEA, M.C. and G.C.

wrote to Central Regional to request that J.C.'s 1992-93 IEP be

revised and that he be placed in a residential school. When

Central Regional refused to change the IEP, M.C. filed a Petition

for Hearing with the New Jersey Department of Education.

5
 Following a hearing, an Administrative Law Judge (ALJ)

found that OCDTC had provided an "appropriate education" for J.C.

To give form to the "appropriate education" standard, the ALJ

applied the Supreme Court's holding in Board of Education v.

Rowley, 458 U.S. 176, 200 (1982), that a school district must

provide instruction "sufficient to confer some educational

benefit upon the handicapped child." According to the ALJ, a

child with J.C.'s disabilities was not capable of more than very

"limited and varied progress." As such, the ALJ concluded that

J.C.'s slight improvement "at times" in his ability to prepare

himself to toilet, eat with a spoon, and drink from a cup

satisfied Rowley's requirement that his schooling provide him

"some educational benefit." In his view, any residential

placement went far beyond J.C.'s educational needs.

2. The District Court Hearing

M.C. and G.C. appealed the ALJ's decision to federal

district court. The court agreed with the ALJ's conclusions that

J.C.'s achievements appeared to be de minimis as well as

inconsistent and scattered, and that in some areas J.C. had even

regressed. However, the court could not determine, based on the

evidence presented at the administrative hearing, whether J.C.'s

inadequate progress was a reflection of his (lack of) potential

or of the inappropriateness of his placement at OCDTC.

Accordingly, it convened a hearing to receive supplemental

evidence.

In the wake of this hearing, the district court

reversed the decision of the ALJ and ordered residential

6
placement. The district court concluded that the ALJ had applied

the wrong legal standard in reaching his determination. The ALJ

had relied on the Rowley formulation that a disabled child need

only receive "some educational benefit" from his instruction.

However, according to the district court, the ALJ failed to

consider our cases interpreting that decision. See Polk v. Cent.

Susquehana Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988),

cert. denied, 488 U.S. 1030 (1989); Bd. of Educ. v. Diamond, 808

F.2d 987 (3d Cir. 1986). Both Polk and Diamond make clear that

an appropriate IEP must result in more than de minimis benefits

to satisfy Rowley's "some educational benefit" standard. As we

wrote in Diamond, a plan for a severely handicapped student will

satisfy the IDEA only if it is "likely to produce progress, not

regression or trivial educational advancement." Id. at 991.

According to the district court, the "limited and varied"

progress that the ALJ found was de minimis and therefore not

sufficient to satisfy IDEA.

In determining that residential placement was

appropriate for J.C., the court credited the testimony of the

plaintiff's expert, Dr. Dana Henning.2 According to Dr. Henning,

J.C.'s IEP did not sufficiently address his needs. She testified

that J.C. was capable of more than the de minimis results he had

realized at OCDTC, but that he needed the intensive, round-the-

2
Dr. Henning has eighteen years of experience in teaching,
assessing, evaluating and making educational recommendations for
persons with severe or profound handicaps and challenging
behaviors. She estimated that she had evaluated close to a
thousand severely and profoundly retarded children, one-third of
whom had self-stimulatory behavior problems.

7
clock instruction of a residential school to receive meaningful

benefit from his education. Central Regional now appeals the

residential placement order. We review the district court's

legal standard de novo and its factual findings for clear error.

The district court denied the plaintiffs' request for

compensatory education, and plaintiffs now appeal that

determination. At issue is the legal standard used by the court,

over which we exercise de novo review.

II. The Residential Placement

Central Regional launches a three-pronged attack upon

the district court's order of residential placement. First, it

argues that the district court misapplied Rowley, the principal

authority establishing the standard of education services

required under IDEA. We conclude that the district court did not

misconstrue the Rowley rule. As this Court explained at length

in Polk and Diamond, Rowley does not mean that IDEA is satisfied

by affording the student a de minimis benefit. The record

supports the district court's conclusion that if J.C. received

any value from the education afforded by the defendant, it was

trivial and that is not sufficient.3

Second, Central Regional contends that the district

court erred in finding that J.C. had "untapped potential," and in

basing its order for residential placement upon that

determination. We hold that the court's conclusion that J.C had

3
We therefore do not need to address J.C.'s argument that, even
if the Rowley standard were satisfied, New Jersey obligates
Central Regional to meet a higher standard. See Geis v. Bd. of
Educ., 774 F.2d 575, 583 (3d Cir. 1985).

8
untapped potential was not clearly erroneous. As we have

explained in Kruelle v. New Castle County School District, 642

F.2d 687, 693 (3d Cir. 1981), special education for a low-

functioning child stresses (at least initially) basic life skills

such as dressing, eating, and communicating. The record reflects

that J.C. had much potential in these areas. For instance, Dr.

Henning testified that J.C., on his own, would attempt to

communicate his wants and needs to others by leading them where

he wanted to go, an action which she concluded showed motivation

and promise.

The court's decision to use its finding of untapped

potential as a basis for residential placement was also not in

error. Dr. Henning, upon whom the court appropriately relied,

attributed J.C.'s minimal progress at OCDTC to an inadequate

program which, among other deficiencies, failed to address his

self-stimulatory behaviors, and to an inappropriate placement,

which did not allow him to practice his skills beyond the school

day. She testified that J.C. would develop more fully in a

residential school. The court was entitled to rely on her well-

supported conclusions.

Third, Central Regional asserts that the district court

incorrectly concluded that the least restrictive educationally

appropriate setting for J.C. was a full-time residential

facility. In essence, the school district argues that the order

for residential placement conflicts with the statutory preference

for inclusion. Cf. Oberti v. Bd. of Educ., 995 F.2d 1204, 1220

(3d Cir. 1993). On the record in this case, we are satisfied

9
that a residential program is required for J.C. to make

meaningful educational progress and that it meets the

requirements of IDEA.

As we have detailed above, in view of the deficiencies

in J.C.'s past program, he could no longer make adequate progress

in a day setting. The evidence supports the district court's

conclusion that any attempts to reduce J.C.'s severe self-

stimulatory behavior or improve his toileting, eating, and

communication skills would succeed only in the intense atmosphere

of a round-the-clock residential setting where a consistent

educational program could be enforced throughout all of J.C.'s

waking hours. A residential setting would also allow J.C. to

learn skills in their natural atmosphere. According to Dr.

Henning, effective instruction for J.C. (as well as many other

severely disabled children) requires that skills be presented in

their usual environment and at the natural time of day. For

instance, J.C. could be better taught to cook in the residence's

kitchen than in the artificial setting of a daytime classroom

because he had trouble "generalizing" or transferring the skills

learned in one environment to another. The trial record, thus

supports the conclusion that a residential setting is the least

restrictive placement for J.C. at this time. Our case law also

supports this result. See, e.g., Diamond, 808 F.2d at 992 (3d

Cir. 1986) (residential placement is "least restrictive"

environment for severely disabled child); Kruelle, 642 F.2d at

693-95 (3d Cir. 1981) (residential placement is only "appropriate

education" for seriously disabled child).

10
 Decisions from other circuits also bolster our refusal

to disturb the district court's determination that placement in a

residential center is appropriate here, where a less structured

environment cannot do the job. See Drew P. v. Clarke County Sch.

Dist., 877 F.2d 927, 930 (11th Cir. 1989) (residential placement

necessary for child with mental retardation and infantile autism

to "make meaningful educational progress"), cert. denied, 494

U.S. 1046 (1990); Abrahamson v. Hershman, 701 F.2d 223 (1st Cir.

1983) (residential placement authorized if essential for student

to make educational progress); see also 20 U.S.C. § 1401(16); 34

C.F.R. §§ 300.302, 300.551.

The district court's order, insofar as it requires

residential placement, will therefore be affirmed. We will not

direct modification of the order in response to plaintiffs'

further contention that the district court erred in not directing

Central Regional to place J.C. in a specific residential school.

We find no abuse of discretion in that regard, though the

district court is free to reconsider the matter of placement on

remand. We note, in conclusion, that the residential placement

may only be temporary. Once J.C. accumulates the life skills

that he did not acquire while at OCDTC, he may well be able to

return to a day placement. This will appear from the required

yearly IEP evaluation.

III. Compensatory Education

A. Definition/ Historical Background

We now turn to the more difficult aspect of this case -

- the cross-appeal of J.C. from the district court's order

11
denying compensatory education. Under IDEA, a disabled student

is entitled to free, appropriate education until he or she

reaches age twenty-one. 20 U.S.C. § 1412(2)(b). A court award

of compensatory education requires a school district to provide

education past a child's twenty-first birthday to make up for any

earlier deprivation.4

Federal courts began awarding compensatory education

after the Supreme Court determined in School Committee of

Burlington v. Department of Education, 471 U.S. 359, 370-71

(1985), that tuition reimbursement was appropriate under the

Education of the Handicapped Act, 20 U.S.C. §§ 1401-1461 (1982)

(IDEA's predecessor). In a typical reimbursement scenario, a

parent who believed that a child was not receiving an appropriate

public education would place the child in private education at

his or her own expense. Under Burlington, if a court later

determined that the private placement was the appropriate one,

the school district would have to reimburse the parent.

Tuition reimbursement was the Court's vehicle for

satisfying both IDEA's pronouncement that children are entitled

4
At least one federal court, see Johnson v. Bismarck Pub. Sch.
Dist., 949 F.2d 1000, 1002 (8th Cir 1991), and numerous
administrative law judges have upheld or awarded compensatory
education during the summer months rather than after age twenty-
one. See Perry A. Zirkel, Compensatory Education -- Questions
and Answers, 10 The Special Educator 1, 147 (Dec. 10, 1994).
Parenthetically, the term compensatory education may
also be used in a different sense to refer to special programs
and services provided to "at-risk" students who are not
succeeding in school but do not qualify for special education.
Such programs include alternative schools, pregnancy and
parenting programs, and group counseling programs. See, e.g.,
Catherine P. Clark, Compensatory Education in Texas (1993).

12
to a free appropriate education and the congressional intent to

provide relief for the deprivation of this right. See Lester H.

v. Gilhool, 916 F.2d 865, 872 (3d Cir. 1990), cert. denied, 499

U.S. 923 (1991). Extending the Burlington decision, the Eighth

Circuit in Miener v. Missouri, 800 F.2d 749, 754 (8th Cir. 1986),

cert. denied, 459 U.S. 909 (1982), awarded compensatory

education. The court reasoned that, like retroactive tuition

reimbursement, compensatory education required school districts

to "'belatedly pay expenses that [they] should have paid all

along.'" Id. at 753 (quoting Burlington, 471 U.S. at 370-71).

The court "was confident that Congress did not intend the child's

entitlement to free education to turn upon her parent's ability

to 'front' its costs." Id. In Lester H., we adopted the

position of the Miener court and approved a compensatory remedy.

916 F.2d at 873.5

B. Formulating a Standard

In the case at bar, the court devoted only one

paragraph of its opinion to compensatory education and disposed

of the issue in the following manner:
With respect to plaintiffs'
request for compensatory education,
the Court concludes that such
relief is inappropriate under the
facts of this case. Plaintiffs
rely on Lester H. by Octavia P. v.
Gilhool, 916 F.2d 865 (3d Cir.
1990), cert. denied, 488 U.S. 923
(1991), in which the school
district knew before the child
entered the school system that the
5
In the process, we made clear that compensatory education could
be awarded to plaintiffs who had already reached age twenty-one.
Lester H. v. Gilhool, 916 F.2d 865, 872 (3d Cir. 1990).

13
 district would be unable to provide
an appropriate education. Id. at
873. The decision to permit
compensatory education was premised
on the district's failure to fulfil
what it knew or should have known
were its obligations. Id. The
facts of the present case are
easily distinguishable. Defendant
provided J.C. with an education
which it believed in good faith was
appropriate. A difference of
opinion as to the adequacy of an
educational program is not
equivalent to a complete and total
failure to provide a child with an
education. Therefore, this Court
will not grant plaintiffs' motion
with respect to this issue.

Thus, the district court applied a "good faith" standard in

determining whether to award compensatory education. We review

this approach de novo.

In order to define the correct standard for granting

compensatory education, we must delineate the threshold of

deficiency in the school board's stewardship necessary to trigger

an award. Unfortunately, there is little caselaw or legal

commentary to guide us. Likewise there are no New Jersey or

federal regulations to direct our inquiry. While this is not the

first time we have contemplated this issue, the facts of our

previous cases have made our past analyses relatively

straightforward.

In Lester H., 916 F.2d at 873, we upheld an award of
two-and-one-half years of compensatory education due to the

school district's outrageous behavior. In the fall of 1984, the

district admitted that the twelve-year-old plaintiff was not

14
receiving an appropriate education. Despite the existence of at

least six suitable schools, the district did not locate an

appropriate placement until January of 1987. Id. at 873. We

wrote:
[W]e hold that the district court did not
abuse its discretion when it fashioned this
remedy for Lester. The court's award merely
compensates Lester for what everyone agrees
was an inappropriate placement from 1984
through January, 1987 and belatedly allows
him to receive the remainder of his free and
appropriate public education.

Id.
In Carlisle Area School v. Scott P., 62 F.3d 520 (3d

Cir. 1995), we reviewed a district court's decision to grant six

months compensatory education. We reversed the award because the

record contained no evidence indicating that the relevant IEP was

inappropriate. We concluded that, while we did not need to

define the precise standard for awarding compensatory education,

we could at least determine that it was necessary -- though not

sufficient -- to show that some IEP was actually inappropriate.
Id. at 537. We noted that most cases awarding compensatory

education had involved quite culpable conduct6 but determined

6
See, e.g., Burr v. Ambach, 863 F.2d 1071, 1073 (2d Cir. 1988)
(awarding compensatory education where state institution
disqualified a student because of its purported inability to
accommodate his multiple handicaps without mentioning or
considering placement in an extant special program for multiple
handicapped students); Jefferson County Bd. of Educ. v. Breen,
853 F.2d 853, 857-58 (11th Cir. 1988) (awarding compensatory
education to deter states from unnecessarily prolonging
litigation); Miener v. Missouri, 800 F.2d 749, 754 (8th Cir.
1986) (reversing denial of compensatory education for a child who
spent three years in mental health ward of a state hospital after

15
that a grant of compensatory education did not require bad faith

on the part of the school district. Id. We left our analysis

there, but must now flesh out the standard left sparse by

Carlisle.

The Second Circuit has conditioned an award of

compensatory education on the presence of a "gross" deprivation

of the right to free and appropriate education. See Garro v.

Connecticut, 23 F.3d 734, 737 (2d Cir. 1994) (requiring "gross

procedural violation"); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d

Cir. 1990) (requiring "gross violation," defined as coercion of

disabled child into terminating his right to further education).

We reject this formulation because, in addition to being

imprecise, it is not anchored in the structure or text of IDEA.

If the compensatory education standard is to spring

from the Act, it must focus from the outset upon the IEP -- the

road map for a disabled child's education. See 20 U.S.C.

§1414(a)(5). When an IEP fails to confer some (i.e., more than

de minimis) educational benefit to a student, that student has

been deprived of the appropriate education guaranteed by IDEA.

It seems clear, therefore, that the right to compensatory

education should accrue from the point that the school district

knows or should know of the IEP's failure.7

district failed to provide any educational services
notwithstanding its own evaluation recommending such services).
7
This precept is consistent with our decision in Carlisle Area
School v. Scott P., 62 F.3d 520, 537 (3d Cir. 1995), where we
held that an award of compensatory education required a finding
that an IEP was inappropriate.

16
 The school district, however, may not be able to act

immediately to correct an inappropriate IEP; it may require some

time to respond to a complex problem. Thus, our holding can be

summarized as follows: a school district that knows or should

know that a child has an inappropriate IEP or is not receiving

more than a de minimis educational benefit must correct the

situation. If it fails to do so, a disabled child is entitled to

compensatory education for a period equal to the period of

deprivation, but excluding the time reasonably required for the

school district to rectify the problem. We believe that this

formula harmonizes the interests of the child, who is entitled to

a free appropriate education under IDEA, with those of the school

district, to whom special education and compensatory education is

quite costly.

Obviously the case against the school district will be

stronger if the district actually knew of the educational

deficiency or the parents had complained. But a child's

entitlement to special education should not depend upon the

vigilance of the parents (who may not be sufficiently

sophisticated to comprehend the problem) nor be abridged because

the district's behavior did not rise to the level of slothfulness

or bad faith. Rather, it is the responsibility of the child's

teachers, therapists, and administrators - and of the multi-

disciplinary team that annually evaluates the student's progress

- to ascertain the child's educational needs, respond to

deficiencies, and place him or her accordingly.

17
 While we have little hard data on compensatory

education, we do know that administrative law judges in this

Circuit have awarded it. Our new standard meshes with the

approach taken by these judges. See In Re Jeremy H., No. 593,

slip op. at 27 (Special Education Appeals Review Panel Pa. May

21, 1993) (upholding compensatory education in order to rectify

an inappropriate IEP). Our holding also accords with the

conclusions of a recent article reviewing federal court

strategies for awarding compensatory education. See Perry A.

Zirkel, The Remedy of Compensatory Education under the IDEA, 95

Ed. Law Rep. 483 (1995). That article maintains that, in

general, the prerequisite of a compensatory education award has

not been the gross, egregious, or bad faith conduct of the school

district but rather a simple finding that a child has received an

inappropriate education.

Since the district court applied an incorrect standard,

its order denying compensatory education must be reversed. The

court found that J.C.'s IEP was inappropriate. It determined

that the majority of the skills that J.C. possessed at the time

of Dr. Henning's evaluation were gained before J.C. was placed at

OCDTC in 1987, that the same rate of progress did not continue

after he was placed at OCDTC, and that J.C. plateaued in 1989.

Thus, J.C.'s educational deprivation appears to have lasted a

long time. On remand, the district court should determine when

the Central Regional knew or should have known that J.C.'s IEP

was inappropriate or that he was not receiving more than de

minimis educational benefit; it should also define the reasonable

18
time within which the district should have done something about

it. Compensatory education should accrue from that point

forward.

The order of the district court will therefore be

affirmed in part and reversed in part and the case remanded for

further proceedings consistent with this opinion.

_____________________

19