Fuhrmann v. East Hanover Bd. of Education

MANSMANN, Circuit Judge,

concurring.

I concur in the decision that G.F.’s placements for the 1989-90 and 1990-91 school years were appropriate as they were reasonably calculated to enable G.F. to receive educational benefits. I write separately, however, to address the assertion, raised by the Fuhrmanns and accepted by the dissent, that the district court should have placed greater weight on the evidence of G.F.’s progress at the State Street School during the 1989-90 school year in determining whether the placement East Hanover offered G.F. for the 1989-90 school year was appropriate under the IDEA and Rowley.

The record from the 1990-91 administrative proceeding, which included G.F.’s experience at the State Street School for the 1989-90 school year, was before the district court when it decided G.F.’s claims for both the 1989-90 and 1990-91 school years. The district court was aware of G.F.’s progress at the State Street School during 1989-90, and of G.F.’s prior minimal progress during the 1988-89 school year at East Hanover. Nonetheless, the court did not explicitly consider the comparative results of the two programs in analyzing G.F.’s substantive claim that the education the East Hanover School Board offered G.F. in 1989 was inappropriate to meet his needs.1 I find that the district *1041court’s refusal to find this comparative evidence dispositive or give it significant weight is consistent with the Supreme Court’s decision in Rowley.

The district court determined, citing Row-ley, that the standard which East Hanover must meet was that of an “appropriate” education. Observing that its inquiry was “not whether the State Street School was better for G.F., as it appears to have been,” the district court emphasized that the test was “whether the school district’s offer to place G.F. in the East Hanover school during 1989-90 was appropriate.” (Opinion at p. 1034.) An appropriate education does not mean the absolute best education or “a potential-maximizing education” for the individual child. See Rowley, 458 U.S. at 197 n. 21, 102 S.Ct. at 3046 n. 21.

Rowley’s requirement that a school district’s program be “reasonably calculated” to enable a child to receive educational benefits is prospective; it is based on an evaluation done by a team of experts prior to the student’s placement. At the time of the child’s evaluation, the IEP must be reasonably calculated to enable the child to receive educational benefits. Thus I would not view Rowley’s test of “appropriateness” as whether the child actually receives educational benefit as a result of his school placement. Instead, the appropriateness of a student’s placement must be assessed in terms of its appropriateness at the time it is created and not at some later date when one has the benefit of the child’s actual experience.

While evidence of what took place after the hearing officer rendered his decision in the fall of 1989 is not relevant in deciding whether G.F.’s 1989-90 placement was appropriate, it might be relevant to the appropriateness of G.F.’s placement for 1990-91. See, e.g., Russell by Russell v. Jefferson School District, 609 F.Supp. 605, 608 (N.D.Calif.1985) (court considered consequences of unsuccessful orthopedic operation which took place after school district’s decision and state hearing in order to determine whether student’s present IEP and special education placement were appropriate). Indeed, after G.F.’s 1989-90 progress in the State Street’s behavioral program became known, some of the experts changed their opinions and testified at the 1990 hearing that they now believed G.F. would be better served in a behavioral program for autistic children, such as the Morris Union Jointure School. Thus the school district’s 1990-91 proposal recommended placement for G.F. in a behavioral-based program.

Actions of school systems cannot, as the Fuhrmanns and the dissent suggest, be judged exclusively in hindsight. As the Court of Appeals for the First Circuit has observed, an individualized education program (“IEP”) is a snapshot, not a retrospective. Roland M. v. Concord School Committee, 910 F.2d 983, 992 (1st Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991). In striving for “appropriateness”, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted. Id. at 992. Moreover, while G.F.’s progress during the 1989-90 school year at the State Street School is impressive, it cannot be ascertained to what extent the behavioral oriented approach offered at the State Street school was responsible for G.F.’s progress, or whether G.F.’s progress was a result of his own maturation process or other factors.

Addressing the issue of whether or not the 1989-90 program recommended by the East Hanover Board of Education was reasonably calculated to enable G.F. to receive educational benefits, I find that it was. The Fuhrmanns’ assertion and the dissent’s conclusion to the contrary is based on G.F.’s actual experiences at the State Street School which occurred after the school board’s placement decision had already been made. The alchemy of “reasonable calculation” necessarily involves choices among educational policies and theories — choices which courts, relatively speaking, are poorly equipped to make. Because I do not think that the district court erred in judging the appropriateness of the school district’s offer without giving significant weight to the subsequent *1042experience of the child, I would affirm the judgment under review.

. The Fuhrmanns assert that under 20 U.S.C.A. § 1415(e)(2) the district court must make an "independent review” of the appropriateness of G.F.’s placement. The Fuhrmanns contend that in so doing, "the court may consider evidence which the, administrative tribunal did not have before it concerning relevant events occurring subsequent to the administrative hearing.” (Appellants Br. at p. 1.)

Section 1415 of Title 20 provides that "In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court deems is appropriate.” Thus, while it is true that 20 U.S.C.A. § 1415(e)(2) permits the court to hear "additional evidence” and to make an independent review of the appropriateness of the placement the trial court must be careful not to allow such evidence to change the character of the hearing from one of review (in which the court must give due weight to the administrative proceedings which have taken place) to a trial de novo. Town of Burlington v. Dept. of Educ., Com. of Mass., 736 *1041F.2d 773, 791 (1st Cir.1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).