Fuhrmann v. East Hanover Bd. of Education

HUTCHINSON, Circuit Judge,

concurring and dissenting.

I respectfully dissent from that part of the Court’s opinion affirming the district court’s denial of G.F.’s parents’ claim for reimbursement of the expense they incurred in connection with G.F.’s 1989-90 attendance at the State Street School (“State Street”). I do so because I disagree with the Court’s conclusion that the individualized education program (“IEP”) the East Hanover Board of Education (“East Hanover”) offered G.F. for the 1989-90 school year was appropriate for his needs. I concur in the result this Court reaches with respect to the 1990-91 school year.

My dissent with respect to 1989-90 has two premises: (1) I believe the record shows any educational benefit G.F. might have reasonably been expected to receive from continuing the East Hanover program during the 1989-90 school year was, at best, trivial; and (2) I do not think a trivial benefit meets the United States Supreme Court’s appropriateness. test of “some” educational benefit. See Board of Educ. v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 3047, 73 L.Ed.2d 690 (1982). Therefore, I am unable to conclude that the minimal benefit G.F. was likely to have received under East Hanover’s 1989-90 plan was appropriate for his individual needs.

I.

I am in basic agreement with the Court on our scope of review, but I think some additional attention to that question in relation to the weight federal courts should give to the state education bureaucracy’s administrative prediction that East Hanover’s 1989-90 program would be individually appropriate for G.F.’s continuing educational needs is helpful to an analysis of the substantive issues in this case. Whether an IEP is appropriate for the individual for whom it is devised is a mixed question of fact and law. Therefore, we have plenary review over the district court’s application of Rowley’s substantive rules to the facts of this case. Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 99, 93 L.Ed.2d 49 (1986). Our review, while plenary, must, however, be conducted within a general framework of deference to state decision-makers in recognition of “ ‘Congress’ express efforts to place on ... state educational agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child.’ ” Id. (quoting Smith v. Robinson, 468 U.S. 992, 1011, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746 (1984)). The district court’s findings of historical fact are, of course, subject to the deferential clearly erroneous standard of review. Id.

The Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C.A. §§ 1400-1485 (West 1990 & Supp.1992), requires the district court to “receive the records of the administrative proceedings, ... hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, ... grant such relief as the court determines is appropriate.” 20 U.S.C.A. § 1415(e)(2) (West 1990); see Geis v. Board of Educ., 774 F.2d 575, 583 (3d Cir.1985). In doing so, the district court should give the record of the administrative proceeding “due weight.” Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. This Court has not yet definitively stated what constitutes “due weight.” The United States Court of Appeals for the First Circuit has, however, concluded that the weight due the administrative decision is best left to the discretion of the district court:

The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer’s resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.

Town of Burlington v. Department of Educ., 736 F.2d 773, 792 (1st Cir.1984), aff'd sub nom. School Comm. v. Department of Educ., *1043471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

I have no quarrel with this standard. It is akin to the traditional doctrine that courts should defer to the expertise of administrative agencies in the areas upon which those agencies are called to administer. See generally L. Jaffe, Judicial Control of Administrative Action, at 576-85 (1965). Thus, if the evidence fairly and rationally supports the agency’s findings, and those findings are not east into doubt by other evidence the agency did not have before it, the district court is justified in deferring to the state education authorities’ expertise in deciding what educational program is appropriate for an individual child. See Wexler, 784 F.2d at 181. With these standards in mind I turn first to the legal principles involved in deciding whether an IEP is appropriate, and then to their application to the facts of this case.

II.

The Act requires local educational agencies to provide a “free appropriate public education” to all children with handicapping conditions. 20 U.S.C.A. § 1412(1) (West Supp. 1992). It is remedial in nature and was enacted to prevent warehousing of handicapped children in special programs that were unresponsive to their individual needs. See School Comm. v. Department of Educ., 471 U.S. at 373, 105 S.Ct. at 2004 (citing 20 U.S.C. § 1400(b)(4); 34 C.F.R. § 300.347(a) (1984)); see also Rowley, 458 U.S. at 179, 102 S.Ct. at 3037. Although the Act requires only that a child receive “some” educational benefit, not the best available education, it also requires a program reasonably calculated to permit the child to benefit educationally. See Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51. Such a program must be capable of advancing the educational goals and needs of an individual child. See id.

In Board of Education v. Diamond ex rel. Diamond, 808 F.2d 987 (3d Cir.1986), this Court recognized that “[t]he free appropriate education must ... be ‘tailored to the unique needs of the handicapped child by means of an ‘individualized education program.’ ’ ” Id. at 991 (quoting Rowley, 458 U.S. at 181, 102 S.Ct. at 3038). We stated that “Rowley makes it perfectly clear that the Act requires a plan of instruction under which educational progress is likely.’’ Id. (emphasis in original). “The Act ... requires a plan likely to produce progress, not regression or trivial educational advancement.” Id. (citing Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985)). Clearly, Congress did not intend that a school system could discharge its duty under the Act by providing a program that produces some minimal educational benefit, no matter how trivial.

Furthermore, the Act requires the district court to hear additional evidence when requested by a party. 20 U.S.C.A. § 1415(e)(2). This “additional evidence” can include “evidence concerning relevant events occurring subsequent to the administrative hearing.” Town of Burlington, 736 F.2d at 790. Experts may bring the court up to date on the child’s progress since the time of the hearing. Id.; see Geis v. Board of Educ., 589 F.Supp. 269, 271 (D.N.J.1984), aff'd, 774 F.2d 575 (3d Cir.1985) (district courts have sometimes used other means of informing themselves about the child’s continuing progress); see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 n. 4 (1st Cir.1990) (comparative evidence of past and present academic progress has evidentiary value), cert. denied, - U.S. -, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991).

The record before us shows that G.F.’s progress was extremely slow during the 1988-89 school year and serious behavioral problems remained after it ended. G.F. made minimal progress in language and social skills. There was testimony that his in-school vocabulary increased from zero to approximately twenty-five words and that his motor skills increased slightly. Nevertheless, of the forty-one goals and objectives set out for G.F. in his IEP for the 1988-89 school year, only one was fully accomplished, while the other forty were carried over as goals for 1989-90.

The district court noted that G.F.’s 1989— 90 progress at State Street, in a behavioral oriented program, “was considerably more dramatic than the previous year.” Supra typescript at 1031. Dramatic is the right term. At State Street G.F. accomplished at *1044least forty-two of the fifty goals in his IEP— including goals that had to be carried over from the 1988-89 IEP East Hanover recommended because he had attained only one of them. In addition, his behavioral skills improved immeasurably. Despite the district court’s recognition, in reciting the facts of this case, that G.F. had made remarkable progress at State Street in 1989-90, it did not' discuss this progress in concluding that the 1989-90 IEP was appropriate. This indicates to me that it did not seriously consider the comparative results of the two programs in analyzing G.F.’s substantive claim that the education East Hanover offered him in 1989-90 was not appropriate to his individual needs.

The district court made a threshold determination that the substantive inquiry is not whether State Street was better for G.F., but whether the state’s offer to place G.F. in East Hanover’s program during 1989-90 was appropriate. Supra typescript at 1034. I fail to see how the two can be separated. The district court and now this Court state: “In reviewing ..the record as to ... East Hanover’s educational plan ... for the years 1989 and 1990, each year must be examined independently to determine if the IDEA’S procedural and substantive requirements were met.” Id. at 1031. I believe that the manner in which a child responds to two different educational methods is material in deciding which method is “appropriate” to his needs. Accordingly, I think the district court erred in treating as immaterial any comparison- between the progress that G.F. attained at State Street in 1989-90 and his minimal gains at East Hanover in 1988-89.1

The district court furthermore stated that its determination was based on the record of the administrative proceedings because the parties had not asked it to consider additional evidence. Id. at 1034 n. 3. The record of the administrative proceedings, however, already contained the evidence showing G.F.’s progress at State Street during the 1989-90 school year.

Before trial, the magistrate judge had issued an order in the 1989-90 case expressly allowing the parties to supplement the record with evidence of what took place after the state hearing officer rendered his decision in the fall of 1989. Before counsel had the opportunity to incorporate this material into the record, it became unnecessary to do so because the 1990-91 state administrative proceeding had concluded and the district court was going to consider the parents’ claim for both years in one consolidated proceeding. Thus, the record from the 1990-91 state proceeding, including G.F.’s subsequent experiences at State Street, was before the district court when it decided against G.F.’s parents on both the 1989-90 and the 1990-91 school years. Under these circumstances, I am unwilling to rest on the fact that the district court was not formally asked to consider, as “additional” evidence on the 1989-90 claim, evidence already present in the record.

Accordingly, I believe the district court failed to give real consideration to the evidence of G.F.’s progress at State Street during the 1989-90 school year before determining that the placement East Hanover offered and the IEP it proposed for 1989-90 promised an appropriate education for G.F. See, e.g., Roland M., 910 F.2d at 991 n. 4; Town of Burlington, 736 F.2d at 791. As discussed, infra, if the district court had considered that evidence, it could not have concluded that any educational benefit G.F. would have received in 1989-90 was other than trivial.

IIÍ.

The Court’s holding that East Hanover’s 1989-90 IEP was appropriate for G.F.’s educational needs is explained in Part V.A. of the district court opinion, an opinion which the Court has adopted as its own. See supra typescript at 1034- There the district court *1045set out its rationale for holding that the educational program and placement East Hanover offered G.F. for the 1989-90 school year, over his parents’ objection, were individually appropriate to his needs. That conclusion, now endorsed by this Court, seems to me based largely, if not entirely, on the opinion of the experts who testified in the state administrative proceedings. These experts, in assessing the problems inherent in educating children who suffer from severe learning disabilities, testified that continuation of the program in which G.F. had been placed during 1988-89 was appropriate for him in 1989-90.2 Moreover, after G.F.’s 1989-90 progress in the State Street behavioral program became known, some of the experts changed their opinion and testified they now believed that G.F. was autistic and would be better served in a behavioral program. In addition, for 1990-91 East Hanover no longer proposed to place G.F. in the non-behaviorally based program it had proposed for 1988-89 and 1989-90. Accordingly, the state education authorities decided that a new behaviorally-oriented program known as the Morris Union Jointure Program that East Hanover planned to begin offering in 1990-91 was appropriate for G.F. in that year, a conclusion with which the district court, this Court and I all agree.

Ordinarily, the district court’s reliance on expert testimony given in state administrative proceedings would present no problem. The law’s search for truth is ever difficult, and nowhere more difficult perhaps than in forecasting how a child will respond to those who seek to guide him in the way he should be trained to go. Cases under the IDEA, by their very nature, must be decided here and now. If only expert predictions are available, there is no choice but to rely on them. When we are, however, able to test the experts’ predictions against the reality of the occurrence, we accept the prediction and ignore the reality at the peril of reaching an unjust result. I do not think the district court gives expert testimony in a state administrative proceeding proper weight when it ignores evidence of what actually happened to the child after the proceeding concluded.3 Of course, evidence of how things turn out is not always dispositive on the issue of what is appropriate for a particular child, but it seems to me that it is assuredly material. It sheds light on the capabilities of the child and unveils the potential that once hid in the future.4

In the 1988-89 program, G.F. met only one of forty-one IEP goals. The next year, in the State Street program in which his parents enrolled him, G.F. met approximately forty-two of his fifty goals. When this evidence is considered, I am not satisfied that the 1989-90 program East Hanover offered G.F. conferred “some educational benefit” on him. If it did not confer “some” benefit, it failed to meet the standards set by the IDEA, as interpreted by the United States Supreme Court in Rowley, 458 U.S. at 200, 203, 206-07, 102 S.Ct. at 3047, 3049, 3050-51. I also think the Court’s holding that East Hanover’s 1989-90 IEP was likely to offer G.F. “some” educational benefit incorrectly equates “some” with “any.” The two are not synonymous in English,5 and I am therefore reluctant to conclude that the Supreme Court used the word “some” in such an all-embracing way. I would not read the Act to permit *1046public education to satisfy its obligation to provide “some” educational benefit by an offer of the trivial “any.”6

For these reasons, I fear that the district court’s failure to consider the evidence of comparative benefit present in this record in analyzing what “individual” education plan was “appropriate” for G.F. cannot be squared with the requirement in the Act and the regulations that an educational plan be tailored to the unique needs of a particular child. An IEP is, after all, an “individualized education program.” In concentrating on what minimal benefit satisfies the standard of “some educational benefit” the Supreme Court teaches us to apply, I think the district court loses sight of the words that give meaning to the colorless acronym IEP. “One size fits all” is not a good slogan for education of the handicapped, and trivial educational advancement is insufficient to satisfy the requirements of the Act. See Diamond, 808 F.2d at 991.

IV.

In conclusion, I think the district court’s determination that East Hanover’s 1989-90 proposal for G.F.’s placement was appropriate because it offered some educational benefit is incorrect. Events have shown that G.F. would have received no more than a trivial or de minimis educational benefit under East Hanover’s proposed program for 1989-90. See id. Thus, the district court erred in determining that the substantive requirements of the Act had been met. What happened to G.F. in 1989-90 destroys the experts’ forecast of what might have been.

I would therefore vacate the district court’s determination that G.F. received an appropriate education during the 1989-90 school year and remand with instructions to consider the extent to which reimbursement should be awarded to G.F.’s parents for the costs they incurred in placing him at State Street for that term. In all other respects, I would affirm.

. In footnote 10, the Court infers the district court's consideration of this comparison from the references the district court made to it in its opinion. I have already noted the district court's recognition of G.F.'s progress at State Street in its statement of facts. Its threshold determination that it is not concerned with G.F.’s progress at State Street in its substantive analysis and its failure to utilize that evidence in any meaningful way in the portion of its opinion devoted to legal analysis demonstrates to me that it did not consider, but merely mentioned, these facts.

. The administrative hearing with respect to the 1989-90 claims was held between July 17 and September 7, 1989. Therefore, the experts, as well as the administrative law judge, did not have the opportunity to consider G.F.'s progress at State Street during the 1989-90 school year.

. Of course, I recognize that this Court has no authority to find facts contrary to those found by either the state ALJ or the district court. I do contend that the district court has power to make an independent determination of the facts and that the identification of those facts that are material to its application of the legal standard for an individually appropriate educational plan is a question of law.

. Furthermore, in the instant case, although the expert testimony is conflicting, there was expert testimony before the administrative law judge that G.F. was within the spectrum of autism and that a behavioral-oriented program such as State Street would be appropriate.

. According to the Oxford English Dictionary, "some” means a "certain (unspecified) amount, part, degree, or extent of (something), freq. implying ‘not little, considerable.’ ” The Compact Edition of the Oxford English Dictionary Vol. II, at 2915 (1981). On the other hand, "any” means “of whatever quantityf,]” "however great or small.” Id. Vol. I, at 95.

. Comparison between G.F.’s progress at East Hanover and State Street is possible only because G.F.’s parents had the monetary resources needed, and were willing to risk them, to back up their conviction that East Hanover’s 1989-90 program was not appropriate for G.F. Though their own child's progress proves the prize was worth the gamble, there are other children whose individual capabilities may never be realized because they do not have the good fortune of G.F.