NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2376
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GAVIN K., through his parents, Andrew K. and Allyson K.;
ANDREW K. and ALLYSON K., adults, individually, and on their own behalf,
Appellants
v.
DOWNINGTOWN AREA SCHOOL DISTRICT
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-21-cv-03212)
U.S. District Judge: Honorable Paul S. Diamond
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Submitted under Third Circuit L.A.R. 34.1(a)
May 19, 2023
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Before: GREENAWAY, JR., PHIPPS, and CHUNG, Circuit Judges.
(Filed: June 5, 2023)
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OPINION
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This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
CHUNG, Circuit Judge.
Gavin K. and his parents (hereinafter “G.K.” and “Parents”) sought reimbursement
from Downingtown Area School District (“DASD”) for G.K.’s 2020–21 tuition at
Benchmark School (“Benchmark”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”). The claim was denied by a Pennsylvania special education
Hearing Officer who determined that G.K.’s private school placement was not proper
under the IDEA. The United States District Court for the Eastern District of
Pennsylvania affirmed the Hearing Officer’s decision by its order. For the reasons
explained herein, we will affirm the District Court’s order.
I.1
When G.K. was in the first grade, DASD determined he was “a student with a
specific learning disability.” Appendix (“App.”) 1. After his second-grade year, Parents
removed G.K. from DASD schools and enrolled him at Benchmark, a private school for
“children with learning differences.” App. 1463. G.K. continued his education at
Benchmark through sixth grade (2019–20). On or about May 19, 2020, near the end of
sixth grade, Parents contacted DASD for an evaluation with an eye towards possibly
enrolling G.K. in DASD for seventh grade. In June, DASD sent a Notice of
Recommended Educational Placement (“NOREP”) to Parents declining to evaluate G.K.
until school re-opened due to COVID. DASD also communicated via email with Parents
that it could provide “regular education interventions while simultaneously working
1
Because we write for the parties, we recite only facts pertinent to our decision.
2
through the evaluation process” if G.K. attended a DASD school in the fall of 2020.
App. 345. Parents did not approve the June 2020 NOREP.
On August 17, 2020, Parents notified DASD that they intended to continue G.K.’s
education at Benchmark for the 2020–21 school year and to seek tuition reimbursement
for that year. DASD proposed an individualized education plan (“IEP”) shortly thereafter
and Parents did not approve it. Parents requested a special education due process hearing
on November 25, 2020, alleging that DASD was not offering G.K. a Free and
Appropriate Public Education (“FAPE”) pursuant to the IDEA, Section 504 of the
Rehabilitation Act of 1973, and Pennsylvania law.2
The Hearing Officer considered multiple evaluations of G.K., dating from first
grade through October 2020, conducted by DASD, Benchmark, G.K.’s personal tutor,
and a psychologist engaged by Parents. The Hearing Officer also took testimony over
three days from multiple witnesses, including administrators and staff from both
Benchmark and DASD, as well as from Andrew K. (Parent). After considering the
evidence in its entirety, the Hearing Officer found that DASD’s proposed IEP (August
2020) was inappropriate and that DASD had failed to provide G.K. a FAPE; nevertheless,
the Hearing Officer found Parents were not entitled to reimbursement because they failed
to make the necessary showing that Benchmark was an appropriate private school
placement for G.K.
2
Parents have not made any appeal to Section 504 or Pennsylvania law in briefing;
accordingly, any argument that might have been made pursuant to such authority is
abandoned. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
3
G.K. and Parents challenged the Hearing Officer’s decision before the District
Court and both parties moved for judgment on the administrative record. The District
Court agreed with the Hearing Officer that Benchmark was not an appropriate private
school placement, denied Parents’ motion for judgment on the administrative record, and
granted DASD’s cross-motion.
G.K. and Parents timely appealed.
II.3
The IDEA obligates states that receive “federal funds to assist in educating
children with disabilities” to “provide a [FAPE] … to all eligible children.” Endrew F.
ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390 (2017) (citing 20
U.S.C. § 1412(a)(1)). “School districts provide a FAPE by designing and administering a
program of individualized instruction that is set forth in an [IEP].” Mary T. v. Sch. Dist.
of Phila., 575 F.3d 235, 240 (3d Cir. 2009) (citing 20 U.S.C. § 1414(d)). When a parent
believes his or her child was denied a FAPE, the parent “may request a hearing,
commonly known as a due process hearing, to seek relief from the school district.” Id.
Because it can take time to challenge a school district’s failure to provide a FAPE,
parents “may unilaterally remove their disabled child from that school, place him or her
in another school, and seek tuition reimbursement for the cost of the alternate
3
The District Court had jurisdiction pursuant to 20 U.S.C. § 1415(i)(2) and 28 U.S.C.
§ 1331. We have jurisdiction to review the District Court’s final decision pursuant to 28
U.S.C. § 1291.
4
placement.” Id. at 242 (citing 20 U.S.C. § 1412(a)(10)(C); Sch. Comm. of Burlington v.
Dep’t of Edu., 471 U.S. 359, 374 (1985)).
The decision to “unilaterally remove” a child from public school is an expeditious
solution that comes with some financial risk, given that parents who make this decision
are not automatically entitled to reimbursement. Id. To establish an entitlement to
reimbursement, a parent must show that (1) “the School District failed to provide the
required FAPE,” id., and (2) “the private school placement was proper under the Act.”
Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15 (1993); Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 276 (3d Cir. 2007).4 The second factor
itself has two components: “[a] private placement is ‘proper’ if it (1) is ‘appropriate,’ i.e.,
it provides ‘significant learning’ and confers ‘meaningful benefit,’ and (2) is provided in
the least restrictive educational environment.” DeFlaminis, 480 F.3d at 276 (citing
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 248 (3d Cir. 1999)).5 A
4
“[E]quitable considerations” are a third factor in tuition reimbursement claims.
Florence Cnty., 510 U.S. at 16 (quoting Burlington, 471 U.S. at 374). “[E]ven where
private placement is appropriate and reimbursement is otherwise due, the IDEA permits
the equitable reduction or elimination of tuition reimbursement under certain
circumstances.” C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 67 (3d Cir. 2010)
(discussing 20 U.S.C. § 1412(a)(10)(C)(iii)). In this case, neither the Hearing Officer nor
the District Court reached the issue of equitable considerations and they are irrelevant to
our resolution of the instant appeal.
5
The parties disagree as to how the proper private school placement analysis accounts for
the least-restrictive-environment consideration. In Ridgewood, the Court explained that a
private placement was not improper only because it was more restrictive than a student’s
public placement. 172 F.3d at 249; Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch.
Dist., 190 F.3d 80, 84 (3d Cir. 1999). Our decision does not turn on this factor and we
need not resolve this legal nuance here.
5
private school may be found to provide significant learning and confer meaningful
benefit, i.e., be appropriate, even if it does not meet state education standards, boast
certain certifications, or offer IEPs to its students. DeFlaminis, 480 F.3d at 276–77
(discussing Florence Cnty., 510 U.S. at 13–14).
An administrative decision on a tuition reimbursement claim is subject to a
“modified de novo” standard of review if challenged in a federal district court. Id. at 266
(quoting S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003)).
Pursuant to the modified de novo standard, the district court “make[s] its own findings by
a preponderance of the evidence,” but must “afford ‘due weight’” to administrative
factfinding. Mary T., 575 F.3d at 241 (quoting Shore Reg’l High Sch. Bd. of Educ. v.
P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). The district court affords due weight
to administrative factfinding by treating findings as “prima facie correct” and explaining
any deviation from them. Shore Reg’l, 381 F.3d at 199 (quoting S.H., 336 F.3d at 271).
“In addition, if a state administrative agency has heard live testimony and has found the
testimony of one witness to be more worthy of belief than the contradictory testimony of
another witness, that determination is due special weight.” Id. (citing S.H., 336 F.3d at
271). The district court must defer to the administrative “findings based on credibility
judgments unless the non-testimonial, extrinsic evidence in the record would justify a
contrary conclusion or unless the record read in its entirety would compel a contrary
conclusion.” S.H., 336 F.3d at 270 (quoting Carlisle Area Sch. v. Scott P. ex rel. Bess P.,
62 F.3d 520, 529 (3d Cir. 1995)).
6
In turn, our review is plenary with respect to “legal standards applied by the
District Court and . . . its legal conclusions.” Mary T., 575 F.3d at 242. We review the
District Court’s findings of fact “for clear error.” Id. (citing Shore Reg’l, 381 F.3d at
199).
Parents argue that the District Court legally erred in affirming the Hearing
Officer’s denial of their tuition reimbursement claim. They allege that the District Court
effectively heightened the legal standard for establishing that a private school placement
is appropriate.
Our review of the District Court’s decision reveals no legal error or clearly
erroneous factfinding. The District Court correctly articulated relevant legal standards,
starting with the modified de novo standard of review and the degree of deference it
owed to the Hearing Officer’s findings pursuant thereto. The District Court also applied
the correct standard in evaluating the appropriateness of Benchmark. App. 6.
The District Court considered the full administrative record of testimony and
exhibits, the Hearing Officer’s evaluation of that record, and the Hearing Officer’s
ultimate findings. The District Court’s consideration included review of Parents’
evidence, such as evidence that G.K. had “three check-in periods” daily for assistance in
reading fluency and math (App. 7), and evidence of assessments reflecting G.K.’s
academic gains. After this review, the District Court largely adopted the Hearing
Officer’s findings and determined that: 1) G.K. had “significant needs” in multiple
subjects; 2) that Benchmark lacked “instruction tailored to [G.K.’s] needs,” such as
“targeted intervention to address his reading fluency and decoding;” 3) there was
7
evidence G.K. had made “minimal progress;” 6 and, 4) such progress was “insufficient to
overcome the lack of instruction designed to address [his] specific needs.” App. 7–8.
Accordingly, the District Court determined that Benchmark was not an appropriate
placement.
Parents argue that G.K.’s progress at Benchmark showed significant learning and
meaningful benefit, but that the District Court required much more than that: a showing
of significantly tailored instruction akin to an IEP; across-the-board improvement on
assessments and achievement tests; and objective progress without regard for persistent
limitations associated with disability, i.e., a degree of improvement that would have only
been possible if G.K.’s disability had been “cure[d].” Appellant’s Br. 22.7
Rather than imposing a heightened standard, the record reflects that the District
Court considered all the evidence and arguments before it, including those offered by
Parents, and afforded the Hearing Officer’s findings proper deference. We find that the
District Court did not erroneously raise the bar by requiring evidence of unrealistic
improvement or across-the-board improvement on assessments and achievement tests. A
student’s progress at his or her private school is relevant to whether the placement is
6
In its “Background” discussion, the District Court remarked that “[G.K.] does not
appear to have made progress during his time at Benchmark.” App. 3. However, the rest
of the District Court’s decision makes it clear that the Court found G.K. made “minimal
progress.” App. 8.
7
Parents also rebut any challenge to Benchmark’s appropriateness for failure to provide
research-based curriculum, but the District Court ultimately set aside the question of
whether “Benchmark provides research-based education” in its evaluation of the
appropriateness of the Benchmark placement. App. 7.
8
appropriate and Parents acknowledge this. In fact, Parents have argued that the District
Court erred when it did not find that G.K.’s minimal progress alone was sufficient to
establish the propriety of his placement at Benchmark. Appellant’s Br. 21. As the
Second Circuit explained in Gagliardo, however, a student’s academic progress may be
attributable to the general “advantages and amenities” offered by a private school that
would be attractive to the “parents of any child, disabled or not.” Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007). Accordingly, evidence of progress
does not necessarily establish that a parent’s unilateral private placement is appropriate.
Id.; Ridgewood, 172 F.3d at 248 (appropriateness is not evaluated pursuant to bright-line
rules).
Moreover, while we recognize that the courts have often used the words “tailored
to the unique needs of the disabled student” to consider whether a FAPE was offered
through an IEP, Ridgewood, 172 F.3d at 247 (citing Bd. of Educ. v. Rowley, 458 U.S.
176, 181 (1982)), the District Court’s use of the word “tailoring” is not talismanic,
conjuring an IEP requirement by its mere utterance. Our review instead indicates that the
District Court found Benchmark did not offer G.K. significant learning and meaningful
benefit in light of evidence both that Benchmark’s instruction misaligned with G.K.’s
needs and that G.K. made only minimal progress. That finding does not appear to be
erroneous where the assessments as a whole showed a mix of progress in some areas but
9
stagnation or decline in others8 and where, for example, the evidence reflected that
Benchmark used the same “grade level” novels with all students, including G.K., even
though G.K.’s reading ability was below grade level. App. 1155–56; App. 1464, 7.
While we understand Parents would have weighed the evidence differently, the evidence
they offer to counter the Hearing Officer’s findings is insufficient to “overcome[] the
deference” the District Court must afford them or to find clear error. DeFlaminis, 480
F.3d at 277; cf. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372,
388 (2d Cir. 2014) (district court failed to afford proper deference to state review
officer’s conclusion that evidence connecting private school’s services to a particular
plan for child or objective evidence showing progress was insufficient to find placement
was appropriate).
III.
For the foregoing reasons, we will affirm the District Court’s order signed July 1st
and entered July 5, 2022, denying G.K. and Parents’ motion for judgment on the
administrative record and granting DASD’s cross-motion.
8
For example, the Hearing Officer observed that, over the past four years, some of
G.K.’s reading scores on the Wechsler Individual Achievement Test decreased and that
G.K.’s i-Ready scores for reading and math showed only a slight improvement, if any.
10