David v. Wilson School Dist. ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-20-1995
David v Wilson School Dist.
Precedential or Non-Precedential:
Docket 94-2051
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-2051
SUSAN N.; DAVID N.,
Individually and as Parents and Natural
Guardians to M.N. a minor,
Appellants
v.
WILSON SCHOOL DISTRICT
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 93-4658)
Argued October 10, 1995
BEFORE: GREENBERG, LEWIS, and ROSENN, Circuit Judges
(Filed: November 20, 1995)
Leonard Rieser (argued)
Alyssa R. Fieo
Education Law Center
801 Arch Street
Suite 610
Philadelphia, PA 19107
Attorneys for Appellants
Andrew E. Faust (argued)
Rosemary E. Mullaly
Sweet, Stevens, Tucker & Katz
116 East Court Street
P.O. Box 150
Doylestown, PA 18901
Attorneys for Appellee
1
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This case arises under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-85 (1990).
Appellants Susan and David N. brought the case individually, and
as parents and natural guardians of their daughter, M., against
the Wilson School District, charging that it had not fulfilled
its statutory obligations to M. under the IDEA. The hearing
officer at the local educational level found in appellants'
favor, concluding that M. was both mentally gifted and afflicted
with a specific learning disability, and that she thereby was
entitled to special education. An appeals panel at the state
education agency level reversed the hearing officer's findings.
The appellants challenged this decision in a civil action in the
district court, which affirmed the decision of the appeals panel
on the record of the administrative proceedings without accepting
the appellants' proffer of additional evidence. The appellants
appeal from the district court's order entered September 27,
1994, in accordance with its opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
The appellants reside in the Wilson School District
with M., who is now nine years old. They believe that M. suffers
2
from attention deficit disorder with hyperactivity ("ADHD"), a
learning disability manifested in attention problems, hyperactive
motor behavior, poor social skills, extensive difficulty in
completing tasks, low frustration tolerance, and low self-esteem.
Memorandum and Order of the District Court ("Mem."), N. v. Wilson
Sch. Dist., No. 93-4658, slip op. at 2 (E.D. Pa. Sept. 26, 1994).
M. has been treated with Ritalin, a medication intended to
control the symptoms of ADHD. See Mem. at 3 n.6. The appellants
believe that M.'s disability may affect her progress in school
and that she is entitled to special education from the State of
Pennsylvania. Id. at 2.
During the spring of 1992, when M. was in kindergarten,
the appellants requested that the school district undertake a
multidisciplinary evaluation of her to determine whether she was
in need of special education.1 Id. In accordance with the
appellants' request, a district multidisciplinary team ("MDT")
conducted an evaluation in April 1992 that included two
psychological examinations, an interview with M.'s kindergarten
teacher, and discussions with appellants. Id. at 2-3. The MDT
issued a report on June 2, 1992, concluding that M. was not
"exceptional,"2 and that she did not require special education.
1
Under the IDEA, "special education" is defined as "specially
designed instruction, at no cost to parents or guardians, to meet
the unique needs of a child with a disability, including -- (A)
instruction conducted in the classroom, in the home, in hospitals
and institutions, and in other settings; and (B) instruction in
physical education." 20 U.S.C. § 1401(a)(16).
2
Pennsylvania defines the term "exceptional children" as
"children of school age who deviate from the average in physical,
mental, emotional or social characteristics to such an extent
that they require special educational facilities or services
3
Specifically, the MDT found that M. did exhibit symptoms
consistent with ADHD, including processing weaknesses that
involved fine motor control, but that she had strong verbal
skills and her ability and achievement levels were average or
above average. The MDT concluded that M. could be educated in a
regular classroom as long as her school program addressed "`her
strong verbal skills, her weak motor skills, and her difficulty
with impulsivity and inattention and hyperactivity (which often
lead to disorganization).'" Id. at 3 (quoting Record at 321a).
On June 9, 1992, an Individual Education Program
("IEP") team met with the appellants to discuss the MDT report.3
Mem. at 4. The IEP team agreed with the MDT's evaluation that M.
was not exceptional and not in need of special education. The
team concluded that, in spite of her weaknesses, M. could sustain
. . . ." Pa. Stat. Ann. tit. 24, § 13-1371(1) (1992).
The IDEA defines "children with disabilities" as children
"(i) with mental retardation, hearing impairments including
deafness, speech or language impairments, visual impairments
including blindness, serious emotional disturbance, orthopedic
impairments, autism, traumatic brain injury, other health
impairments, or specific learning disabilities; and (ii) who, by
reason thereof, need special education and related services." 20
U.S.C. § 1401(a)(1)(A).
In Pennsylvania, the term "exceptional" is used to refer both
to students who are mentally gifted and in need of special
education and students who have one of the 11 disabilities
recognized under the IDEA and who, as a result thereof, require
special education. See 22 Pa. Code §§ 14.1 (definitions of
"exceptional student" and "eligible student"); 342.1(b)
definition of "mentally gifted") (1994). The IDEA does not
include the concept of "mentally gifted" within its definition of
"children with disabilities." See 20 U.S.C. § 1401(a)(1)(A).
3
Under Pennsylvania law, an IEP team must make the final
determination of whether a student is eligible for special
education. See 22 Pa. Code §§ 14.32, 342.32 (1994).
4
herself in a regular academic curriculum with proper assistance
from her parents and teachers. Id. The team then developed a
Notice of Recommended Assignment ("NORA"), which consisted of
written program "suggestions" to M.'s regular education teachers.
Id.The appellants refused to approve the school district's
NORA, which was offered to them on June 18, 1992. Mem. at 5.
Instead, they requested a pre-hearing conference and an
independent evaluation of M. at the school district's expense. On
July 26, 1992, the appellants requested an administrative due
process hearing pursuant to the IDEA, 20 U.S.C. § 1415(b)(1)(E).4
Id.A Pennsylvania Special Education Hearing Officer
conducted the due process hearing on September 17 and September
28, 1992. The appellants presented two issues: (1) whether,
under Pennsylvania law, M. is a mentally gifted child suffering
from a _!___E_@Error! Reference source not found.`ÆÐÐ20 U.S.C. ÀÀ
1401(a)15. States wishing to receive funding underthe IDEA must
ensure that "all children residing in the State whoare disabled,
regardless of the severity of their disability, andwho are in
need of special education and related services areidentified,
located, and evaluated" by the state. 20 U.S.C. ÀÀÀÀ1412(2)(C),
1414(a)(1)(A); ÃÃsee alsoÄÄ 34 C.F.R. ÀÀÀÀ 300.128(a)(1) ¬e 1,
4
The district court seems to have mistakenly treated the school
district's list of recommendations (NORA) for M. as an Individual
Education Program (IEP). See Mem. at passim. The parties have
stipulated that the district court was in error. See Joint
Stipulation, app. at 126. We describe an IEP, which is far more
comprehensive than a NORA, later in this opinion.
5
300.220 & note, 300.300 note 3. This obligation is knownas the
"child find" duty. ÃÃMatulaÄÄ, slip op. at
10.ÔØ'0* ( (°°ÔŒÁ``ÁThe primary mechanism for delivering a free
appropriateeducation is the development of a detailed instruction
plan,known as an Individual Education Program ("IEP"), for each
childclassified as disabled. 20 U.S.C. ÀÀ 1401(18). An IEP
consistsof, ÃÃinter aliaÄÄ, a specific statement of a student's
presentabilities, goals for improvement, services designed to
meet thosegoals, and a timetable for reaching the goals via the
services. ÃÃId.ÄÄ ÀÀ 1401(a)(20). The creation of an
administrative structurecapable of producing IEPs is a requisite
to receiving IDEA funds. ÃÃId.ÄÄ ÀÀ 1414(a)(5). To the extent
possible, however, a school must"mainstream" disabled students ©©
that is, instruct them in aregular, not special, education
setting. ÃÃId.ÄÄ ÀÀ 1412(5).Á``ÁThe IDEA authorizes federal
reviews of state and localcompliance, ÃÃseeÄÄ 34 C.F.R. ÀÀÀÀ
104.61, 100.7, and affords certainprocedural safeguards to the
parents of disabled children. ÃÃInteraliaÄÄ, parents may examine
all relevant records concerningevaluation and placement of their
children, 20 U.S.C. ÀÀ1415(b)(1)(A); must receive prior written
notice when a schoolproposes or refuses to alter a placement, ÀÀ
1415(b)(1)(C); maycontest in an impartial due process hearing
decisions regardingthe evaluation of their child or the
appropriateness of thechild's program, ÀÀÀÀ 1415(b)(1)(E),
1415(b)(2); may appeal thedecision from such a hearing to the
state education agency, ÀÀ1415(c); and may obtain judicial review
of the administrativedecision, ÀÀ 1415(e)(2). ÃÃSeeÄÄ
6
ÃÃMatulaÄÄ, slip op. at 11;ÃÃBernardsville Bd. of Educ. v.
J.H.ÄÄ, 42 F.3d 149, 158 & n.13 (3dÔ'0* ( (°°ÔCir. 1994);
ÃÃLester H. v. GilhoolÄÄ, 916 F.2d 865, 869 (3d Cir.1990),
ÃÃcert. deniedÄÄ, 499 U.S. 923, 111 S.Ct. 1317 (1991).
Pennsylvania fulfills its IDEA obligations through a
complexstatutory and regulatory scheme codified at Pa. Stat. Ann.
tit.24, ÀÀÀÀ 13©1371 and 13©1372 (1992), and 22 Pa. Code ÀÀÀÀ
14.1 to14.74, 342.1 to 342.74 (1994).ÁàôìÁB. JUDICIAL REVIEW
UNDER THE IDEAƒÁ``ÁAs we noted above, the appellants brought this
actionagainst the school district after requesting an
administrativedue process hearing before a Pennsylvania Special
EducationHearing Officer to satisfy a requirement of the IDEA, 20
U.S.C.ÀÀÀÀ 1415(b)(1)(E), 1415(b)(2). Mem. at 5. After the
hearingofficer decided in appellants' favor, the school
districtappealed his decision to the Pennsylvania Special
EducationAppeals Panel, which ruled in its favor. ÃÃId.ÄÄ at 7.
Accordingly,the appellants exhausted the IDEA's provisions for
administrativereview, ÃÃseeÄÄ section 1415(c), and thus were
entitled to bring thiscivil action. ÃÃSeeÄÄ section 1415(e)(2).
It is the nature of thatjudicial proceeding, in particular the
extent to which the courtis required to receive evidence beyond
that contained in theadministrative record, that the parties now
principally dispute.Á``ÁWe approach this question by first
addressing thejudicial review provision of the IDEA, section
1415(e)(2), whichprovides in relevant part:ÐÐÐа``ÂAny party
aggrieved by the findings anddecision made under subsection . . .
shallhave the right to bring a civil action withrespect to the
7
complaint presented pursuant toÔØ'0* ( (°°Ôthis section, which
action may be brought inany State court of competent jurisdiction
orin a district court of the United Stateswithout regard to the
amount in controversy. In any action brought under this paragraph
thecourt shall receive the records of theadministrative
proceedings, shall hearadditional evidence at the request of a
party,and, basing its decision on the preponderanceof the
evidence, shall grant such relief asthe court determines is
appropriate.ÐÐÆx`ÆÐÐ20 U.S.C. ÀÀ 1415(e)(2).Áhh#ÁIn determining
the scope of a districtcourt's review under the IDEA, the Supreme
Court has stated thatthe statute's language instructing that the
district court,"basing its decision on the preponderance of the
evidence, shallgrant such relief as the court determines is
appropriate," doesnot mean that courts are free to substitute
their own notions ofsound education policy for those of the
educational agencies theyreview, but rather that they should give
"due weight" to theadministrative proceedings. ÃÃBoard of Educ.
v. RowleyÄÄ, 458 U.S.at 205©06, 102 S.Ct. at 3050©51; ÃÃsee
alsoÄÄ ÃÃFuhrmann v. EastHanover Bd. of Educ.ÄÄ, 993 F.2d 1031,
1034 (3d Cir. 1993). Naturally, the requirement that the courts
give "due weight" toadministrative proceedings has obliged the
district courts todetermine how much weight is "due." ÃÃSeeÄÄ
ÃÃCapistrano Unified Sch.Dist. v. WartenbergÄÄ, 59 F.3d 884, 891
(9th Cir. 1995).Á``ÁThe Court of Appeals for the Ninth Circuit
has observedthat "judicial review in IDEA cases differs
substantially fromjudicial review of other agency actions, in
which courtsgenerally are confined to the administrative record
8
and are heldto a highly deferential standard of review." ÃÃOjai
Unified Sch.Ô'0* ( (°°ÔDist. v. JacksonÄÄ, 4 F.3d 1467, 1471 (9th
Cir. 1993), ÃÃcert.deniedÄÄ, 115 S.Ct. 90 (1994). Because the
IDEA specificallyrequires a district court to "receive the
records of theadministrative proceedings, . . . hear additional
evidence at therequest of a party, and, basing its decision on
the preponderanceof the evidence," grant any appropriate relief,
20 U.S.C. ÀÀ1415(e)(2), a district court "does not use the
substantialevidence standard typically applied in the review
ofadministrative agency decisions, `but instead must
decideindependently whether the requirements of the IDEA are
met.'" ÃÃMurray v. Montrose County Sch. Dist.ÄÄ, 51 F.3d 921, 927
(10th Cir.1995) (quoting ÃÃBoard of Educ. v. Illinois State
Bd.ÄÄ, 41 F.3d1162, 1167 (7th Cir. 1994)).Á``ÁThe courts of
appeals differ in their description ofthe interplay between the
Supreme Court's "due weight"interpretation and the IDEA's
provision for independent judicialreview. As the Court of
Appeals for the Tenth Circuit recentlysummarized,ÐÐÐа``Â[t]he
district court must . . . independentlyreview the evidence
contained in theadministrative record, accept and
reviewadditional evidence, if necessary, and make adecision based
on the preponderance of theevidence, while giving 'due weight' to
theadministrative proceedings below. This hasbeen described as a
'modified ÃÃde novoÄÄ review,'or as 'involved
oversight.'ÐÐÆx`ÆÐÐÃÃMurrayÄÄ, 51 F.3d at 927 (citations
omitted). The Court of Appealsfor the First Circuit has
described judicial review under theIDEA as follows: "Congress
9
intended courts to make bounded,Ô'0* ( (°°Ôindependent decisions
©© bounded by the administrative record andadditional evidence,
and independent by virtue of being based ona preponderance of the
evidence before the court[.]" ÃÃTown ofBurlington v. Department
of Educ.ÄÄ, 736 F.2d 773, 791 (lst Cir.1984), ÃÃaff'd on other
groundsÄÄ, 471 U.S. 359, 105 S.Ct. 1996(1985).Á``ÁWe have not
spoken definitively on what constitutes"due weight" under the
ÃÃRowleyÄÄ standard, and need not do so today. We, however, have
referred to the interpretation of the standardfirst developed by
the Court of Appeals for the First Circuit:ÐÐÐа``Â[T]he
question of the weight due theadministrative findings of facts
must be leftto the discretion of the trial court. Thetraditional
test of findings being binding onthe court if supported by
substantialevidence, or even a preponderance of theevidence, does
not apply. This does not mean,however, that the findings can be
ignored. The court, in recognition of the expertise ofthe
administrative agency, must consider thefindings carefully and
endeavor to respond tothe hearing officer's resolution of
eachmaterial issue. After such consideration, thecourt is free
to accept or reject the findingsin part or in
whole.ÐÐÆx`ÆÐÐÃÃBurlingtonÄÄ, 736 F.2d at 791©92; ÃÃseeÄÄ
ÃÃCarlisle Area Sch. v. ScottP.ÄÄ, 62 F.3d 520, 527 (3d Cir.
1995) ("[D]istrict courts havediscretion to determine how much
deference to accord theadministrative proceedings[.]");
ÃÃBernardsvilleÄÄ, 42 F.3d at 161(quoting ÃÃBurlingtonÄÄ);
ÃÃOberti v. Board of Educ.ÄÄ, 995 F.2d 1204,1219 (3d Cir. 1993)
("[T]he amount of deference to be affordedthe administrative
10
proceedings `is an issue left to thediscretion of the district
court.'") (quoting ÃÃJefferson CountyÔ'0* ( (°°ÔBd. of Educ. v.
BreenÄÄ, 853 F.2d 853, 857 (11th Cir. 1988));ÃÃFuhrmannÄÄ, 993
F.2d at 1042 (Hutchinson, J., concurring anddissenting).Á``ÁThe
district court relied on ÃÃRowleyÄÄ for itsdetermination that
"[w]hile the court may, at its discretion,hear additional
evidence, it must give `due weight' to theadministrative
proceedings and the education experience andexpertise applied
therein." Mem. at 11. The district courtthereafter concluded
that "the proper exercise of discretionmove[d] it to decline to
second©guess the judgment of theadministrative panel with
evidence that was not before the panelwhen it made its decision,"
Mem. at 12. Accordingly, thedistrict court ruled on the merits
of the appellants' casewithout evaluating or accepting their
proffer of additionalevidence. ÃÃId.ÄÄ The district court thus
seems to have interpretedÃÃRowleyÄÄ to limit severely the IDEA's
directive in section1415(e)(2) that, on judicial review, a court
"shall hearadditional evidence at the request of a party."
Á``ÁOur review of a district court's legal analysis isplenary.
However, our review here "must be conducted within thegeneral
framework of deference to state decision©makers" that isdictated
by the IDEA and by the Supreme Court's direction inÃÃRowleyÄÄ.
ÃÃFuhrmannÄÄ, 993 F.2d at 1032 (citing ÃÃWexler v. WestfieldBd.
of Educ.ÄÄ, 784 F.2d 176, 181 (3d Cir.), ÃÃcert. deniedÄÄ, 479
U.S.825, 107 S.Ct. 99 (1986)); ÃÃsee alsoÄÄ ÃÃCarlisleÄÄ, 62 F.3d
at 526("We, of course, exercise plenary review over the
districtÔ'0* ( (°°Ôcourt's conclusions of law and review its
11
findings of fact forclear error."). In view of a district
court's scope of reviewunder section 1415(e)(2) which goes beyond
the traditionaldeferential standard, and in view of the provision
in thatsection for the court to hear additional evidence at the
requestof a party, we hold that the district court erred in
concludingthat it is within a court's discretion summarily to
excludealtogether the consideration of additional evidence
submitted bya party. Consequently, we are obliged to vacate its
order andremand the matter for further proceedings. We turn,
then, to aconsideration of what additional evidence may be
introduced onthe remand.ÁàˆìÁC. ADDITIONAL EVIDENCEƒÁ``ÁThe
Court of Appeals for the First Circuit, inÃÃBurlingtonÄÄ, 736
F.2d 773, seems to have been the first court ofappeals to analyze
the IDEA's directive that a district court"shall hear additional
evidence at the request of a party." ÃÃId.ÄÄat 790. There, the
court held that the word "additional" shouldbe construed in the
ordinary sense of the word to mean"supplemental." ÃÃId.ÄÄ Thus
construed, the act:ÐÐÐа``Â[C]ontemplates that the source of the
evidencegenerally will be the administrative hearingrecord, with
some supplementation at trial. The reasons for supplementation
will vary;they might include gaps in the administrativetranscript
owing to mechanical failure,unavailability of a witness, an
improperexclusion of evidence by the administrativeagency, and
evidence concerning relevantevents occurring subsequent to
theadministrative hearing. The starting pointfor determining
what additional evidenceÔØ'0* ( (°°Ôshould be received, however,
is the record ofthe administrative proceeding.ÐÐÆx`ÆÐÐÃÃId.ÄÄ In
12
providing examples of types of additional evidence thatmight be
relevant to judicial review under the IDEA, theÃÃBurlingtonÄÄ
court did not limit admissible evidence to those typesenumerated,
which interpretation the school district would haveus make.
ÃÃSeeÄÄ appellee's br. at 12©13. In contrast, the courtseems
merely to have provided examples of additional evidencethat a
court could find relevant to IDEA matters on judicialreview.
Á``ÁAlthough we never explicitly have interpreted thephrase, we
recently referred to the ÃÃBurlingtonÄÄ construction
of"additional evidence" in ÃÃBernardsvilleÄÄ, 42 F.3d at 161,
where weupheld a district court's decision to exclude evidence
ascumulative and an improper embellishment of testimony
previouslygiven at an administrative hearing. ÃÃSee alsoÄÄ
ÃÃObertiÄÄ, 995 F.2d at1220 (court makes fact findings in IDEA
case not only onadministrative record, but also on any new
evidence presented byparties); ÃÃWexler v. Westfield Bd. of
Educ.ÄÄ, 784 F.2d at 181(court must independently review the
record, hear any requestedadditional evidence, and apply the
preponderance standard). Other courts of appeals have followed
ÃÃBurlingtonÄÄ's lead inconstruing section 1415(e)(2)'s
"additional evidence" clause,ÃÃsee, e.g.ÄÄ, ÃÃOjaiÄÄ, 4 F.3d at
1473 (upholding district court'sadmission of additional evidence
concerning relevant eventsoccurring subsequent to the
administrative hearing), although theinterpretation is not
unanimous. ÃÃSeeÄÄ ÃÃMetropolitan Gov't ofÔØ'0* ( (°°ÔNashville
v. CookÄÄ, 915 F.2d 232, 234 (6th Cir. 1990) ("Insofar as[the
language in ÃÃBurlingtonÄÄ] suggests that additional evidence
13
isadmissible only in limited circumstances, such as to
supplementor fill in the gaps in the evidence previously
introduced, wedecline to adopt the position taken by the First
Circuit."); ÃÃseealsoÄÄ ÃÃMurrayÄÄ, 51 F.3d at 930©31 & n.15.
Á``ÁAlthough we make no explicit interpretation of
section1415(e)(2)'s "additional evidence" clause, even
underÃÃBurlingtonÄÄ's restrictive approach a district court first
mustevaluate a party's proffered evidence before deciding to
excludeit. Moreover, while the purpose of the ÃÃBurlingtonÄÄ
constructionis to "structurally assist[ ] in giving due weight to
theadministrative proceeding, as ÃÃRowleyÄÄ requires,"
ÃÃBurlingtonÄÄ, 736F.2d at 790, the court of appeals did not say
that a districtcourt arbitrarily or summarily could exclude
additional evidencesubmitted by a party in pursuit of that
deference. On thecontrary, the examples that ÃÃBurlingtonÄÄ
provided of additionalevidence that should ÃÃnotÄÄ be admitted
were all types of evidencethat courts might decide to exclude in
a conventional civilproceeding. For instance, the court stated
that the additionalevidence clause "does not authorize witnesses
at trial to repeator embellish their prior administrative hearing
testimony; thiswould be entirely inconsistent with the usual
meaning of`additional.'" ÃÃId.ÄÄ Even while making this
statement, though,the court stressed that it would not be wise to
devise a hardªand©fast rule:Ô'0* ( (°°ÔŒÐÐÐа``ÂWe decline to
adopt the rule urged bydefendants that the appropriate
constructionis to disallow testimony from all who did, orcould
have, testified before theadministrative hearing. We believe
14
that,although an appropriate limit in many cases, arigid rule to
this effect would unduly limit acourt's discretion and constrict
its abilityto form the independent judgment Congressexpressly
directed. A salient effect ofdefendants' proposed rule would be
to limitexpert testimony to the administrativehearing. Our
review of the cases involvingthe Act reveals that in many
instances thedistrict court found expert testimony helpfulin
illuminating the nature of the controversyand relied on it in its
decisional process. Å°ÅThere could be some valid reasons for
notpresenting some or all expert testimony beforethe state
agency.ÐÐÆx`ÆÐÐÃÃId.ÄÄ at 790©91.Å°ÅÁ``ÁThus, the ÃÃBurlingtonÄÄ
court stated that certain evidencemay be excluded under IDEA
judicial review out of deference tothe administrative
proceedings. The court, however, declined todevise a bright©line
rule, choosing instead to leave "thequestion of the weight due
the administrative findings of fact"to the discretion of the
trial court. ÃÃId.ÄÄ at 791©92. Othercourts, including ours,
likewise have condoned the exclusion ofadditional evidence
submitted by the parties to an IDEAproceeding when, for a
particular reason, the court properlycould exclude the evidence.
ÃÃSee, e.g.ÄÄ, ÃÃBernardsvilleÄÄ, 42 F.3d at161 (upholding
exclusion of evidence as cumulative and improperembellishment of
testimony previously given at administrativehearing).Á``ÁIt is
regularly held that the question of whatadditional evidence to
admit in an IDEA judicial reviewÔØ'0* ( (°°Ôproceeding, as well
as the question of the weight due theadministrative findings of
fact, should be left to the discretionof the trial court. ÃÃSee,
15
e.g.ÄÄ, ÃÃCarlisleÄÄ, 62 F.3d at 527;ÃÃBernardsvilleÄÄ, 42 F.3d
at 161; ÃÃObertiÄÄ, 995 F.2d at 1219;ÃÃBurlingtonÄÄ, 736 F.2d at
791©92. As appellants note, Congress'central goal in enacting
the IDEA was to ensure "that each childwith disabilities has
access to a program that is tailored to hisor her changing needs
and designed to achieve educationalprogress." Appellants' br. at
11. Children are not staticbeings; neither their academic
progress nor their disabilitieswait for the resolution of legal
conflicts. While a districtcourt appropriately may exclude
additional evidence, a court mustexercise particularized
discretion in its rulings so that it willconsider evidence
relevant, non©cumulative and useful indetermining whether
Congress' goal has been reached for the childinvolved.
Consequently, on the remand the district court shoulduse this
standard in determining whether to admit the proferredadditional
evidence, ÃÃi.e.ÄÄ, would the evidence assist the court
inascertaining whether Congress' goal has been and is being
reachedÔ‰?°Ôfor the child involved.Ö›x°$= Because we vacate the
judgment of the district court andremand the case for the
district court's evaluation of additionalevidence, which may lead
to the admission of some, none, or allof the evidence submitted,
it is not necessary for us to addressappellants' claim that the
district court denied them a fairopportunity to argue their case.
The remand necessarily resolvesthat issue. ›ÖÁàèìÁD. ÃÃFUHRMANN
V. EAST HANOVER BOARD OF EDUCATIONÄăÔ@0* ( (°°ÔŒÁ``ÁWe consider
one final matter with respect to the"additional evidence" clause
of the IDEA. In deciding to rule onthe merits of appellants'
16
IDEA claims without evaluating oraccepting their offer of
additional evidence, the district courtrelied on our holding in
ÃÃFuhrmannÄÄ, 993 F.2d 1031, in addition torelying on the Supreme
Court's decision in ÃÃRowleyÄÄ. ÃÃSeeÄÄ Mem. at11©12. The
district court cited ÃÃFuhrmannÄÄ for the propositionthat "the
court cannot assess the adequacy of a student'splacement `at some
later date when one has the benefit of thechild's actual
experience,'" Mem. at 11 (quoting ÃÃFuhrmannÄÄ, 993F.2d at 1040),
but instead "must measure the adequacy of aneducational program
at the time it was offered to the student." Mem. at 12 (citing
ÃÃFuhrmannÄÄ, 993 F.2d at 1040). As theappellants "proposed that
they be allowed to supplement therecord with additional evidence
which was not available in 1992,"the district court chose to
address the merits of their casewithout evaluating or admitting
that evidence because in the eyesof the district court, doing so
would be "second©guess[ing] thejudgment of the administrative
panel with evidence that was notbefore the panel when it made its
decision." Mem. at 12. Thecourt proceeded to "confine its
analysis to the evidence that wasbefore the panel in 1992, and .
. . give due deference to the[administrative] panel's findings."
ÃÃId.ÄÄ In order to addressÔ`"0* ( (°°Ôcompletely appellants'
claim for relief, we must revisit theÔ‰? Ôevidentiary issues we
considered in ÃÃFurhmannÄÄ.ÖE $= Appellants try to minimize the
applicability of ÃÃFuhrmannÄÄ tothis case by pointing out that
the major thrust of their claim is"for a prospective
determination of eligibility for services," appellants' br. at
20. They continue:Ðа``ÂIt may well be unfair to force a
17
district topay reimbursement where it correctlyidentified the
child as eligible and developedan IEP reasonably calculated to
produceprogress, even if, in hindsight, progress didnot actually
occur. But there is nothingunfair about parents trying to
convince acourt that their child should be declared ©©at least
from that point forward ©© to have adisability, and nothing
irrelevant aboutevidence that brings the court up to date
onwhether indicia of a disability are present.Æx`ÆÐÐAppellants'
br. at 20©21. Although appellants try to convince usthat we need
not address ÃÃFuhrmannÄÄ's effect on their claims, ÃÃseeÄÄbr. at
21 n.10 ("[T]he Court need not decide these points."),appellants,
as they admit, did include claims for reimbursementin their
complaint in the district court. Br. at 20 n.9. Thus,we must
address ÃÃFuhrmannÄÄ's holding to see if what appellants seekis
truly the "unfair" use of hindsight in judging the
schooldistrict's decision regarding M.'s eligibility for
specialeducation.EÖÁ``ÁIn ÃÃFuhrmannÄÄ, we addressed the claim of
parents of achild with disabilities for reimbursement for two
years ofprivate schooling for their son. The parents contended
that theindividual education programs that the school district
hadoffered to the child were inappropriate and thus violated
theÔ‰?ðÔIDEA.ÖÈx0ð¨$= Appellants again try to distinguish their
case from ÃÃFuhrmannÄÄ by pointing out that "[u]nlike the
[appellants] here,the parents in ÃÃFuhrmannÄÄ were not seeking a
determination ofeligibility for special education, or a finding
concerning theprogram that would be appropriate for their child
in the future." Appellants' br. at 19. We decline, however, to
18
draw such aÔØ'0* ( (°°Ôbright line between the appropriateness of
taking additionalevidence in an IDEA judicial review proceeding
when thereasonableness of an IEP is at issue and taking such
evidence ina proceeding where the initial determination of
eligibility forspecial education is being litigated. However, we
do note thatCongress' primary purpose in enacting the IDEA did
seem to be theassurance of access to special education services
for childrenwith disabilities. ÃÃSeeÄÄ 20 U.S.C. ÀÀ 1400(c) ("It
is the purposeof this chapter to assure that all children with
disabilitieshave available to them . . . a free appropriate
public educationwhich emphasizes special education and related
services designedto meet their unique needs[.]"). But we also
note that in ÃÃW.B.v. MatulaÄÄ, No. 95©5033, we recently held
that the IDEA allows therecovery of damages as rather broadly
defined. Slip op. at 16ª17. Obviously, a court would have to
exercise great care inadmitting after©acquired evidence in a
damages action,particularly one such as this case, which involves
a claim forpunitive damages. Thus, while we are not drawing
bright lines,we do observe that a more liberal approach might be
appropriatein a case involving a claim for remedial educational
relief ascontrasted to a damages action.ÈÖ Neither party sought
to introduce additional evidence inÔðÀ0* ( (°°ÔÃÃFuhrmannÄÄ. 993
F.2d at 1034 n.3. The issue, instead, was theweight that the
district court should give to evidence already inthe
administrative record regarding the child's progress inprivate
school (evidence amassed after the school district'sdecision
regarding the IEP but before the parents sought judicialreview).
19
ÃÃId.ÄÄ at 1039. As appellants note, we held in ÃÃFuhrmannÄÄthat
the district's liability hinged upon whether its proposedprogram
for the child was, at the time it was offered,"reasonably
calculated" to benefit the child. Appellants br. at19.
Appellants interpret our ruling as follows:ÐÐÐа``ÂThe Court
declined, therefore, to adopt a ruleunder which the district
would have beenfinancially penalized for an IEP that,
whileapparently appropriate at the time it wasdeveloped, turned
out in hindsight to beinadequate. Accordingly, the Court
held,evidence of the child's subsequent educationalprogress (or
lack thereof) could be consideredÔÀ0* ( (°°Ôonly insofar as it
bore on the issue ofwhether the IEP was appropriate when it
wascreated.ÐÐÆx`ÆÐÐAppellants' br. at 20 (citing ÃÃFuhrmannÄÄ,
993 F.2d at 1040).Á``ÁAppellants' characterization of our holding
in ÃÃFuhrmannÄÄis fair. The case was unusual in that the panel
authored threeseparate opinions: one opinion by Judge Garth for
the court, oneconcurring opinion by Judge Mansmann, and one
concurring anddissenting opinion by Judge Hutchinson. On the
matter of whatweight to give evidence not before a school
district when itoriginally made the decision regarding the
educational placementof a child, Judge Garth and Judge Mansmann
agreed on theaforementioned holding: "[T]he measure and adequacy
of an IEP canonly be determined as of the time it is offered to
the student,and not at some later date." 993 F.2d at 1040.
However, despiteJudge Garth's statement that "Judge Mansmann and
I are incomplete agreement as to the time when we must look at
the`reasonable calculation' made pursuant to ÃÃRowleyÄÄ,"
20
ÃÃid.ÄÄ, the twojudges may have come to different conclusions as
to theconsequences of that holding. While Judge Garth stated
that"evidence of a student's later educational progress may only
beconsidered in determining ÃÃwhether the original IEP was
reasonablycalculated to afford some educational benefitÄÄ,"
ÃÃid.ÄÄ (emphasisadded), Judge Mansmann concluded that "evidence
of what tookplace after the hearing officer rendered his decision
in the fallof 1989 is not relevant in deciding whether [the
child's] 1989©90placement was appropriate." ÃÃId.ÄÄ at 1041
(Mansmann, J.,Ô'0* ( (°°Ôconcurring). Judge Garth thus seemed to
take the lessrestrictive approach, one that would admit evidence
dating from atime after both the school district and the hearing
officer madetheir decisions, but only in determining the
reasonableness ofthe school district's original decision. Judge
Mansmann'sopinion could be read to indicate that she would not
admit suchevidence at all, and the school district advances that
reading. ÃÃSeeÄÄ appellee's br. at 10 n.3.Á``ÁIn light of the
IDEA's purpose "to assure that allchildren with disabilities have
available to them . . . a freeappropriate public education which
emphasizes special educationand related services," 20 U.S.C. ÀÀ
1400(c), in addition to itsdirective to "hear additional evidence
at the request of aparty," ÃÃid.ÄÄ ÀÀ 1415(e)(2), we believe that
Judge Garth'sinterpretation of the statute should control the
taking ofevidence on judicial review that was not before the
schooldistrict when it made its initial IDEA placement decisions.
Inso concluding, however, we stress that such
after©acquiredevidence, such as information received through the
21
experience ofan alternative placement, should be used by courts
only inassessing the reasonableness of the district's initial
decisionsregarding a particular IEP or the provision of special
educationservices at all. Courts must be vigilant to heed Judge
Garth'swarning that "[n]either the statute nor reason
countenance`Monday Morning Quarterbacking' in evaluating the
appropriatenessof a child's placement." 993 F.2d at 1040.
Ô'0* ( (°°ÔŒÁ``ÁThe dangers inherent in this process of
second©guessingthe decisions of a school district with
information to which itcould not possibly have had access at the
time it made thosedecisions are great. As appellants recognize,
it indeed would beunfair "to adopt a rule under which [a]
district would [be]financially penalized for an IEP that, while
apparentlyappropriate at the time it was developed, turned out in
hindsightto be inadequate." Appellants' br. at 20. Our recent
holding inÃÃCarlisleÄÄ, 62 F.2d at 534, is not inconsistent with
theseconclusions, for in that case we merely emphasized
theprospective nature of judging the appropriateness of a
particularIEP, and cited ÃÃFuhrmannÄÄ for the prospect that a
student'ssubsequent failure to make progress in school does
notretrospectively render an IEP ÃÃperÄÄ ÃÃseÄÄ inappropriate.
In ÃÃCarlisleÄÄ,we did not address specifically the issue of how
to use afterªacquired evidence in assessing the reasonableness of
an IEP ©© ajudicial process that, by the very nature of judicial
review,must occur after the formulation of the educational
program.Á``ÁIn remanding this case to the district court, then,
wehold that it was not within that court's discretion to
22
rejectappellants' offer of additional evidence without even
evaluatingit for its admissibility. However, we also note that,
because atleast some of appellants' proffered additional evidence
wasacquired after the school district's decision regarding M.'s
needfor special education, the district court will need to
examinesuch evidence carefully. Such evidence may be considered
onlyÔ'0* ( (°°Ôwith respect to the ÃÃreasonablenessÄÄ of the
district's decision atthe time it was made. Of course, this
caveat does not mean thatthe court cannot exclude evidence that
could have been availablewhen the school district made its
decision.Áà@ìÁE. THE PREEMPTIVE EFFECT OF THE IDEAƒÁ``ÁFinally,
appellants contend that the district courterroneously dismissed
their additional statutory claims as"preempted" by the IDEA. We
agree.Á``ÁSection 1415(f) of the IDEA
states:ÐÐÐÐÐа``ÂÁ¸¸ÁNothing in this chapter shall beconstrued
to restrict or limit the rights,procedures, and remedies
available under theConstitution, title V of the RehabilitationAct
of 1973 [29 U.S.C. ÀÀ 790 et seq.], orother Federal statutes
protecting the rightsof children and youth with
disabilities,except that before the filing of a civilaction under
such laws seeking relief that isalso available under this
subchapter, theprocedures under subsections (b)(2) and (c) ofthis
section shall be exhausted to the sameextent as would be required
had the actionbeen brought under this subchapter.ÐÐÆx`ÆÐÐ20
U.S.C. ÀÀ 1415(f). In its Memorandum Opinion, the districtcourt
interpreted this section of the IDEA to mean that "parentsmust
first challenge [an] educational program under the IDEAbefore
23
they may pursue a civil action alleging additional causesof
action." Mem. at 10©11. The court thereafter concluded thatthe
appellants' additional statutory claims were "clearly preªempted
by ÀÀ 1415(f)" and therefore should be dismissed. ÃÃId.ÄÄ
at11.Á``ÁThe district court's dismissal of appellants'additional
statutory claims was a legal determination over
whichÔØ'0* ( (°°Ôwe exercise plenary review. ÃÃCarlisleÄÄ, 62
F.3d at 526; ÃÃFuhrmannÄÄ,993 F.2d at 1033. While section
1415(f) requires a party toexhaust the IDEA's administrative
remedies before pursuing otherclaims, the section makes clear
that the IDEA is not theexclusive avenue through which children
with disabilities canassert claims for an appropriate education.
ÃÃW.B. v. MatulaÄÄ, slipÔ‰?`Ôop. at 14©15;ÃÃÄÄ ÃÃHayes v. Unified
Sch. Dist.ÄÄ, 877 F.2d 809, 812(10th Cir. 1989); ÃÃBoard of Educ.
v. DiamondÄÄ, 808 F.2d 987, 995(3d Cir. 1986).Á``ÁIndeed,
Congress amended the IDEA in 1986 to includesection 1415(f) in
response to the Supreme Court's decision inÃÃSmith v. RobinsonÄÄ,
468 U.S. 992, 104 S.Ct. 3457 (1984), whichheld that the IDEA was
the exclusive statute through which adisabled child could obtain
relief. ÃÃSeeÄÄ The HandicappedChildren's Protection Act of
1986, Pub. L. No. 99©372 ÀÀ 3, 100Stat. 796, 797 (1986). Section
1415(f) thus clarified Congress'intent with regard to the
preemptive effect of the IDEA. ÃÃDiamondÄÄ, 808 F.2d at 995. As
we recently stated, "Section1415(f) was . . . enacted to
`reaffirm, in light of [ÃÃSmithÄÄ], theviability of section 504,
42 U.S.C. ÀÀ 1983, and other statutes asseparate vehicles for
ensuring the rights of handicappedchildren.'" ÃÃMatulaÄÄ, slip
24
op. at 14©15 (quoting H.R. Rep. No. 99ª296, 99th Cong., 1st Sess.
4 (1985)); ÃÃsee alsoÄÄ ÃÃMrs. W. v.TirozziÄÄ, 832 F.2d 748,
754©55 (2d Cir. 1987).Á``ÁThus, the district court erred in
dismissing theappellants' additional statutory claims as
preempted by the IDEA. Ô'0* ( (°°ÔWhile the school district
states that "the lower court appears tohave overlooked Section
1415(f) of the IDEA" in so ruling,appellee's Br. at 18, it claims
that "the record simply does notsupport the maintenance of a
cause of action against appellees onany other theory." ÃÃId.ÄÄ
But even though this assertion may beestablished on remand, it
was not within the district court'sdiscretion to dismiss the
appellants' claims without addressingtheir merits. Accordingly,
we will vacate the order of thedistrict court dismissing
appellants' additional statutoryÔ‰?Ôclaims.ÃÃÄÄÃÃÔ‰?0ÔÁàhì#ÁIII.
CONCLUSIONÄăÁ``ÁFor all the reasons detailed above, we will
vacate thedistrict court's order entered September 27, 1994. We
willremand the case to the district court for the evaluation
and,perhaps, depending on that evaluation, the taking of
additionalevidence on the IDEA claim and for further proceedings
consistentwith this opinion. Costs shall be allowed the
appellants.
25