Jean Coleman v. Pottstown School District , 581 F. App'x 141 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 13-4724
______________
JEAN COLEMAN; DAVID COLEMAN, Guardians;
RODNEY JONES, Student
Appellants
v.
POTTSTOWN SCHOOL DISTRICT
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 2-10-cv-07421)
District Judge: Honorable Eduardo C. Robreno
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 12, 2014
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Before: McKEE, Chief Judge, SMITH, and SHWARTZ, Circuit Judges.
(Filed: September 15, 2014)
______________
OPINION
______________
SHWARTZ, Circuit Judge.
Jean Coleman, David Coleman, and R.J. (collectively, “Appellants”) appeal the
portion of the District Court’s judgment affirming the state administrative agency’s
(“Hearing Officer’s”) determination that the Pottstown School District (“School
District”) provided R.J. with a free and appropriate public education (“FAPE”). Because
of the governing standard of review, we are constrained to affirm.
I
As we write principally for the benefit of the parties, we recite only the essential
facts and procedural history. R.J. attended public school in Baltimore but moved to the
School District in 2006 shortly before entering tenth grade. Using R.J.’s school records
from Baltimore (“Baltimore Records”) and his performance during the first month of
tenth grade, the School District created an Individualized Education Plan (“IEP”) to
address R.J.’s learning disability as required by the Individuals with Disabilities
Education Act (“IDEA”), 29 U.S.C. § 1400 et seq.1 This IEP (“2006 IEP”) documented
that R.J. was receiving passing grades in special education classes but that on two reading
probes he performed at a 1.5 grade level with a base of 64 words correct per minute and
2.0 grade level with a base of 47 words correct per minute. The 2006 IEP identified
reading fluency, written expression skills, math calculation, and math reasoning as R.J.’s
areas of need and provided a single “measurable annual goal” for reading, writing, and
1
R.J. had been diagnosed with reactive attachment disorder, dysthymia, post-
traumatic stress disorder (likely resulting from the death of his brother and incarceration
of a parent), traumatic brain injury, and obsessive compulsive personality disorder. The
Baltimore Records showed he also had problems with inattention, aggression, atypicality,
and withdrawal, and suggested that he met the criterion for attention deficit hyperactivity
disorder.
2
math, setting a grade level that R.J. was to achieve in each subject by the end of the
school year. App. 178-80. The 2006 IEP also included a number of specially-designed
instructions (“SDIs”) that a neuropsychological evaluation performed in Baltimore had
recommended for R.J., including a small classroom setting, cues to remain on task, extra
time to complete tests, repeated directions, reading directions out loud, and dictation to a
scribe.2 The 2006 IEP also recommended a speech and language evaluation and provided
for one-on-one reading instruction with a special education teacher trained in the
Lindamood-Bell instructional method. The 2006 IEP also included a “Behavior
Improvement Plan” that appeared to be a generic form on which R.J.’s name was
handwritten. App. 185. Recognizing that R.J. was “at risk for emotional problems” and
exhibited behaviors that impeded his learning or that of others, the 2006 IEP provided
him with thirty minutes of counseling each week and stated that a functional behavioral
assessment (“FBA”) would be done if behavioral problems arose.3 App. 174.
During the 2006-07 school year, R.J. exhibited disruptive behavior4 but the School
2
The neuropsychological evaluation recommended additional SDIs that were not
contained in the 2006 IEP, including instruction in coping, problem-solving,
organization, self-monitoring, and cognitive flexibility, as well as books on tape. The
2006 IEP also omitted the evaluation’s recommended executive function aids, including
watching for signs of inattention or problems with auditory processing, asking R.J. to
repeat information to ensure his understanding, assisting R.J. with organizing his work
into a binder, providing frequent breaks, and linking new learning with his interests.
3
“An FBA is a process for getting information to understand the function or
purpose of behavior in order to develop an effective intervention plan.” App. 1173.
4
He was argumentative, talked excessively in class, and used inappropriate
language. His behavior deteriorated in the Fall of 2007.
3
District determined it was not severe enough to warrant anything beyond counseling as
he was producing passing work. Moreover, the School District did not perform an FBA
because it believed R.J. was acting out because he missed his family in Baltimore.
Instead, the School District referred R.J. to the Student Assistance Program, which
provided counseling and therapy outside of the school setting.5
In March 2007, R.J. was being instructed in reading at a second grade level and
was receiving passing grades in his special education classes. Appellants, through their
son, Michael Coleman, contacted the School District out of concern that R.J. was not
making enough progress in reading. The School District then performed a speech and
language screening, which did not reveal a need for further evaluation. By May 2007,
R.J.’s reading fluency had improved to a second or third grade level with an increase of
37.5 words correct per minute.
In October 2007, the School District prepared another IEP (“2007 IEP”) for R.J.
The 2007 IEP was largely the same as the 2006 IEP but had a few material differences.
First, the 2007 IEP showed that R.J. received low yet passing grades in his special
education classes for reading, science, social studies, math and economics. Second, it no
longer contained an annual measurable goal for writing, and, while the goals for reading
and math increased by one grade level, the School District did not completely fill in the
5
The outcome of the referral is not part of the record.
4
math goal.6 Third, in addition to the SDIs listed in the 2006 IEP, the 2007 IEP directed
that teachers seat R.J. near the area of instruction, reduce the quantity of written in-class
work and tests, and permit use of a calculator. Finally, the 2007 IEP maintained that R.J.
was “at risk for emotional problems” and provided for thirty minutes of counseling per
week, but did not direct that an FBA be performed. App. 203.
On May 8, 2008, the School District evaluated R.J.’s literacy skills using
standardized tests that showed that his scores fell in the kindergarten to first grade range
for letter-word identification, passage comprehension, and writing samples, and the
fourth grade range for applied problems and word attack. The School District’s reading
probes also showed that his progress in reading fluency had slowed, but he maintained
scores in the third grade level and increased by ten the number of words read per minute.
Ten days later, Appellants had R.J. evaluated by a private center (“Center”) that
provided reading instruction using the Lindamood-Bell method. The evaluation showed
that his reading ability was between a 1.8 and 3.5 grade level depending on the test
administered. R.J. withdrew from the School District and, in September 2008, enrolled at
the Center at Appellants’ expense. He received reading and language instruction only
and made significant progress. By May 2009, R.J.’s word attack skills had increased
from a 1.8 to 7.5 grade level, his sight word assessment had increased from a 3.1 to 7.3
grade level, and his oral reading fluency had increased from a 3.2 to 6.0 grade level.
6
The goal stated that “[w]hen given a 4.0 5.0 grade level math computation probe,
Rodney will have a goal of ____ dcpm on 3 consecutive probes.” App. 207.
5
On May 13, 2009, Appellants filed an administrative due process complaint
against the School District, alleging that it denied R.J. a FAPE.7 After conducting a
hearing, the Hearing Officer determined that the School District did not deny R.J. a
FAPE.
Appellants appealed to the District Court, alleging violations of the IDEA, the
Rehabilitation Act (“RA”), 29 U.S.C. § 794 et seq., and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12131 et seq., and seeking relief in the form of compensatory
education and tuition reimbursement. The District Court permitted Appellants to
supplement the administrative record with (1) behavioral and disciplinary records; (2)
R.J.’s work product; and (3) a report by Appellants’ expert, Dr. Nancy Bloomfield. Dr.
Bloomfield opined that R.J.’s IEPs were “among the most inadequate [she] ha[d] ever
reviewed” and should have included additional goals for decoding, reading
comprehension, writing, and math. App. 1178. She asserted that the School District’s
SDIs were “pro forma” and that it should have provided additional SDIs, such as
audiobooks or text-to-speech software. App. 1177-78. She viewed his placement in a
number of classes as a “great disservice” and that it would have been “reasonable to
7
“A parent who believes that a school has failed to provide a FAPE may request a
hearing, commonly known as a due process hearing.” Mary T. v. Sch. Dist. of Phila., 575
F.3d 235, 240 (3d Cir. 2009). In Pennsylvania, the hearing is conducted by a Hearing
Officer, Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995), and the burden of
proof is on the party seeking relief, Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62
(2005). A party aggrieved by the Hearing Officer’s decision may file an appeal in federal
district court. 20 U.S.C. § 1415(i)(2)(A); see also 22 Pa. Code § 14.162(o).
6
provide a much more intensive intervention program like Lindamood Bell.” App. 1177.
Dr. Bloomfield opined that R.J. would benefit from one-on-one education outside a
setting that triggers his “emotional and behavioral resistance to learning,” and that an
FBA and additional therapy sessions would allow him to learn more appropriate
behaviors and coping skills. App. 1175.
Dr. Samuel Brooks testified on behalf of the School District. Dr. Brooks
explained that R.J. received special education instruction in small classes for reading,
math, science, and writing and was found to have made progress based on his
performance in class, not the standardized tests relied on by Appellants, which he
explained are diagnostic and do not monitor progress. Dr. Brooks also observed that
R.J.’s behavior did not result in a loss of instructional time and that the School District
responded with counseling and a referral to the Student Assistance Program.8
The District Court affirmed in part and reversed in part the Hearing Officer’s
decision, concluding that the IDEA’s statute of limitations barred all claims that pre-
8
Aside from Drs. Brooks and Bloomfield, the District Court heard testimony from
Michael Coleman and had the transcripts from the administrative hearing embodying
testimony from (1) the School District’s Supervisor of Secondary Special Education, who
testified about creating R.J.’s IEPs and her discussions with Michael Coleman about R.J.
attending the Center; (2) a special education teacher at the School District, who testified
about her experience teaching R.J. math and writing during his tenth grade year; (3) a
special education teacher at the School District, who testified about creating R.J.’s IEPs,
her training and experience teaching R.J. in the Lindamood-Bell instructional method,
and R.J.’s progress; (4) the Director of the Center, who testified about its educational
program and R.J.’s progress at the School District and Center; and (5) the Career
Technical Director at the School District, who testified about transition services at the
School District.
7
dated May 12, 2007, and that the School District did not thereafter deny R.J. a FAPE.
Appellants only appeal the District Court’s finding that the School District did not deny
R.J. a FAPE.
II9
We exercise plenary review of the District Court’s legal conclusions and review its
findings of fact under a clearly erroneous standard.10 D.S. v. Bayonne Bd. of Educ., 602
F.3d 553, 564 (3d Cir. 2010). “A finding of fact is clearly erroneous when, after
reviewing the evidence, the court of appeals is left with a definite and firm conviction
that a mistake has been committed.” Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381
F.3d 194, 199 (3d Cir. 2004) (quoting Oberti v. Bd. of Educ. Of Borough of Clementon
Sch. Dist., 995 F.2d 1204, 1220 (3d Cir. 1993)). Thus, even if we may have reached a
9
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343 and 20
U.S.C. § 1415(i)(2), and we have jurisdiction pursuant to 28 U.S.C. § 1291.
10
When reviewing “an appeal from a state administrative decision under the
IDEA, district courts apply a . . . ‘modified de novo’ review.” D.S. v. Bayonne Bd. of
Educ., 602 F.3d 553, 564 (3d Cir. 2010). Under this standard, a district court must give
“due weight” to the findings in the administrative proceedings. Id. Under the “due
weight” standard, “[f]actual findings from the administrative proceedings are . . .
considered prima facie correct.” P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 734
(3d Cir. 2009) (internal quotation marks and citations omitted). Where the hearing
officer hears live testimony, a district court must accept “credibility determinations unless
the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.”
Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (emphasis
and internal quotation marks omitted). Within these confines, “a district court is
authorized to make findings based on the preponderance of the evidence.” D.S., 602 F.3d
at 564.
8
different outcome, we must defer to the District Court’s finding if there is evidence to
support it.
III
Congress enacted the IDEA to “[i]mprov[e] educational results for children with
disabilities.” 20 U.S.C. § 1400(c)(1). The IDEA requires that states receiving federal
education funding provide a FAPE to disabled children until they reach 21 years of age.
Jonathan H. v. Souderton Area Sch. Dist., 562 F.3d 527, 528 (3d Cir. 2009). A FAPE
“consists of educational instruction specially designed to meet the unique needs of the
handicapped child, supported by such services as are necessary to permit the child to
benefit from the instruction.” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 268-69 (3d Cir.
2012) (internal quotation marks and citations omitted). The “primary mechanism for
delivering a FAPE” is the IEP, which must include an assessment of the child’s current
educational performance, articulate measurable educational goals, and specify the nature
of special services that the school will provide. Id. at 269 (internal quotation marks
omitted); 20 U.S.C. § 1414(d)(1).
An IEP must be “reasonably calculated to enable the child to receive educational
benefits.” Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 249 (3d Cir. 2009) (quoting Bd.
of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)). “Although the IEP must provide the
student with a ‘basic floor of opportunity,’ it does not have to provide ‘the optimal level
of services,’ or incorporate every program requested by the child’s parents.” Ridley, 680
9
F.3d at 269 (internal citations omitted). Thus, a school district need not “maximize the
potential of every handicapped child, [but] must supply an education that provides
‘significant learning’ and ‘meaningful benefit’ to the child.” Id. (internal citations
omitted). “The issue of whether an IEP is appropriate is a question of fact.” D.S., 602
F.3d at 564 (internal quotation marks and citations omitted).
Appellants argue that the District Court erred in finding that the IEPs were
appropriate because, Appellants contend, they were lacking in several respects. First,
they contend that the IEPs failed to adopt each of the SDIs recommended in the
Baltimore Records and the District Court failed to consider whether the “array of SDIs”
that were provided to R.J. were tailored to meet his needs. App. 68. The District Court
reviewed the SDIs provided, which included a small classroom setting, cues to remain on
task, extra time to complete tests, repeated directions, reading directions out loud,
dictation to a scribe, seating near the instruction area, reduced written class work and
tests, reduced number of tests or test items, and use of a calculator,11 and found they were
reasonably calculated to provide R.J. with meaningful educational benefit. While R.J.’s
improvement at the Center suggests that these SDIs did not provide R.J. with the
maximum educational benefit, Appellants have failed to demonstrate that these SDIs
were insufficient to provide R.J. with a “basic floor of opportunity,” which is all that the
11
The IEPs also adopted other recommendations from the Baltimore Records,
including counseling, speech and language evaluation, and a phonics approach to reading
in the Lindamood-Bell style.
10
IDEA requires. See Ridley, 680 F.3d at 269. Without evidence that other SDIs were
needed to provide R.J. with a FAPE, Appellants’ argument regarding the SDIs provided
is insufficient to disturb the finding that his IEPs were adequate.12 See id.
Second, Appellants contend that R.J.’s IEPs failed to provide adequate annual
measurable goals.13 While the 2006 IEP provided only three goals—one each for
reading, writing, and math—his 2007 IEP contained only a reading goal and an
incomplete math goal. Affording the District Court the required deference and based
upon the record presented, we cannot conclude that the District Court erred in finding
that the School District was not required to create “distinct measurable goals for each
recognized need of a disabled student to provide a FAPE.” App. 65. Furthermore, while
Appellants’ expert opined that the IEPs should have had additional goals, she does not
explain how the presence of such goals were necessary to ensure R.J. received a FAPE.
Though the School District certainly could have been more comprehensive, Appellants
12
Appellants also contend that R.J.’s IEPs failed to address his attention deficit
hyperactivity disorder, traumatic brain injury, and executive dysfunction because it did
not adopt the recommendations from the Baltimore Records that addressed executive
function, set forth supra footnote 2. While the education provided to R.J. would certainly
have been enhanced by the inclusion of these SDIs, Appellants did not provide evidence
that leaves us with the firm conviction that the District Court erred in determining that
those SDIs were not necessary to provide R.J. a FAPE.
13
Although Appellants claim that deficiencies in an IEP’s goals constitute a
procedural violation under the IDEA, a challenge to the content of an IEP “is concerned
with the IEP’s substance” and “does not implicate the IDEA’s procedural requirements.”
D.S., 602 F.3d at 565. We therefore treat this argument as a substantive challenge.
11
failed to provide evidence that would permit us to disturb the District Court’s finding that
the IEPs were adequate.
Third, Appellants contend that the District Court erred in holding that R.J.
received a FAPE based on his progress in reading fluency alone without considering
R.J.’s lack of progress in other identified areas of need, namely writing and math. While
the record is devoid of evidence of R.J.’s progress in math and writing, it does show that
R.J. received passing grades in his math and writing special education courses. A court
may consider a student’s grades, including grades from special education courses, to
evaluate the appropriateness of an IEP, if the court also considers the adequacy of the
instruction provided.14 D.S., 602 F.3d at 567-68. As the District Court considered the
adequacy of R.J.’s education, or more specifically, the absence of evidence that it was
inadequate, we cannot say that it clearly erred in finding R.J. was not denied a FAPE.
Fourth, Appellants contend that R.J. was denied a FAPE due to the School
District’s failure to address his behavioral needs. Specifically, they argue that the School
District should have performed an FBA, provided cognitive behavioral therapy, and
increased his counseling from thirty minutes per week, particularly as R.J.’s behavior
14
Courts, however, “should not place conclusive significance on special education
classroom scores” as “there may be a disconnect between a school’s assessment of a
student in a special education setting and his achievements in that setting and the
student’s achievements in standardized testing.” D.S., 602 F.3d at 568. Had we
reviewed this case without the confines of the standard of review, we may have disagreed
with the weight given to the passing grades R.J. received, particularly since he received
credit for assignments he completed, regardless of whether they were correct.
12
deteriorated.15 The District Court found that “[w]hile R.J.’s behavior did appear to
decline over the course of the two year period such that the school district may have been
required to take further steps—like conducting an FBA—when creating a new IEP for the
2008-09 academic year, this issue is moot in light of R.J.’s departure from the [School]
District at the beginning of the 2008-09 year.” App. 62-63. Whether this issue was
mooted by R.J.’s withdrawal or not, the District Court was presented with facts to support
the view that an FBA was not required to ensure R.J. received a FAPE. According to Dr.
Brooks, an FBA was not warranted as the behavioral issues were understood to stem
from R.J.’s desire to return to Baltimore. Moreover, R.J.’s behavioral incidents did not
result in any lost instructional time. Thus, we cannot say the District Court clearly erred.
Finally, Appellants contend that the District Court failed to account for R.J.’s
individual potential. The record, however, shows that the District Court considered the
Baltimore Records and testimony concerning R.J.’s specific needs and the services to
address them. Thus, we cannot say the District Court failed to consider R.J.’s individual
potential in assessing whether his IEPs were reasonably calculated to provide meaningful
educational benefit. See T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d
Cir. 2000) (holding that court adequately considered student’s individual potential where
it relied on expert testimony that education program would “suit” the student’s needs).
15
Appellants also argue that the Behavioral Improvement Plan in the IEPs was
inadequate because it was a generic form not tailored to R.J.’s needs. Absent a
demonstration that it impeded R.J. from receiving a FAPE, however, we cannot disturb
the District Court’s finding.
13
Moreover, although R.J.’s reading improved significantly at the Center, and “evidence of
a student’s later educational progress may be considered in determining whether the
original IEP was reasonably calculated to afford some educational benefit,” D.S., 602
F.3d at 567 (internal quotations marks and alteration omitted), the Center focused only on
reading. Furthermore, “the measure and adequacy of an IEP can only be determined as
of the time it is offered to the student, and not at some later date.” Fuhrmann v. East
Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993). Therefore, because the
evidence does not contradict the finding that R.J. was provided a FAPE, we are obligated
to accept it as correct.16
IV
Although we affirm the District Court, we commend the compassion the Colemans
exhibited towards R.J. Were our inquiry limited to rewarding the generosity of a loving
family, we would almost certainly reach a different result. We are obliged, however, to
apply the governing law, which requires that we affirm.
16
As we affirm the District Court’s finding that R.J. was not denied a FAPE, the
IDEA, ADA, and RA claims must fail, D.K. v. Abington Sch. Dist., 696 F.3d 233, 253
n.8 (3d Cir. 2012), and we need not consider whether Appellants are entitled to tuition
reimbursement, see C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 71 (3d Cir. 2010).
14