On Appeal From The United States District Court For the Eastern District of Pennsylvania, D.C. Civil No. 84-2032.
Weis, Stapleton, and Van Dusen, Circuit Judges.
STAPLETON, Circuit Judge:
At issue in this appeal are alleged procedural and substantive violations of the Education of the Handicapped Act, 20 U.S.C. §§ 1401-1415 (1982) (EHA or the Act), as amended by the Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142. The district court held that the procedures devised by the State of Pennsylvania for complying with the conditions on which the EHA provides federal funding for the education of handicapped children available to states did not meet EHA requirements. The court then held plaintiff entitled to reimbursement for expenditures he made for his handicapped son's tuition at a private school for the 1983-84 academic year. The court did not, however, grant plaintiff an order directing defendants to place plaintiff's son in a private school for the academic year 1986-87 and thereafter. Plaintiff was awarded partial reimbursement of the attorneys' fees he incurred in connection with this lawsuit. As the district court found that the EHA abrogated eleventh amendment state immunity, the State of Pennsylvania was held jointly and severally liable for the awards to plaintiff. We will affirm the judgment of the district court on every issue except its determination of the amount of attorneys' fees to which plaintiff is entitled. On that issue, we will remand for further proceedings.
Plaintiff, Russell A. Muth, Jr., is the parent of Robert Alexander Muth ("Alexander"), a bright child with a language learning disability and associated emotional problems. There is no dispute that Alexander is "handicapped" within the meaning of the EHA, 20 U.S.C. § 1401(a)(1) (1976 & 1987 Supp.) and is an "exceptional" child under 22 Pa. Code §§ 13.1 and 341.1. Accordingly, the EHA requires that Pennsylvania, in return for its receipt of federal funding under the Act, provide Alexander with a free appropriate public education. 20 U.S.C. § 1412(1). Alexander's education must be tailored to his unique needs by means of an individualized educational program (IEP).*fn1 20 U.S.C. §§ 1401(18), 1414(a)(5).
The EHA also requires that Pennsylvania establish procedural safeguards to protect the interest of a child such as Alexander in receiving a free appropriate public education. Not only does the parent of such a child have the right to participate in developing the child's IEPs, but the parent may challenge in administrative hearings and in court a proposed IEP which he or she believes provides the child with a lesser education than appropriate. Furthermore, the parent of a handicapped child may challenge conduct of the educational agency which the parent feels has infringed his or her procedural rights. In this case, Muth has claimed both that Alexander was denied an appropriate education and that Pennsylvania's procedures violate rights guaranteed by the EHA and the federal regulations promulgated to supplement the Act, 34 C.F.R. §§ 300 et seq. (1987). In addition to pursuing these claims in administrative hearings pursuant to the Pennsylvania procedures that implement the EHA, 22 Pa. Code §§ 13.31 et seq., Muth has brought this suit against the Central Bucks School District (the "School District") and the Secretary of Education of the Commonwealth of Pennsylvania (the "Secretary").*fn2
Alexander first attended Central Bucks schools in 1980.*fn3 By this time, Alexander's learning disability had already been diagnosed; consequently, when Alexander was enrolled in elementary school for the 1980-81 school year, the School District formulated an IEP for him. Under this IEP, Alexander was placed in a learning disability resource room class, where he received small group and one-on-one instruction and speech and language therapy. He was mainstreamed, or placed in regular classes, for art, music, physical education, library, lunch, and recess. Muth approved this initial IEP, as well as revisions made in it in February of 1981. The School District and Muth were also able to agree on an IEP for Alexander for his final year in elementary school, academic year 1981-82, and his first year of junior high school, academic year 1982-83. Improvements in Alexander's scores on various tests indicate that he made considerable educational progress during this time.
At this point, however, Alexander began expressing a desire to be placed in regular classes rather than in classes for learning disabled students. At Muth's request, the School District agreed to mainstream Alexander for English and science, on a trial basis, beginning in March of 1983. During that month, the School District prepared a proposed IEP for the 1983-84 school year that retained Alexander's placement in the district and included mainstreaming in English and science.
Mainstreaming was not very successful, and on June 17, 1983 an IEP conference was held by the School District to consider various changes in Alexander's program. Muth was in attendance. The main recommendation which emerged from this conference was that Alexander be returned for all substantive subjects to the more restrictive setting of a learning disabled classroom. The School District's proposal was to be embodied in a new IEP to be developed over the summer and implemented in the 1983-84 school year.
Muth, dissatisfied with the School District's planned program for Alexander, requested that a due process hearing be held on the question of whether the School District was providing an appropriate education to Alexander. The School District received this request on June 20, 1983. Muth further requested that no change be made in Alexander's current program until such a hearing had been held.*fn4
Before the fall of 1983, Muth decided to enroll Alexander at the Landmark School, a private school in Massachusetts for learning disabled children. Alexander started at Landmark in September of 1983, and spent the 1983-84 academic year there. Alexander also spent most of the 1984-85 academic year at Landmark, but transferred in April of 1985 to Wyncote Academy,*fn5 for reasons which are not entirely clear. Alexander returned from Wyncote to the Central Bucks school system at the start of academic year 1986-87.
Muth's due process hearing was held on September 30, 1983 before Hearing Officer Vernard Trent.*fn6 At this hearing, the School District presented its March, 1983 IEP. While the School District's June recommendations were placed into evidence, they apparently had never been incorporated into a new IEP. Muth, acting as his own attorney, made various objections to the School District's proposed programs.
Trent handed down his decision on October 31, 1983; he held that the School District's current 1983-84 IEP, which still included the mainstreaming for English and science, was inappropriate. Trent also made a set of recommendations: that the School District should consider whether Alexander should be in a more restrictive placement; that the School District should address Alexander's auditory disability; and that the School District, considering Alexander's giftedness, should provide Alexander with additional special activities and services. Trent did not order that Alexander be placed in a private school offering a program similar to Landmark's, as Muth had requested, nor did he find that the School District was unable to provide Alexander with an appropriate education.
Both Muth and the School District appealed from Trent's decision. Pursuant to 22 Pa. Code § 13.32(24), the appeal was submitted to the Secretary. On January 23, 1984, the Secretary decided to remand the case to Hearing Officer Trent, with instructions to the School District to revise the IEP for Alexander to include, inter alia, the June, 1983 recommendations and to then present the revised IEP to Trent. The School District, working with Muth, proceeded to revise the IEP.
On June 7, 1984, the School District presented to Trent its revised IEP, dated May 1, 1984, and Muth presented his objections to it. On July 25, 1984, Trent issued his decision that this modified IEP was an appropriate program of special education for Alexander, and that the School District was capable of implementing it. Muth again appealed to the Secretary, and on October 24, 1984, the Secretary affirmed Trent's decision.
During the course of the above proceedings, on April 28, 1984, Muth filed suit in federal district court.*fn7 He claimed that the School District's IEP for Alexander was inappropriate under the EHA, and sought tuition reimbursement for 1983-84 and an order that the School District pay for Alexander to attend Landmark in future.*fn8 Muth was allowed to amend his complaint to add a claim that Pennsylvania's due process procedures did not conform to the requirements of the EHA, 20 U.S.C. § 1415, and on June 2, 1986, the trial court granted summary judgment to Muth on this procedural claim. Muth v. Smith, 646 F. Supp. 280 (E.D. Pa. 1986). The court also requested the School District to prepare an IEP for Alexander for the 1986-87 school year. In response, an IEP was prepared and submitted for the 1986-87 school year that was very similar to the IEP for 1983-84.
A trial was held in August of 1986 on the issues of the effect of the procedural flaws of the Pennsylvania statute and the appropriateness of the 1983-84 and 1986-87 programs offered to Alexander by the School District. The district court held that the School District's IEPs for both years were appropriate, but that the procedural defects of Pennsylvania's administrative procedures "rendered the IEP inappropriate for 1983-84." Memorandum and Order of August 28, 1986, App. at 846. Accordingly, the court ordered judgment in Muth's favor for the 1983-84 tuition reimbursement. The court also awarded Muth the attorneys' fees incurred in pressing his arguments on the procedural violations and on the substantive sufficiency of the 1983-84 IEP. The judgment was entered against both the School District and the Secretary.
Muth appeals from the district court's judgment that the proposed 1986-87 IEP would provide Alexander with a free appropriate public education, and again seeks an order directing that the defendants place Alexander in a private school with programs similar to Landmark's. Muth also challenges the district court's determination that the 1983-84 IEP was appropriate. The School District and the Secretary have filed cross-appeals challenging the district court's determination that Pennsylvania's administrative procedures violated federal law, that tuition reimbursement was an appropriate remedy, that the EHA abrogates Pennsylvania's immunity, and that the attorneys' fees award was proper.
We first address Muth's contention that the 1983-84 and 1986-87 IEPs proposed by the School District should have been found inappropriate. Under 20 U.S.C. § 1415(e)(2), a district court is to determine whether a challenged IEP is appropriate based on a preponderance of the evidence. On review, we may overturn this factual decision only if we find clear error. Wexler v. Westfield Bd. of Educ., 784 F.2d 176, 181 (3rd Cir. 1986), cert. denied 479 U.S. 825, 107 S. Ct. 99, 93 L. Ed. 2d 49 (1986). In this case, we conclude that the district court did not err in finding the IEPs appropriate.
As the Supreme Court commented in its first case involving interpretation of the EHA, Board of Educ. of Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 189, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982), "noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children."*fn9 In Rowley, the Court interpreted the EHA as requiring "no more than a basic floor of opportunity," id. at 201, consisting of "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id. at 203. The EHA does not require a program that maximizes a handicapped child's potential, id. at 197 n.21, 199, but rather one which is "reasonably calculated to enable the child to receive passing marks and advance from grade to grade." Id. at 204. See also Board of Educ. of E. Windsor Regional School Dist. v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986) (EHA "requires a plan likely to produce progress, not regression or trivial educational advancement"). The Court posed two questions to be answered by district courts in cases such as the one before us now:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.
458 U.S. at 206-07. Muth's factual challenge is to the district court's affirmative answer to the second Rowley question.
There is ample evidence in the record to support the district court's carefully-reached conclusion that the 1983-84 and 1986-87 IEPs developed by the School District constituted a free appropriate public education for Alexander under the EHA as interpreted by Rowley.*fn10 Among the factors considered by the district court were the School District's plan and its ability to make available to Alexander computer facilities, a variety of elective courses, one-on-one and small group instruction, mainstreaming for some classes,*fn11 and regular psychological counseling. Additionally, the district court considered the opportunity for Alexander, if he remained in the School District's programs, to develop his relationship with his father and with his peers in the community. The district court heard evidence from a number of experts and educators, and compared the School District's programs with those offered by Landmark,*fn12 before concluding that the School District's proposed programs were appropriate.*fn13 We find no clear error in this conclusion, and therefore will not set it aside.
The next issue presented for our review is whether the district court was correct in holding that the Pennsylvania statutory scheme for providing parents of handicapped children with due process violates federal standards. As this is a question of statutory construction, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981).
The EHA allows states to choose to establish either a one-tier or two-tier due process hearing system for review of the appropriateness of a challenged IEP. In a one-tier system, an impartial hearing is conducted under the auspices of the state educational agency, and the losing party may appeal to the courts. In a two-tier system, an impartial hearing is conducted under the auspices of the local educational agency, and appeal may be taken to the state level and then to the courts. Because the exact language of the federal statute and regulations is important in determining whether Pennsylvania law is in compliance with federal requirements, we set out the relevant parts of the EHA and the Code of Federal Regulations here despite their length. Under 20 U.S.C. § 1415(b)(2):
Whenever a complaint has been received under paragraph (1) of this subsection [requiring an opportunity for the parent to present complaints with respect to any matter relating to the child's education], the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.
Section 300.507 of the regulations amplifies this:
(a) A hearing may not be conducted:
(1) By a person who is an employee of a public agency which is involved in the education or care of the child, or
(2) By any person having a personal or professional interest which would conflict with his or her ...