It is also problematical that in stating his reasons for an award of residential placement, the ALJ relied almost exclusively on his own conclusions drawn from the testimony of Dr. Margolis, even while acknowledging that Margolis "never was asked and nor did he ever volunteer to provide any input with reference to any residential placement in this matter." The ALJ decision contained no comparison or analysis of the testimony presented by the numerous witnesses who did express their positions for and against residential placement.
Following the issuance of the ALJ decision, a series of correspondence was exchanged among counsel for plaintiff, counsel for the district, and personnel of the New Jersey Department of Education. In that exchange, counsel for plaintiff sought the assistance of the Department to compel the district to implement the ALJ decision by transferring R.H. to residential placement immediately. The district responded that the matter was on appeal, and cited the stay-put provision of IDEA and related state and federal regulations in support of its position that the current educational placement of the student was not changed by the ALJ decision.
According to the certification of counsel for the district, following that exchange of correspondence she was advised by Department of Education personnel that "no enforcement proceedings would take place as the Department did not think that such was appropriate under the law cited," and also "that there was an Attorney General's opinion on a matter similar to this which went back many years. This opinion also apparently confirmed that the provisions cited in [counsel's] letter would mandate that R.H. 'stay put'." The result of that exchange was that the Department of Education took no steps to compel the district to implement a placement change for R.H. while the district appealed the decision of the Office of Administrative Law.
D. Proceedings in the district court
Plaintiff filed her action in this Court on May 8, 1996, seeking an award of attorneys' fees and costs as the prevailing party below. See 20 U.S.C. § 1415(e)(4)(B). The school district filed its appeal of the administrative decision in the New Jersey Superior Court, Chancery Division, which action was removed to this Court by plaintiff, and the two actions were consolidated by consent.
Plaintiff initially moved for preliminary injunctive relief directing the school district to implement immediately the decision of the Administrative Law Judge. Following briefing and oral argument directed to that limited issue, we denied the motion in an unpublished written Memorandum and Order filed July 2, 1996. In that opinion, we found that R.H.'s current educational placement was the pendent placement under the "stay-put" provision of IDEA, 20 U.S.C. § 1415(e)(3), and that no injunctive relief should be issued by the Court to change that placement while the appeal was pending here. Plaintiff did not appeal from that denial of injunctive relief. See 28 U.S.C. § 1292(a)(1).
The parties next filed cross-motions for affirmance and reversal, respectively, of the decision of the ALJ. At oral argument on the cross-motions for judgment in this Court, each party agreed that the matter was ripe for review, and neither party requested the Court to take additional evidence. See 20 U.S.C. § 1415(e)(2) ("The court shall receive the records of the administrative proceedings, [and] shall hear additional evidence at the request of a party. . . ."). Also at oral argument on the motions for judgment, on October 21, 1996, counsel for plaintiff requested that we reconsider the denial of preliminary relief in view of the decision of our court of appeals issued September 18, 1996, in Susquenita School District v. Raelee S., 96 F.3d 78 (3d Cir. 1996). We advised that we did not believe that case to be controlling under the facts presented here.
Plaintiff subsequently filed another motion to enforce the decision of the ALJ, but because the motions for judgment on the merits had already been briefed and argued and the decision on those motions was in preparation, we advised the parties that the renewed interlocutory motion would be addressed in the final decision rather than separately decided at that time.
IV. Dual Requirements for "Appropriate Education" under IDEA
Courts interpreting IDEA have recognized that the statutory framework imposes dual requirements on states and their school districts. See, e.g., Scott P., 62 F.3d at 533-34. First, they must "provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203. Second, and equally important, they must "construct a program in the least restrictive educational environment appropriate to the needs of the child." Scott P., 62 F.3d at 534 (citing 20 U.S.C. § 1412(5)(b)); see also Rowley, 458 U.S. at 202 ("The Act requires participating states to educate handicapped children with nonhandicapped children whenever possible.").
Courts have also observed the inherent "tension within the Act between the strong preference for mainstreaming . . . and the requirement that schools provide individualized programs tailored to the specific needs of each disabled child." Oberti, 995 F.2d at 1214 (citations omitted). However, both policies are clearly and strongly reflected in the Act as written. See Rowley, 458 U.S. at 189 ("The face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child."). Accordingly, public school officials are admonished to "devise means to reconcile these conflicting but compelling interests." Scott P., 62 F.3d at 536 n.7.
In this section we examine these dual statutory requirements, particularly as they have been interpreted to apply in the education of severely and profoundly impaired children. Also in this section and the following section, we note the interplay between the various procedural and substantive rights and obligations embodied in the Act.
A. Requirement of some meaningful educational benefit
The starting point for interpretation of both the substantive and procedural requirements of IDEA is the decision of the Supreme Court in Rowley. In that case, a deaf student in a regular class with certain support services, who was performing better than average but definitely not as well as she would have been with a full-time sign language interpreter for her assistance, sought to receive that assistance under the Education of the Handicapped Act of 1975, which in its relevant provisions was the same as the present IDEA. Rowley, 458 U.S. at 184. The district court and the Court of Appeals for the Second Circuit had held in her favor. The Supreme Court reversed, holding that based upon the findings of the lower courts that the child was receiving personalized instruction and related services calculated to meet her educational needs, the education she was receiving was "adequate," thus satisfying the substantive requirement of the Act. 458 U.S. 176 at 209-10.
The Court drew upon the express language of the Act and its legislative history in searching for the substantive standard of benefit required for a "free appropriate public education." Reading the language of the statute, the Court made these observations:
According to the definitions contained in the Act, a "free appropriate public education" 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. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.16
Id. at 188-89 (emphasis added).
The express language of the Act, however, was seen to provide no substantive standard by its own terms. "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children." Id. at 189.
The legislative history of the Act, which the Court also carefully considered, prompted the following conclusions:
By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognized that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." . . . Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.