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S.H. v. State-Operated School District of the City of Newark

July 14, 2003

S.H., INDIVIDUALLY AND ON BEHALF OF I.H., APPELLANT
v.
STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 00-cv-02559) District Judge: The Honorable Joseph A. Greenaway, Jr.

Before: Sloviter, Nygaard, and Barry, Circuit Judges.

The opinion of the court was delivered by: Nygaard, Circuit Judge

PRECEDENTIAL

Argued June 6, 2002

OPINION OF THE COURT

This Individuals with Disabilities Act case concerns the continuing placement of a hearing impaired child, I.H., in an out-of-district public school. At issue is the Newark School District's proposed individual education plan for I.H. for the 1999-2000 school year, which returned her to indistrict placement. I.H. and her mother, S.H., prevailed in their due process hearing at the state administrative level, wherein the Administrative Law Judge concluded that the School District failed to meet its burden in proving that the change in placement would provide a meaningful educational benefit. After S.H. sought attorneys' fees in federal District Court, the School District counterclaimed challenging the administrative decision. The District Court reversed the administrative decision. Central to this case is the appropriate standard of review a District Court should employ when reviewing state administrative proceedings under the Individuals with Disabilities Act. We hold that the appropriate standard is modified de novo review. Because the District Court did not apply the correct standard of review, we will reverse.

I. Background

A. The Individuals with Disabilities Act

This case arises under a confluence of state and federal disabilities law. Therefore, it is useful to review the statutory framework before proceeding to the facts. Federal funding of state special education programs is contingent on the states providing a "free and appropriate education" to all disabled children. 20 U.S.C. §1412. The Individuals with Disabilities Act (IDEA) is the vehicle Congress has chosen to ensure that states follow this mandate. 20 U.S.C. §1400 et seq. "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." Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 756 (3d Cir. 1995) (citations omitted).

As we noted in Susan N., an Individual Education Program (IEP) is the primary vehicle for providing students with the required free and appropriate education. Id. An IEP is a written statement developed for each child that must include several elements. 20 U.S.C. § 1414(1)(A). It must include a statement of the child's current level of performance, and how her disability affects her performance. Id. at (1)(A)(I). It must set measurable annual goals relating both to progress in the general curriculum and additional educational needs arising from her disability. Id. at (1)(A)(ii). The IEP must detail those special education services and supplementary aids that the school will provide, explain how they will contribute toward meeting the annual goals, how they will allow the child to progress in both the general curriculum and participate in extracurricular activities, and describe how the child will interact with disabled and nondisabled children. Id. at (1)(A)(iii). In measuring the child's progress, the IEP must explain whether standard student assessments will be used. If not, the IEP must explain why not and how the school will assess the child. Id. at (1)(A)(v).

Besides setting out the required content of an IEP, the IDEA explains how the school is to develop an IEP. An IEP team meets and writes the IEP considering the strengths of the child, the concerns of the parent, and the most recent evaluation of the child. Id. at (3). As to hearing impaired children, the IEP team is to:

(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

(v) consider whether the child requires assistive technology devices and services.

Id. The IEP team is to be composed of the child's parents, at least one special education teacher of the child, a specialist in developing curriculum from the local district, and at the request of the parent or the school district, anyone with special knowledge or expertise related to the child's education. Id. at (1)(B).

In addition to the general requirements set out in the IDEA, state and federal regulations detail the implementation of the statute. See, e.g., 34 C.F.R. § 300.340-300.350 (setting out requirements for IEP); N.J.A.C. § 6A:14-1.3 (defining IEP). New Jersey's requirements for developing an IEP follow the federal requirements. Fuhrmann v. East Hanover Bd. Educ., 993 F.2d 1031, 1035 (3d Cir. 1993). The regulations require a child study team (CST) evaluate the child. The members of the CST are a school psychologist, a learning disabilities teacher-consultant, and a school social worker. N.J.A.C. § 6A:14-3.1. The CST, parents, a teacher familiar with the student, and other appropriate personnel then meet. N.J.A.C. § 6A:14-2.3. Members from this group then work together to formulate, review, or revise the child's IEP. 34 C.F.R. § 300.344-300.345; N.J.A.C. § 6A:14-2.3.

The IEP team is required to review the IEP at least annually to determine whether the child is reaching the stated goals. In addition, the IEP team is to revise the IEP to address lack of progress, necessary changes arising from reevaluation of the child, and parental input, among other things. 20 U.S.C. § 1414(1)(A)(4).

In addition, the IDEA includes a mainstreaming component in its description of a free and appropriate education, requiring education in the least restrictive environment. See 20 U.S.C. § 1412(a)(5)(A).*fn1 We have interpreted this mainstreaming requirement as mandating education "in the least restrictive environment that will provide [her] with a meaningful educational benefit." T.R. v. Kingwood Township Bd. Educ., 205 F.3d 572, 578 (3d Cir. 2000). "The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).

The issue here is not whether I.H. should receive special education, nor is it whether the School District afforded her due process. Rather, the only issue is whether the School District's proposed IEP, changing I.H.'s placement, would provide her a meaningful educational benefit. Ridgewood, 172 F.3d at 247.

B. Factual Background

The Appellant, S.H., brings this appeal individually and on behalf of her daughter I.H. I.H. has severe to profound sensorineural hearing loss. When she was two years old, the Newark Public School District identified I.H. as eligible for its preschool handicapped program. After determining that there was no suitable program in I.H.'s home School District, the School District placed I.H. at the Lake Drive School for Deaf and Hard of Hearing Children. I.H. began attending Lake Drive School in the summer of 1997 when she was three years old.

The Lake Drive School is a public school outside the Newark School District. In justifying this placement, the School District noted that I.H. required a special program unavailable in her home district. Specifically, she required a small, specialized, and highly structured education program tailored to her functioning levels, hearing impairment, and specific sensory deficit. This program would provide "developmentally appropriate curriculum, teachers specialized in working with hearing-impaired children, presentation of auditory training, sensory utilization skills and facilitation of communication skills." S.H. v. Newark Bd. Educ., No. EDS7639-99, at 3 ¶1 (N.J. OAL, Oct. 4, 1999) available at http:// lawlibrary.rutgers.edu/oal/word/initial/eds7639-99-1.doc

The School District developed a new IEP the next year, revisiting I.H.'s placement. This IEP specified placement at the Bruce Street School for the Deaf in Newark beginning in September 1998. The Bruce Street School is a selfcontained school for the deaf placed within a larger school, the George Washington Carver School. This is the neighborhood school that I.H. would have attended if she had not been hearing impaired. The Bruce Street School was available for I.H.'s initial placement in 1997, and the School District explains neither why it was not appropriate for the initial placement, nor what changed in the interim making it appropriate.

S.H. challenged the School District's change in I.H.'s placement. Following mediation, I.H. was allowed to remain at the Lake Drive School. As a result, I.H. attended the Lake Drive School preschool handicapped program from 1997 to 1999. An interim IEP developed in January 1999 also resulted in I.H.'s continuing placement at Lake Drive School. The Lake Drive School's evaluations of I.H. conducted in ...


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