On Appeal from the United States District Court for the DISTRICT OF NEW JERSEY (D.C. No. 03-cv-02605). District Judge: Honorable Hon. Faith S. Hochberg.
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) November 17, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,*fn1 District Judge.
Appellants L.E. and E.S., parents of M.S., brought this action against the Ramsey Board of Education ("the Board") and individual employees of the Board, appellees herein, alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. They now appeal a decision of the United States District Court for the District of New Jersey granting summary judgment to appellees and denying it to them. We will affirm.
M.S. is the focus of this case. He is a young boy, born December 29, 1998, who before the age of three presented "a static encephalopathy of prenatal but uncertain etiology . . . coupled with autistic-like behaviors," which was "suggestive but not diagnostic of an autistic spectrum disorder." (A1422.) His physician alternatively posited a diagnosis "of speech and language dysfunction involving both receptive and expressive language." (Id.) Appellants, in the words of the Administrative Law Judge ("ALJ"), "have been commendably dedicated to learning about their son's disabilities and pursuing the best educational and related services available." (A61.) They provided their son with early therapeutic services, such as speech, occupational, and physical therapy. In addition, in the fall of 2001, before M.S. turned three, appellants enrolled him in preschool programs at the Pinnacle Learning Center, the CT Center, and JCC on the Palisades.
When M.S. became eligible for special education and related services under the IDEA upon turning three, appellants continued to be actively involved in the process of determining how best to proceed with his education. Indeed, both before and after his third birthday, a Child Study Team ("CST") held a series of meetings with and without his parents "for the purposes of determining [his] eligibility for special education and related services and developing an [individualized education program ("IEP")] for [him]." (Appellants' Br. at 7.) The dispute in this case arises out of appellants' disagreement with the CST's assessment of what educational setting and related services would be appropriate for their son. As is, sadly, seen so often in cases brought under the IDEA, this case, from the outset, has been both difficult and emotionally charged.
The Ramsey CST received opinions from a number of professionals regarding the proper placement for M.S. Laurie Podd, a classroom teacher at a mainstream preschool where M.S. spent time prior to his third birthday, believed he was progressing on pace.*fn2 An early enrichment teacher of M.S., Brenda Brawer, believed in November of 2001 that M.S. "would benefit from the educational and social experiences which could be provided in a typical preschool if he was accompanied by a 'shadow' trained in behavioral intervention." (A1442.) M.S.'s developmental pediatrician, Dr. Debra E. Seltzer, also opined that he "would benefit most from daily contact with typically developing peer role models in a supportive, nurturing environment." (A1425.) "A preschool handicapped class would therefore not provide the most appropriate educational setting for" M.S. (Id.) His speech therapist joined those advocating for an "integrated preschool program." (A1440.) In light of these opinions, appellants sought to have M.S. continue in the Pinnacle program with a shadow.
The CST, however, advocated for a segregated placement. In support of that position, appellees point to the assessments conducted by social worker Stacy McDonough, psychologist Stacie Greenberg, and learning disabilities teacher-consultant and case manager Joan Moore. The consensus of that group, in the opinion of Ms. McDonough, was that M.S. would benefit most from a preschool setting "that utilizes a more one-to-one approach and incorporates both language and frequent refocusing in order to continue to develop age appropriate skills for attention and communication." (A1512.) The group was also concerned that his then-full schedule of services and activities arranged by appellants was too burdensome for him. On December 11, 2001, Ms. Moore, on behalf of the CST, circulated an IEP providing for a half day at the Hubbard School, a self-contained class of children with disabilities run by Ramsey with supplemental, related services infused into the day.
Appellants rejected that proposal, believing that M.S. could continue to succeed and develop in a mainstream classroom setting and would benefit from modeling the mainstream student population. They also were not satisfied with the providers of the supplemental services offered by Ramsey. In light of that rejection, the CST met without appellants on January 3, 2002 and subsequently sent appellants a revised IEP. Although the opinions of outside experts were included in the revised IEP, the recommendations were materially the same. The IEP did, however, note appellants' desired placement and the CST's "anticipat[ion] that an integrated preschool may be appropriate in September ." (A1584.) Appellants again rejected the IEP, opting to continue M.S.'s education in the programs in which he was already enrolled and provide additional services through private professionals.
Despite their collective opinion, appellees endeavored, in light of appellants' wishes, to find a spot for M.S. in an integrated classroom for that spring. They discovered that a program in Garfield, New Jersey, had an opening. Garfield, however, rejected M.S., believing he was not yet ready for its program.*fn3 Appellees continued to attempt to resolve their differences with appellants and Ramsey's Director of Special Services, Fredericka Shpetner, secured a spot for M.S. in an integrated classroom in Park Ridge starting in September 2002. That placement was included in an IEP presented to appellants on July 22, 2002. Although pleased with the placement, appellants were not completely satisfied. They believed that the provision of supplemental services was inadequate because they could not be confident of the qualifications of the unnamed providers. Appellants also believed that the goals included within the IEP did not adequately account for the gains M.S. had made during the spring.*fn4 Consequently, while accepting the Park Ridge program, appellants made their own plans for the provision of supplemental services.
A. Jurisdiction and Standard ...