Ridley School District v. M.R. , 78 A.L.R. Fed. 2d 629 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-1447
______
RIDLEY SCHOOL DISTRICT
v.
M.R.; J.R., PARENTS OF MINOR CHILD E.R.
v.
JANET CENNAME
M.R.; J.R. Parents of Minor Child E.R.,
Appellants
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cv-02503)
District Judge: Honorable Mitchell S. Goldberg
______
Argued March 19, 2012
Before: RENDELL, FISHER and
CHAGARES, Circuit Judges.
(Filed: May 17, 2012)
Alan L. Yatvin (Argued)
Popper & Yatvin
230 South Broad Street, Suite 503
Philadelphia, PA 19102
Counsel for Appellants
Jennifer C. Lowman (Argued)
Leonard Rieser
Education Law Center
1315 Walnut Street, Suite 400
Philadelphia, PA 19107
Counsel for Amicus Appellants,
Learning Disabilities Association
of Pennsylvania and Education
Law Center of Pennsylvania
John F.X. Reilly (Argued)
Delaware County Office of District Attorney
201 West Front Street
Media, PA 19063
Counsel for Appellees
______
OPINION OF THE COURT
______
2
FISHER, Circuit Judge.
M.R. and J.R., the parents of E.R., a minor, appeal
from an order of the District Court, granting judgment on the
administrative record in favor of Ridley School District. The
District Court reversed a decision by a Pennsylvania Due
Process Hearing Officer that Ridley School District violated
the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. 1400, et seq., and the Rehabilitation Act, 29 U.S.C.
§ 701, et seq. For the reasons set forth below, we will affirm
the order of the District Court.
I. Background
E.R., who is now ten years old, attended kindergarten
(2006-2007) and first grade (2007-2008) at Grace Park
Elementary School (“Grace Park”) in the Ridley School
District (“Ridley”). E.R. has been identified as a child with
numerous learning disabilities, as well as several health-
related problems, including severe food and contact allergies.
During the summer between E.R.’s first and second grade
years, M.R. and J.R. (collectively, “Parents”) determined that
the programs being offered by Ridley were inadequate to
address E.R.’s unique needs, and thus decided to remove her
from Ridley and enroll her at the Benchmark School, a
private school that specializes in instructing students with
learning disabilities. Parents subsequently filed a complaint
with the Pennsylvania Department of Education, seeking
compensatory education for violations of the IDEA and § 504
of the Rehabilitation Act, and tuition reimbursement,
including transportation expenses, for E.R.’s enrollment in
the Benchmark School. A Due Process Hearing Officer
3
awarded Parents compensatory education for the 2007-2008
school year, as well as reimbursement of tuition for the 2008-
2009 school year, and reimbursement for transportation to
and from the Benchmark School. The District Court
reversed, finding that Parents were entitled to neither
compensatory education nor reimbursement for tuition or
transportation expenses.
A. Factual Background
Before E.R. began kindergarten, Parents were
concerned about her ability to grasp pre-academic skills, such
as letters and numbers, and took her to be evaluated at the
Chester County Intermediate Unit (“CCIU”). Although the
testing noted some academic difficulties, the evaluators
concluded that E.R. did not qualify as a child with special
needs. However, in September 2006, shortly after E.R. began
kindergarten, she was identified as needing extra academic
support, and was placed in extended-day kindergarten
(“EDK”). Parents were notified of this placement, and were
advised that it was intended to improve E.R.’s math skills and
reinforce her kindergarten skills generally.
In November 2006, due to E.R.’s academic struggles
and attention problems, Parents requested that Ridley perform
an educational evaluation. Ridley agreed, and an Initial
Evaluation Report was completed on January 31, 2007.
Although the report indicated that math was difficult for E.R.,
consistent with CCIU’s earlier determination, Ridley
concluded that she did not qualify for special education
services because her cognitive ability and academic
achievement levels were both in the average range. Ridley
4
also conducted an occupational therapy (“OT”) evaluation,
which was completed on January 24, 2007. The OT findings,
which were based largely on the input of teachers, identified
the following areas of concern: below grade level ability in
math; lack of concentration; inconsistency in remembering
numbers one through ten; problems with peer interaction;
poor problem-solving skills and desk posture; and difficulty
keeping her place when reading.
On February 7, 2007, Ridley convened a meeting to
review the Initial Evaluation Report. In response to concerns
raised by Parents at the meeting, Ridley agreed to conduct
additional testing using The Children’s Memory Scale, Test
of Auditory Processing Skills, and The Behavior Rating
Inventory of Executive Functioning. The additional testing
resulted in two addendums to the Initial Evaluation Report,
which stated that E.R.’s academic skills were generally in the
average range, but that she demonstrated a relative weakness
in retaining and manipulating numbers. Based on this
information, the school psychologist concluded that E.R. did
not have a specific learning disability. Also in February
2007, a § 504 Service Agreement (“the § 504 Agreement”)
was issued to provide OT services to E.R., and to address her
severe allergies. 1 Under the § 504 Agreement, E.R. was to
receive OT services once a week for thirty minutes and
consultative services to the home and classroom on a regular
1
“§ 504” refers to § 504 of the Rehabilitation Act,
which prohibits discrimination in federally-funded programs,
including public schools, on the basis of disability. 29 U.S.C.
§ 794.
5
basis. Despite her allergies, E.R. was to be included in as
many activities as possible, and Parents were to be contacted
before activities involving food so that appropriate
alternatives could be provided for E.R.
Pursuant to a recommendation made by E.R.’s
kindergarten teacher, Mary Moffatt (“Moffatt”), E.R. was
enrolled in the Summer Steps program in the Summer of
2007 to reinforce her academic skills. The Summer Steps
teacher reported that E.R. made some academic progress, but
that she needed improvement in several areas and had
difficulty recognizing numbers and counting.
The first six weeks of first grade were spent reviewing
kindergarten materials. During this time, E.R. struggled
academically and posted several failing grades. In late
September 2007, J.R., E.R.’s mother, wrote to E.R.’s first
grade teacher, Janet Cenname (“Cenname”), and requested a
meeting to discuss E.R.’s poor grades. Cenname declined the
request to meet at that time, telling J.R. that it would be
premature to meet so early in the year, and that it would be
more appropriate to give E.R. time to develop her skills.
Cenname explained that she would be “happy to meet” a few
weeks later, in early October, if Parents still had concerns.
Parents did not re-contact Cenname, and instead requested a
meeting with the school’s principal. During that meeting,
which was held on November 1, 2007, Parents were informed
that E.R. had been placed on a “reading watch list” in mid-
October. Following the meeting, E.R. was placed in a
reading support group, but according to Parents, she had
difficulty catching up with the other students because the
program had started two months earlier.
6
On November 16, 2007, Parents requested a
comprehensive reevaluation of E.R. Ridley issued a
Permission to Evaluate on November 27, 2007, and the
reevaluation was completed on February 26, 2008. The
Reevaluation Report found that E.R. had learning disabilities
in the areas of reading decoding and comprehension, math
computation, reasoning skills, and written language. E.R.
was also found to have fine motor delays and a language
disability. As part of the Reevaluation Report, Ridley’s
school psychologist prepared recommendations to be
considered by the Individual Education Planning Team (“IEP
Team”). Based on those recommendations, Ridley offered
two alternative placements for E.R.: (1) the learning support
room at her current school, Grace Park, or (2) a self-contained
classroom at a different elementary school. Parents observed
both programs and determined that neither was appropriate
for E.R.
An IEP Team meeting was convened on March 28,
2008 to review a draft Individualized Education Program
(“IEP”) that had been developed to address E.R.’s educational
needs. At Parents’ request, Ridley agreed to make revisions
to the IEP and submit the revisions to Parents for approval.
At the meeting, Ridley’s Special Education Director, Kim
Woods (“Woods”), suggested a program called Project Read
as a possible reading aid for E.R. Woods told Parents that she
would do some research on the program and follow up with
Parents and the IEP Team in a few days. Woods also
provided Parents with a printout from Project Read’s website,
and a review of the program conducted by the Florida Center
for Reading Research.
7
A Notice of Recommended Educational Placement
(“NOREP”) was issued on April 2, 2008, but Parents refused
to sign it until all of the agreed-upon revisions had been
made. Another IEP Team meeting was held on April 30 to
address Parents’ continuing concerns regarding the IEP. On
May 9, a revised NOREP was issued, and Parents signed it in
agreement on May 12. However, Parents remained
concerned about Ridley’s proposed reading program, and
requested that Ridley hire someone to provide instruction
using The Wilson Reading System. Ridley did not do so.
On May 13, 2008, in accordance with the revised
NOREP and addendums to the IEP, E.R. began going to
Grace Park’s “resource room” every day for one hour of
reading assistance in the morning and one hour of math
assistance in the afternoon. The resource room reading
curriculum consisted of the following instructional programs:
Read Naturally, Reading Workshop, Writing Workshop, and
Patricia Cunningham’s Systematic Phonics. The resource
room employed a program called Everyday Math for math
instruction. There were five other students in the resource
room, none of whom were first graders. Aimee Hodges
(“Hodges”), the resource room teacher, explained that
although the students were all provided with the same reading
programs, different parts of the programs were used for
different students, such that assistance was geared toward
each student’s individual needs. Hodges also testified that
everything done in the resource room was “multi-sensory,”
which meant that the lessons included visual, oral, and hands-
on components. E.R.’s grades in the resource room improved
dramatically in a short period of time, but Parents attributed
8
the improvement to improper resource room assistance, and
claimed that E.R. was not displaying similar progress at
home. By the time E.R.’s first grade year ended, she had
received eighteen days of resource room assistance.
On June 9, 2008, the IEP Team met to update the IEP
for the 2008-2009 academic year (second grade). The
NOREP from the June IEP Team meeting recommended that
E.R. continue to receive one hour per day of math instruction
and one hour per day of reading instruction in the resource
room. The NOREP indicated that the reading instruction
would include a direct reading program, as well as a direct
phonemic-based program to address E.R.’s needs in decoding
vocabulary, fluency, and comprehension skills. The NOREP
provided that Ridley would train its learning support staff on
Project Read during the summer, and that the program would
be “up and running” before the end of September 2008.
Ridley also agreed to pay for a summer learning program at
the Benchmark School, as well as summer math tutoring three
times per week.
Parents researched Project Read and determined that it
was not appropriate for a student with E.R.’s needs. On
August 14, 2008, Parents informed Ridley that E.R. would be
enrolling at the Benchmark School for the 2008-2009 school
year because it provided the “intensive multi-sensory
approach to reading” that they determined E.R. required.
B. Procedural History
On December 4, 2008, Parents filed a due process
complaint with the Pennsylvania Department of Education,
9
alleging that Ridley violated the IDEA and § 504 of the
Rehabilitation Act. Parents claimed that Ridley failed to
timely identify E.R. as a child in need of special education
services, failed to develop an appropriate IEP, and subjected
E.R. to discrimination by failing to comply with the § 504
Agreement.
Hearings were held before a Due Process Hearing
Officer on January 29, 2009, February 10, 2009, and
March 10, 2009. At the hearings, the Hearing Officer
reviewed documentary evidence provided by the parties and
heard testimony from E.R.’s mother, Linda Heller, Parents’
special education advocate, as well as several teachers and
school officials. On April 21, 2009, the Hearing Officer
issued a written report, finding that: (1) Ridley had not
committed any violations during E.R.’s kindergarten year;
(2) Ridley violated the IDEA and the Rehabilitation Act in
E.R.’s first grade year; and (3) the IEPs proposed for E.R.’s
first and second grade years were inadequate and therefore
denied E.R. a “free appropriate public education” (“FAPE”)
because they “lacked appropriate specially designed
instruction in the form of a research based, peer reviewed
reading program.” The Hearing Officer awarded Parents
compensatory education for the 2007-2008 year (first grade),
reimbursement of tuition at the Benchmark School for the
2008-2009 year (second grade), and reimbursement of
transportation expenses to and from the Benchmark School.
Ridley filed a petition for review in the Pennsylvania
Commonwealth Court, and the case was subsequently
removed to the U.S. District Court for the Eastern District of
Pennsylvania. Parents treated the petition as a complaint and
10
filed an answer and counterclaims, in which they challenged
the Hearing Officer’s conclusion that no violation occurred
during E.R.’s kindergarten year, and asserted additional
claims against Ridley and Cenname, whom Parents added as
a third party defendant. On October 9, 2009, Ridley filed a
motion for judgment on the administrative record. On
February 14, 2011, the District Court affirmed the Hearing
Officer’s finding as to E.R.’s kindergarten year, reversed the
Hearing Officer’s findings as to E.R.’s first and second grade
years, and granted Ridley’s motion for judgment on the
administrative record as to all claims. Ridley Sch. Dist. v.
M.R., No. 09-2503, 2011 WL 499966, at *18 (E.D. Pa. Feb.
14, 2011). Parents filed a timely notice of appeal.
On appeal, Parents raise four arguments. First, they
contend that the District Court improperly placed the burden
of persuasion on them to demonstrate that Ridley violated the
IDEA. Second, they argue that the District Court erred in
reversing the Hearing Officer’s finding that Ridley denied
E.R. a FAPE during first grade by failing to timely identify
her as a student in need of special education services. Third,
they maintain that the District Court misinterpreted a
provision of the IDEA, and improperly reversed the Hearing
Officer’s finding that E.R.’s IEP was deficient in that it
lacked research-based, peer-reviewed specially designed
reading instruction. Finally, Parents argue that the District
Court erred in concluding that Ridley did not violate § 504 of
the Rehabilitation Act.
11
II. Jurisdiction and Standard of Review
The District Court had jurisdiction to review the
decision of the state educational agency under 20 U.S.C.
§ 1415(i)(2), and we have appellate jurisdiction over the order
of the District Court under 28 U.S.C. § 1291. When
considering a petition for review challenging a state
administrative decision under the IDEA, a district court
applies “a nontraditional standard of review, sometimes
referred to as ‘modified de novo’ review.” D.S. v. Bayonne
Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (citations
omitted). Under this standard, a district court must give “due
weight” to the findings of the state hearing officer. Bd. of
Educ. v. Rowley, 458 U.S. 176, 206 (1982). “Factual findings
from the administrative proceedings are to be considered
prima facie correct. ‘If a reviewing court fails to adhere to
them, it is obliged to explain why. The court is not, however,
to substitute its own notions of sound educational policy for
those of local school authorities.’” S.H. v. State-Operated
Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003)
(quoting MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523,
531 (4th Cir. 2002)). “Within the confines of these standards,
a district court is authorized to make findings based on the
preponderance of the evidence and grant the relief it deems
appropriate.” D.S., 602 F.3d at 564 (citations omitted); see
also Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194,
199 (3d Cir. 2004) (describing a district court’s burden as
“unusual” in that it must make its own findings by a
preponderance of the evidence, but nevertheless afford “due
weight” to the administrative officer’s determinations).
12
We exercise plenary review over the District Court’s
conclusions of law, D.S., 602 F.3d at 564, and “with respect
to the question [of] whether the District Court applied the
correct legal standards under the IDEA,” Shore Reg’l, 381
F.3d at 199 (citation omitted). We review the District Court’s
findings of fact, including a determination as to the
appropriateness of an IEP, under a clearly erroneous standard.
D.S., 602 F.3d at 564.
III. Discussion
A. Statutory Framework
The IDEA requires states receiving federal education
funding to provide every disabled child with a “free
appropriate public education.” 20 U.S.C. § 1412(a)(1). 2 A
2
“The term ‘free appropriate public education’ means
special education and related services that--
(A) have been provided at public expense,
under public supervision and direction, and without
charge;
(B) meet the standards of the State educational
agency;
(C) include an appropriate preschool,
elementary school, or secondary school education in
the State involved; and
13
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.” Rowley, 458 U.S. at 188-89.
Although a state is not required to maximize the potential of
every handicapped child, it must supply an education that
provides “significant learning” and “meaningful benefit” to
the child. D.S., 602 F.3d at 556 (citing Ridgewood Bd. of
Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). “[T]he
provision of merely more than a trivial educational benefit” is
insufficient. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390
(3d Cir. 2006) (internal marks and citations omitted). When a
state is unable to provide a FAPE, the state must reimburse
the child’s parents for the costs of attendance at a private
school that is able to provide a FAPE. D.S., 602 F.3d at 557.
The core of the IDEA is the collaborative process that
it establishes between parents and schools. Schaffer v. Weast,
546 U.S. 49, 53 (2005). The IEP is the “central vehicle” for
this collaboration, id., and the “primary mechanism” for
delivering a FAPE, W.B. v. Matula, 67 F.3d 484, 492 (3d Cir.
1995), abrogated on other grounds by A.W. v. Jersey City
Pub. Sch., 486 F.3d 791 (3d Cir. 2007) (en banc). Under the
IDEA, school districts must work with parents to design an
IEP, which is a program of individualized instruction for each
(D) are provided in conformity with the
individualized education program required under [20
U.S.C. § 1414(d)].”
20 U.S.C. § 1401(9).
14
special education student. 20 U.S.C. §§ 1412(a)(4), 1414(d).
“Each IEP must include an assessment of the child’s current
educational performance, must articulate measurable
educational goals, and must specify the nature of the special
services that the school will provide.” Schaffer, 546 U.S. at53 (citing 20 U.S.C. § 1414(d)(1)(A)). 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.
D.S., 602 F.3d at 557 (citations omitted); Tucker v. Bay Shore
Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)
(explaining that the IDEA guarantees to a disabled child “an
education that is appropriate, not one that provides everything
that might be thought desirable by loving parents” (internal
marks and citations omitted)). “[A]t a minimum, the IEP
must be reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s
intellectual potential,” Chambers v. Sch. Dist. of Phila. Bd. of
Educ., 587 F.3d 176, 182 (3d Cir. 2009) (citation omitted),
and “individual abilities,” Ridgewood Bd. of Educ., 172 F.3d
at 248. See Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d
Cir. 1986) (stating that an IEP must “be likely to produce
progress, not regression or trivial educational advancement”)
(citation omitted).
If parents believe that an IEP fails to provide their
child with a FAPE, they may seek an administrative
“impartial due process hearing.” 20 U.S.C. § 1415(f). A
school district may also request such a hearing, if, for
example, it wants to change an existing IEP and the parents
refuse, or if the parents refuse to allow their child to be
15
evaluated at all. Schaffer, 546 U.S. at 53. Although state
authorities have limited discretion in determining who
conducts the hearings and establishing hearing procedures,
Congress has legislated the “central components” of the
administrative hearings by providing minimal pleading
standards, and affording all parties the right to counsel, the
right to present evidence, and the right to cross-examine
witnesses. Id. at 54. “Any party aggrieved by the findings
and decision” made in the administrative proceeding “shall
have the right to bring a civil action” in state or federal court.
20 U.S.C. § 1415(i)(2)(A).
A threshold issue we are asked to consider in this case
is which party bears the burden of persuasion before the
district court. The IDEA does not specify which party bears
the burden of persuasion at the district court level or at the
administrative hearing level. Before 2005, we had always
placed the burden of demonstrating compliance with the
IDEA at the administrative hearing on the school district.
L.E., 435 F.3d at 391 (citing T.R. v. Kingwood Twp. Bd. of
Educ., 205 F.3d 572, 579 (3d Cir. 2000); Oberti v. Bd. of
Educ., 995 F.2d 1204, 1219 (3d Cir. 1993)). However, in
2005, in Schaffer v. Weast, 546 U.S. at 62, the Supreme Court
held that the burden of persuasion in an administrative
hearing under the IDEA lies with the party seeking relief.
The Court explained that it saw no reason to depart from “the
ordinary default rule that plaintiffs bear the risk of failing to
prove their claims.” Id. at 56 (citing 2 J. Strong, McCormick
on Evidence § 337, at 412 (5th ed. 1999)); see L.E., 435 F.3d
at 391 (discussing the significance of Schaffer).
16
However, Schaffer did not address which party should
bear the burden of persuasion when a party aggrieved by the
decision of the administrative hearing officer challenges that
decision in district court. Nor have we explicitly decided this
issue in articulating the district court’s standard of review.
We now join our sister circuits in holding that the party
challenging the administrative decision bears the burden of
persuasion before the district court as to each claim
challenged. 3 See J.W. v. Fresno Unified Sch. Dist., 626 F.3d
431, 438 (9th Cir. 2010); Marshall Joint Sch. Dist. No. 2 v.
C.D., 616 F.3d 632, 636 (7th Cir. 2010); District of Columbia
v. Doe, 611 F.3d 888, 897 (D.C. Cir. 2010). As the Supreme
Court noted in Schaffer, “[t]he burdens of pleading and proof
with regard to most facts have been and should be assigned to
3
Our conclusion today that the burden lies with the
party challenging the administrative decision is entirely
consistent with our previous cases, in which we held that the
burden was properly placed on the parents before the district
court. In those cases, the parents were the losing party before
the hearing officer and challenged the hearing officer’s
decision in district court. See Andrew M. v. Del. Cnty. Office
of Mental Health & Mental Retardation, 490 F.3d 337, 345
(3d Cir. 2007); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384,
392 (3d Cir. 2006). We did not specify, however, whether the
parents bore the burden because they initially challenged the
IEP (and the burden carried to the district court) or because
they lost at the administrative hearing level. As our decision
today makes clear, the relevant consideration is the outcome
of the administrative proceeding, not which party requests an
administrative hearing.
17
the [party] who . . . seeks to change the present state of
affairs.” 546 U.S. at 56 (quoting McCormick on Evidence
§ 337, at 412). Under the IDEA, it is the party “aggrieved by
the findings and decision” of the hearing officer that seeks to
change the present state of affairs. See 20 U.S.C.
§ 1415(i)(2)(A). “Absent some reason to believe that
Congress intended otherwise,” we conclude that the burden of
persuasion falls where it usually does, on the party seeking
relief. See Schaffer, 546 U.S. at 57-58; see also S.H., 336
F.3d at 270 (explaining that factual findings from the
administrative proceeding are to be considered prima facie
correct).
In this case, Parents argue that the District Court
committed reversible error by placing the burden of
persuasion on them as to all claims. We disagree. Although
the District Court did, in fact, err by placing the burden on
Parents with respect to the findings of the Hearing Officer
that were challenged by Ridley, the error was harmless. 4 We
will deem an error to be harmless if it is “highly probable”
that it did not affect the outcome of the case. Forrest v. Beloit
Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citation omitted). In
a non-criminal case, an error regarding the placement of the
burden of persuasion will frequently be harmless. Schaffer,
4
We note that Parents filed counterclaims, in which
they challenged the Hearing Officer’s conclusion that Ridley
did not violate the IDEA or the Rehabilitation Act during
E.R.’s kindergarten year. Parents appropriately bore the
burden of persuasion as to those claims because they were the
party aggrieved by the Hearing Officer’s decision.
18
546 U.S. at 56, 58. As the Supreme Court has explained, in a
non-criminal case, the burden of persuasion only comes into
play where the evidence is “closely balanced,” id. at 56, i.e.,
in cases “in evidentiary equipoise,” id. at 58. In this case, as
we explain below, no factual issues are so “closely balanced”
that the burden of persuasion would have affected the
outcome of the case. See id. at 56. Although some of the
disputed issues involve questions of fact, the Hearing
Officer’s errors stemmed largely from mistakes or omissions
regarding the application of law to those facts. Questions of
law, of course, are unaffected by the burden of persuasion. El
v. Se. Pa. Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir.
2007) (stating that the burden of persuasion is the burden “to
persuade the factfinder that one’s propositions of fact are
indeed true” (citing Black’s Law Dictionary 190 (7th ed.
1999))). Thus, we hold that it is “highly probable” that the
District Court’s error regarding the placement of the burden
of persuasion did not affect the outcome. Forrest, 424 F.3d at
349.
B. “Child Find” Requirement
Parents contend that the District Court erred in
reversing the Hearing Officer’s determination that Ridley’s
failure to identify E.R. as a child in need of special education
services in the beginning of first grade denied her a FAPE.
We disagree. “School districts have a continuing obligation
under the IDEA . . . to identify and evaluate all students who
are reasonably suspected of having a disability.” P.P. v. West
Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009)
(citation omitted); see 20 U.S.C. § 1412(a)(3) (explaining that
states must “identif[y], locate[], and evaluate[]” all children
19
with disabilities who are in need of special education, and
must develop “a practical method . . . to determine which
children with disabilities are currently receiving needed
special education and related services”). This is referred to as
the IDEA’s “child find” requirement. Matula, 67 F.3d at 492.
Each state must establish procedures to fulfill this statutory
directive. 34 C.F.R. § 300.111. Pennsylvania’s “child find”
procedures are set forth in 22 Pa. Code. §§ 14.121 through
14.125.
Neither the IDEA, its implementing regulations, nor
the applicable Pennsylvania regulations establish a deadline
by which children who are suspected of having a qualifying
disability must be identified and evaluated. Accordingly, we
have previously “infer[red] a requirement that this be done
within a reasonable time after school officials are on notice of
behavior that is likely to indicate a disability.” Matula, 67
F.3d at 501. 5 In adopting the “reasonable time” standard, we
noted the budgetary constraints and staffing pressures facing
school officials, and emphasized that we were not
5
In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), we
were dealing with a challenge to a school district’s
compliance with child find obligations under the IDEA and
New Jersey law. However, because nothing in the
Pennsylvania regulations establishes a specified timeline for
identifying and evaluating students, we will apply the
“reasonable time” standard to school districts in Pennsylvania
as well. See id. at 501 (inferring the “reasonable time”
requirement because neither the IDEA nor the applicable
New Jersey regulations established such a deadline).
20
establishing any “bright-line rule” as to what constitutes a
reasonable time. Id. Rather, we employ a case-by-case
approach and assess whether the school district’s response
was reasonable “in light of the information and resources
possessed” by the district at a given point in time. Id.Here, in finding that Ridley denied E.R. a FAPE by
failing to identify her as a student in need of special education
services at the outset of first grade, the Hearing Officer never
acknowledged that Ridley must be given a reasonable time to
identify students as disabled. Rather, the Hearing Officer
simply stated that Ridley had provided a number of
intervention programs to E.R. during kindergarten, and
because E.R. continued to struggle academically in first
grade, Ridley should have known that further evaluation was
required at the very start of the next school year. The Hearing
Officer was particularly critical of E.R.’s first grade teacher,
Janet Cenname, explaining that Cenname was “extremely
nervous and uptight” when testifying, she had to refer to
notes, and she frequently tried to explain her actions in a
“non-sensical way.” The Hearing Officer concluded that,
based on E.R.’s struggles during the first month of first grade,
much of which was spent reviewing kindergarten materials,
Cenname should have identified E.R. as a student in need of
special education services at the very beginning of the year,
and thus should have recommended to Ridley that it conduct
another evaluation. Accordingly, the Hearing Officer
determined that Ridley denied E.R. a FAPE “from the
beginning of first grade to the time that the evaluation was
completed” in February 2008.
21
As the District Court observed, the Hearing Officer’s
finding that Ridley violated the IDEA by failing to identify
E.R. as a child in need of special education services at the
outset of first grade is difficult to reconcile with the Hearing
Officer’s finding that Ridley complied with the IDEA during
E.R.’s kindergarten year. E.R. was evaluated during
kindergarten, and although areas of weakness were found,
E.R.’s academic skills were generally considered to be in the
average range. The Hearing Officer concluded that the
kindergarten evaluation was “substantively appropriate,” and
noted that “just because a child has an area of weakness, it
doesn’t necessarily mean that [she has] a disability.” The
Hearing Officer also noted that Ridley “appeared to be
invested in addressing [E.R.’s] needs and providing
appropriate instruction and interventions before rushing to
special education identification.” As a result, the Hearing
Officer properly determined that Parents’ claim that Ridley
violated the IDEA’s “child find” requirements during E.R.’s
kindergarten year “lack[ed] any basis in the testimony or
documents.” 6
In light of the fact that E.R.’s kindergarten evaluations
were appropriate, and she did not qualify as a student in need
of special education services in June 2007 (the end of
kindergarten), we cannot agree with the Hearing Officer that
Ridley violated the IDEA and denied E.R. a FAPE by failing
to immediately reevaluate her in September 2007. When a
6
Parents do not appeal the District Court’s decision
affirming the Hearing Officer’s finding regarding E.R.’s
kindergarten year.
22
school district has conducted a comprehensive evaluation and
concluded that a student does not qualify as disabled under
the IDEA, the school district must be afforded a reasonable
time to monitor the student’s progress before exploring
whether further evaluation is required. See Matula, 67 F.3d at
501. We assess whether a school district identified and
evaluated a student suspected of having a qualifying disability
within a reasonable time “in light of the information and
resources possessed” by the district. Id. Here, although E.R.
struggled during the beginning of first grade, all prior
evaluations showed that she did not require special education
services. Moreover, as Cenname testified, first grade was the
“first time that the children ever ha[d] a chance to be in a test
taking situation” and “[t]here were other children that also
had difficulty . . . taking a test.” It was reasonable for
Cenname to assess E.R.’s progress throughout the first
marking period of first grade before recommending that E.R.
again be evaluated to determine if she had a learning
disability. The IDEA does not require a reevaluation every
time a student posts a poor grade. Accordingly, we hold that
Ridley complied with its “child find” obligations, and E.R.
was not denied a FAPE at the beginning of first grade. 7
7
Parents contend that the District Court did not accord
the proper deference to the Hearing Officer’s factual findings,
particularly her finding that Cenname was not a credible
witness. Where a hearing officer “has heard live testimony
and determined that one witness is more credible than another
witness, [the hearing officer’s] determination is due special
weight.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d
23
Cir. 2010) (citation omitted). A district court must accept the
hearing officer’s credibility determinations “unless the non-
testimonial extrinsic evidence in the record would justify a
contrary conclusion.” Id. (citations omitted). Here, central to
the Hearing Officer’s conclusion that E.R. was denied a
FAPE during the beginning of first grade was that Cenname
“put off” meeting with E.R.’s mother when E.R.’s mother
expressed concern that her daughter had failed a math test.
However, Cenname responded to E.R.’s mother’s request for
a meeting by sending back the following note:
Dear Mrs. [R],
I appreciate your concern about [E.R.’s] test,
but it is very early in the year. We need to give her
some time. Continue to work with her at home and
reinforce what we are doing in class. I will probably
be out from Oct. 2 – Oct. 15. If you still have
concerns at that time, I will be happy to meet.
24
C. E.R.’s IEP
Parents next contend that the District Court erred in
reversing the Hearing Officer’s finding that E.R.’s IEP was
inadequate. For the reasons set forth below, we disagree.
First, to the extent Ridley violated the IDEA’s procedural
requirements by failing to include the requisite statement of
specially designed instruction in the IEP, the violation was
not actionable because it did not have any impact on the
substantive rights of E.R. or Parents. Second, contrary to the
Hearing Officer’s findings, E.R.’s educational plan included a
peer-reviewed reading program, which, in conjunction with
the other services that E.R. was scheduled to receive, was
sufficient to provide a FAPE. We will discuss these points in
turn.
1.
An IEP must consist of a detailed written statement
arrived at by a multi-disciplinary team specifying the
Thus, contrary to Parents’ suggestions, Cenname did
not refuse to meet or indicate that a meeting was unnecessary.
She expressed a clear willingness to meet, and simply told
Parents that E.R. should be given some time to get her
bearings. Parents never responded to this note and never met
with Cenname to discuss E.R.’s academic struggles.
Therefore, as the District Court found, non-testimonial
evidence in the record demonstrates that Cenname’s response
to Parents’ request for a meeting was entirely reasonable, and
that it in no way resulted in the denial of a FAPE. See D.S.,
602 F.3d at 564.
25
services, including specially designed instruction, that the
child will receive. Polk v. Cent. Susquehanna Intermediate
Unit 16, 853 F.2d 171, 173 (3d Cir. 1988). Parents contend
that they are entitled to compensatory education because the
IEP developed by Ridley failed to set forth in sufficient detail
the specially designed instruction that would be provided to
E.R. Parents acknowledge that subsequent NOREPs issued
by Ridley included the required specially designed
instruction, but they nevertheless argue that the IDEA
requires that such information be included in the body of the
initial IEP. 8
Parents’ argument presents a challenge to Ridley’s
compliance with the IDEA’s procedural requirements.
Although we have held that “[t]he content of an IEP . . . does
not implicate the IDEA’s procedural requirements for content
is concerned with the IEP’s substance,” D.S., 602 F.3d at 565,
Parents’ argument here does not relate to the substance of the
IEP. Rather, Parents’ argument is essentially that Ridley
violated the IDEA by including a description of specially
designed instruction in the wrong document. We have made
clear that although it is important that a school district comply
with the IDEA’s procedural requirements, compliance is not a
goal in itself; rather, compliance with such procedural
requirements is important because of the “requirements’
impact on students’ and parents’ substantive rights.” Id.8
Although the District Court did not address this issue,
Parents raised it in their brief before the District Court, and
thus preserved it for review. See Chambers v. Sch. Dist. of
Phila. Bd. of Educ., 587 F.3d 176, 183-84 (3d Cir. 2009).
26
Accordingly, “[a] procedural violation is actionable under the
IDEA only if it results in a loss of educational opportunity for
the student, seriously deprives parents of their participation
rights, or causes a deprivation of educational benefits.” Id.(citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516,
525-26 (2007)) (second citation omitted).
Here, to the extent that the absence of specially
designed instruction in the IEP constituted a procedural
violation, it did not affect the substantive rights of E.R. or
Parents, and thus does not entitle Parents to an award of
compensatory education. See id. Although Parents correctly
note that the initial IEP did not specify all of the special
education services that E.R. would receive, subsequent
NOREPs contained that information. A NOREP issued on
May 9, 2008, provided that the educational placement
recommended for E.R. was “[r]esource room learning support
for math and reading in which a direct reading program will
be done as well as a direct phonemic based program to
address [E.R.’s] needs in decoding vocabulary, fluency and
comprehension skills.” The May NOREP further stated that
E.R. would receive “at least 60 minutes per day instruction
for reading and at least 60 minutes per day math at Grace
Park Elementary School until June 2008.” The NOREP
indicated that an IEP Team meeting would be convened in
June to review E.R.’s progress and discuss the
implementation of Project Read for the 2008-2009 school
year. Parents signed and approved the May NOREP. On
June 9, 2008, Ridley issued a second NOREP, which
explained that Ridley would provide training to its staff on
Project Read during the summer and the program would be
27
up and running before the end of September 2008. Until
Project Read could be implemented, Ridley would continue
to use the other resource room reading programs. The June
NOREP was never signed by Parents due to their objection to
Project Read.
Because detailed specially designed instruction was set
forth in the NOREPs, it is properly considered part of E.R.’s
overall educational plan. Ridley’s admitted “mistake” in
failing to include such information in the IEP itself did not
deny E.R. any educational opportunity, nor did it deprive her
of any educational benefits. See D.S., 602 F.3d at 565.
Moreover, Parents were intimately involved in the process of
crafting E.R.’s IEP and do not contend that they were
unaware of the services E.R. was scheduled to receive. Thus,
they were not denied their participation rights. See id.Accordingly, any deficiency in Ridley’s compliance with the
procedural requirements of the IDEA is not a basis for
granting relief to Parents. Whether the specially designed
instruction set forth in the IEP and the NOREPs was adequate
to provide a FAPE is a separate question, which we will
address next.
2.
Parents’ next argument presents an issue of first
impression in this circuit. The Hearing Officer found that
E.R.’s IEP was inadequate, both for the end of the 2007-2008
school year (first grade), and all of the 2008-2009 school year
(second grade) primarily because it “fail[ed] to provide a
scientifically research-based, peer reviewed reading program,
which [E.R.] needed in order to make meaningful progress.”
28
The Hearing Officer stated that although Project Read, the
reading program chosen for E.R., “was designed to be
research based,” there were “flaws in the research supporting
it.” These statements were made in conclusory fashion,
without elaboration, in a footnote of the Hearing Officer’s 20-
page opinion. They were not well-explained or well-
supported.
The District Court reversed the Hearing Officer’s
decision that the IEP was inappropriate, reasoning that the
lack of a peer-reviewed instructional program was not
automatically fatal to an IEP, and even if it was, Project Read
was research-based and peer-reviewed. On appeal, we need
not decide whether the lack of a peer-reviewed reading
program alone may result in the denial of a FAPE because we
agree with the District Court that Project Read was based on
peer-reviewed research. We will, however, consider Parents’
contentions that Ridley denied E.R. a FAPE because the
available research regarding Project Read was flawed and did
not adequately demonstrate that Project Read would be
effective for a student with E.R.’s learning disabilities. As we
explain below, Parents’ arguments are unavailing; the peer-
reviewed specially designed reading instruction in E.R.’s IEP
was “reasonably calculated to enable [her] to receive
meaningful educational benefits in light of [her] intellectual
potential.” Chambers, 587 F.3d at 182 (citation omitted).
Ridley was not required to choose the reading program based
on the optimal level of peer-reviewed research, or to
implement the specific program requested by Parents.
We begin our analysis by reviewing the statutory
provision at issue. In 2004, Congress added the following
29
provision to the IDEA: “[t]he term ‘individualized education
program’ or ‘IEP’ means a written statement for each child
with a disability . . . that includes . . . a statement of the
special education and related services and supplementary aids
and services, based on peer-reviewed research to the extent
practicable, to be provided to the child.” 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV) (emphasis added). This provision was
incorporated into the revised IDEA regulations in 2006,
which state that an IEP “must include . . . [a] statement of the
special education and related services and supplementary aids
and services, based on peer-reviewed research to the extent
practicable, to be provided to the child.” 34 C.F.R.
§ 300.320(a)(4). Congress amended the IDEA in 1997 and
2004, in part, to respond to concerns that the statute “ha[d]
been impeded by low expectations, and an insufficient focus
on applying replicable research on proven methods of
teaching and learning for children with disabilities.” 20
U.S.C. § 1400(c)(4). The IDEA’s statement of congressional
findings explains that “[a]lmost 30 years of research and
experience has demonstrated that the education of children
with disabilities can be made more effective by” training
teachers on “the use of scientifically based instructional
practices, to the maximum extent possible,” and providing
incentives for “scientifically based early reading programs.”
Id. § 1400(c)(5)(E) and (F).
Unfortunately, neither the text of the IDEA nor the
IDEA regulations provide much guidance as to the effect of
§ 1414(d)(1)(A)(i)(IV)’s peer-reviewed research provision in
this case. Therefore, we will look to other instructive
regulatory materials. See Auer v. Robbins, 519 U.S. 452, 462
30
(1997) (explaining that when interpreting a statute and its
implementing regulations, we may look to the agency’s
interpretation of its own regulations); United States v.
Occidental Chem. Corp., 200 F.3d 143, 151-52 (3d Cir. 1999)
(stating that we must defer not only to interpretations
supported by notice-and-comment rulemaking, but also
“informal interpretations”); Cleary v. Waldman, 167 F.3d
801, 808 (3d Cir. 1999) (“[I]f an agency has been granted
administrative authority by Congress for a statute, its
interpretation—despite arising in an informal context—will
be given deference as long as it is consistent with other
agency pronouncements and furthers the purposes of the
Act.”). In conjunction with its promulgation of the 2006
IDEA regulations, the U.S. Department of Education
(“DOE”) issued an Analysis of Comments and Changes to the
2006 IDEA Regulations (“Analysis of IDEA Regulations”),
71 Fed. Reg. 46,540 (2006). In response to a comment
requesting “clear guidance on the responsibilities of States,
school districts, and school personnel to provide special
education and related services . . . that are based on peer-
reviewed research,” the DOE stated that “States, school
districts, and school personnel must . . . select and use
methods that research has shown to be effective, to the extent
that methods based on peer-reviewed research are available.”
71 Fed. Reg. at 46,665. The agency made clear, however,
that a student’s IEP team retains flexibility in devising an
appropriate program. The Analysis of IDEA Regulations
explained that the changes implemented by the 2004 IDEA
amendments and the 2006 updated regulations
31
“do[] not mean that the service with the greatest
body of research is the service necessarily
required for a child to receive FAPE. Likewise,
there is nothing in the Act to suggest that the
failure of a public agency to provide services
based on peer-reviewed research would
automatically result in a denial of FAPE. The
final decision about the special education and
related services . . . that are to be provided to a
child must be made by the child’s IEP Team
based on the child’s individual needs.”
Id.
In response to a comment requesting that the DOE
require programs provided to a disabled child to be research-
based with demonstrated effectiveness in addressing the
particular needs of a child, the Analysis of IDEA Regulations
stated, “[w]hile the Act clearly places an emphasis on
practices that are based on scientific research, there is nothing
in the Act that requires all programs provided to children with
disabilities to be research-based with demonstrated
effectiveness in addressing the particular needs of a child
where not practicable.” Id. The DOE declined to adopt the
recommended change because “ultimately, it is the child’s
IEP Team that determines the special education and related
services that are needed by the child in order for the child to
receive FAPE.” Id. The DOE also rejected as “overly
burdensome” a requirement that all IEP team meetings
include a focused discussion of research-based methods and a
proposed regulation that would force schools to provide
32
written notice when an IEP team does not provide
documentation of research-based methods. Id. 9
We can discern two key principles from these
administrative materials and our prior decisions interpreting
the IDEA. First, although schools should strive to base a
student’s specially designed instruction on peer-reviewed
research to the maximum extent possible, the student’s IEP
team retains flexibility to devise an appropriate program, in
light of the available research. See D.S., 602 F.3d at 557; 71
Fed. Reg. at 46,665. Second, under the IDEA, courts must
accord significant deference to the choices made by school
officials as to what constitutes an appropriate program for
each student. See D.S., 602 F.3d at 556-57; Ridgewood Bd. of
Educ., 172 F.3d at 247; 71 Fed. Reg. at 46,664-65.
With these principles in mind, we will consider the
two objections that Parents raise to the portion of E.R.’s IEP
that addresses her reading and language disabilities. First,
echoing the findings of the Hearing Officer, Parents argue
that “there were flaws in the research [regarding the
9
Commenters also requested a more explicit definition
of “peer-reviewed research.” The DOE stated that “‘[p]eer
reviewed research’ generally refers to research that is
reviewed by qualified and independent reviewers to ensure
that the quality of the information meets the standards of the
field before the research is published.” 71 Fed. Reg. 46,540,
46,664 (2006). However, the agency made clear that there
was no single definition of “peer-reviewed research” and it
declined to include a specific definition for purposes of the
IDEA. Id.33
effectiveness of Project Read] which made it impossible to
attribute the reading growth the students experienced [in the
studies] to Project Read alone.” Second, they contend that
none of the studies regarding Project Read demonstrated that
the program was effective for students with E.R.’s specific
disabilities. Both arguments miss the mark. Given that the
IDEA does not require an IEP to provide the “optimal level of
services,” D.S., 602 F.3d at 557 (citations omitted), we
likewise hold that the IDEA does not require a school district
to choose the program supported by the optimal level of peer-
reviewed research. Rather, the peer-reviewed specially
designed instruction in an IEP must be “reasonably calculated
to enable the child to receive meaningful educational benefits
in light of the student’s intellectual potential.” Chambers,
587 F.3d at 182 (citation omitted).
According to a 2007 review of Project Read published
by the Florida Center for Reading Research (“FCRR”):
“Project Read is a comprehensive language arts
program designed to provide explicit instruction
in a structured reading curriculum. The goal of
the program is to help all students become
thoughtful, purposeful, and independent
readers. Project Read Curriculum may be
implemented in the regular classroom, special
education classes, and Title I classes. It may
also be used as an intervention reading program
for first through sixth graders or with
adolescents and adults who struggle with
reading or language learning. Whole or small
group instruction is delivered by a classroom
34
teacher, a special education teacher, or a
reading teacher. Lessons are intended to occur
daily within an extended block of time devoted
to reading instruction. Emphasis is placed on
systematic, direct instruction of concepts and
skills supported and enhanced by a teaching
approach that includes visual, kinesthetic,
auditory and tactile strategies (VAKT), and the
use of body language.”
After discussing several studies on the effectiveness of
Project Read, and citing relevant articles, at least one of
which was published in a peer-reviewed journal, the FCRR
review concluded that the research “[was] promising and the
instructional strategies of Project Read [we]re aligned with
current research. Future studies with sound experimental
designs including control groups and random assignment may
contribute more definitive information about the efficacy of
Project Read.” The FCRR review then listed numerous
strengths of the Project Read program, and found no
weaknesses in Project Read’s curriculum.
We understand Parents’ concern that the available
studies did not test Project Read’s effectiveness for students
with E.R.’s unique combination of disabilities. However, the
research discussed in the FCRR review involved children of
E.R.’s age who struggled with reading, and indicated that
Project Read was helpful in improving the reading skills of
such students. Additionally, Hodges, Grace Park’s resource
room teacher, and Woods, Ridley’s director of special
education, both of whom have expertise in the field of special
education, testified that Project Read was an appropriate
35
reading program for E.R. 10 Woods explained that, “Project
Read is a multi-sensory program that is based on Orton
Gillingham’s principles that support learning disabled
students. The research from Florida was very promising in
terms of these students doing quite well.” Woods further
testified that “[t]he program . . . had a lot of components that
learning disabled students learn by [including] what we called
VAKT program, visual, auditory, kinesthetic, and touch. And
most learning disabled students do very well when you bring
all of the senses into the learning process.” Hodges also
testified that Project Read was a research-based program and
similar to other reading programs, such as The Wilson
Reading System.
Parents argue that, in contrast to Project Read, the
program they requested, The Wilson Reading System, has
been shown to be effective for teaching students with learning
disabilities similar to those of E.R. However, Ridley did not
have to choose the specific program requested by Parents.
See D.S., 602 F.3d at 557. Nor did it have to choose the
program supported by the optimal level of peer-reviewed
research. See id.; 71 Fed. Reg. at 46,665 (explaining that a
school does not have to choose the program supported by the
“greatest body of research”). “The IDEA accords educators
discretion to select from various methods for meeting the
individualized needs of a student, provided those practices are
reasonably calculated to provide h[er] with educational
benefit.” R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117,
10
The Hearing Officer did not discuss the assessments
of Project Read provided by Hodges and Woods.
36
1122 (9th Cir. 2011) (citations omitted); see Rowley, 458 U.S.
at 207 (explaining that school districts have “[t]he primary
responsibility for formulating the education to be accorded a
handicapped child, and for choosing the educational method
most suitable to the child’s needs”). In selecting special
education programs, a school district must be able to take into
account not only the needs of the disabled student, but also
the financial and administrative resources that different
programs will require, and the needs of the school’s other
non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d
60, 70 (2d Cir. 2000) (explaining that, in the context of the
Rehabilitation Act, courts must be aware of the “need to
strike a balance” between the rights of the disabled student
and fiscal and administrative concerns); 71 Fed. Reg. at
46,665 (rejecting a proposed requirement on an IEP team as
“overly burdensome”).
We will not set forth any bright-line rule as to what
constitutes an adequately peer-reviewed special education
program; hearing officers and reviewing courts must continue
to assess the appropriateness of an IEP on a case-by-case
basis, taking into account the available research. We
recognize that there may be cases in which the specially
designed instruction proposed by a school district is so at
odds with current research that it constitutes a denial of a
FAPE. See, e.g., Waukee Cmty. Sch. Dist. v. D.L., No. 07-
00278, 51 IDELR 15 (LRP) (S.D. Iowa Aug. 7, 2008)
(explaining that a student was denied a FAPE, in part,
because the school district frequently employed strategies
which contradicted the relevant research and were even
inconsistent with the school’s own assessment of the
37
appropriate program for the student). 11 Additionally, if it is
practicable for a school district to implement a program based
upon peer-reviewed research, and the school fails to do so,
that will weigh heavily against a finding that the school
provided a FAPE. However, that is not the case here. Ridley
relied on available peer-reviewed research in crafting the IEP
for E.R., and proposed a program with specially designed
instruction that was “reasonably calculated” to enable her to
achieve meaningful educational benefits in light of her
intellectual potential and individual abilities. See Rowley,
458 U.S. at 207. Thus, we conclude that the District Court
11
The IDEA’s peer-reviewed research requirement is
not set forth in isolation; it is part of a broader section
discussing the content of the IEP, which requires “a statement
of the special education and related services . . . that will be
provided for the child” to meet certain specified objectives,
namely “to advance appropriately toward attaining the
annual goals[,]” “to be involved in and make progress in the
general education curriculum . . . and to participate in
extracurricular and other nonacademic activities[,]” and “to
be educated and participate with other children with
disabilities and nondisabled children in” educational
activities. 20 U.S.C. § 1414(d)(1)(A)(i)(IV).
38
properly reversed the Hearing Officer’s finding that the IEP
was inadequate to provide a FAPE. 12
12
The Hearing Officer also awarded Parents
compensatory education for the end of the 2007-2008 school
year, despite the fact that Project Read was not yet
implemented, and Ridley was continuing to use its existing
“resource room” reading program. The Hearing Officer did
not explain this conclusion, and based on the record, we
cannot agree. Pursuant to E.R.’s IEP and the May NOREP,
both of which Parents agreed to, for the last eighteen days of
first grade, E.R. received one hour of reading instruction in
the resource room. The resource room reading curriculum
consisted of Reading Naturally, Reading Workshop, Writing
Workshop, and Patricia Cunningham’s Systematic Phonics.
Hodges testified that although the same programs were used
for all students in the resource room, she tailored the
programs to each student’s individual needs. Moreover,
E.R.’s evaluations all indicated that she would benefit from
multi-sensory learning, and Hodges explained that all
activities done in the resource room were multi-sensory. She
also explained that “all of the research points to a balanced
literacy program which is hammering away at phonemic
awareness, phonics, comprehension, fluency, and vocabulary.
And with the repertoire that we were using throughout the
week, I think we hit all those schools.” We can find no
evidence in the record that rebuts this testimony. In light of
the fact that reviewing courts must be mindful not to
substitute their views of what constitute preferable
educational methods for those of school officials, who have
39
D. Section 504 of the Rehabilitation Act
Parents next contend that the District Court erred in
reversing the Hearing Officer’s determination that Ridley
violated § 504 of the Rehabilitation Act during E.R.’s first
grade year. We disagree. The Rehabilitation Act provides
that “[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination” under any program that receives
federal funds. 29 U.S.C. § 794(a). This prohibition was
extended to public school systems through § 504. Id.
§ 794(b)(2)(B). To establish a violation of § 504 of the
Rehabilitation Act, Parents were required to prove that
(1) E.R. was disabled; (2) she was “otherwise qualified” to
participate in school activities; (3) Ridley received federal
financial assistance; and (4) E.R. was excluded from
participation in, denied the benefits of, or subject to
expertise in the area, D.S., 602 F.3d at 564, we agree with the
District Court that the Hearing Officer erred in determining
that Ridley denied E.R. a FAPE during the end of first grade.
Because we hold that the resource room instruction
provided during the end of the 2007-2008 school year was
sufficient to provide a FAPE, we likewise hold that the
Hearing Officer erred in finding that the IEP was inadequate
for September 2008 (the first month of second grade). The
same programs that were used during the end of first grade
were scheduled to be used in September, until Project Read
was ready to be implemented.
40
discrimination at Ridley. Ridgewood Bd. of Educ., 172 F.3d
at 253. Here, the parties dispute only the fourth element.
As we have explained, § 504’s “negative prohibition”
is similar to the IDEA’s “affirmative duty” and also requires
schools that receive federal financial assistance to “provide a
free appropriate public education to each qualified
handicapped person who is in the recipient’s jurisdiction.”
Matula, 67 F.3d at 492-93 (quoting 34 C.F.R. § 104.33(a)).
To offer an “appropriate” education under the Rehabilitation
Act, a school district must reasonably accommodate the needs
of the handicapped child so as to ensure meaningful
participation in educational activities and meaningful access
to educational benefits. See J.D., 224 F.3d at 70 (citing
Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985)); D.S.,
602 F.3d at 556 (explaining that under the IDEA, a state must
supply an education that provides “significant learning” and
“meaningful benefit”) (citation omitted); Ridgewood Bd. of
Educ., 172 F.3d at 253. 13 However, § 504 does not mandate
“substantial” changes to the school’s programs, Se. Cmty.
Coll. v. Davis, 442 U.S. 397, 405 (1979), and courts “should
be mindful of the need to strike a balance between the rights
of the student and h[er] parents and the legitimate financial
13
The regulations implementing § 504 of the
Rehabilitation Act state: “the provision of an appropriate
education is the provision of regular or special education and
related aids and services that (i) are designed to meet
individual educational needs of handicapped persons as
adequately as the needs of nonhandicapped persons are met.
. . .” 34 C.F.R. § 104.33(b)(1).
41
and administrative concerns of the [s]chool [d]istrict,” J.D.,
224 F.3d at 70-71 (internal marks and citation omitted). But
“[t]he fact that it is more convenient, either administratively
or fiscally, to provide services in a segregated manner, does
not constitute a valid justification for separate or different
services.” Helen L. v. DiDario, 46 F.3d 325, 338 (3d Cir.
1995) (quoting H.R. Rep. No. 485, reprinted in 1990
U.S.C.C.A.N. at 473).
In June 2006, prior to E.R.’s kindergarten year, Ridley
prepared an Allergy Treatment Plan, which alerted school
staff to E.R.’s allergies and the signs of an allergic reaction,
and explained how school officials should react if E.R. were
to have an allergic reaction. In February 2007, a § 504
Service Agreement was implemented to further address
E.R.’s health issues. The Service Agreement reflected
Parents’ request that E.R. be included in as many activities as
possible, and provided that because E.R. was “only to eat
foods provided by parents,” Parents were to be contacted
before activities involving shared food so that appropriate
alternatives could be provided. The Service Agreement also
required all students in the classroom to wash their hands
before and after meals, required E.R. to wash her hands after
touching physical education or OT equipment, mandated that
E.R. wear gloves provided by Parents when handling glue,
and provided that E.R. would only use supplies and utensils
provided by Parents.
Parents allege that Cenname “stubbornly and
persistently” refused to implement the Service Agreement,
which led to E.R. being “singled out, isolated and denied full
participation with her classroom peers.” The Hearing Officer
42
cited the following incidents as evidence of Ridley’s
discrimination against E.R. First, as part of a “Clifford the
Dog” celebration, E.R.’s classmates were given brownies
with red icing and red juice, but because E.R.’s allergies
prevented her from eating that food, she was given a cupcake
from the nurse’s freezer that had been provided by her
mother. Second, a program on nutrition was offered, along
with a specific snack. Although Parents were notified of the
program in advance, they were not told what the snack would
be, and therefore, E.R. ended up having to eat a snack from
home. Third, according to E.R.’s mother, Cenname cancelled
an Earth Day project rather than design an alternative snack
for E.R. E.R.’s mother testified that Cenname commented
that she did not understand why the other students in class
should have to accommodate one child when E.R.’s parents
could provide separate food. Fourth, due to her allergies,
E.R. was required to wear loose cotton clothes. E.R.’s mother
testified that she often had difficulty locating reasonably
priced clothing that complied with Ridley’s dress code: green
shirts, khaki pants, and a white sweater. Despite this
difficulty, on two occasions, Cenname remarked to E.R. that
her clothes were not in compliance with the dress code, which
according to Parents, caused E.R. to “feel[] humiliated.”
Fifth, students in E.R.’s first grade class participated in an
activity in which they worked with partners to sift sand,
pebbles, and gravel, and compare the various shapes and
sizes. Due to her severe allergies, E.R. was not permitted to
touch dirt without using gloves. Cenname testified that she
had forgotten about the sand activity when preparing her
update to E.R.’s mother, and thus, was unsure whether E.R.
could touch any of the materials. “To be safe,” Cenname
43
instructed E.R. to let her partner handle the materials, but
E.R. was allowed to participate in the project in every other
way. Finally, E.R. was given several poor grades on
penmanship tests. Parents blame this on Cenname’s failure to
notice that E.R.’s chair did not allow her to brace herself for
writing tasks.
We agree with the District Court that although each of
these incidents “may illustrate how E.R.’s daily school
routine necessarily had to be different than her classmates,”
they do not constitute § 504 violations. Ridley, 2011 WL
499966, at *17. There is no evidence in the record that E.R.
was excluded from participation in educational activities,
denied educational benefits, or otherwise subjected to
discrimination. See Ridgewood Bd. of Educ., 172 F.3d at 253.
E.R. was not denied meaningful participation in the food-
related activities; she simply had to eat something slightly
different than the food eaten by her classmates. Parents argue
that Cenname could have complied with the Rehabilitation
Act by allowing E.R.’s mother to prepare snacks for the entire
class that were suitable to E.R.’s dietary needs. The statute
simply does not require that. See Davis, 442 U.S. at 410(explaining that the Rehabilitation Act distinguishes “between
the evenhanded treatment of qualified handicapped persons
and affirmative efforts to overcome the disabilities caused by
handicaps”). Similarly, E.R. was not denied the educational
benefit of the sand, pebbles, and gravel lesson, even though
she was not allowed to touch the materials. Contrary to
Parents’ suggestions, this case does not involve a situation in
which a school district attempted to provide separate-but-
equal services to a disabled student. See Helen L., 46 F.3d at
44
338. Ridley took reasonable steps to accommodate E.R.’s
disabilities and include her in all class activities; it was not
required to grant the specific accommodations requested by
Parents or otherwise make substantial modifications to the
programs that were used for all other students. J.D., 224 F.3d
at 70. Additionally, although Cenname may have exercised
poor judgment in commenting on E.R.’s clothes, in the
absence of evidence that E.R. was excluded from
participation in educational activities or denied educational
benefits, two isolated comments do not rise to the level of a §
504 violation. See Ridgewood Bd. of Educ., 172 F.3d at 253.
Nor does Cenname’s alleged failure to identify the position of
E.R.’s chair as the source of her struggles on penmanship
tests.
E. Other Claims
Finally, Parents argue that the District Court erred in
dismissing their claim for damages under the Rehabilitation
Act, their claim under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and a state law claim
against Cenname for “outrageous conduct causing severe
emotional distress.” Parents contend that these claims were
not the subject of Ridley’s motion for judgment on the
administrative record, and thus were not before the District
Court. Accordingly, Parents ask us to remand to the District
Court to consider their remaining claims. We decline to do
so; although the District Court did not address the claims, we
can affirm based on any grounds supported by the record.
45
Chambers, 587 F.3d at 183-84. 14 First, because Parents’
Rehabilitation Act claim fails, they are not entitled to
damages. Second, the substantive standards for determining
liability under the Rehabilitation Act and the ADA are the
same, McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d 92,
94-95 (3d Cir. 1995), and thus the District Court did not err in
disposing of Parents’ claim under the ADA. Finally, because
no federal claims remained, dismissal of Parents’ state law
claim was proper under 28 U.S.C. § 1367(c)(3).
IV. Conclusion
For the foregoing reasons, we will affirm the order of
the District Court.
14
Although the principle that an appellate court may
affirm on any grounds supported by the record has previously
been articulated in the summary judgment context, it is based
on considerations of judicial efficiency, and we see no reason
not to apply the same principle to a district court’s grant of
judgment on the administrative record.
46