2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-2012

Upper Freehold Reg Bd of Edu v. T. W.

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2151

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-2151

_____________

 

UPPER FREEHOLD REGIONAL BOARD OF EDUCATION

v.

*T. W.; M. W., o/b/o T.W.,

Appellants

*Dismissed pursuant to Clerk‟s order of December 22, 2011 

_____________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-09-cv-01847)

District Judge: Honorable Joel A. Pisano

_____________ 

Argued May 22, 2012

Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges

(Opinion Filed: September 7, 2012)

_____________

Pedro De Oliveira, Esq. [ARGUED]

Mark W. Friedman, Esq.

Debevoise & Plimpton

919 Third Avenue

41st Floor

New York, NY 10022

Denise Lanchantin Dwyer, Esq.

5 Duxbury Court

Princeton Junction, NJ 08550

 Counsel for Appellants
2

Cherie L. Adams, Esq. [ARGUED]

Adams, Stern, Gutierrez & Lattiboudere

1037 Raymond Boulevard

Suite 710

Newark, NJ 07102

Paul C. Kalac, Esq.

Parker McCay

1009 Lenox Drive

Building Four East, Suite 102A

Lawrenceville, NJ 08648

 Counsel for Appellee

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

This is an appeal from the District Court‟s reversal of a state administrative law 

judge‟s (ALJ) award of tuition reimbursement for plaintiffs in an Individuals with 

Disabilities in Education Act (“IDEA”) case. We will vacate the judgment below and 

remand.

I. Background

T.W. is a child with learning disabilities. His parents, along with the school 

district of Upper Freehold (the “District”), developed an individualized education plan 

(“IEP”) for the 2006-07 school year that called for T.W. to split his school days between 

the District‟s preschool and the “Project Child” preschool in the Mercer County Special 

Services School District. Although T.W. turned four early in the 2006-07 school year, he 

was placed in a classroom at Project Child with three-year olds who would turn four in 
3

the calendar year 2007. T.W.‟s birthday is in September 2002, shortly before the October 

1st date that the District uses as a cut-off for class years. Therefore, if T.W. was placed 

in a classroom based on his date of birth, he would be one of the youngest students. In 

his Project Child classroom, by contrast, he was one of the oldest students.

The current dispute relates to a disagreement between T.W.‟s parents and the 

District about T.W.‟s education for the 2007-08 school year. Prior to a June 15, 2007 

meeting of T.W.‟s IEP team, the District provided T.W.‟s parents with a draft IEP, 

proposing that T.W. be placed in kindergarten the following fall and receive certain 

additional services and therapies. At the June 15 meeting, the parents urged that T.W. be 

placed in preschool for another year. The meeting adjourned without agreement on an 

IEP. Another meeting was scheduled for June 29, 2007, but never took place. The 

District asserts that T.W.‟s parents cancelled the meeting, whereas the parents contend 

that they merely requested a postponement to give a psychologist working with T.W. 

time to complete her full report.

By letter dated June 29, 2007, the District sent T.W.‟s parents an amended IEP for 

the 2007-08 school year, again calling for T.W.‟s placement in kindergarten but adding 

additional supports and services recommended by a team of Yale researchers that 

analyzed T.W. at his parents‟ behest. The cover letter enclosing the amended IEP stated 

“[y]ou have 15 days to respond.” (A2109.)

T.W.‟s parents responded by letter dated July 3, 2007, stating that “the document 

purporting to be an IEP was generated without our participation” and that, because the 

parties had not discussed their “unresolved issues” at an IEP meeting, “the document [the 
4

parents] received could not constitute the district‟s formal proposal.” (A2110.) The 

letter concluded by stating, “[w]e look forward to your response.” (A2110.)

On July 12, 2007, T.W.‟s parents filed a request for mediation and a due process 

hearing. They claim they filed their petition when they did because they believed that, 

under New Jersey law, the District‟s June 29 IEP placing T.W. in kindergarten would 

have gone into effect unless they requested mediation or a due process hearing within 15 

days of the IEP proposal. See N.J.A.C. § 6A:14-2.3(h)(3). 

The parties met again in August 2007 to try to resolve their dispute. At that 

meeting, the parents presented the district with a letter from T.W.‟s developmental 

pediatrician, Dr. Anna Baumgaertel, explaining that she recommended another year of 

preschool for T.W. so that he could “work on his significant social deficits.” (A2124.) 

The meeting concluded without an agreement.

In September 2007, T.W.‟s parents unilaterally placed him as a regular student in 

the Project Child preschool program. On September 11, 2007, they advised the District 

by letter that they would be making the placement immediately and that they were 

“unable to wait ten business days to make the placement [pursuant to 20 U.S.C. §

1412(a)(10)(C)(iii)(I)(bb)] because to do so would cause [T.W.] to suffer severe harm.” 

(A2125.)

In the beginning of the 2007-08 school year, T.W. did not receive one-on-one 

services and therapies at Project Child. However, on November 19, 2007, T.W.‟s parents 

and Project Child agreed on an educational plan for T.W. that called for him to receive 
5

additional services and be in a smaller classroom setting. The District did not participate 

in the making of this plan.

An ALJ hearing was conducted over eleven days in 2008 and early 2009. The 

ALJ thoroughly described the evidence presented in a 54-page opinion. He found both 

the District‟s witnesses and T.W.‟s expert witnesses credible. He found that “[i]f placed 

in kindergarten in the 2007-08 school year, T.W. would do „fine academically,‟ but it 

could increase his social awkwardness and withdrawal . . . . [F]or the 2007-08 school 

year placement in kindergarten pursuant to an IEP with supports and services was 

necessary for T.W. to have a FAPE.” (A58 (emphasis added).) The ALJ noted that when 

T.W. was placed in Project Child‟s full-day preschool program for the 2007-08 school 

year, he “did not receive the therapies and/or related services that the [District] would 

have provided pursuant to the draft IEP and I find that this placement in Project Child did 

not provide T.W. with a FAPE.” (A58.) However, the ALJ found that “[o]n November 

19, 2007, without inviting the [District] educators to participate in an IEP meeting 

[T.W.‟s parents] and Project Child agreed to an IEP for T.W.” (A59.)

The District argued that it offered an IEP for the 2007-08 school year that would 

have provided a FAPE and that T.W.‟s parents refused and/or failed to participate 

meaningfully in the IEP-development process, so their claim for reimbursement should 

therefore be dismissed. The ALJ‟s complete response follows:

[D]uring the summer of 2007 the parties had reached an impasse: the 

petitioners would not agree to an IEP that provided for placement in 

kindergarten for the 2007-08 school year and, consistent with the findings 

of fact, placement in kindergarten would not have provided a FAPE. On 

the other hand, the placement of T.W., a disabled child, in Project Child as 
6

a regular student and without an IEP also did not provide him with a FAPE. 

T.W. did not have an IEP until after November 19, 2007, and the unilateral 

placement did not provide a FAPE until after November 19, 2007. 

Consequently, the [District] cannot be ordered to reimburse [T.W.‟s

parents] for the unilateral placement before that time. However, the 

[District] is responsible for the reimbursement for the unilateral placement 

for the period after November 19, 2007, until the end of the 2007-08 school 

year.

(A63.) The ALJ made no specific finding as to whether the District‟s draft amended IEP 

offered a FAPE or whether the IEP provided sufficient “supports and services” to make 

the placement in kindergarten a FAPE. (See A58 (ALJ opinion) (“[F]or the 2007-08 

school year placement in kindergarten pursuant to an IEP with supports and services was 

necessary for T.W. to have a FAPE.”).) 

The parties appealed to the District Court for the District of New Jersey and 

submitted cross-motions for judgment on the record. Relying on our decision in C.H. v. 

Cape Henlopen Sch. Dist., 606 F.3d 59 (3d Cir. 2010), the District Court held that the 

parents were not entitled to reimbursement. The District Court concluded that the 

parents‟ actions “deprive the Court of the ability to determine whether the District 

proposed an appropriate IEP.” (A8.) Furthermore, the District Court denied 

reimbursement on “equitable grounds, as provided for in 20 U.S.C. § 

1412(a)(10)(C)(iii),” saying that the parents “did not provide adequate notice to the 

District of their unilateral withdrawal of T.W. from the public placement,” and that their 

“conduct in delaying, cancelling, or refusing to set up additional meetings with the IEP 

team substantially precluded any possibility that the District could timely develop an 

appropriate IEP for T.W.” (A9.)
7

II. Standard of Review

On appeal from an ALJ‟s determination in an IDEA case, the district court is to 

“give due weight and deference” to the ALJ‟s findings and consider the ALJ‟s factual 

findings to be prima facie correct. D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d 

Cir. 2010); see also Bd. of Educ. of Hendrick Hudson Ctrl. Sch. Dist. v. Rowley, 458 U.S. 

176, 206 (1982) (“[D]ue weight shall be given to [state administrative] proceedings.”). 

According “due weight” to the ALJ‟s findings means that the district court has an 

obligation “to consider—although not necessarily to accept—the administrative fact 

findings.” Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995) (citing Oberti 

ex rel. Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1219 

(3d Cir. 1993)). The district court “must independently review the evidence adduced at 

the administrative proceedings and can receive new evidence.” Oberti, 995 F.2d at 1219. 

Ultimately, the district court must “„make an independent determination based on a 

preponderance of the evidence.‟” Id. (quoting Geis v. Bd. of Educ., 774 F.2d 575, 583 

(3d Cir. 1985)). A district court “should defer to the hearing officer‟s findings based on 

credibility determinations unless the non-testimonial, extrinsic evidence in the record 

would justify a contrary conclusion or unless the record read in its entirety would compel 

a contrary conclusion.” Carlisle, 62 F.3d at 529.

We review a district court‟s findings of fact for clear error and exercise plenary 

review over the legal standards the district court applies and the legal conclusions it 

reaches. Bayonne Bd. of Educ., 602 F.3d at 564. Under a clear error standard of review, 

“we accept the District Court‟s ultimate factual determinations unless „that determination 
8

either (1) is completely devoid of minimum evidentiary support displaying some hue of 

credibility, or (2) bears no rational relationship to the supportive evidentiary data.‟” N.J. 

Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 390 (3d Cir. 2012) (quoting 

Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)). Where parents allege that “the 

district court failed to observe its own proper scope of review, we must determine 

whether the district court erred in its interpretation or application of the law governing the 

administrative review process, a question over which we exercise plenary review.” 

Carlisle, 62 F.3d at 526 (citing Louis W. Epstein Family P’ship v. Kmart Corp., 13 F.3d 

762, 765-66 (3d Cir. 1994)).

III. Discussion

The IDEA authorizes tuition reimbursement for parents who unilaterally decide to 

place their child in an out-of-district school if the IEP proposed by the school district 

failed to offer the child a FAPE and the placement the parents chose was proper under the 

IDEA. Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 370 (1985); 

Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993). The District Court failed 

to analyze these issues and instead relied on Cape Henlopen as the basis for denying 

tuition reimbursement to T.W.‟s parents. This was error.1 Cape Henlopen presented a 

very unique situation, and the holding in that case simply cannot be applied once the 

parties have been working toward formulating an IEP, and then reach an impasse. In 

 

1 We note that the ALJ did not have the benefit of our decision in Cape Henlopen, which 

was issued after his decision in this case. Even so, we do not believe that affects our 

analysis. As explained below, we believe that the behavior of T.W.‟s parents was quite 

different from the conduct of the parents in Cape Henlopen. 
9

Cape Henlopen, the petitioners alleged that the school district committed a procedural

violation of the IDEA when it failed to have an IEP in place for their child on the first 

day of school. 606 F.3d at 68-69. We noted that this failure was a result of the parents‟ 

decision to delay an IEP team meeting until after classes had begun. Id. at 69. We 

therefore “decline[d] to hold that a school district is liable for procedural violations that 

are thrust upon it by uncooperative parents.” Id. Here, in contrast, the parents do not 

complain that the school district failed to timely implement an IEP. Rather they 

complain that the substance of the proposed IEP, which was developed after meetings 

and correspondence between the parties, did not provide a FAPE because it called for 

T.W. to attend kindergarten, not preschool, for 2007-08. The alleged problem with the 

IEP was not that it could not be developed due to “uncooperative parents.” Id. Rather, 

the problem was that the IEP offered would place T.W. in kindergarten for the school 

year 2007-08.

2

The parents‟ disagreed with that proposal, resulting in what the ALJ 

characterized as an “impasse.” (A63.) To say that Cape Henlopen would apply to totally 

bar parents from reimbursement after negotiations reached an impasse is to fault them for 

 

2 While the dissent believes that the procedural versus substantive distinction makes little 

difference, we disagree. The reason the parents in Cape Henlopen complained of a 

procedural violation—the failure of the school district to have an IEP in place on the first 

day of school—was that there was no IEP offered, because the parents refused to attend 

meetings or permit testing required in order for an IEP to be prepared. C.H. v. Cape 

Henlopen Sch. Dist., 606 F.3d 59, 64 (3d Cir. 2010) (“[T]he Parents refused to give the 

District permission to conduct a speech and language evaluation of C.H., which was 

necessary in order to develop his IEP.”). No mention is made in Cape Henlopen of any 

proposed program, or the parents‟ wishes, if any, regarding schooling. We correctly held 

that where the parents essentially prevented the formulation of the IEP, the school district 

could not be held responsible for the procedural violation.
10

failing to agree to whatever the school district presents, whether justified or not.3 Here, 

the District Court erred when it abbreviated its analysis based on the parents‟ conduct and 

failed to determine whether the District‟s proposed IEP was appropriate. It should have 

considered the substance of the District‟s most recent proposed IEP and determined if it 

met the IDEA‟s substantive requirements. See Rowley, 458 U.S. at 203 (holding that a 

state satisfies the IDEA‟s requirement to offer FAPE “by providing personalized 

instruction with sufficient support services to permit the child to benefit educationally 

from that instruction”); Bayonne Bd. of Educ., 602 F.3d at 556 (“Although a state is not 

required to supply an education to a handicapped child that maximizes the child‟s 

potential, it must confer an education providing „significant learning‟ and „meaningful 

benefit‟ to the child.” (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d 

Cir. 1999))). We will remand for the District Court to address that issue.

Additionally, we find error in the District Court‟s denial of reimbursement on 

equitable grounds based on the parents‟ conduct. Again, the District Court‟s reliance on 

 

3

The dissent suggests that so long as a school district presents its proposed IEP as a 

“draft” rather than “final proposal,” a parent who unilaterally places her child in private 

school has “short-circuited the IEP-development process” and can be barred from tuition 

reimbursement based on Cape Henlopen. (Dissenting op. at 3-4 & n.4.) This cannot be. 

Under the dissent‟s proposal, school districts could force parents into perpetual 

negotiations and effectively gut a parents‟ right to tuition reimbursement for a unilateral 

placement. The IDEA does not permit school districts to hold parents hostage merely by 

styling an IEP as a “draft” subject to the possibility of revision, however remote. Parents 

who make unilateral placements for their children surely take a risk that they will later be 

found to have pulled out of negotiations prematurely. Cf. Sch. Comm. of Burlington v. 

Dep’t of Educ. of Mass., 471 U.S. 359, 373-74 (1985) (noting that parents who make 

unilateral placements “do so at their own financial risk”). However, we disagree with our 

dissenting colleague that school districts can unilaterally dictate how long negotiations 

must continue by deciding when to call their proposals “final.”
11

Cape Henlopen was misplaced. The ALJ had not considered the parents to be

unreasonable or to have refused to work with the District to develop an IEP. Instead, the 

ALJ recounted all of the meetings and correspondence between the parties and then 

characterized the situation as an “impasse.” (A63.) This clearly connotes an inability of 

both sides to agree, not the arbitrary refusal of one side to come to the table. We agree. 

Our review of the record leads us to conclude that the District Court‟s finding “that the 

Parents‟ conduct in delaying, cancelling, or refusing to set up additional meetings with 

the IEP team substantially precluded any possibility that the District could timely develop 

an appropriate IEP for T.W. and provide the necessary services to him” was clearly 

erroneous. (A9.) Unlike the parents in Cape Henlopen, T.W.‟s parents did not 

“disregard[] their obligation to cooperate and assist in the formulation of an IEP.” 606 

F.3d at 72. The record clearly indicates that the parents participated in the IEP 

development process and tried to work with the District to develop an IEP. However, the 

parties reached an impasse based on the parents‟ insistence on preschool and the 

District‟s insistence on kindergarten. Denial of reimbursement based on this aspect of the 

parents‟ conduct was improper.

In discussing its alternative holding to deny reimbursement on equitable grounds, 

the District Court noted that T.W.‟s parents did not provide adequate notice to the 

District, pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii), of their intent to withdraw T.W. 

from the District‟s school. The IDEA states that failure to give the statutorily required 

notice can justify the “reduc[tion] or deni[al]” of a reimbursement award. 20 U.S.C. § 

1412(a)(10)(C)(iii)(I). However, it is unclear to us whether the District Court‟s equitable 
12

reduction was tainted by its erroneous determination that T.W.‟s parents acted 

unreasonably in the IEP development process. Therefore, on remand, after the District 

Court determines whether T.W.‟s parents are eligible for tuition reimbursement, it may 

examine to what extent any reimbursement award may be equitably reduced based on § 

1412(a)(10)(C)(iii)(I). If the District Court reaches this issue on remand, it should 

consider the equities, including the parents‟ argument that delay in placing T.W. in 

Project Child would have caused him severe harm and the extent to which the District 

was prejudiced by receiving late notice of the parents‟ decision. The District Court may, 

of course, take additional evidence on this issue or remand the case to the ALJ for further 

fact-finding. 

In sum, the District Court erroneously short-circuited the required analysis by 

applying our ruling in Cape Henlopen to deny T.W.‟s parents tuition reimbursement. In 

so doing, the District Court did not reach the real issue before it: whether the IEP 

proposed by the District offered T.W. a FAPE, and, if not, whether the placement at 

Project Child was proper under the IDEA.4 Burlington, 471 U.S. at 370; Florence, 510 

U.S. at 15. The District Court must engage in this analysis on remand. 

 

4

The District Court stated that “[b]ecause the November [19, 2007] plan [drawn up by 

T.W.‟s parents and Project Child] was developed in the absence of the District, it was 

legal error for the ALJ to conclude that it was an IEP” and that “[t]herefore, the ALJ 

could not find that T.W.‟s placement at the outside program was proper.” (A6-7.) While 

it is true that the educational plan was not technically an IEP, this fact alone does not 

prevent the parents from receiving tuition reimbursement. The IDEA allows parents of 

disabled children to be reimbursed for expenditures on private special education if (1) the 

IEP calling for placement in a public school was inappropriate and (2) the private 

placement desired by the parents was proper under the Act. Florence, 510 U.S. at 15. To 

satisfy the second step of this test, parents seeking reimbursement for the unilateral 
13

We note that there is a paucity of reasoning in the ALJ‟s opinion regarding these 

crucial analytical issues. The ALJ‟s opinion states that “placement in kindergarten

pursuant to an IEP with supports and services was necessary for T.W. to have a FAPE,” 

but does not explain why kindergarten placement with the support services provided for 

in the revised IEP—including all of the recommendations proposed by the Yale 

researchers—was insufficient to provide a FAPE. (A58 (emphasis added).)5 The ALJ 

embraces the opinion of Dr. Baumgaertel (who never saw the District‟s proposed IEP), 

yet never indicates why the opinions of the District‟s experts (whom he credited) were 

rejected. If the District Court so desires, it may request a remand to the ALJ so that this 

aspect of its opinion can be expanded.

Accordingly, we will vacate the judgment below and remand for further 

proceedings consistent with this opinion.

 

placement of their child in an out-of-district school need not show that the out-of-district 

school provided their child with an IEP; they need only show that the alternative 

placement was “proper.” Id. This does not require that the out-of-district placement 

conform to the statutory requirements of an IEP. Id. at 13 (noting that the requirement 

that an IEP must be designed by a representative of the local educational agency “do[es] 

not make sense in the context of a parental placement”).

5 At oral argument in this case, counsel for the parents suggested that the use of the word 

“kindergarten” in the above-quoted language was a typographical error. This argument 

was not made in appellants‟ briefs and we are reluctant to infer that a key portion of the 

ALJ‟s opinion—the only portion discussing what would be required in 2007-08 to give 

T.W. a FAPE—was a mere typographical error.
HARDIMAN, Circuit Judge, dissenting.

My disagreement with the majority‘s effort to distinguish controlling precedent 

necessitates this respectful dissent.

I

In Cape Henlopen, the disabled child attended private school for the 2005–06 

school year, and under a settlement agreement the school district reimbursed the parents 

for most of the cost of that schooling. 606 F.3d at 63. During that year, the mother and 

the school district met to develop an individualized education program (IEP) under which 

the child would return to the public school the following year. Id. The meeting was cut 

short due to a scheduling conflict and, after the mother indicated she was unavailable for 

several weeks, the school district offered to continue the meeting approximately three 

weeks later, which was five days into the school year. Id. The mother noted a conflict 

but tentatively agreed to that date. Id.

On the first day of school, before the scheduled date for the continued meeting, the 

parents ―unilaterally chose[] to have [the child] begin classes at‖ private school. Id. at 64. 

The next day, the parents filed a due-process request and thereafter refused to attend the 

scheduled meeting. Id. The state hearing panel and the district court both found against 

the parents because the school district did not deny the child a free appropriate public 

education (FAPE) and because the parents had unduly inhibited the school district from 

providing an IEP. Id. at 64–65. We affirmed, stating:

Although the IEP was not completed in the first meeting, it was the Parents 

and not the District who delayed the continuation of that meeting until after 

the start of classes, and ultimately terminated the process by filing a due 
2

process request. Like the court in [MM ex rel. DM & EM v. School District 

of Greenville County, 303 F.3d 523 (4th Cir. 2002)], we decline to hold that 

a school district is liable for procedural violations that are thrust upon it by 

uncooperative parents.

Id. at 69. As the child never enrolled in the public school, there was no ―specific 

evidence of an educational deprivation.‖ Id. In other words, the parents‘ decision to 

remove their child from the school before a final IEP had been offered deprived this 

Court of the opportunity to evaluate whether the school district would have provided a 

FAPE. See id. at 69–70.

The application of Cape Henlopen to the parents‘ conduct in this case is 

straightforward. In both cases, the parents participated in a preliminary IEP meeting 

regarding the upcoming school year. They also left that initial meeting without resolution

or a final IEP proposal, thwarted the district‘s attempt to hold an additional meeting,1and 

then turned to litigation.2

 

1

The parents in this appeal claim that the District never sought another meeting, 

(Reply Br. 4–5), but the record indicates otherwise. The District wrote to the parents: ―It 

is [the District‘s] firm and consistent desire that we reach agreement on a least restrictive, 

free appropriate public education for [T.W.] Please contact [the District] so that we may 

continue to move forward in developing an Individualized Education Plan for [T.W.].‖ 

(App. 2111.)

2

The parents also contend that they filed the due-process petition in order to 

protect their rights under New Jersey law. Specifically, they claim that under N.J. 

Admin. Code § 6A:14-2.3(h), the District‘s June 29 letter triggered a fifteen-day window 

after which the District could have implemented the IEP if they had not filed a request for 

mediation or a due-process hearing. I am unconvinced that New Jersey law allows an 

IEP to be unilaterally implemented in this way. See N.J. Admin. Code § 6A:14-2.3(a)(2), 

(c) (mandating parental consent prior to finalization and adoption of an IEP). But even if 
3

The majority distinguishes Cape Henlopen, correctly identifying that the parents 

there alleged a procedural violation of the IDEA, whereas here a substantive claim has 

been brought. In my view, that is a distinction without a difference. To obtain 

reimbursement, a plaintiff alleging a procedural violation still must show that the school

district‘s ―violation can meaningfully be said to have  ̳[i]mpeded the child‘s right to a 

FAPE‘ or  ̳caused a deprivation of [an] educational benefit.‘‖3 Id. at 66–68 (alterations in 

original) (quoting 34 C.F.R. § 300.513(a)(2)). Put more simply, even procedural claims

that seek compensatory relief require proof of a substantive violation of the IDEA.

Consequently, it makes little sense to limit Cape Henlopen‘s rule to procedural 

claims. The Cape Henlopen principle—that parents may not recover compensatory 

education or tuition reimbursement under the IDEA where they have short-circuited the 

IEP-development process—applies with equal force to procedural and substantive IDEA 

lawsuits.

4

 

it does, Cape Henlopen requires parents to continue the IEP-development process even 

after availing themselves of procedural safeguards. See Cape Henlopen, 606 F.3d at 72 

(―The stay-put provision [in 20 U.S.C. § 1415(j)] does not . . . excuse the Parents, who 

based their complaint on the absence of an IEP, from continuing to meet with the District 

to rectify the perceived wrong.‖).

3

If the plaintiff chooses not to prove substantive harm, he ―may only seek 

injunctive relief for prospective compliance.‖ Cape Henlopen, 606 F.3d at 66 (citing 

P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009)).

4

This principle is useful only where the parents terminate the interactive process 

while the IEP is in ―draft‖ form, as was the case here and in Cape Henlopen. If the 

District had set forth a final proposal, or if the District‘s own obstinacy had caused a 
4

The majority‘s disagreement arises from its misreading of Cape Henlopen, from 

which it incorrectly concludes that the parents there impeded the school district from 

initiating the IEP-development process. In defending its procedure-versus-substance 

distinction, the majority writes that in Cape Henlopen, ―the parents refused to attend 

meetings or permit [the] testing required‖ for IEP development. Maj. Typescript at 9 n.2. 

In fact, the requisite educational evaluation occurred and the mother attended an initial 

IEP meeting. 606 F.3d at 63. In addition, the majority asserts that in that case ―[n]o 

mention is made . . . of any proposed‖ IEP or the specifics of the parents‘ requested

educational supports. Maj. Typescript at 9 n.2. This reasoning seeks to distinguish Cape 

Henlopen by assuming the nonexistence of certain facts regarding the details of the IEPdevelopment process simply because they were not included in the opinion. But even in 

this attempt, the majority misinterprets the case. We noted in Cape Henlopen that the 

IEP meeting the parents attended ―concluded before C.H.‘s IEP was finalized.‖ 606 F.3d 

at 63. The use of the word ―finalized‖ implies that there was a draft proposal. We can 

likewise infer that, because the mother attended the IEP meeting but placed her child in 

private school, the family and the school district failed to reach an agreement regarding 

the child‘s education. In sum, the facts in Cape Henlopen mirror the facts of this case.

 

break-down in communication, the parents would have been under no continuing 

obligation to schedule or attend further meetings. See Cape Henlopen, 606 F.3d at 69

(distinguishing Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 

2001)). Thus, I do not advocate, as the majority suggests I do, that ―school districts [can] 

force parents into perpetual negotiations.‖ Maj. Typescript at 10 n.3.
5

Accordingly, I would hold that the District Court properly applied Cape Henlopen.

II

A second ground for affirmance exists in this case. The majority interprets the 

equitable-reduction provision of the IDEA to not allow a denial of the ALJ‘s award as 

applied to the parental conduct at issue here. I see it differently. The IDEA allows a 

district court to reduce or deny any award, id. at 71, if: (1) the parents failed to reject the 

school district‘s placement and indicate their intent to make a private placement ―at the 

most recent IEP meeting that the parents attended‖; (2) they did not provide written 

notice of their intent to remove the child ten days prior to the removal; or (3) there is a 

―judicial finding of unreasonableness with respect to actions taken by the parents.‖ 20 

U.S.C. § 1412(a)(10)(C)(iii)(I), (III). There is no question that the parents left the first 

and only IEP meeting without rejecting the placement. Nor is there any doubt that the 

parents did not provide the requisite notice. Thus, the denial of the ALJ‘s award, like the 

District Court‘s ―judicial finding of unreasonableness,‖ was not an abuse of discretion. 

For these reasons, I respectfully dissent.