PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1587

 

FERREN C.;

RONALD C.;

LESLIE C.

v.

SCHOOL DISTRICT OF PHILADELPHIA,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-08-cv-00858)

District Judge: Honorable Stewart Dalzell

 

Argued April 13, 2010

Before: FISHER, HARDIMAN

and COWEN, Circuit Judges.

(Filed: July 13, 2010)

Kara H. Goodchild (Argued)
2

Miles H. Shore

School District of Philadelphia

Office of General Counsel

440 North Broad Street, Suite 313

Philadelphia, PA 19130-4015

Counsel for Appellant

Dennis C. McAndrews

Gabrielle C. Sereni (Argued)

McAndrews Law Offices

30 Cassatt Avenue

Berwyn, PA 19312

Counsel for Appellees

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

This appeal arises from an order of the District Court,

entered January 28, 2009, reversing in part the Opinion of the

Special Education Appeals Panel and granting equitable relief

under the Individuals with Disabilities Education Act (“IDEA”

or “the Act”), 20 U.S.C. § 1400, et seq., to Appellee Ferren C.

The District Court ordered Appellant, the School District of

Philadelphia, to annually do the following for the duration of the

three years of Ferren’s previously awarded compensatory

education: reevaluate her, develop and issue an Individualized

Education Plan, and serve as her Local Education Agency. The
3

School District argues that the relief granted was not appropriate

because Ferren is no longer entitled to the protections of the

IDEA since she is over the age of twenty-one, and that the

District Court’s order is inconsistent with the purposes of the

IDEA. Because we find that the District Court had the equitable

power under the IDEA to grant relief of this nature and because

the relief furthers the purposes of the IDEA, we will affirm the

order of the District Court.

I.

Appellee Ferren C. (“Ferren”) is a twenty-four-year-old

woman who suffers from various disabilities, including autism,

speech and language deficits, and pervasive developmental

disorder. Ferren requires highly structured, systematic

instruction that is specifically keyed to her particular educational

needs. Ferren’s parents lack the training and experience to

develop a compensatory education program for her.

At all relevant times, Ferren lived within the jurisdiction

of the School District of Philadelphia (the “School District”).

The School District identified Ferren as eligible for special

education services under the IDEA. Failures on the part of the

School District to provide adequate special education to Ferren

gave rise to various legal disputes between the School District

and Ferren’s family. In resolution of these past disputes, the

School District established a trust fund in excess of $200,000 to

provide Ferren with three years of compensatory education past

her twenty-first birthday. There is no dispute between the

parties as to the amount of the trust fund or whether Ferren is

entitled to the three years of compensatory education.
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For three school years from 2004 to 2007, Ferren

attended the Elwyn-Davidson School (“Elwyn”), which is an

Approved Private School under the IDEA, and received a basic

academic program, transition activities, and speech and

occupational therapy. Elwyn requires all enrolled students to

have an Individualized Education Plan (“IEP”) and is capable of

performing much of the underlying work required to develop

and revise an IEP. When Elwyn develops an IEP, a school

district is not involved in the drafting, but because Elwyn is not

a Local Education Agency (“LEA”), it nevertheless requires a

student’s home school district to sign the IEP and serve as the

student’s LEA. The student’s parents, the School District, and

Elwyn staff do, however, work together to determine if the IEP

is appropriate under the IDEA.

The 2006-07 school year was the last year Ferren

attended Elwyn with an IEP issued by the School District. It

was during that school year that Ferren turned twenty-one. Per

the terms of its license, Elwyn does not typically educate

students past the age of twenty-one, but has previously done so

in cases of compensatory education. The School District has

acknowledged that Elwyn provided Ferren with appropriate

education and is capable of providing Ferren with compensatory

education in the future. Ferren’s parents hoped to keep Ferren

enrolled at Elwyn, despite her age, and planned to utilize the

compensatory education trust funds for her tuition.

On September 6, 2006, shortly before Ferren turned

twenty-one, the School District agreed with Elwyn to schedule

Ferren’s graduation for 2010, which was three years beyond the

school year during which she turned twenty-one. On January 3,
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2007, the School District reversed course and informed Elwyn

that Ferren should graduate at the end of the 2007 school year

because she was over the age of twenty-one and was no longer

entitled to an IEP under the IDEA. Elwyn informed the School

District that it would not graduate Ferren until the School

District confirmed that it had satisfied its compensatory

education obligations to Ferren. Elwyn received no response

from the School District and, consequently, did not graduate

Ferren in the spring of 2007.

In June 2007, Elwyn informed the School District that it

would provide compensatory education to Ferren past her

twenty-first birthday if the School District paid the entire cost of

the services, provided Ferren with annual IEPs, and served as

her LEA. The School District agreed to provide the necessary

funding for tuition through Ferren’s previously established trust

fund, but refused to provide IEPs and to serve as the LEA.

Ferren’s parents requested a special education due

process hearing to address the School District’s refusal to

provide Ferren with the additional services requested by Elwyn.

The Hearing Officer issued a decision in October 2007,

concluding that the School District was not required to provide

Ferren with an IEP during the three-year compensatory

education period. The family appealed this decision to the

Pennsylvania Special Education Appeals Panel (“Appeals

Panel”), which subsequently affirmed the Hearing Officer’s

decision.

On February 21, 2008, Ferren brought an action in the

United States District Court for the Eastern District of
1

The District Court was also faced with the question of

whether Ferren’s placement at Elwyn was pendent during these

judicial proceedings under the stay-put provision of the IDEA.

See 20 U.S.C. § 1415(j). Under the relevant part of that

provision, “during the pendency of any proceedings conducted

pursuant to this section, unless the State or local educational

agency and the parents otherwise agree, the child shall remain

in the then-current educational placement of the child.” Id. The

District Court denied Ferren’s request for pendency as a

statutory right under section 1415(j) finding that the IDEA does

not protect young adults who are over the age of twenty-one.

The District Court also declined to find Ferren’s placement

pendent as a matter of equitable relief. These issues are not

challenged by either party on appeal.

6

Pennsylvania challenging the administrative decisions of the

Hearing Officer and Appeals Panel. Both parties submitted

motions for judgment on the administrative record. In a

January 28, 2009 order, the District Court ordered the School

District for the duration of her three years of compensatory

education to annually reevaluate Ferren, provide her with annual

IEPs, and serve as her LEA.

The School District filed a timely notice of appeal

challenging the District Court’s grant of equitable relief to

Ferren.1

II.
7

The District Court had jurisdiction over the appeal from

the Appeals Panel under 20 U.S.C. § 1415(i)(2)(A). We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We review the District Court’s award of an equitable

remedy under the IDEA for abuse of discretion. Lester H. v.

Gilhool, 916 F.2d 865, 872 (3d Cir. 1990). “An abuse of

discretion occurs when a district court’s decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law or

an improper application of law to fact.” P. N. v. Clementon Bd.

of Educ., 442 F.3d 848, 852 (3d Cir. 2006) (internal quotation

marks and citation omitted). To the extent a district court’s

grant of equitable relief is based on a legal determination, we

exercise plenary review. Id.

III.

We must determine whether the compensatory education

awarded to Ferren by the District Court was permitted under the

IDEA.

The IDEA requires States that receive federal funding to

provide a free appropriate public education (“FAPE”) to all

disabled students. 20 U.S.C. § 1412(a)(1)(A). Under the IDEA,

a school district’s obligations to provide and a student’s right to

receive a FAPE both terminate when the child reaches the age

of twenty-one. 20 U.S.C. § 1412(a)(1)(A); Lauren W. v.

DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007). “The core of

[the] entitlement [to a FAPE] is provided by the IEP, the

package of special educational and related services designed to

meet the unique needs of the disabled child.” Carlisle Area Sch.
8

v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995). The IDEA does not

set forth definitive guidelines for the formulation of an IEP, but

at a minimum, “[t]he IEP must be ‘reasonably calculated’ to

enable the child to receive ‘meaningful educational benefits’ in

light of the student’s ‘intellectual potential.’” Shore Reg’l High

Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)

(quoting Polk v. Cent. Susquehanna Interm. Unit 16, 853 F.2d

171, 181 (3d Cir. 1988)); see also 20 U.S.C. § 1414(d)(1)(A);

Bd. of Educ. v. Rowley, 458 U.S. 176, 189 (1982). The right to

a FAPE ensures that students with special education needs

receive the type of education that will “prepare them for further

education, employment, and independent living.” 20 U.S.C.

§ 1400(d)(1)(A).

Individuals who believe that their rights under the IDEA

have been violated are permitted to bring a civil action in federal

court. See 20 U.S.C. § 1415(i)(2). To resolve these claims, the

IDEA permits a court to “grant such relief as the court

determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The

Act is silent, however, as to what type of relief is “appropriate.”

In addressing what is “appropriate” relief under the IDEA, the

Supreme Court concluded that the “only possible interpretation

[of section 1415(i)(2)(C)(iii)] is that the relief is to be

‘appropriate’ in light of the purposes of the act.” Burlington v.

Massachusetts, 471 U.S. 359, 369 (1985). The purposes of the

Act are explicitly stated in its text. Two of these purposes are

relevant to our analysis:

(1)(A) to ensure that all children with disabilities

have available to them a free appropriate public

education that emphasizes special education and
9

related services designed to meet their unique

needs and prepare them for further education,

employment, and independent living;

(B) to ensure that the rights of children with

disabilities and parents of such children are

protected;

20 U.S.C. § 1400(d). In evaluating whether the District Court’s

grant of equitable relief under the IDEA was appropriate, we

must determine whether the relief granted furthers the abovestated purposes of the Act.

The relief granted by courts under section

1415(i)(2)(C)(iii) is primarily compensatory education.

Compensatory education, however, is not defined within the

IDEA and is a judicially created remedy. It is intended as “a

remedy to compensate [the student] for rights the district already

denied . . . because the School District violated [the] statutory

rights while [the student] was still entitled to them.” Lester H.,

916 F.2d at 872. The Court of Appeals for the District of

Columbia has stated that compensatory education serves to

“replace[] educational services the child should have received in

the first place” and that such awards “should aim to place

disabled children in the same position they would have occupied

but for the school district's violations of IDEA.” Reid v. District

of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Federal

courts began awarding compensatory education after the

Supreme Court determined in Burlington that tuition

reimbursement was an appropriate remedy under the Education

of the Handicapped Act, 20 U.S.C. §§ 1401-1461 (1983)
10

(IDEA’s predecessor). 471 U.S. at 370-71. Despite the text of

section 1412(a)(1)(A), which statutorily limits a school district’s

obligation to provide a FAPE only to students under the age of

twenty-one, an individual over that age is still eligible for

compensatory education for a school district’s failure to provide

a FAPE prior to the student turning twenty-one. Lester H., 916

F.2d at 872. A court may grant compensatory education in such

cases through its equitable power under section

1415(i)(2)(C)(iii).

In this case, the District Court acknowledged that because

of her age, Ferren no longer had a statutory right to FAPE. See

20 U.S.C. § 1412(a)(1)(A). However, Ferren was still eligible

for equitable relief. The District Court determined that the

statutory age bar did not limit the available form of relief to a

monetary award of compensatory education. Rather, the District

Court concluded that it had the equitable power under section

1415(i)(2)(C)(iii) to order the School District to provide Ferren,

who was past her twenty-first birthday, with annual IEPs and to

serve as her LEA for the duration of her compensatory

education.

In fashioning discretionary equitable relief under the

IDEA, a court must “consider all relevant factors.” Florence

County Sch. Dist. v. Carter, 510 U.S. 7, 16 (1993).

Accordingly, the District Court weighed “the interests of

finality, efficiency, and use of the School District’s resources

with the compelling needs of Ferren and her family” and

concluded, based on the specific facts of this case, that the

equitable award was appropriate to further the purposes of the
11

IDEA. Ferren C. v. Sch. Dist. of Philadephia, 595 F. Supp. 2d

566, 578-80 (E.D. Pa. 2009).

We agree with the District Court’s conclusions that (1) it

had the power to award this type of specific non-monetary

equitable relief, and (2) that the award was appropriate under the

IDEA based on the specific facts of this case.

In both Burlington and Forest Grove School District v.

T.A., __ U.S. __, 129 S. Ct. 2484 (2009), the Supreme Court

declined to limit courts’ discretion in granting equitable relief

under the IDEA.

In Burlington, the Supreme Court held that section

1415(i)(2)(C)(iii)’s grant of authority includes “the power to

order school authorities to reimburse parents for their

expenditures on private special education services if the court

ultimately determines that such placement, rather than a

proposed IEP, is proper under the Act.” 471 U.S. at 369. The

Court reasoned that “a final judicial decision on the merits of an

IEP will in most instances come a year or more after the school

term covered by that IEP has passed.” Id. at 370. Parents who

disagree with a school’s proposed IEP face the choice of

continuing in public school with the deficient IEP or paying for

more appropriate schooling. If the parents choose private

school, “it would be an empty victory to have a court tell them

several years later that they were right [in their choice for

private school] but that these expenditures could not in a proper

case be reimbursed by the school officials.” Id. As such, the

Court concluded that in mandating that participating States

provide a FAPE for every student, Congress could not have
12

intended to require parents either to accept an inadequate

public-school education pending adjudication of their claim or

bear the cost of a private education if the court ultimately

determined that the private placement was proper under the Act.

Id.

In Forest Grove, the Court addressed whether, under the

IDEA, awarding reimbursement for private education was

appropriate when the student had never received special

education through the public school system. 129 S. Ct. at 2488.

The student in Forest Grove was removed by his parents from

public school and placed in private school. He never received

special education services from the public school district. His

parents then requested a hearing for his eligibility for specialeducation services under the IDEA. The school district argued

that the IDEA categorically barred reimbursement unless a child

has “previously received special education or related services

under the [school’s] authority.” Id. at 2486 (citing 20 U.S.C.

1412(a)(10)(C)(ii)).

The Supreme Court disagreed and found that while the

specific circumstance in that case was not explicitly provided for

in the IDEA, private school reimbursement was appropriate

relief under equitable principles pursuant to 20 U.S.C.

§ 1415(i)(2)(C). The Court reasoned that “[w]ithout [this

reimbursement], a ‘child’s right to a free appropriate education

. . . would be less than complete.’” Id. at 2495-96 (citing

Burlington, 471 U.S. at 369). As such, the Court found that the

IDEA did not categorically bar reimbursement of private

education tuition if a child had not previously received special

education and related services through the public school.
13

While neither Burlington nor Forest Grove addressed the

specific type of equitable relief granted in this case, we find

nothing in the text of those opinions that forecloses the type of

equitable award provided to Ferren by the District Court. Nor

do we find case law from our sister circuits that supports the

argument that a court’s power to grant equitable relief under the

IDEA is simply limited to monetary awards.

Applying the standard set forth in Burlington, we find

that the relief granted here was “appropriate” under the IDEA

because it furthers the purposes of the Act. See Burlington, 471

U.S. at 369 (relief under section 1415(i)(2)(C)(iii) is

“appropriate” if it furthers the purposes of the IDEA). Ferren’s

specialized education at Elwyn will address her “unique needs

and prepare [her] for further education, employment, and

independent living.” 20 U.S.C. § 1400(d)(1)(A). The equitable

relief will further ensure that Ferren’s educational rights under

the IDEA are enforced and that she receives the education to

which she was statutorily entitled. Id. at § 1400(d)(1)(B).

The School District has already funded a trust fund to

provide Ferren with compensatory education. The purpose of

this monetary award – to make up for past failures on the part of

the School District – would be frustrated because Ferren could

not remain at Elwyn without the School District providing IEPs

and serving as Ferren’s LEA. Elwyn is able to provide Ferren

with the unique educational services that her severe disabilities

require. Allowing the School District to refuse to provide IEPs

and to simply fund Ferren’s compensatory education would

undoubtedly further hamper Ferren’s education and deprive her

of her educational rights under the IDEA.
14

Finally, a “money-only” type of award for Ferren is

exactly the type of empty victory that the Supreme Court sought

to avoid in Burlington. 471 U.S. at 370. During her time in the

School District, Ferren was deprived of a FAPE, and, by

extension, an IEP. Compensatory education is “a remedy to

compensate [] for rights the district already denied.” Lester H.,

916 F.2d at 872. If an individual was deprived of his or her

right to an adequate FAPE, and by extension an IEP, prior to the

age of twenty-one, it follows that the student could only be fully

compensated by an award of compensatory education that

contains the elements of a FAPE that she was previously denied.

There is nothing in the IDEA that evinces Congressional intent

to limit courts’ equitable power to awards of only financial

support. In certain cases, such as the one here, monetary awards

can not fully compensate a student for a school district’s past

failures.

The School District expressed concerns that by extending

its obligations to provide an IEP past a student’s twenty-first

birthday we open the door to a large number of other students

seeking IEPs as a part of compensatory education past their

twenty-first birthday and will subject the School District to

ongoing litigation costs as challenges are made to the adequacy

of these IEPs. While we acknowledge these legitimate concerns

given the budget constraints faced by school districts, both

arguments are ultimately unavailing.

The District Court in its opinion was careful to note, and

we echo its conclusion, that this specific type of equitable relief

would only be granted on a case-by-case basis, depending on the

specific situation of each student. In each case, a court will
15

evaluate the specific type of relief that is appropriate to ensure

that a student is fully compensated for a school district’s past

violations of his or her rights under the IDEA and develop an

appropriate equitable award. Further, any additional litigation

over the adequacy of the compensatory education can be

minimized if the School District simply complies with the

requirements of the IDEA.

IV.

For the foregoing reasons, we will affirm the District

Court’s order awarding compensatory education to Ferren.