1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-20-1995

David v Wilson School Dist.

Precedential or Non-Precedential:

Docket 94-2051

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Recommended Citation

"David v Wilson School Dist." (1995). 1995 Decisions. Paper 294.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-2051 

 

SUSAN N.; DAVID N., 

Individually and as Parents and Natural 

Guardians to M.N. a minor, 

 Appellants

v. 

WILSON SCHOOL DISTRICT 

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 93-4658) 

 

Argued October 10, 1995 

BEFORE: GREENBERG, LEWIS, and ROSENN, Circuit Judges

(Filed: November 20, 1995) 

 

 Leonard Rieser (argued) 

 Alyssa R. Fieo 

 Education Law Center 

 801 Arch Street 

 Suite 610 

 Philadelphia, PA 19107 

 

 Attorneys for Appellants

 Andrew E. Faust (argued) 

 Rosemary E. Mullaly 

 Sweet, Stevens, Tucker & Katz 

 116 East Court Street 

 P.O. Box 150 

 Doylestown, PA 18901 

 Attorneys for Appellee
2 

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 This case arises under the Individuals with 

Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-85 (1990). 

Appellants Susan and David N. brought the case individually, and 

as parents and natural guardians of their daughter, M., against 

the Wilson School District, charging that it had not fulfilled 

its statutory obligations to M. under the IDEA. The hearing 

officer at the local educational level found in appellants' 

favor, concluding that M. was both mentally gifted and afflicted 

with a specific learning disability, and that she thereby was 

entitled to special education. An appeals panel at the state 

education agency level reversed the hearing officer's findings. 

The appellants challenged this decision in a civil action in the 

district court, which affirmed the decision of the appeals panel 

on the record of the administrative proceedings without accepting 

the appellants' proffer of additional evidence. The appellants 

appeal from the district court's order entered September 27, 

1994, in accordance with its opinion. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. FACTUAL BACKGROUND 

 The appellants reside in the Wilson School District 

with M., who is now nine years old. They believe that M. suffers 
3 

from attention deficit disorder with hyperactivity ("ADHD"), a 

learning disability manifested in attention problems, hyperactive 

motor behavior, poor social skills, extensive difficulty in 

completing tasks, low frustration tolerance, and low self-esteem. 

Memorandum and Order of the District Court ("Mem."), N. v. Wilson 

Sch. Dist., No. 93-4658, slip op. at 2 (E.D. Pa. Sept. 26, 1994). 

M. has been treated with Ritalin, a medication intended to 

control the symptoms of ADHD. See Mem. at 3 n.6. The appellants 

believe that M.'s disability may affect her progress in school 

and that she is entitled to special education from the State of 

Pennsylvania. Id. at 2. 

 During the spring of 1992, when M. was in kindergarten, 

the appellants requested that the school district undertake a 

multidisciplinary evaluation of her to determine whether she was 

in need of special education.1 Id. In accordance with the 

appellants' request, a district multidisciplinary team ("MDT") 

conducted an evaluation in April 1992 that included two 

psychological examinations, an interview with M.'s kindergarten 

teacher, and discussions with appellants. Id. at 2-3. The MDT 

issued a report on June 2, 1992, concluding that M. was not 

"exceptional,"2 and that she did not require special education. 

 

1

 Under the IDEA, "special education" is defined as "specially 

designed instruction, at no cost to parents or guardians, to meet 

the unique needs of a child with a disability, including -- (A) 

instruction conducted in the classroom, in the home, in hospitals 

and institutions, and in other settings; and (B) instruction in 

physical education." 20 U.S.C. § 1401(a)(16). 

2

Pennsylvania defines the term "exceptional children" as 

"children of school age who deviate from the average in physical, 

mental, emotional or social characteristics to such an extent 

that they require special educational facilities or services 
4 

Specifically, the MDT found that M. did exhibit symptoms 

consistent with ADHD, including processing weaknesses that 

involved fine motor control, but that she had strong verbal 

skills and her ability and achievement levels were average or 

above average. The MDT concluded that M. could be educated in a 

regular classroom as long as her school program addressed "`her 

strong verbal skills, her weak motor skills, and her difficulty 

with impulsivity and inattention and hyperactivity (which often 

lead to disorganization).'" Id. at 3 (quoting Record at 321a). 

 On June 9, 1992, an Individual Education Program 

("IEP") team met with the appellants to discuss the MDT report.3

Mem. at 4. The IEP team agreed with the MDT's evaluation that M. 

was not exceptional and not in need of special education. The 

team concluded that, in spite of her weaknesses, M. could sustain 

 

. . . ." Pa. Stat. Ann. tit. 24, § 13-1371(1) (1992). 

 The IDEA defines "children with disabilities" as children 

"(i) with mental retardation, hearing impairments including 

deafness, speech or language impairments, visual impairments 

including blindness, serious emotional disturbance, orthopedic 

impairments, autism, traumatic brain injury, other health 

impairments, or specific learning disabilities; and (ii) who, by 

reason thereof, need special education and related services." 20 

U.S.C. § 1401(a)(1)(A). 

 In Pennsylvania, the term "exceptional" is used to refer both 

to students who are mentally gifted and in need of special 

education and students who have one of the 11 disabilities 

recognized under the IDEA and who, as a result thereof, require 

special education. See 22 Pa. Code §§ 14.1 (definitions of 

"exceptional student" and "eligible student"); 342.1(b) 

definition of "mentally gifted") (1994). The IDEA does not 

include the concept of "mentally gifted" within its definition of 

"children with disabilities." See 20 U.S.C. § 1401(a)(1)(A). 

3

 Under Pennsylvania law, an IEP team must make the final 

determination of whether a student is eligible for special 

education. See 22 Pa. Code §§ 14.32, 342.32 (1994). 
5 

herself in a regular academic curriculum with proper assistance 

from her parents and teachers. Id. The team then developed a 

Notice of Recommended Assignment ("NORA"), which consisted of 

written program "suggestions" to M.'s regular education teachers. 

Id.

 The appellants refused to approve the school district's 

NORA, which was offered to them on June 18, 1992. Mem. at 5. 

Instead, they requested a pre-hearing conference and an 

independent evaluation of M. at the school district's expense. On 

July 26, 1992, the appellants requested an administrative due 

process hearing pursuant to the IDEA, 20 U.S.C. § 1415(b)(1)(E).4

Id.

 A Pennsylvania Special Education Hearing Officer 

conducted the due process hearing on September 17 and September 

28, 1992. The appellants presented two issues: (1) whether, 

under Pennsylvania law, M. is a mentally gifted child suffering 

from a _!___E_@Error! Reference source not found.`ÆÐÐ20 U.S.C. ÀÀ 

1401(a)15. States wishing to receive funding underthe IDEA must 

ensure that "all children residing in the State whoare disabled, 

regardless of the severity of their disability, andwho are in 

need of special education and related services areidentified, 

located, and evaluated" by the state. 20 U.S.C. ÀÀÀÀ1412(2)(C), 

1414(a)(1)(A); ÃÃsee alsoÄÄ 34 C.F.R. ÀÀÀÀ 300.128(a)(1) ¬e 1, 

 

4

 The district court seems to have mistakenly treated the school 

district's list of recommendations (NORA) for M. as an Individual 

Education Program (IEP). See Mem. at passim. The parties have 

stipulated that the district court was in error. See Joint 

Stipulation, app. at 126. We describe an IEP, which is far more 

comprehensive than a NORA, later in this opinion. 
6 

300.220 & note, 300.300 note 3. This obligation is knownas the 

"child find" duty. ÃÃMatulaÄÄ, slip op. at 

10.ÔØ'0* ( (°°ÔŒÁ``ÁThe primary mechanism for delivering a free 

appropriateeducation is the development of a detailed instruction 

plan,known as an Individual Education Program ("IEP"), for each 

childclassified as disabled. 20 U.S.C. ÀÀ 1401(18). An IEP 

consistsof, ÃÃinter aliaÄÄ, a specific statement of a student's 

presentabilities, goals for improvement, services designed to 

meet thosegoals, and a timetable for reaching the goals via the 

services. ÃÃId.ÄÄ ÀÀ 1401(a)(20). The creation of an 

administrative structurecapable of producing IEPs is a requisite 

to receiving IDEA funds. ÃÃId.ÄÄ ÀÀ 1414(a)(5). To the extent 

possible, however, a school must"mainstream" disabled students ©© 

that is, instruct them in aregular, not special, education 

setting. ÃÃId.ÄÄ ÀÀ 1412(5).Á``ÁThe IDEA authorizes federal 

reviews of state and localcompliance, ÃÃseeÄÄ 34 C.F.R. ÀÀÀÀ 

104.61, 100.7, and affords certainprocedural safeguards to the 

parents of disabled children. ÃÃInteraliaÄÄ, parents may examine 

all relevant records concerningevaluation and placement of their 

children, 20 U.S.C. ÀÀ1415(b)(1)(A); must receive prior written 

notice when a schoolproposes or refuses to alter a placement, ÀÀ 

1415(b)(1)(C); maycontest in an impartial due process hearing 

decisions regardingthe evaluation of their child or the 

appropriateness of thechild's program, ÀÀÀÀ 1415(b)(1)(E), 

1415(b)(2); may appeal thedecision from such a hearing to the 

state education agency, ÀÀ1415(c); and may obtain judicial review 

of the administrativedecision, ÀÀ 1415(e)(2). ÃÃSeeÄÄ 
7 

ÃÃMatulaÄÄ, slip op. at 11;ÃÃBernardsville Bd. of Educ. v. 

J.H.ÄÄ, 42 F.3d 149, 158 & n.13 (3dÔ'0* ( (°°ÔCir. 1994); 

ÃÃLester H. v. GilhoolÄÄ, 916 F.2d 865, 869 (3d Cir.1990), 

ÃÃcert. deniedÄÄ, 499 U.S. 923, 111 S.Ct. 1317 (1991). 

Pennsylvania fulfills its IDEA obligations through a 

complexstatutory and regulatory scheme codified at Pa. Stat. Ann. 

tit.24, ÀÀÀÀ 13©1371 and 13©1372 (1992), and 22 Pa. Code ÀÀÀÀ 

14.1 to14.74, 342.1 to 342.74 (1994).ÁàôìÁB. JUDICIAL REVIEW 

UNDER THE IDEAƒÁ``ÁAs we noted above, the appellants brought this 

actionagainst the school district after requesting an 

administrativedue process hearing before a Pennsylvania Special 

EducationHearing Officer to satisfy a requirement of the IDEA, 20 

U.S.C.ÀÀÀÀ 1415(b)(1)(E), 1415(b)(2). Mem. at 5. After the 

hearingofficer decided in appellants' favor, the school 

districtappealed his decision to the Pennsylvania Special 

EducationAppeals Panel, which ruled in its favor. ÃÃId.ÄÄ at 7. 

Accordingly,the appellants exhausted the IDEA's provisions for 

administrativereview, ÃÃseeÄÄ section 1415(c), and thus were 

entitled to bring thiscivil action. ÃÃSeeÄÄ section 1415(e)(2). 

It is the nature of thatjudicial proceeding, in particular the 

extent to which the courtis required to receive evidence beyond 

that contained in theadministrative record, that the parties now 

principally dispute.Á``ÁWe approach this question by first 

addressing thejudicial review provision of the IDEA, section 

1415(e)(2), whichprovides in relevant part:ÐÐÐÐÂ°``ÂAny party 

aggrieved by the findings anddecision made under subsection . . . 

shallhave the right to bring a civil action withrespect to the 
8 

complaint presented pursuant toÔØ'0* ( (°°Ôthis section, which 

action may be brought inany State court of competent jurisdiction 

orin a district court of the United Stateswithout regard to the 

amount in controversy. In any action brought under this paragraph 

thecourt shall receive the records of theadministrative 

proceedings, shall hearadditional evidence at the request of a 

party,and, basing its decision on the preponderanceof the 

evidence, shall grant such relief asthe court determines is 

appropriate.ÐÐÆx`ÆÐÐ20 U.S.C. ÀÀ 1415(e)(2).Áhh#ÁIn determining 

the scope of a districtcourt's review under the IDEA, the Supreme 

Court has stated thatthe statute's language instructing that the 

district court,"basing its decision on the preponderance of the 

evidence, shallgrant such relief as the court determines is 

appropriate," doesnot mean that courts are free to substitute 

their own notions ofsound education policy for those of the 

educational agencies theyreview, but rather that they should give 

"due weight" to theadministrative proceedings. ÃÃBoard of Educ. 

v. RowleyÄÄ, 458 U.S.at 205©06, 102 S.Ct. at 3050©51; ÃÃsee 

alsoÄÄ ÃÃFuhrmann v. EastHanover Bd. of Educ.ÄÄ, 993 F.2d 1031, 

1034 (3d Cir. 1993). Naturally, the requirement that the courts 

give "due weight" toadministrative proceedings has obliged the 

district courts todetermine how much weight is "due." ÃÃSeeÄÄ 

ÃÃCapistrano Unified Sch.Dist. v. WartenbergÄÄ, 59 F.3d 884, 891 

(9th Cir. 1995).Á``ÁThe Court of Appeals for the Ninth Circuit 

has observedthat "judicial review in IDEA cases differs 

substantially fromjudicial review of other agency actions, in 

which courtsgenerally are confined to the administrative record 
9 

and are heldto a highly deferential standard of review." ÃÃOjai 

Unified Sch.Ô'0* ( (°°ÔDist. v. JacksonÄÄ, 4 F.3d 1467, 1471 (9th 

Cir. 1993), ÃÃcert.deniedÄÄ, 115 S.Ct. 90 (1994). Because the 

IDEA specificallyrequires a district court to "receive the 

records of theadministrative proceedings, . . . hear additional 

evidence at therequest of a party, and, basing its decision on 

the preponderanceof the evidence," grant any appropriate relief, 

20 U.S.C. ÀÀ1415(e)(2), a district court "does not use the 

substantialevidence standard typically applied in the review 

ofadministrative agency decisions, `but instead must 

decideindependently whether the requirements of the IDEA are 

met.'" ÃÃMurray v. Montrose County Sch. Dist.ÄÄ, 51 F.3d 921, 927 

(10th Cir.1995) (quoting ÃÃBoard of Educ. v. Illinois State 

Bd.ÄÄ, 41 F.3d1162, 1167 (7th Cir. 1994)).Á``ÁThe courts of 

appeals differ in their description ofthe interplay between the 

Supreme Court's "due weight"interpretation and the IDEA's 

provision for independent judicialreview. As the Court of 

Appeals for the Tenth Circuit recentlysummarized,ÐÐÐÐÂ°``Â[t]he 

district court must . . . independentlyreview the evidence 

contained in theadministrative record, accept and 

reviewadditional evidence, if necessary, and make adecision based 

on the preponderance of theevidence, while giving 'due weight' to 

theadministrative proceedings below. This hasbeen described as a 

'modified ÃÃde novoÄÄ review,'or as 'involved 

oversight.'ÐÐÆx`ÆÐÐÃÃMurrayÄÄ, 51 F.3d at 927 (citations 

omitted). The Court of Appealsfor the First Circuit has 

described judicial review under theIDEA as follows: "Congress 
10 

intended courts to make bounded,Ô'0* ( (°°Ôindependent decisions 

©© bounded by the administrative record andadditional evidence, 

and independent by virtue of being based ona preponderance of the 

evidence before the court[.]" ÃÃTown ofBurlington v. Department 

of Educ.ÄÄ, 736 F.2d 773, 791 (lst Cir.1984), ÃÃaff'd on other 

groundsÄÄ, 471 U.S. 359, 105 S.Ct. 1996(1985).Á``ÁWe have not 

spoken definitively on what constitutes"due weight" under the 

ÃÃRowleyÄÄ standard, and need not do so today. We, however, have 

referred to the interpretation of the standardfirst developed by 

the Court of Appeals for the First Circuit:ÐÐÐÐÂ°``Â[T]he 

question of the weight due theadministrative findings of facts 

must be leftto the discretion of the trial court. Thetraditional 

test of findings being binding onthe court if supported by 

substantialevidence, or even a preponderance of theevidence, does 

not apply. This does not mean,however, that the findings can be 

ignored. The court, in recognition of the expertise ofthe 

administrative agency, must consider thefindings carefully and 

endeavor to respond tothe hearing officer's resolution of 

eachmaterial issue. After such consideration, thecourt is free 

to accept or reject the findingsin part or in 

whole.ÐÐÆx`ÆÐÐÃÃBurlingtonÄÄ, 736 F.2d at 791©92; ÃÃseeÄÄ 

ÃÃCarlisle Area Sch. v. ScottP.ÄÄ, 62 F.3d 520, 527 (3d Cir. 

1995) ("[D]istrict courts havediscretion to determine how much 

deference to accord theadministrative proceedings[.]"); 

ÃÃBernardsvilleÄÄ, 42 F.3d at 161(quoting ÃÃBurlingtonÄÄ); 

ÃÃOberti v. Board of Educ.ÄÄ, 995 F.2d 1204,1219 (3d Cir. 1993) 

("[T]he amount of deference to be affordedthe administrative 
11 

proceedings `is an issue left to thediscretion of the district 

court.'") (quoting ÃÃJefferson CountyÔ'0* ( (°°ÔBd. of Educ. v. 

BreenÄÄ, 853 F.2d 853, 857 (11th Cir. 1988));ÃÃFuhrmannÄÄ, 993 

F.2d at 1042 (Hutchinson, J., concurring anddissenting).Á``ÁThe 

district court relied on ÃÃRowleyÄÄ for itsdetermination that 

"[w]hile the court may, at its discretion,hear additional 

evidence, it must give `due weight' to theadministrative 

proceedings and the education experience andexpertise applied 

therein." Mem. at 11. The district courtthereafter concluded 

that "the proper exercise of discretionmove[d] it to decline to 

second©guess the judgment of theadministrative panel with 

evidence that was not before the panelwhen it made its decision," 

Mem. at 12. Accordingly, thedistrict court ruled on the merits 

of the appellants' casewithout evaluating or accepting their 

proffer of additionalevidence. ÃÃId.ÄÄ The district court thus 

seems to have interpretedÃÃRowleyÄÄ to limit severely the IDEA's 

directive in section1415(e)(2) that, on judicial review, a court 

"shall hearadditional evidence at the request of a party." 

Á``ÁOur review of a district court's legal analysis isplenary. 

However, our review here "must be conducted within thegeneral 

framework of deference to state decision©makers" that isdictated 

by the IDEA and by the Supreme Court's direction inÃÃRowleyÄÄ. 

ÃÃFuhrmannÄÄ, 993 F.2d at 1032 (citing ÃÃWexler v. WestfieldBd. 

of Educ.ÄÄ, 784 F.2d 176, 181 (3d Cir.), ÃÃcert. deniedÄÄ, 479 

U.S.825, 107 S.Ct. 99 (1986)); ÃÃsee alsoÄÄ ÃÃCarlisleÄÄ, 62 F.3d 

at 526("We, of course, exercise plenary review over the 

districtÔ'0* ( (°°Ôcourt's conclusions of law and review its 
12 

findings of fact forclear error."). In view of a district 

court's scope of reviewunder section 1415(e)(2) which goes beyond 

the traditionaldeferential standard, and in view of the provision 

in thatsection for the court to hear additional evidence at the 

requestof a party, we hold that the district court erred in 

concludingthat it is within a court's discretion summarily to 

excludealtogether the consideration of additional evidence 

submitted bya party. Consequently, we are obliged to vacate its 

order andremand the matter for further proceedings. We turn, 

then, to aconsideration of what additional evidence may be 

introduced onthe remand.ÁàˆìÁC. ADDITIONAL EVIDENCEƒÁ``ÁThe 

Court of Appeals for the First Circuit, inÃÃBurlingtonÄÄ, 736 

F.2d 773, seems to have been the first court ofappeals to analyze 

the IDEA's directive that a district court"shall hear additional 

evidence at the request of a party." ÃÃId.ÄÄat 790. There, the 

court held that the word "additional" shouldbe construed in the 

ordinary sense of the word to mean"supplemental." ÃÃId.ÄÄ Thus 

construed, the act:ÐÐÐÐÂ°``Â[C]ontemplates that the source of the 

evidencegenerally will be the administrative hearingrecord, with 

some supplementation at trial. The reasons for supplementation 

will vary;they might include gaps in the administrativetranscript 

owing to mechanical failure,unavailability of a witness, an 

improperexclusion of evidence by the administrativeagency, and 

evidence concerning relevantevents occurring subsequent to 

theadministrative hearing. The starting pointfor determining 

what additional evidenceÔØ'0* ( (°°Ôshould be received, however, 

is the record ofthe administrative proceeding.ÐÐÆx`ÆÐÐÃÃId.ÄÄ In 
13 

providing examples of types of additional evidence thatmight be 

relevant to judicial review under the IDEA, theÃÃBurlingtonÄÄ 

court did not limit admissible evidence to those typesenumerated, 

which interpretation the school district would haveus make. 

ÃÃSeeÄÄ appellee's br. at 12©13. In contrast, the courtseems 

merely to have provided examples of additional evidencethat a 

court could find relevant to IDEA matters on judicialreview. 

Á``ÁAlthough we never explicitly have interpreted thephrase, we 

recently referred to the ÃÃBurlingtonÄÄ construction 

of"additional evidence" in ÃÃBernardsvilleÄÄ, 42 F.3d at 161, 

where weupheld a district court's decision to exclude evidence 

ascumulative and an improper embellishment of testimony 

previouslygiven at an administrative hearing. ÃÃSee alsoÄÄ 

ÃÃObertiÄÄ, 995 F.2d at1220 (court makes fact findings in IDEA 

case not only onadministrative record, but also on any new 

evidence presented byparties); ÃÃWexler v. Westfield Bd. of 

Educ.ÄÄ, 784 F.2d at 181(court must independently review the 

record, hear any requestedadditional evidence, and apply the 

preponderance standard). Other courts of appeals have followed 

ÃÃBurlingtonÄÄ's lead inconstruing section 1415(e)(2)'s 

"additional evidence" clause,ÃÃsee, e.g.ÄÄ, ÃÃOjaiÄÄ, 4 F.3d at 

1473 (upholding district court'sadmission of additional evidence 

concerning relevant eventsoccurring subsequent to the 

administrative hearing), although theinterpretation is not 

unanimous. ÃÃSeeÄÄ ÃÃMetropolitan Gov't ofÔØ'0* ( (°°ÔNashville 

v. CookÄÄ, 915 F.2d 232, 234 (6th Cir. 1990) ("Insofar as[the 

language in ÃÃBurlingtonÄÄ] suggests that additional evidence 
14 

isadmissible only in limited circumstances, such as to 

supplementor fill in the gaps in the evidence previously 

introduced, wedecline to adopt the position taken by the First 

Circuit."); ÃÃseealsoÄÄ ÃÃMurrayÄÄ, 51 F.3d at 930©31 & n.15. 

Á``ÁAlthough we make no explicit interpretation of 

section1415(e)(2)'s "additional evidence" clause, even 

underÃÃBurlingtonÄÄ's restrictive approach a district court first 

mustevaluate a party's proffered evidence before deciding to 

excludeit. Moreover, while the purpose of the ÃÃBurlingtonÄÄ 

constructionis to "structurally assist[ ] in giving due weight to 

theadministrative proceeding, as ÃÃRowleyÄÄ requires," 

ÃÃBurlingtonÄÄ, 736F.2d at 790, the court of appeals did not say 

that a districtcourt arbitrarily or summarily could exclude 

additional evidencesubmitted by a party in pursuit of that 

deference. On thecontrary, the examples that ÃÃBurlingtonÄÄ 

provided of additionalevidence that should ÃÃnotÄÄ be admitted 

were all types of evidencethat courts might decide to exclude in 

a conventional civilproceeding. For instance, the court stated 

that the additionalevidence clause "does not authorize witnesses 

at trial to repeator embellish their prior administrative hearing 

testimony; thiswould be entirely inconsistent with the usual 

meaning of`additional.'" ÃÃId.ÄÄ Even while making this 

statement, though,the court stressed that it would not be wise to 

devise a hardaand©fast rule:Ô'0* ( (°°ÔŒÐÐÐÐÂ°``ÂWe decline to 

adopt the rule urged bydefendants that the appropriate 

constructionis to disallow testimony from all who did, orcould 

have, testified before theadministrative hearing. We believe 
15 

that,although an appropriate limit in many cases, arigid rule to 

this effect would unduly limit acourt's discretion and constrict 

its abilityto form the independent judgment Congressexpressly 

directed. A salient effect ofdefendants' proposed rule would be 

to limitexpert testimony to the administrativehearing. Our 

review of the cases involvingthe Act reveals that in many 

instances thedistrict court found expert testimony helpfulin 

illuminating the nature of the controversyand relied on it in its 

decisional process. Å°ÅThere could be some valid reasons for 

notpresenting some or all expert testimony beforethe state 

agency.ÐÐÆx`ÆÐÐÃÃId.ÄÄ at 790©91.Å°ÅÁ``ÁThus, the ÃÃBurlingtonÄÄ 

court stated that certain evidencemay be excluded under IDEA 

judicial review out of deference tothe administrative 

proceedings. The court, however, declined todevise a bright©line 

rule, choosing instead to leave "thequestion of the weight due 

the administrative findings of fact"to the discretion of the 

trial court. ÃÃId.ÄÄ at 791©92. Othercourts, including ours, 

likewise have condoned the exclusion ofadditional evidence 

submitted by the parties to an IDEAproceeding when, for a 

particular reason, the court properlycould exclude the evidence. 

ÃÃSee, e.g.ÄÄ, ÃÃBernardsvilleÄÄ, 42 F.3d at161 (upholding 

exclusion of evidence as cumulative and improperembellishment of 

testimony previously given at administrativehearing).Á``ÁIt is 

regularly held that the question of whatadditional evidence to 

admit in an IDEA judicial reviewÔØ'0* ( (°°Ôproceeding, as well 

as the question of the weight due theadministrative findings of 

fact, should be left to the discretionof the trial court. ÃÃSee, 
16 

e.g.ÄÄ, ÃÃCarlisleÄÄ, 62 F.3d at 527;ÃÃBernardsvilleÄÄ, 42 F.3d 

at 161; ÃÃObertiÄÄ, 995 F.2d at 1219;ÃÃBurlingtonÄÄ, 736 F.2d at 

791©92. As appellants note, Congress'central goal in enacting 

the IDEA was to ensure "that each childwith disabilities has 

access to a program that is tailored to hisor her changing needs 

and designed to achieve educationalprogress." Appellants' br. at 

11. Children are not staticbeings; neither their academic 

progress nor their disabilitieswait for the resolution of legal 

conflicts. While a districtcourt appropriately may exclude 

additional evidence, a court mustexercise particularized 

discretion in its rulings so that it willconsider evidence 

relevant, non©cumulative and useful indetermining whether 

Congress' goal has been reached for the childinvolved. 

Consequently, on the remand the district court shoulduse this 

standard in determining whether to admit the proferredadditional 

evidence, ÃÃi.e.ÄÄ, would the evidence assist the court 

inascertaining whether Congress' goal has been and is being 

reachedÔ‰?°Ôfor the child involved.Ö›x°$=Because we vacate the 

judgment of the district court andremand the case for the 

district court's evaluation of additionalevidence, which may lead 

to the admission of some, none, or allof the evidence submitted, 

it is not necessary for us to addressappellants' claim that the 

district court denied them a fairopportunity to argue their case. 

The remand necessarily resolvesthat issue. ›ÖÁàèìÁD. ÃÃFUHRMANN 

V. EAST HANOVER BOARD OF EDUCATIONÄÄƒÔ@0* ( (°°ÔŒÁ``ÁWe consider 

one final matter with respect to the"additional evidence" clause 

of the IDEA. In deciding to rule onthe merits of appellants' 
17 

IDEA claims without evaluating oraccepting their offer of 

additional evidence, the district courtrelied on our holding in 

ÃÃFuhrmannÄÄ, 993 F.2d 1031, in addition torelying on the Supreme 

Court's decision in ÃÃRowleyÄÄ. ÃÃSeeÄÄ Mem. at11©12. The 

district court cited ÃÃFuhrmannÄÄ for the propositionthat "the 

court cannot assess the adequacy of a student'splacement `at some 

later date when one has the benefit of thechild's actual 

experience,'" Mem. at 11 (quoting ÃÃFuhrmannÄÄ, 993F.2d at 1040), 

but instead "must measure the adequacy of aneducational program 

at the time it was offered to the student." Mem. at 12 (citing 

ÃÃFuhrmannÄÄ, 993 F.2d at 1040). As theappellants "proposed that 

they be allowed to supplement therecord with additional evidence 

which was not available in 1992,"the district court chose to 

address the merits of their casewithout evaluating or admitting 

that evidence because in the eyesof the district court, doing so 

would be "second©guess[ing] thejudgment of the administrative 

panel with evidence that was notbefore the panel when it made its 

decision." Mem. at 12. Thecourt proceeded to "confine its 

analysis to the evidence that wasbefore the panel in 1992, and . 

. . give due deference to the[administrative] panel's findings." 

ÃÃId.ÄÄ In order to addressÔ`"0* ( (°°Ôcompletely appellants' 

claim for relief, we must revisit theÔ‰?Ôevidentiary issues we 

considered in ÃÃFurhmannÄÄ.ÖE$=Appellants try to minimize the 

applicability of ÃÃFuhrmannÄÄ tothis case by pointing out that 

the major thrust of their claim is"for a prospective 

determination of eligibility for services," appellants' br. at 

20. They continue:ÐÐÂ°``ÂIt may well be unfair to force a 
18 

district topay reimbursement where it correctlyidentified the 

child as eligible and developedan IEP reasonably calculated to 

produceprogress, even if, in hindsight, progress didnot actually 

occur. But there is nothingunfair about parents trying to 

convince acourt that their child should be declared ©©at least 

from that point forward ©© to have adisability, and nothing 

irrelevant aboutevidence that brings the court up to date 

onwhether indicia of a disability are present.Æx`ÆÐÐAppellants' 

br. at 20©21. Although appellants try to convince usthat we need 

not address ÃÃFuhrmannÄÄ's effect on their claims, ÃÃseeÄÄbr. at 

21 n.10 ("[T]he Court need not decide these points."),appellants, 

as they admit, did include claims for reimbursementin their 

complaint in the district court. Br. at 20 n.9. Thus,we must 

address ÃÃFuhrmannÄÄ's holding to see if what appellants seekis 

truly the "unfair" use of hindsight in judging the 

schooldistrict's decision regarding M.'s eligibility for 

specialeducation.EÖÁ``ÁIn ÃÃFuhrmannÄÄ, we addressed the claim of 

parents of achild with disabilities for reimbursement for two 

years ofprivate schooling for their son. The parents contended 

that theindividual education programs that the school district 

hadoffered to the child were inappropriate and thus violated 

theÔ‰?ðÔIDEA.ÖÈx0ð ̈$=Appellants again try to distinguish their 

case from ÃÃFuhrmannÄÄ by pointing out that "[u]nlike the 

[appellants] here,the parents in ÃÃFuhrmannÄÄ were not seeking a 

determination ofeligibility for special education, or a finding 

concerning theprogram that would be appropriate for their child 

in the future." Appellants' br. at 19. We decline, however, to 
19 

draw such aÔØ'0* ( (°°Ôbright line between the appropriateness of 

taking additionalevidence in an IDEA judicial review proceeding 

when thereasonableness of an IEP is at issue and taking such 

evidence ina proceeding where the initial determination of 

eligibility forspecial education is being litigated. However, we 

do note thatCongress' primary purpose in enacting the IDEA did 

seem to be theassurance of access to special education services 

for childrenwith disabilities. ÃÃSeeÄÄ 20 U.S.C. ÀÀ 1400(c) ("It 

is the purposeof this chapter to assure that all children with 

disabilitieshave available to them . . . a free appropriate 

public educationwhich emphasizes special education and related 

services designedto meet their unique needs[.]"). But we also 

note that in ÃÃW.B.v. MatulaÄÄ, No. 95©5033, we recently held 

that the IDEA allows therecovery of damages as rather broadly 

defined. Slip op. at 16a17. Obviously, a court would have to 

exercise great care inadmitting after©acquired evidence in a 

damages action,particularly one such as this case, which involves 

a claim forpunitive damages. Thus, while we are not drawing 

bright lines,we do observe that a more liberal approach might be 

appropriatein a case involving a claim for remedial educational 

relief ascontrasted to a damages action.ÈÖ Neither party sought 

to introduce additional evidence inÔðÀ0* ( (°°ÔÃÃFuhrmannÄÄ. 993 

F.2d at 1034 n.3. The issue, instead, was theweight that the 

district court should give to evidence already inthe 

administrative record regarding the child's progress inprivate 

school (evidence amassed after the school district'sdecision 

regarding the IEP but before the parents sought judicialreview). 
20 

ÃÃId.ÄÄ at 1039. As appellants note, we held in ÃÃFuhrmannÄÄthat 

the district's liability hinged upon whether its proposedprogram 

for the child was, at the time it was offered,"reasonably 

calculated" to benefit the child. Appellants br. at19. 

Appellants interpret our ruling as follows:ÐÐÐÐÂ°``ÂThe Court 

declined, therefore, to adopt a ruleunder which the district 

would have beenfinancially penalized for an IEP that, 

whileapparently appropriate at the time it wasdeveloped, turned 

out in hindsight to beinadequate. Accordingly, the Court 

held,evidence of the child's subsequent educationalprogress (or 

lack thereof) could be consideredÔÀ0* ( (°°Ôonly insofar as it 

bore on the issue ofwhether the IEP was appropriate when it 

wascreated.ÐÐÆx`ÆÐÐAppellants' br. at 20 (citing ÃÃFuhrmannÄÄ, 

993 F.2d at 1040).Á``ÁAppellants' characterization of our holding 

in ÃÃFuhrmannÄÄis fair. The case was unusual in that the panel 

authored threeseparate opinions: one opinion by Judge Garth for 

the court, oneconcurring opinion by Judge Mansmann, and one 

concurring anddissenting opinion by Judge Hutchinson. On the 

matter of whatweight to give evidence not before a school 

district when itoriginally made the decision regarding the 

educational placementof a child, Judge Garth and Judge Mansmann 

agreed on theaforementioned holding: "[T]he measure and adequacy 

of an IEP canonly be determined as of the time it is offered to 

the student,and not at some later date." 993 F.2d at 1040. 

However, despiteJudge Garth's statement that "Judge Mansmann and 

I are incomplete agreement as to the time when we must look at 

the`reasonable calculation' made pursuant to ÃÃRowleyÄÄ," 
21 

ÃÃid.ÄÄ, the twojudges may have come to different conclusions as 

to theconsequences of that holding. While Judge Garth stated 

that"evidence of a student's later educational progress may only 

beconsidered in determining ÃÃwhether the original IEP was 

reasonablycalculated to afford some educational benefitÄÄ," 

ÃÃid.ÄÄ (emphasisadded), Judge Mansmann concluded that "evidence 

of what tookplace after the hearing officer rendered his decision 

in the fallof 1989 is not relevant in deciding whether [the 

child's] 1989©90placement was appropriate." ÃÃId.ÄÄ at 1041 

(Mansmann, J.,Ô'0* ( (°°Ôconcurring). Judge Garth thus seemed to 

take the lessrestrictive approach, one that would admit evidence 

dating from atime after both the school district and the hearing 

officer madetheir decisions, but only in determining the 

reasonableness ofthe school district's original decision. Judge 

Mansmann'sopinion could be read to indicate that she would not 

admit suchevidence at all, and the school district advances that 

reading. ÃÃSeeÄÄ appellee's br. at 10 n.3.Á``ÁIn light of the 

IDEA's purpose "to assure that allchildren with disabilities have 

available to them . . . a freeappropriate public education which 

emphasizes special educationand related services," 20 U.S.C. ÀÀ 

1400(c), in addition to itsdirective to "hear additional evidence 

at the request of aparty," ÃÃid.ÄÄ ÀÀ 1415(e)(2), we believe that 

Judge Garth'sinterpretation of the statute should control the 

taking ofevidence on judicial review that was not before the 

schooldistrict when it made its initial IDEA placement decisions. 

Inso concluding, however, we stress that such 

after©acquiredevidence, such as information received through the 
22 

experience ofan alternative placement, should be used by courts 

only inassessing the reasonableness of the district's initial 

decisionsregarding a particular IEP or the provision of special 

educationservices at all. Courts must be vigilant to heed Judge 

Garth'swarning that "[n]either the statute nor reason 

countenance`Monday Morning Quarterbacking' in evaluating the 

appropriatenessof a child's placement." 993 F.2d at 1040. 

Ô'0* ( (°°ÔŒÁ``ÁThe dangers inherent in this process of 

second©guessingthe decisions of a school district with 

information to which itcould not possibly have had access at the 

time it made thosedecisions are great. As appellants recognize, 

it indeed would beunfair "to adopt a rule under which [a] 

district would [be]financially penalized for an IEP that, while 

apparentlyappropriate at the time it was developed, turned out in 

hindsightto be inadequate." Appellants' br. at 20. Our recent 

holding inÃÃCarlisleÄÄ, 62 F.2d at 534, is not inconsistent with 

theseconclusions, for in that case we merely emphasized 

theprospective nature of judging the appropriateness of a 

particularIEP, and cited ÃÃFuhrmannÄÄ for the prospect that a 

student'ssubsequent failure to make progress in school does 

notretrospectively render an IEP ÃÃperÄÄ ÃÃseÄÄ inappropriate. 

In ÃÃCarlisleÄÄ,we did not address specifically the issue of how 

to use afteraacquired evidence in assessing the reasonableness of 

an IEP ©© ajudicial process that, by the very nature of judicial 

review,must occur after the formulation of the educational 

program.Á``ÁIn remanding this case to the district court, then, 

wehold that it was not within that court's discretion to 
23 

rejectappellants' offer of additional evidence without even 

evaluatingit for its admissibility. However, we also note that, 

because atleast some of appellants' proffered additional evidence 

wasacquired after the school district's decision regarding M.'s 

needfor special education, the district court will need to 

examinesuch evidence carefully. Such evidence may be considered 

onlyÔ'0* ( (°°Ôwith respect to the ÃÃreasonablenessÄÄ of the 

district's decision atthe time it was made. Of course, this 

caveat does not mean thatthe court cannot exclude evidence that 

could have been availablewhen the school district made its 

decision.Áà@ìÁE. THE PREEMPTIVE EFFECT OF THE IDEAƒÁ``ÁFinally, 

appellants contend that the district courterroneously dismissed 

their additional statutory claims as"preempted" by the IDEA. We 

agree.Á``ÁSection 1415(f) of the IDEA 

states:ÐÐÐÐÐÐÂ°``ÂÁ ̧ ̧ÁNothing in this chapter shall beconstrued 

to restrict or limit the rights,procedures, and remedies 

available under theConstitution, title V of the RehabilitationAct 

of 1973 [29 U.S.C. ÀÀ 790 et seq.], orother Federal statutes 

protecting the rightsof children and youth with 

disabilities,except that before the filing of a civilaction under 

such laws seeking relief that isalso available under this 

subchapter, theprocedures under subsections (b)(2) and (c) ofthis 

section shall be exhausted to the sameextent as would be required 

had the actionbeen brought under this subchapter.ÐÐÆx`ÆÐÐ20 

U.S.C. ÀÀ 1415(f). In its Memorandum Opinion, the districtcourt 

interpreted this section of the IDEA to mean that "parentsmust 

first challenge [an] educational program under the IDEAbefore 
24 

they may pursue a civil action alleging additional causesof 

action." Mem. at 10©11. The court thereafter concluded thatthe 

appellants' additional statutory claims were "clearly preaempted 

by ÀÀ 1415(f)" and therefore should be dismissed. ÃÃId.ÄÄ 

at11.Á``ÁThe district court's dismissal of appellants'additional 

statutory claims was a legal determination over 

whichÔØ'0* ( (°°Ôwe exercise plenary review. ÃÃCarlisleÄÄ, 62 

F.3d at 526; ÃÃFuhrmannÄÄ,993 F.2d at 1033. While section 

1415(f) requires a party toexhaust the IDEA's administrative 

remedies before pursuing otherclaims, the section makes clear 

that the IDEA is not theexclusive avenue through which children 

with disabilities canassert claims for an appropriate education. 

ÃÃW.B. v. MatulaÄÄ, slipÔ‰?`Ôop. at 14©15;ÃÃÄÄ ÃÃHayes v. Unified 

Sch. Dist.ÄÄ, 877 F.2d 809, 812(10th Cir. 1989); ÃÃBoard of Educ. 

v. DiamondÄÄ, 808 F.2d 987, 995(3d Cir. 1986).Á``ÁIndeed, 

Congress amended the IDEA in 1986 to includesection 1415(f) in 

response to the Supreme Court's decision inÃÃSmith v. RobinsonÄÄ, 

468 U.S. 992, 104 S.Ct. 3457 (1984), whichheld that the IDEA was 

the exclusive statute through which adisabled child could obtain 

relief. ÃÃSeeÄÄ The HandicappedChildren's Protection Act of 

1986, Pub. L. No. 99©372 ÀÀ 3, 100Stat. 796, 797 (1986). Section 

1415(f) thus clarified Congress'intent with regard to the 

preemptive effect of the IDEA. ÃÃDiamondÄÄ, 808 F.2d at 995. As 

we recently stated, "Section1415(f) was . . . enacted to 

`reaffirm, in light of [ÃÃSmithÄÄ], theviability of section 504, 

42 U.S.C. ÀÀ 1983, and other statutes asseparate vehicles for 

ensuring the rights of handicappedchildren.'" ÃÃMatulaÄÄ, slip 
25 

op. at 14©15 (quoting H.R. Rep. No. 99a296, 99th Cong., 1st Sess. 

4 (1985)); ÃÃsee alsoÄÄ ÃÃMrs. W. v.TirozziÄÄ, 832 F.2d 748, 

754©55 (2d Cir. 1987).Á``ÁThus, the district court erred in 

dismissing theappellants' additional statutory claims as 

preempted by the IDEA. Ô'0* ( (°°ÔWhile the school district 

states that "the lower court appears tohave overlooked Section 

1415(f) of the IDEA" in so ruling,appellee's Br. at 18, it claims 

that "the record simply does notsupport the maintenance of a 

cause of action against appellees onany other theory." ÃÃId.ÄÄ 

But even though this assertion may beestablished on remand, it 

was not within the district court'sdiscretion to dismiss the 

appellants' claims without addressingtheir merits. Accordingly, 

we will vacate the order of thedistrict court dismissing 

appellants' additional statutoryÔ‰?Ôclaims.ÃÃÄÄÃÃÔ‰?0ÔÁàhì#ÁIII. 

CONCLUSIONÄÄƒÁ``ÁFor all the reasons detailed above, we will 

vacate thedistrict court's order entered September 27, 1994. We 

willremand the case to the district court for the evaluation 

and,perhaps, depending on that evaluation, the taking of 

additionalevidence on the IDEA claim and for further proceedings 

consistentwith this opinion. Costs shall be allowed the 

appellants.