PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-1447

______

RIDLEY SCHOOL DISTRICT

v.

M.R.; J.R., PARENTS OF MINOR CHILD E.R.

v.

JANET CENNAME

M.R.; J.R. Parents of Minor Child E.R.,

Appellants

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-02503)

District Judge: Honorable Mitchell S. Goldberg

______

Argued March 19, 2012

Before: RENDELL, FISHER and
2

CHAGARES, Circuit Judges.

(Filed: May 17, 2012)

Alan L. Yatvin (Argued)

Popper & Yatvin

230 South Broad Street, Suite 503

Philadelphia, PA 19102

Counsel for Appellants

Jennifer C. Lowman (Argued)

Leonard Rieser

Education Law Center

1315 Walnut Street, Suite 400

Philadelphia, PA 19107

Counsel for Amicus Appellants,

Learning Disabilities Association

of Pennsylvania and Education

Law Center of Pennsylvania

John F.X. Reilly (Argued)

Delaware County Office of District Attorney

201 West Front Street

Media, PA 19063

Counsel for Appellees

______

OPINION OF THE COURT

______
3

FISHER, Circuit Judge.

M.R. and J.R., the parents of E.R., a minor, appeal 

from an order of the District Court, granting judgment on the 

administrative record in favor of Ridley School District. The 

District Court reversed a decision by a Pennsylvania Due 

Process Hearing Officer that Ridley School District violated 

the Individuals with Disabilities Education Act (“IDEA”), 20 

U.S.C. 1400, et seq., and the Rehabilitation Act, 29 U.S.C. 

§ 701, et seq. For the reasons set forth below, we will affirm 

the order of the District Court.

I. Background

E.R., who is now ten years old, attended kindergarten 

(2006-2007) and first grade (2007-2008) at Grace Park 

Elementary School (“Grace Park”) in the Ridley School 

District (“Ridley”). E.R. has been identified as a child with 

numerous learning disabilities, as well as several healthrelated problems, including severe food and contact allergies. 

During the summer between E.R.’s first and second grade 

years, M.R. and J.R. (collectively, “Parents”) determined that 

the programs being offered by Ridley were inadequate to 

address E.R.’s unique needs, and thus decided to remove her 

from Ridley and enroll her at the Benchmark School, a 

private school that specializes in instructing students with 

learning disabilities. Parents subsequently filed a complaint 

with the Pennsylvania Department of Education, seeking 

compensatory education for violations of the IDEA and § 504 

of the Rehabilitation Act, and tuition reimbursement, 

including transportation expenses, for E.R.’s enrollment in 

the Benchmark School. A Due Process Hearing Officer 
4

awarded Parents compensatory education for the 2007-2008 

school year, as well as reimbursement of tuition for the 2008-

2009 school year, and reimbursement for transportation to 

and from the Benchmark School. The District Court 

reversed, finding that Parents were entitled to neither 

compensatory education nor reimbursement for tuition or 

transportation expenses.

A. Factual Background

Before E.R. began kindergarten, Parents were 

concerned about her ability to grasp pre-academic skills, such 

as letters and numbers, and took her to be evaluated at the 

Chester County Intermediate Unit (“CCIU”). Although the 

testing noted some academic difficulties, the evaluators 

concluded that E.R. did not qualify as a child with special 

needs. However, in September 2006, shortly after E.R. began 

kindergarten, she was identified as needing extra academic 

support, and was placed in extended-day kindergarten 

(“EDK”). Parents were notified of this placement, and were 

advised that it was intended to improve E.R.’s math skills and 

reinforce her kindergarten skills generally.

In November 2006, due to E.R.’s academic struggles 

and attention problems, Parents requested that Ridley perform 

an educational evaluation. Ridley agreed, and an Initial 

Evaluation Report was completed on January 31, 2007. 

Although the report indicated that math was difficult for E.R., 

consistent with CCIU’s earlier determination, Ridley 

concluded that she did not qualify for special education 

services because her cognitive ability and academic 

achievement levels were both in the average range. Ridley 
5

also conducted an occupational therapy (“OT”) evaluation, 

which was completed on January 24, 2007. The OT findings, 

which were based largely on the input of teachers, identified 

the following areas of concern: below grade level ability in 

math; lack of concentration; inconsistency in remembering 

numbers one through ten; problems with peer interaction; 

poor problem-solving skills and desk posture; and difficulty 

keeping her place when reading.

On February 7, 2007, Ridley convened a meeting to 

review the Initial Evaluation Report. In response to concerns 

raised by Parents at the meeting, Ridley agreed to conduct 

additional testing using The Children’s Memory Scale, Test 

of Auditory Processing Skills, and The Behavior Rating 

Inventory of Executive Functioning. The additional testing 

resulted in two addendums to the Initial Evaluation Report, 

which stated that E.R.’s academic skills were generally in the 

average range, but that she demonstrated a relative weakness 

in retaining and manipulating numbers. Based on this 

information, the school psychologist concluded that E.R. did 

not have a specific learning disability. Also in February 

2007, a § 504 Service Agreement (“the § 504 Agreement”) 

was issued to provide OT services to E.R., and to address her 

severe allergies.1

 1 “§ 504” refers to § 504 of the Rehabilitation Act, 

which prohibits discrimination in federally-funded programs, 

including public schools, on the basis of disability. 29 U.S.C. 

§ 794.

 Under the § 504 Agreement, E.R. was to 

receive OT services once a week for thirty minutes and 

consultative services to the home and classroom on a regular 
6

basis. Despite her allergies, E.R. was to be included in as 

many activities as possible, and Parents were to be contacted 

before activities involving food so that appropriate 

alternatives could be provided for E.R.

Pursuant to a recommendation made by E.R.’s 

kindergarten teacher, Mary Moffatt (“Moffatt”), E.R. was 

enrolled in the Summer Steps program in the Summer of 

2007 to reinforce her academic skills. The Summer Steps 

teacher reported that E.R. made some academic progress, but 

that she needed improvement in several areas and had 

difficulty recognizing numbers and counting.

The first six weeks of first grade were spent reviewing 

kindergarten materials. During this time, E.R. struggled 

academically and posted several failing grades. In late 

September 2007, J.R., E.R.’s mother, wrote to E.R.’s first 

grade teacher, Janet Cenname (“Cenname”), and requested a 

meeting to discuss E.R.’s poor grades. Cenname declined the 

request to meet at that time, telling J.R. that it would be 

premature to meet so early in the year, and that it would be 

more appropriate to give E.R. time to develop her skills. 

Cenname explained that she would be “happy to meet” a few 

weeks later, in early October, if Parents still had concerns. 

Parents did not re-contact Cenname, and instead requested a 

meeting with the school’s principal. During that meeting, 

which was held on November 1, 2007, Parents were informed 

that E.R. had been placed on a “reading watch list” in midOctober. Following the meeting, E.R. was placed in a 

reading support group, but according to Parents, she had 

difficulty catching up with the other students because the 

program had started two months earlier.
7

On November 16, 2007, Parents requested a 

comprehensive reevaluation of E.R. Ridley issued a 

Permission to Evaluate on November 27, 2007, and the 

reevaluation was completed on February 26, 2008. The 

Reevaluation Report found that E.R. had learning disabilities 

in the areas of reading decoding and comprehension, math 

computation, reasoning skills, and written language. E.R. 

was also found to have fine motor delays and a language 

disability. As part of the Reevaluation Report, Ridley’s 

school psychologist prepared recommendations to be 

considered by the Individual Education Planning Team (“IEP 

Team”). Based on those recommendations, Ridley offered 

two alternative placements for E.R.: (1) the learning support 

room at her current school, Grace Park, or (2) a self-contained 

classroom at a different elementary school. Parents observed 

both programs and determined that neither was appropriate 

for E.R.

An IEP Team meeting was convened on March 28, 

2008 to review a draft Individualized Education Program 

(“IEP”) that had been developed to address E.R.’s educational 

needs. At Parents’ request, Ridley agreed to make revisions 

to the IEP and submit the revisions to Parents for approval. 

At the meeting, Ridley’s Special Education Director, Kim 

Woods (“Woods”), suggested a program called Project Read

as a possible reading aid for E.R. Woods told Parents that she 

would do some research on the program and follow up with 

Parents and the IEP Team in a few days. Woods also 

provided Parents with a printout from Project Read’s website, 

and a review of the program conducted by the Florida Center 

for Reading Research.
8

A Notice of Recommended Educational Placement 

(“NOREP”) was issued on April 2, 2008, but Parents refused 

to sign it until all of the agreed-upon revisions had been 

made. Another IEP Team meeting was held on April 30 to 

address Parents’ continuing concerns regarding the IEP. On 

May 9, a revised NOREP was issued, and Parents signed it in 

agreement on May 12. However, Parents remained 

concerned about Ridley’s proposed reading program, and 

requested that Ridley hire someone to provide instruction 

using The Wilson Reading System. Ridley did not do so.

On May 13, 2008, in accordance with the revised 

NOREP and addendums to the IEP, E.R. began going to 

Grace Park’s “resource room” every day for one hour of 

reading assistance in the morning and one hour of math 

assistance in the afternoon. The resource room reading 

curriculum consisted of the following instructional programs:

Read Naturally, Reading Workshop, Writing Workshop, and 

Patricia Cunningham’s Systematic Phonics. The resource 

room employed a program called Everyday Math for math 

instruction. There were five other students in the resource 

room, none of whom were first graders. Aimee Hodges 

(“Hodges”), the resource room teacher, explained that 

although the students were all provided with the same reading 

programs, different parts of the programs were used for 

different students, such that assistance was geared toward 

each student’s individual needs. Hodges also testified that 

everything done in the resource room was “multi-sensory,” 

which meant that the lessons included visual, oral, and handson components. E.R.’s grades in the resource room improved 

dramatically in a short period of time, but Parents attributed 
9

the improvement to improper resource room assistance, and 

claimed that E.R. was not displaying similar progress at 

home. By the time E.R.’s first grade year ended, she had 

received eighteen days of resource room assistance.

On June 9, 2008, the IEP Team met to update the IEP 

for the 2008-2009 academic year (second grade). The 

NOREP from the June IEP Team meeting recommended that 

E.R. continue to receive one hour per day of math instruction 

and one hour per day of reading instruction in the resource 

room. The NOREP indicated that the reading instruction 

would include a direct reading program, as well as a direct 

phonemic-based program to address E.R.’s needs in decoding 

vocabulary, fluency, and comprehension skills. The NOREP 

provided that Ridley would train its learning support staff on 

Project Read during the summer, and that the program would 

be “up and running” before the end of September 2008. 

Ridley also agreed to pay for a summer learning program at 

the Benchmark School, as well as summer math tutoring three 

times per week.

Parents researched Project Read and determined that it 

was not appropriate for a student with E.R.’s needs. On 

August 14, 2008, Parents informed Ridley that E.R. would be 

enrolling at the Benchmark School for the 2008-2009 school 

year because it provided the “intensive multi-sensory 

approach to reading” that they determined E.R. required.

B. Procedural History

On December 4, 2008, Parents filed a due process 

complaint with the Pennsylvania Department of Education, 
10

alleging that Ridley violated the IDEA and § 504 of the 

Rehabilitation Act. Parents claimed that Ridley failed to 

timely identify E.R. as a child in need of special education 

services, failed to develop an appropriate IEP, and subjected 

E.R. to discrimination by failing to comply with the § 504 

Agreement.

Hearings were held before a Due Process Hearing 

Officer on January 29, 2009, February 10, 2009, and 

March 10, 2009. At the hearings, the Hearing Officer 

reviewed documentary evidence provided by the parties and 

heard testimony from E.R.’s mother, Linda Heller, Parents’

special education advocate, as well as several teachers and 

school officials. On April 21, 2009, the Hearing Officer 

issued a written report, finding that: (1) Ridley had not 

committed any violations during E.R.’s kindergarten year; 

(2) Ridley violated the IDEA and the Rehabilitation Act in 

E.R.’s first grade year; and (3) the IEPs proposed for E.R.’s 

first and second grade years were inadequate and therefore 

denied E.R. a “free appropriate public education” (“FAPE”)

because they “lacked appropriate specially designed 

instruction in the form of a research based, peer reviewed 

reading program.” The Hearing Officer awarded Parents 

compensatory education for the 2007-2008 year (first grade), 

reimbursement of tuition at the Benchmark School for the 

2008-2009 year (second grade), and reimbursement of 

transportation expenses to and from the Benchmark School.

Ridley filed a petition for review in the Pennsylvania 

Commonwealth Court, and the case was subsequently 

removed to the U.S. District Court for the Eastern District of 

Pennsylvania. Parents treated the petition as a complaint and 
11

filed an answer and counterclaims, in which they challenged 

the Hearing Officer’s conclusion that no violation occurred 

during E.R.’s kindergarten year, and asserted additional 

claims against Ridley and Cenname, whom Parents added as 

a third party defendant. On October 9, 2009, Ridley filed a 

motion for judgment on the administrative record. On 

February 14, 2011, the District Court affirmed the Hearing 

Officer’s finding as to E.R.’s kindergarten year, reversed the 

Hearing Officer’s findings as to E.R.’s first and second grade 

years, and granted Ridley’s motion for judgment on the 

administrative record as to all claims. Ridley Sch. Dist. v. 

M.R., No. 09-2503, 2011 WL 499966, at *18 (E.D. Pa. Feb. 

14, 2011). Parents filed a timely notice of appeal.

On appeal, Parents raise four arguments. First, they 

contend that the District Court improperly placed the burden 

of persuasion on them to demonstrate that Ridley violated the 

IDEA. Second, they argue that the District Court erred in 

reversing the Hearing Officer’s finding that Ridley denied 

E.R. a FAPE during first grade by failing to timely identify 

her as a student in need of special education services. Third, 

they maintain that the District Court misinterpreted a 

provision of the IDEA, and improperly reversed the Hearing 

Officer’s finding that E.R.’s IEP was deficient in that it 

lacked research-based, peer-reviewed specially designed 

reading instruction. Finally, Parents argue that the District 

Court erred in concluding that Ridley did not violate § 504 of 

the Rehabilitation Act.
12

II. Jurisdiction and Standard of Review

The District Court had jurisdiction to review the 

decision of the state educational agency under 20 U.S.C. 

§ 1415(i)(2), and we have appellate jurisdiction over the order 

of the District Court under 28 U.S.C. § 1291. When 

considering a petition for review challenging a state 

administrative decision under the IDEA, a district court 

applies “a nontraditional standard of review, sometimes 

referred to as ‘modified de novo’ review.” D.S. v. Bayonne 

Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (citations 

omitted). Under this standard, a district court must give “due 

weight” to the findings of the state hearing officer. Bd. of 

Educ. v. Rowley, 458 U.S. 176, 206 (1982). “Factual findings 

from the administrative proceedings are to be considered 

prima facie correct. ‘If a reviewing court fails to adhere to 

them, it is obliged to explain why. The court is not, however, 

to substitute its own notions of sound educational policy for 

those of local school authorities.’” S.H. v. State-Operated 

Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003) 

(quoting MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 

531 (4th Cir. 2002)). “Within the confines of these standards, 

a district court is authorized to make findings based on the 

preponderance of the evidence and grant the relief it deems 

appropriate.” D.S., 602 F.3d at 564 (citations omitted); see 

also Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 

199 (3d Cir. 2004) (describing a district court’s burden as 

“unusual” in that it must make its own findings by a 

preponderance of the evidence, but nevertheless afford “due 

weight” to the administrative officer’s determinations).
13

We exercise plenary review over the District Court’s 

conclusions of law, D.S., 602 F.3d at 564, and “with respect 

to the question [of] whether the District Court applied the 

correct legal standards under the IDEA,” Shore Reg’l, 381 

F.3d at 199 (citation omitted). We review the District Court’s 

findings of fact, including a determination as to the 

appropriateness of an IEP, under a clearly erroneous standard. 

D.S., 602 F.3d at 564.

III. Discussion

A. Statutory Framework

The IDEA requires states receiving federal education 

funding to provide every disabled child with a “free 

appropriate public education.” 20 U.S.C. § 1412(a)(1).2

 2 “The term ‘free appropriate public education’ means 

special education and related services that--

 A 

(A) have been provided at public expense, 

under public supervision and direction, and without 

charge;

(B) meet the standards of the State educational 

agency;

(C) include an appropriate preschool, 

elementary school, or secondary school education in 

the State involved; and
14

FAPE “consists of educational instruction specially designed 

to meet the unique needs of the handicapped child, supported 

by such services as are necessary to permit the child ‘to 

benefit’ from the instruction.” Rowley, 458 U.S. at 188-89. 

Although a state is not required to maximize the potential of 

every handicapped child, it must supply an education that 

provides “significant learning” and “meaningful benefit” to 

the child. D.S., 602 F.3d at 556 (citing Ridgewood Bd. of 

Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). “[T]he 

provision of merely more than a trivial educational benefit” is 

insufficient. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 

(3d Cir. 2006) (internal marks and citations omitted). When a 

state is unable to provide a FAPE, the state must reimburse 

the child’s parents for the costs of attendance at a private 

school that is able to provide a FAPE. D.S., 602 F.3d at 557.

The core of the IDEA is the collaborative process that 

it establishes between parents and schools. Schaffer v. Weast, 

546 U.S. 49, 53 (2005). The IEP is the “central vehicle” for 

this collaboration, id., and the “primary mechanism” for 

delivering a FAPE, W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 

1995), abrogated on other grounds by A.W. v. Jersey City 

Pub. Sch., 486 F.3d 791 (3d Cir. 2007) (en banc). Under the 

IDEA, school districts must work with parents to design an 

IEP, which is a program of individualized instruction for each 

 

(D) are provided in conformity with the 

individualized education program required under [20 

U.S.C. § 1414(d)].”

20 U.S.C. § 1401(9).
15

special education student. 20 U.S.C. §§ 1412(a)(4), 1414(d). 

“Each IEP must include an assessment of the child’s current 

educational performance, must articulate measurable 

educational goals, and must specify the nature of the special 

services that the school will provide.” Schaffer, 546 U.S. at 

53 (citing 20 U.S.C. § 1414(d)(1)(A)). Although the IEP 

must provide the student with a “basic floor of opportunity,” 

it does not have to provide “the optimal level of services,” or 

incorporate every program requested by the child’s parents. 

D.S., 602 F.3d at 557 (citations omitted); Tucker v. Bay Shore 

Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) 

(explaining that the IDEA guarantees to a disabled child “an 

education that is appropriate, not one that provides everything 

that might be thought desirable by loving parents” (internal 

marks and citations omitted)). “[A]t a minimum, the IEP 

must be reasonably calculated to enable the child to receive 

meaningful educational benefits in light of the student’s 

intellectual potential,” Chambers v. Sch. Dist. of Phila. Bd. of 

Educ., 587 F.3d 176, 182 (3d Cir. 2009) (citation omitted), 

and “individual abilities,” Ridgewood Bd. of Educ., 172 F.3d 

at 248. See Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d 

Cir. 1986) (stating that an IEP must “be likely to produce 

progress, not regression or trivial educational advancement”) 

(citation omitted).

If parents believe that an IEP fails to provide their 

child with a FAPE, they may seek an administrative 

“impartial due process hearing.” 20 U.S.C. § 1415(f). A 

school district may also request such a hearing, if, for 

example, it wants to change an existing IEP and the parents 

refuse, or if the parents refuse to allow their child to be 
16

evaluated at all. Schaffer, 546 U.S. at 53. Although state 

authorities have limited discretion in determining who 

conducts the hearings and establishing hearing procedures, 

Congress has legislated the “central components” of the 

administrative hearings by providing minimal pleading 

standards, and affording all parties the right to counsel, the 

right to present evidence, and the right to cross-examine 

witnesses. Id. at 54. “Any party aggrieved by the findings 

and decision” made in the administrative proceeding “shall 

have the right to bring a civil action” in state or federal court. 

20 U.S.C. § 1415(i)(2)(A).

A threshold issue we are asked to consider in this case 

is which party bears the burden of persuasion before the 

district court. The IDEA does not specify which party bears 

the burden of persuasion at the district court level or at the 

administrative hearing level. Before 2005, we had always 

placed the burden of demonstrating compliance with the 

IDEA at the administrative hearing on the school district. 

L.E., 435 F.3d at 391 (citing T.R. v. Kingwood Twp. Bd. of 

Educ., 205 F.3d 572, 579 (3d Cir. 2000); Oberti v. Bd. of 

Educ., 995 F.2d 1204, 1219 (3d Cir. 1993)). However, in 

2005, in Schaffer v. Weast, 546 U.S. at 62, the Supreme Court 

held that the burden of persuasion in an administrative 

hearing under the IDEA lies with the party seeking relief. 

The Court explained that it saw no reason to depart from “the 

ordinary default rule that plaintiffs bear the risk of failing to 

prove their claims.” Id. at 56 (citing 2 J. Strong, McCormick 

on Evidence § 337, at 412 (5th ed. 1999)); see L.E., 435 F.3d 

at 391 (discussing the significance of Schaffer).
17

However, Schaffer did not address which party should 

bear the burden of persuasion when a party aggrieved by the 

decision of the administrative hearing officer challenges that 

decision in district court. Nor have we explicitly decided this 

issue in articulating the district court’s standard of review. 

We now join our sister circuits in holding that the party 

challenging the administrative decision bears the burden of 

persuasion before the district court as to each claim 

challenged.3

 3 Our conclusion today that the burden lies with the 

party challenging the administrative decision is entirely 

consistent with our previous cases, in which we held that the 

burden was properly placed on the parents before the district 

court. In those cases, the parents were the losing party before 

the hearing officer and challenged the hearing officer’s 

decision in district court. See Andrew M. v. Del. Cnty. Office 

of Mental Health & Mental Retardation, 490 F.3d 337, 345 

(3d Cir. 2007); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 

392 (3d Cir. 2006). We did not specify, however, whether the 

parents bore the burden because they initially challenged the 

IEP (and the burden carried to the district court) or because 

they lost at the administrative hearing level. As our decision 

today makes clear, the relevant consideration is the outcome 

of the administrative proceeding, not which party requests an 

administrative hearing.

 See J.W. v. Fresno Unified Sch. Dist., 626 F.3d 

431, 438 (9th Cir. 2010); Marshall Joint Sch. Dist. No. 2 v. 

C.D., 616 F.3d 632, 636 (7th Cir. 2010); District of Columbia 

v. Doe, 611 F.3d 888, 897 (D.C. Cir. 2010). As the Supreme 

Court noted in Schaffer, “[t]he burdens of pleading and proof 

with regard to most facts have been and should be assigned to 
18

the [party] who . . . seeks to change the present state of 

affairs.” 546 U.S. at 56 (quoting McCormick on Evidence 

§ 337, at 412). Under the IDEA, it is the party “aggrieved by 

the findings and decision” of the hearing officer that seeks to 

change the present state of affairs. See 20 U.S.C. 

§ 1415(i)(2)(A). “Absent some reason to believe that 

Congress intended otherwise,” we conclude that the burden of 

persuasion falls where it usually does, on the party seeking 

relief. See Schaffer, 546 U.S. at 57-58; see also S.H., 336 

F.3d at 270 (explaining that factual findings from the 

administrative proceeding are to be considered prima facie 

correct).

In this case, Parents argue that the District Court 

committed reversible error by placing the burden of 

persuasion on them as to all claims. We disagree. Although 

the District Court did, in fact, err by placing the burden on 

Parents with respect to the findings of the Hearing Officer 

that were challenged by Ridley, the error was harmless.4

 4 We note that Parents filed counterclaims, in which 

they challenged the Hearing Officer’s conclusion that Ridley 

did not violate the IDEA or the Rehabilitation Act during 

E.R.’s kindergarten year. Parents appropriately bore the 

burden of persuasion as to those claims because they were the 

party aggrieved by the Hearing Officer’s decision.

 We 

will deem an error to be harmless if it is “highly probable” 

that it did not affect the outcome of the case. Forrest v. Beloit 

Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citation omitted). In 

a non-criminal case, an error regarding the placement of the 

burden of persuasion will frequently be harmless. Schaffer, 
19

546 U.S. at 56, 58. As the Supreme Court has explained, in a 

non-criminal case, the burden of persuasion only comes into 

play where the evidence is “closely balanced,” id. at 56, i.e.,

in cases “in evidentiary equipoise,” id. at 58. In this case, as 

we explain below, no factual issues are so “closely balanced” 

that the burden of persuasion would have affected the 

outcome of the case. See id. at 56. Although some of the 

disputed issues involve questions of fact, the Hearing 

Officer’s errors stemmed largely from mistakes or omissions 

regarding the application of law to those facts. Questions of 

law, of course, are unaffected by the burden of persuasion. El 

v. Se. Pa. Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 

2007) (stating that the burden of persuasion is the burden “to 

persuade the factfinder that one’s propositions of fact are 

indeed true” (citing Black’s Law Dictionary 190 (7th ed. 

1999))). Thus, we hold that it is “highly probable” that the 

District Court’s error regarding the placement of the burden 

of persuasion did not affect the outcome. Forrest, 424 F.3d at 

349.

B. “Child Find” Requirement

Parents contend that the District Court erred in 

reversing the Hearing Officer’s determination that Ridley’s 

failure to identify E.R. as a child in need of special education 

services in the beginning of first grade denied her a FAPE. 

We disagree. “School districts have a continuing obligation 

under the IDEA . . . to identify and evaluate all students who 

are reasonably suspected of having a disability.” P.P. v. West 

Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009) 

(citation omitted); see 20 U.S.C. § 1412(a)(3) (explaining that 

states must “identif[y], locate[], and evaluate[]” all children 
20

with disabilities who are in need of special education, and 

must develop “a practical method . . . to determine which 

children with disabilities are currently receiving needed 

special education and related services”). This is referred to as 

the IDEA’s “child find” requirement. Matula, 67 F.3d at 492. 

Each state must establish procedures to fulfill this statutory 

directive. 34 C.F.R. § 300.111. Pennsylvania’s “child find” 

procedures are set forth in 22 Pa. Code. §§ 14.121 through 

14.125.

Neither the IDEA, its implementing regulations, nor 

the applicable Pennsylvania regulations establish a deadline 

by which children who are suspected of having a qualifying 

disability must be identified and evaluated. Accordingly, we 

have previously “infer[red] a requirement that this be done 

within a reasonable time after school officials are on notice of 

behavior that is likely to indicate a disability.” Matula, 67 

F.3d at 501.5

 5 In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), we 

were dealing with a challenge to a school district’s 

compliance with child find obligations under the IDEA and 

New Jersey law. However, because nothing in the 

Pennsylvania regulations establishes a specified timeline for 

identifying and evaluating students, we will apply the 

“reasonable time” standard to school districts in Pennsylvania 

as well. See id. at 501 (inferring the “reasonable time” 

requirement because neither the IDEA nor the applicable 

New Jersey regulations established such a deadline).

 In adopting the “reasonable time” standard, we 

noted the budgetary constraints and staffing pressures facing 

school officials, and emphasized that we were not 
21

establishing any “bright-line rule” as to what constitutes a 

reasonable time. Id. Rather, we employ a case-by-case 

approach and assess whether the school district’s response 

was reasonable “in light of the information and resources 

possessed” by the district at a given point in time. Id.

Here, in finding that Ridley denied E.R. a FAPE by 

failing to identify her as a student in need of special education 

services at the outset of first grade, the Hearing Officer never 

acknowledged that Ridley must be given a reasonable time to 

identify students as disabled. Rather, the Hearing Officer 

simply stated that Ridley had provided a number of 

intervention programs to E.R. during kindergarten, and 

because E.R. continued to struggle academically in first 

grade, Ridley should have known that further evaluation was 

required at the very start of the next school year. The Hearing 

Officer was particularly critical of E.R.’s first grade teacher, 

Janet Cenname, explaining that Cenname was “extremely 

nervous and uptight” when testifying, she had to refer to 

notes, and she frequently tried to explain her actions in a 

“non-sensical way.” The Hearing Officer concluded that, 

based on E.R.’s struggles during the first month of first grade, 

much of which was spent reviewing kindergarten materials, 

Cenname should have identified E.R. as a student in need of 

special education services at the very beginning of the year, 

and thus should have recommended to Ridley that it conduct 

another evaluation. Accordingly, the Hearing Officer 

determined that Ridley denied E.R. a FAPE “from the 

beginning of first grade to the time that the evaluation was 

completed” in February 2008.
22

As the District Court observed, the Hearing Officer’s 

finding that Ridley violated the IDEA by failing to identify 

E.R. as a child in need of special education services at the 

outset of first grade is difficult to reconcile with the Hearing 

Officer’s finding that Ridley complied with the IDEA during 

E.R.’s kindergarten year. E.R. was evaluated during 

kindergarten, and although areas of weakness were found, 

E.R.’s academic skills were generally considered to be in the 

average range. The Hearing Officer concluded that the 

kindergarten evaluation was “substantively appropriate,” and 

noted that “just because a child has an area of weakness, it 

doesn’t necessarily mean that [she has] a disability.” The 

Hearing Officer also noted that Ridley “appeared to be 

invested in addressing [E.R.’s] needs and providing 

appropriate instruction and interventions before rushing to 

special education identification.” As a result, the Hearing 

Officer properly determined that Parents’ claim that Ridley 

violated the IDEA’s “child find” requirements during E.R.’s 

kindergarten year “lack[ed] any basis in the testimony or 

documents.”6

In light of the fact that E.R.’s kindergarten evaluations 

were appropriate, and she did not qualify as a student in need 

of special education services in June 2007 (the end of 

kindergarten), we cannot agree with the Hearing Officer that 

Ridley violated the IDEA and denied E.R. a FAPE by failing 

to immediately reevaluate her in September 2007. When a 

 6 Parents do not appeal the District Court’s decision

affirming the Hearing Officer’s finding regarding E.R.’s 

kindergarten year.
23

school district has conducted a comprehensive evaluation and 

concluded that a student does not qualify as disabled under 

the IDEA, the school district must be afforded a reasonable 

time to monitor the student’s progress before exploring 

whether further evaluation is required. See Matula, 67 F.3d at 

501. We assess whether a school district identified and 

evaluated a student suspected of having a qualifying disability 

within a reasonable time “in light of the information and 

resources possessed” by the district. Id. Here, although E.R. 

struggled during the beginning of first grade, all prior 

evaluations showed that she did not require special education 

services. Moreover, as Cenname testified, first grade was the 

“first time that the children ever ha[d] a chance to be in a test 

taking situation” and “[t]here were other children that also 

had difficulty . . . taking a test.” It was reasonable for 

Cenname to assess E.R.’s progress throughout the first 

marking period of first grade before recommending that E.R. 

again be evaluated to determine if she had a learning 

disability. The IDEA does not require a reevaluation every 

time a student posts a poor grade. Accordingly, we hold that 

Ridley complied with its “child find” obligations, and E.R. 

was not denied a FAPE at the beginning of first grade.7

 7 Parents contend that the District Court did not accord 

the proper deference to the Hearing Officer’s factual findings, 

particularly her finding that Cenname was not a credible 

witness. Where a hearing officer “has heard live testimony 

and determined that one witness is more credible than another 

witness, [the hearing officer’s] determination is due special 

weight.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d 
24

 

Cir. 2010) (citation omitted). A district court must accept the 

hearing officer’s credibility determinations “unless the nontestimonial extrinsic evidence in the record would justify a 

contrary conclusion.” Id. (citations omitted). Here, central to 

the Hearing Officer’s conclusion that E.R. was denied a 

FAPE during the beginning of first grade was that Cenname 

“put off” meeting with E.R.’s mother when E.R.’s mother 

expressed concern that her daughter had failed a math test. 

However, Cenname responded to E.R.’s mother’s request for 

a meeting by sending back the following note: 

Dear Mrs. [R],

I appreciate your concern about [E.R.’s] test, 

but it is very early in the year. We need to give her 

some time. Continue to work with her at home and 

reinforce what we are doing in class. I will probably 

be out from Oct. 2 – Oct. 15. If you still have 

concerns at that time, I will be happy to meet.
25

C. E.R.’s IEP

Parents next contend that the District Court erred in 

reversing the Hearing Officer’s finding that E.R.’s IEP was 

inadequate. For the reasons set forth below, we disagree. 

First, to the extent Ridley violated the IDEA’s procedural 

requirements by failing to include the requisite statement of 

specially designed instruction in the IEP, the violation was 

not actionable because it did not have any impact on the 

substantive rights of E.R. or Parents. Second, contrary to the 

Hearing Officer’s findings, E.R.’s educational plan included a 

peer-reviewed reading program, which, in conjunction with 

the other services that E.R. was scheduled to receive, was 

sufficient to provide a FAPE. We will discuss these points in 

turn.

1.

An IEP must consist of a detailed written statement 

arrived at by a multi-disciplinary team specifying the 

 

Thus, contrary to Parents’ suggestions, Cenname did 

not refuse to meet or indicate that a meeting was unnecessary. 

She expressed a clear willingness to meet, and simply told 

Parents that E.R. should be given some time to get her 

bearings. Parents never responded to this note and never met 

with Cenname to discuss E.R.’s academic struggles. 

Therefore, as the District Court found, non-testimonial 

evidence in the record demonstrates that Cenname’s response 

to Parents’ request for a meeting was entirely reasonable, and 

that it in no way resulted in the denial of a FAPE. See D.S., 

602 F.3d at 564.
26

services, including specially designed instruction, that the 

child will receive. Polk v. Cent. Susquehanna Intermediate 

Unit 16, 853 F.2d 171, 173 (3d Cir. 1988). Parents contend 

that they are entitled to compensatory education because the 

IEP developed by Ridley failed to set forth in sufficient detail 

the specially designed instruction that would be provided to 

E.R. Parents acknowledge that subsequent NOREPs issued 

by Ridley included the required specially designed 

instruction, but they nevertheless argue that the IDEA 

requires that such information be included in the body of the 

initial IEP.8

Parents’ argument presents a challenge to Ridley’s 

compliance with the IDEA’s procedural requirements. 

Although we have held that “[t]he content of an IEP . . . does 

not implicate the IDEA’s procedural requirements for content 

is concerned with the IEP’s substance,” D.S., 602 F.3d at 565, 

Parents’ argument here does not relate to the substance of the 

IEP. Rather, Parents’ argument is essentially that Ridley 

violated the IDEA by including a description of specially 

designed instruction in the wrong document. We have made 

clear that although it is important that a school district comply 

with the IDEA’s procedural requirements, compliance is not a 

goal in itself; rather, compliance with such procedural 

requirements is important because of the “requirements’ 

impact on students’ and parents’ substantive rights.” Id. 

 8 Although the District Court did not address this issue, 

Parents raised it in their brief before the District Court, and 

thus preserved it for review. See Chambers v. Sch. Dist. of 

Phila. Bd. of Educ., 587 F.3d 176, 183-84 (3d Cir. 2009).
27

Accordingly, “[a] procedural violation is actionable under the 

IDEA only if it results in a loss of educational opportunity for 

the student, seriously deprives parents of their participation 

rights, or causes a deprivation of educational benefits.” Id.

(citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 

525-26 (2007)) (second citation omitted).

Here, to the extent that the absence of specially 

designed instruction in the IEP constituted a procedural 

violation, it did not affect the substantive rights of E.R. or 

Parents, and thus does not entitle Parents to an award of 

compensatory education. See id. Although Parents correctly 

note that the initial IEP did not specify all of the special 

education services that E.R. would receive, subsequent 

NOREPs contained that information. A NOREP issued on 

May 9, 2008, provided that the educational placement 

recommended for E.R. was “[r]esource room learning support 

for math and reading in which a direct reading program will 

be done as well as a direct phonemic based program to 

address [E.R.’s] needs in decoding vocabulary, fluency and 

comprehension skills.” The May NOREP further stated that 

E.R. would receive “at least 60 minutes per day instruction 

for reading and at least 60 minutes per day math at Grace 

Park Elementary School until June 2008.” The NOREP 

indicated that an IEP Team meeting would be convened in 

June to review E.R.’s progress and discuss the 

implementation of Project Read for the 2008-2009 school 

year. Parents signed and approved the May NOREP. On 

June 9, 2008, Ridley issued a second NOREP, which 

explained that Ridley would provide training to its staff on 

Project Read during the summer and the program would be 
28

up and running before the end of September 2008. Until 

Project Read could be implemented, Ridley would continue 

to use the other resource room reading programs. The June 

NOREP was never signed by Parents due to their objection to 

Project Read.

Because detailed specially designed instruction was set 

forth in the NOREPs, it is properly considered part of E.R.’s 

overall educational plan. Ridley’s admitted “mistake” in 

failing to include such information in the IEP itself did not 

deny E.R. any educational opportunity, nor did it deprive her 

of any educational benefits. See D.S., 602 F.3d at 565. 

Moreover, Parents were intimately involved in the process of 

crafting E.R.’s IEP and do not contend that they were 

unaware of the services E.R. was scheduled to receive. Thus, 

they were not denied their participation rights. See id. 

Accordingly, any deficiency in Ridley’s compliance with the 

procedural requirements of the IDEA is not a basis for 

granting relief to Parents. Whether the specially designed 

instruction set forth in the IEP and the NOREPs was adequate 

to provide a FAPE is a separate question, which we will 

address next.

2.

Parents’ next argument presents an issue of first 

impression in this circuit. The Hearing Officer found that 

E.R.’s IEP was inadequate, both for the end of the 2007-2008 

school year (first grade), and all of the 2008-2009 school year 

(second grade) primarily because it “fail[ed] to provide a 

scientifically research-based, peer reviewed reading program, 

which [E.R.] needed in order to make meaningful progress.” 
29

The Hearing Officer stated that although Project Read, the 

reading program chosen for E.R., “was designed to be 

research based,” there were “flaws in the research supporting 

it.” These statements were made in conclusory fashion, 

without elaboration, in a footnote of the Hearing Officer’s 20-

page opinion. They were not well-explained or wellsupported.

The District Court reversed the Hearing Officer’s 

decision that the IEP was inappropriate, reasoning that the 

lack of a peer-reviewed instructional program was not 

automatically fatal to an IEP, and even if it was, Project Read

was research-based and peer-reviewed. On appeal, we need 

not decide whether the lack of a peer-reviewed reading 

program alone may result in the denial of a FAPE because we 

agree with the District Court that Project Read was based on 

peer-reviewed research. We will, however, consider Parents’ 

contentions that Ridley denied E.R. a FAPE because the

available research regarding Project Read was flawed and did 

not adequately demonstrate that Project Read would be 

effective for a student with E.R.’s learning disabilities. As we 

explain below, Parents’ arguments are unavailing; the peerreviewed specially designed reading instruction in E.R.’s IEP 

was “reasonably calculated to enable [her] to receive 

meaningful educational benefits in light of [her] intellectual 

potential.” Chambers, 587 F.3d at 182 (citation omitted). 

Ridley was not required to choose the reading program based 

on the optimal level of peer-reviewed research, or to 

implement the specific program requested by Parents.

We begin our analysis by reviewing the statutory 

provision at issue. In 2004, Congress added the following 
30

provision to the IDEA: “[t]he term ‘individualized education 

program’ or ‘IEP’ means a written statement for each child 

with a disability . . . that includes . . . a statement of the 

special education and related services and supplementary aids 

and services, based on peer-reviewed research to the extent 

practicable, to be provided to the child.” 20 U.S.C. 

§ 1414(d)(1)(A)(i)(IV) (emphasis added). This provision was 

incorporated into the revised IDEA regulations in 2006, 

which state that an IEP “must include . . . [a] statement of the 

special education and related services and supplementary aids 

and services, based on peer-reviewed research to the extent 

practicable, to be provided to the child.” 34 C.F.R. 

§ 300.320(a)(4). Congress amended the IDEA in 1997 and 

2004, in part, to respond to concerns that the statute “ha[d] 

been impeded by low expectations, and an insufficient focus 

on applying replicable research on proven methods of 

teaching and learning for children with disabilities.” 20 

U.S.C. § 1400(c)(4). The IDEA’s statement of congressional 

findings explains that “[a]lmost 30 years of research and 

experience has demonstrated that the education of children 

with disabilities can be made more effective by” training 

teachers on “the use of scientifically based instructional 

practices, to the maximum extent possible,” and providing 

incentives for “scientifically based early reading programs.” 

Id. § 1400(c)(5)(E) and (F).

Unfortunately, neither the text of the IDEA nor the 

IDEA regulations provide much guidance as to the effect of 

§ 1414(d)(1)(A)(i)(IV)’s peer-reviewed research provision in 

this case. Therefore, we will look to other instructive 

regulatory materials. See Auer v. Robbins, 519 U.S. 452, 462 
31

(1997) (explaining that when interpreting a statute and its 

implementing regulations, we may look to the agency’s 

interpretation of its own regulations); United States v. 

Occidental Chem. Corp., 200 F.3d 143, 151-52 (3d Cir. 1999) 

(stating that we must defer not only to interpretations 

supported by notice-and-comment rulemaking, but also 

“informal interpretations”); Cleary v. Waldman, 167 F.3d 

801, 808 (3d Cir. 1999) (“[I]f an agency has been granted 

administrative authority by Congress for a statute, its 

interpretation—despite arising in an informal context—will 

be given deference as long as it is consistent with other 

agency pronouncements and furthers the purposes of the 

Act.”). In conjunction with its promulgation of the 2006 

IDEA regulations, the U.S. Department of Education 

(“DOE”) issued an Analysis of Comments and Changes to the 

2006 IDEA Regulations (“Analysis of IDEA Regulations”), 

71 Fed. Reg. 46,540 (2006). In response to a comment 

requesting “clear guidance on the responsibilities of States, 

school districts, and school personnel to provide special 

education and related services . . . that are based on peerreviewed research,” the DOE stated that “States, school 

districts, and school personnel must . . . select and use 

methods that research has shown to be effective, to the extent 

that methods based on peer-reviewed research are available.” 

71 Fed. Reg. at 46,665. The agency made clear, however, 

that a student’s IEP team retains flexibility in devising an 

appropriate program. The Analysis of IDEA Regulations 

explained that the changes implemented by the 2004 IDEA 

amendments and the 2006 updated regulations
32

“do[] not mean that the service with the greatest 

body of research is the service necessarily 

required for a child to receive FAPE. Likewise, 

there is nothing in the Act to suggest that the 

failure of a public agency to provide services 

based on peer-reviewed research would 

automatically result in a denial of FAPE. The 

final decision about the special education and 

related services . . . that are to be provided to a 

child must be made by the child’s IEP Team 

based on the child’s individual needs.”

Id.

In response to a comment requesting that the DOE 

require programs provided to a disabled child to be researchbased with demonstrated effectiveness in addressing the 

particular needs of a child, the Analysis of IDEA Regulations 

stated, “[w]hile the Act clearly places an emphasis on 

practices that are based on scientific research, there is nothing 

in the Act that requires all programs provided to children with 

disabilities to be research-based with demonstrated 

effectiveness in addressing the particular needs of a child 

where not practicable.” Id. The DOE declined to adopt the 

recommended change because “ultimately, it is the child’s 

IEP Team that determines the special education and related 

services that are needed by the child in order for the child to 

receive FAPE.” Id. The DOE also rejected as “overly 

burdensome” a requirement that all IEP team meetings 

include a focused discussion of research-based methods and a 

proposed regulation that would force schools to provide 
33

written notice when an IEP team does not provide 

documentation of research-based methods. Id.9

We can discern two key principles from these 

administrative materials and our prior decisions interpreting 

the IDEA. First, although schools should strive to base a 

student’s specially designed instruction on peer-reviewed 

research to the maximum extent possible, the student’s IEP 

team retains flexibility to devise an appropriate program, in 

light of the available research. See D.S., 602 F.3d at 557; 71 

Fed. Reg. at 46,665. Second, under the IDEA, courts must 

accord significant deference to the choices made by school 

officials as to what constitutes an appropriate program for 

each student. See D.S., 602 F.3d at 556-57; Ridgewood Bd. of 

Educ., 172 F.3d at 247; 71 Fed. Reg. at 46,664-65.

With these principles in mind, we will consider the 

two objections that Parents raise to the portion of E.R.’s IEP 

that addresses her reading and language disabilities. First, 

echoing the findings of the Hearing Officer, Parents argue 

that “there were flaws in the research [regarding the 

 9 Commenters also requested a more explicit definition 

of “peer-reviewed research.” The DOE stated that “‘[p]eer 

reviewed research’ generally refers to research that is 

reviewed by qualified and independent reviewers to ensure 

that the quality of the information meets the standards of the 

field before the research is published.” 71 Fed. Reg. 46,540, 

46,664 (2006). However, the agency made clear that there 

was no single definition of “peer-reviewed research” and it 

declined to include a specific definition for purposes of the 

IDEA. Id.
34

effectiveness of Project Read] which made it impossible to 

attribute the reading growth the students experienced [in the

studies] to Project Read alone.” Second, they contend that 

none of the studies regarding Project Read demonstrated that 

the program was effective for students with E.R.’s specific 

disabilities. Both arguments miss the mark. Given that the 

IDEA does not require an IEP to provide the “optimal level of 

services,” D.S., 602 F.3d at 557 (citations omitted), we 

likewise hold that the IDEA does not require a school district 

to choose the program supported by the optimal level of peerreviewed research. Rather, the peer-reviewed specially 

designed instruction in an IEP must be “reasonably calculated 

to enable the child to receive meaningful educational benefits 

in light of the student’s intellectual potential.” Chambers, 

587 F.3d at 182 (citation omitted).

According to a 2007 review of Project Read published 

by the Florida Center for Reading Research (“FCRR”):

“Project Read is a comprehensive language arts 

program designed to provide explicit instruction 

in a structured reading curriculum. The goal of 

the program is to help all students become 

thoughtful, purposeful, and independent 

readers. Project Read Curriculum may be 

implemented in the regular classroom, special 

education classes, and Title I classes. It may 

also be used as an intervention reading program 

for first through sixth graders or with 

adolescents and adults who struggle with 

reading or language learning. Whole or small 

group instruction is delivered by a classroom 
35

teacher, a special education teacher, or a 

reading teacher. Lessons are intended to occur 

daily within an extended block of time devoted 

to reading instruction. Emphasis is placed on 

systematic, direct instruction of concepts and 

skills supported and enhanced by a teaching 

approach that includes visual, kinesthetic, 

auditory and tactile strategies (VAKT), and the 

use of body language.”

After discussing several studies on the effectiveness of 

Project Read, and citing relevant articles, at least one of 

which was published in a peer-reviewed journal, the FCRR 

review concluded that the research “[was] promising and the 

instructional strategies of Project Read [we]re aligned with 

current research. Future studies with sound experimental 

designs including control groups and random assignment may 

contribute more definitive information about the efficacy of 

Project Read.” The FCRR review then listed numerous 

strengths of the Project Read program, and found no 

weaknesses in Project Read’s curriculum.

We understand Parents’ concern that the available 

studies did not test Project Read’s effectiveness for students 

with E.R.’s unique combination of disabilities. However, the 

research discussed in the FCRR review involved children of 

E.R.’s age who struggled with reading, and indicated that 

Project Read was helpful in improving the reading skills of 

such students. Additionally, Hodges, Grace Park’s resource 

room teacher, and Woods, Ridley’s director of special 

education, both of whom have expertise in the field of special 

education, testified that Project Read was an appropriate 
36

reading program for E.R.10

Parents argue that, in contrast to Project Read, the 

program they requested, The Wilson Reading System, has 

been shown to be effective for teaching students with learning 

disabilities similar to those of E.R. However, Ridley did not 

have to choose the specific program requested by Parents. 

See D.S., 602 F.3d at 557. Nor did it have to choose the 

program supported by the optimal level of peer-reviewed 

research. See id.; 71 Fed. Reg. at 46,665 (explaining that a 

school does not have to choose the program supported by the 

“greatest body of research”). “The IDEA accords educators 

discretion to select from various methods for meeting the 

individualized needs of a student, provided those practices are 

reasonably calculated to provide h[er] with educational 

benefit.” R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 

 Woods explained that, “Project 

Read is a multi-sensory program that is based on Orton 

Gillingham’s principles that support learning disabled 

students. The research from Florida was very promising in 

terms of these students doing quite well.” Woods further 

testified that “[t]he program . . . had a lot of components that 

learning disabled students learn by [including] what we called 

VAKT program, visual, auditory, kinesthetic, and touch. And 

most learning disabled students do very well when you bring 

all of the senses into the learning process.” Hodges also 

testified that Project Read was a research-based program and 

similar to other reading programs, such as The Wilson 

Reading System.

 10 The Hearing Officer did not discuss the assessments 

of Project Read provided by Hodges and Woods.
37

1122 (9th Cir. 2011) (citations omitted); see Rowley, 458 U.S. 

at 207 (explaining that school districts have “[t]he primary 

responsibility for formulating the education to be accorded a 

handicapped child, and for choosing the educational method 

most suitable to the child’s needs”). In selecting special 

education programs, a school district must be able to take into 

account not only the needs of the disabled student, but also 

the financial and administrative resources that different 

programs will require, and the needs of the school’s other 

non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d 

60, 70 (2d Cir. 2000) (explaining that, in the context of the 

Rehabilitation Act, courts must be aware of the “need to 

strike a balance” between the rights of the disabled student 

and fiscal and administrative concerns); 71 Fed. Reg. at 

46,665 (rejecting a proposed requirement on an IEP team as 

“overly burdensome”).

We will not set forth any bright-line rule as to what 

constitutes an adequately peer-reviewed special education 

program; hearing officers and reviewing courts must continue 

to assess the appropriateness of an IEP on a case-by-case 

basis, taking into account the available research. We 

recognize that there may be cases in which the specially 

designed instruction proposed by a school district is so at 

odds with current research that it constitutes a denial of a 

FAPE. See, e.g., Waukee Cmty. Sch. Dist. v. D.L., No. 07-

00278, 51 IDELR 15 (LRP) (S.D. Iowa Aug. 7, 2008) 

(explaining that a student was denied a FAPE, in part, 

because the school district frequently employed strategies 

which contradicted the relevant research and were even 

inconsistent with the school’s own assessment of the 
38

appropriate program for the student).11

 11 The IDEA’s peer-reviewed research requirement is 

not set forth in isolation; it is part of a broader section 

discussing the content of the IEP, which requires “a statement 

of the special education and related services . . . that will be 

provided for the child” to meet certain specified objectives, 

namely “to advance appropriately toward attaining the 

annual goals[,]” “to be involved in and make progress in the 

general education curriculum . . . and to participate in 

extracurricular and other nonacademic activities[,]” and “to 

be educated and participate with other children with 

disabilities and nondisabled children in” educational 

activities. 20 U.S.C. § 1414(d)(1)(A)(i)(IV).

 Additionally, if it is 

practicable for a school district to implement a program based 

upon peer-reviewed research, and the school fails to do so, 

that will weigh heavily against a finding that the school 

provided a FAPE. However, that is not the case here. Ridley 

relied on available peer-reviewed research in crafting the IEP 

for E.R., and proposed a program with specially designed 

instruction that was “reasonably calculated” to enable her to 

achieve meaningful educational benefits in light of her 

intellectual potential and individual abilities. See Rowley, 

458 U.S. at 207. Thus, we conclude that the District Court 
39

properly reversed the Hearing Officer’s finding that the IEP 

was inadequate to provide a FAPE.12

 12 The Hearing Officer also awarded Parents

compensatory education for the end of the 2007-2008 school 

year, despite the fact that Project Read was not yet 

implemented, and Ridley was continuing to use its existing 

“resource room” reading program. The Hearing Officer did 

not explain this conclusion, and based on the record, we 

cannot agree. Pursuant to E.R.’s IEP and the May NOREP,

both of which Parents agreed to, for the last eighteen days of 

first grade, E.R. received one hour of reading instruction in 

the resource room. The resource room reading curriculum 

consisted of Reading Naturally, Reading Workshop, Writing 

Workshop, and Patricia Cunningham’s Systematic Phonics. 

Hodges testified that although the same programs were used 

for all students in the resource room, she tailored the 

programs to each student’s individual needs. Moreover, 

E.R.’s evaluations all indicated that she would benefit from 

multi-sensory learning, and Hodges explained that all 

activities done in the resource room were multi-sensory. She 

also explained that “all of the research points to a balanced 

literacy program which is hammering away at phonemic 

awareness, phonics, comprehension, fluency, and vocabulary. 

And with the repertoire that we were using throughout the 

week, I think we hit all those schools.” We can find no 

evidence in the record that rebuts this testimony. In light of 

the fact that reviewing courts must be mindful not to 

substitute their views of what constitute preferable 

educational methods for those of school officials, who have 
40

D. Section 504 of the Rehabilitation Act

Parents next contend that the District Court erred in 

reversing the Hearing Officer’s determination that Ridley 

violated § 504 of the Rehabilitation Act during E.R.’s first 

grade year. We disagree. The Rehabilitation Act provides 

that “[n]o otherwise qualified individual with a disability . . . 

shall, solely by reason of her or his disability, be excluded 

from the participation in, be denied the benefits of, or be 

subjected to discrimination” under any program that receives 

federal funds. 29 U.S.C. § 794(a). This prohibition was 

extended to public school systems through § 504. Id.

§ 794(b)(2)(B). To establish a violation of § 504 of the 

Rehabilitation Act, Parents were required to prove that 

(1) E.R. was disabled; (2) she was “otherwise qualified” to 

participate in school activities; (3) Ridley received federal 

financial assistance; and (4) E.R. was excluded from 

participation in, denied the benefits of, or subject to 

 

expertise in the area, D.S., 602 F.3d at 564, we agree with the 

District Court that the Hearing Officer erred in determining 

that Ridley denied E.R. a FAPE during the end of first grade.

Because we hold that the resource room instruction 

provided during the end of the 2007-2008 school year was 

sufficient to provide a FAPE, we likewise hold that the 

Hearing Officer erred in finding that the IEP was inadequate 

for September 2008 (the first month of second grade). The 

same programs that were used during the end of first grade 

were scheduled to be used in September, until Project Read

was ready to be implemented.
41

discrimination at Ridley. Ridgewood Bd. of Educ., 172 F.3d 

at 253. Here, the parties dispute only the fourth element.

As we have explained, § 504’s “negative prohibition” 

is similar to the IDEA’s “affirmative duty” and also requires 

schools that receive federal financial assistance to “provide a 

free appropriate public education to each qualified 

handicapped person who is in the recipient’s jurisdiction.” 

Matula, 67 F.3d at 492-93 (quoting 34 C.F.R. § 104.33(a)). 

To offer an “appropriate” education under the Rehabilitation 

Act, a school district must reasonably accommodate the needs 

of the handicapped child so as to ensure meaningful 

participation in educational activities and meaningful access 

to educational benefits. See J.D., 224 F.3d at 70 (citing 

Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985)); D.S., 

602 F.3d at 556 (explaining that under the IDEA, a state must 

supply an education that provides “significant learning” and 

“meaningful benefit”) (citation omitted); Ridgewood Bd. of 

Educ., 172 F.3d at 253.13

 13 The regulations implementing § 504 of the 

Rehabilitation Act state: “the provision of an appropriate 

education is the provision of regular or special education and 

related aids and services that (i) are designed to meet 

individual educational needs of handicapped persons as 

adequately as the needs of nonhandicapped persons are met.

. . .” 34 C.F.R. § 104.33(b)(1).

 However, § 504 does not mandate 

“substantial” changes to the school’s programs, Se. Cmty. 

Coll. v. Davis, 442 U.S. 397, 405 (1979), and courts “should 

be mindful of the need to strike a balance between the rights 

of the student and h[er] parents and the legitimate financial 
42

and administrative concerns of the [s]chool [d]istrict,” J.D., 

224 F.3d at 70-71 (internal marks and citation omitted). But 

“[t]he fact that it is more convenient, either administratively 

or fiscally, to provide services in a segregated manner, does 

not constitute a valid justification for separate or different 

services.” Helen L. v. DiDario, 46 F.3d 325, 338 (3d Cir. 

1995) (quoting H.R. Rep. No. 485, reprinted in 1990 

U.S.C.C.A.N. at 473).

In June 2006, prior to E.R.’s kindergarten year, Ridley 

prepared an Allergy Treatment Plan, which alerted school 

staff to E.R.’s allergies and the signs of an allergic reaction, 

and explained how school officials should react if E.R. were 

to have an allergic reaction. In February 2007, a § 504 

Service Agreement was implemented to further address 

E.R.’s health issues. The Service Agreement reflected 

Parents’ request that E.R. be included in as many activities as 

possible, and provided that because E.R. was “only to eat 

foods provided by parents,” Parents were to be contacted 

before activities involving shared food so that appropriate 

alternatives could be provided. The Service Agreement also 

required all students in the classroom to wash their hands 

before and after meals, required E.R. to wash her hands after 

touching physical education or OT equipment, mandated that 

E.R. wear gloves provided by Parents when handling glue, 

and provided that E.R. would only use supplies and utensils 

provided by Parents.

Parents allege that Cenname “stubbornly and 

persistently” refused to implement the Service Agreement, 

which led to E.R. being “singled out, isolated and denied full 

participation with her classroom peers.” The Hearing Officer 
43

cited the following incidents as evidence of Ridley’s 

discrimination against E.R. First, as part of a “Clifford the 

Dog” celebration, E.R.’s classmates were given brownies 

with red icing and red juice, but because E.R.’s allergies 

prevented her from eating that food, she was given a cupcake 

from the nurse’s freezer that had been provided by her 

mother. Second, a program on nutrition was offered, along 

with a specific snack. Although Parents were notified of the 

program in advance, they were not told what the snack would 

be, and therefore, E.R. ended up having to eat a snack from 

home. Third, according to E.R.’s mother, Cenname cancelled 

an Earth Day project rather than design an alternative snack 

for E.R. E.R.’s mother testified that Cenname commented 

that she did not understand why the other students in class 

should have to accommodate one child when E.R.’s parents 

could provide separate food. Fourth, due to her allergies, 

E.R. was required to wear loose cotton clothes. E.R.’s mother 

testified that she often had difficulty locating reasonably 

priced clothing that complied with Ridley’s dress code: green 

shirts, khaki pants, and a white sweater. Despite this 

difficulty, on two occasions, Cenname remarked to E.R. that 

her clothes were not in compliance with the dress code, which 

according to Parents, caused E.R. to “feel[] humiliated.” 

Fifth, students in E.R.’s first grade class participated in an 

activity in which they worked with partners to sift sand, 

pebbles, and gravel, and compare the various shapes and 

sizes. Due to her severe allergies, E.R. was not permitted to 

touch dirt without using gloves. Cenname testified that she 

had forgotten about the sand activity when preparing her 

update to E.R.’s mother, and thus, was unsure whether E.R. 

could touch any of the materials. “To be safe,” Cenname 
44

instructed E.R. to let her partner handle the materials, but 

E.R. was allowed to participate in the project in every other 

way. Finally, E.R. was given several poor grades on 

penmanship tests. Parents blame this on Cenname’s failure to 

notice that E.R.’s chair did not allow her to brace herself for 

writing tasks.

We agree with the District Court that although each of 

these incidents “may illustrate how E.R.’s daily school 

routine necessarily had to be different than her classmates,” 

they do not constitute § 504 violations. Ridley, 2011 WL 

499966, at *17. There is no evidence in the record that E.R. 

was excluded from participation in educational activities, 

denied educational benefits, or otherwise subjected to 

discrimination. See Ridgewood Bd. of Educ., 172 F.3d at 253. 

E.R. was not denied meaningful participation in the foodrelated activities; she simply had to eat something slightly 

different than the food eaten by her classmates. Parents argue 

that Cenname could have complied with the Rehabilitation 

Act by allowing E.R.’s mother to prepare snacks for the entire 

class that were suitable to E.R.’s dietary needs. The statute 

simply does not require that. See Davis, 442 U.S. at 410 

(explaining that the Rehabilitation Act distinguishes “between 

the evenhanded treatment of qualified handicapped persons 

and affirmative efforts to overcome the disabilities caused by 

handicaps”). Similarly, E.R. was not denied the educational 

benefit of the sand, pebbles, and gravel lesson, even though 

she was not allowed to touch the materials. Contrary to 

Parents’ suggestions, this case does not involve a situation in 

which a school district attempted to provide separate-butequal services to a disabled student. See Helen L., 46 F.3d at 
45

338. Ridley took reasonable steps to accommodate E.R.’s 

disabilities and include her in all class activities; it was not 

required to grant the specific accommodations requested by 

Parents or otherwise make substantial modifications to the 

programs that were used for all other students. J.D., 224 F.3d 

at 70. Additionally, although Cenname may have exercised 

poor judgment in commenting on E.R.’s clothes, in the 

absence of evidence that E.R. was excluded from 

participation in educational activities or denied educational 

benefits, two isolated comments do not rise to the level of a § 

504 violation. See Ridgewood Bd. of Educ., 172 F.3d at 253. 

Nor does Cenname’s alleged failure to identify the position of 

E.R.’s chair as the source of her struggles on penmanship 

tests.

E. Other Claims

Finally, Parents argue that the District Court erred in 

dismissing their claim for damages under the Rehabilitation 

Act, their claim under the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq., and a state law claim 

against Cenname for “outrageous conduct causing severe 

emotional distress.” Parents contend that these claims were 

not the subject of Ridley’s motion for judgment on the 

administrative record, and thus were not before the District 

Court. Accordingly, Parents ask us to remand to the District 

Court to consider their remaining claims. We decline to do 

so; although the District Court did not address the claims, we 

can affirm based on any grounds supported by the record. 
46

Chambers, 587 F.3d at 183-84.14

IV. Conclusion

 First, because Parents’ 

Rehabilitation Act claim fails, they are not entitled to 

damages. Second, the substantive standards for determining 

liability under the Rehabilitation Act and the ADA are the 

same, McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d 92, 

94-95 (3d Cir. 1995), and thus the District Court did not err in 

disposing of Parents’ claim under the ADA. Finally, because 

no federal claims remained, dismissal of Parents’ state law 

claim was proper under 28 U.S.C. § 1367(c)(3).

For the foregoing reasons, we will affirm the order of 

the District Court.

 14 Although the principle that an appellate court may 

affirm on any grounds supported by the record has previously 

been articulated in the summary judgment context, it is based 

on considerations of judicial efficiency, and we see no reason 

not to apply the same principle to a district court’s grant of

judgment on the administrative record.