2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 9-2-2004 

# H. W . v . Hi ghl a nd P a rk B d E d P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3309

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w . v i l l a no va . e du/thir dc ir c uit_2004/3431 NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-3309 H.W. and J.W. O/B/O A.W., a Minor Chil d, Appellees vs. HIGHL AND PARK BO ARD OF ED UCATI ON, Appellant

____________ APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DIS TRI CT OF NE W JERS EY (D.C. C iv. No. 01-c v-0516 6) District Judge: M ary Little Cooper

____________ Argued July15, 2004 Be for e: S LO VI TE R, B AR RY and W EIS , Circu it Judges
.

(Filed: Septem ber 2, 200 4)

____________

Ja mes L. Pl os ia , Jr. , E sq ui re (AR GUED) Apru zze se , McDe rmo tt , Mas tr o & Murp hy , P .C. 25 Independence Boule vard, P. O. Box 112 Liberty Corner , New Jersey07938 Attorneyfor Appella nt
Natha n Le win , E sq ui re (AR GUED)2

Alyza D. L ewin, E squire Lewin & Lewin, LLP 1828 L Street , N.W., Sui te 1000 Washington, D.C. 20036 Mich ael I. Inzelbuch, E squire S.I. Bank & Trust Building 555 Madison Avenue Lakewood, New Jersey 08701 Attorney s for Appell ees Abb a Coh en, Esqu ire Agudath Isra el of America 1730 Rhode Island Avenue, Suite 504 Washington, D. C. 20036 Dav id Zw iebel, Esquire Mo rdechai B iser, Esquire Agudath Isra el of America 42 Broadway, 14 th Floor New Y ork, New York 10004 Yeh uda L . Neub erger, Esqu ire 59 Maiden Lane, Plaza Level New Y ork, New York 10038 Amicus Curiae Agudath I sraelof America In Support of Appellees

____________ OPINI ON OF THE COURT
W EIS , Circuit

Judge
. This appealis fr om the entry of j udgment in favor of H.W. and his wife on a claim for reim bursem ent of exp enses incu rred in a unilateral placem ent of their3

daug hter, A .W., at a private scho ol for th e disab led. B ecau se the f acts are we ll know n to the part ies and were e xhausti ngly developed i n lengthy administ rati ve proceedi ngs, as well as t horoughlyexplored i n the Dist rict Court’s opi nion, we wil l refe r to t hem only a s
nec essa ry to the und ersta ndi ng o f the lega l issu es.

A.W., born on Apri l 28, 1989, had learning diff icult ies i n pre-sc hool and the pri mary gr ades. She was cl assif ied as perceptual ly impaire d and diagnosed a s suffering f rom A ttention Def icit Hyperactivity Disorder, M ixed A djustmen t Disorder, M oto r Co ord inati on D isord er, an d A spe rge r’s S yndro me (a fo rm o f au tism ).

In August 2000, the Highland Park School Dist rict proposed a pl acement for A.W. in the Bartl e School. The parents rejec ted thi s plan and enrolled t heir daughter in SinaiSpecial Needs Insti tute at the Kushner Hebrew Academy, a pri vate schoolfor the disabled. Th e Bartle plan c alled for A .W. to be in a co-ed class o f eight studen ts. In ad di ti on to Ms. Loi s Br own , a te ac he r wh o wa s f

ami li arwit

h As pe rg er ’s Sy ndrome , two para-p rofes siona ls wo uld b e pres ent w ith the like lihood that a th ird w ould be ad ded if A.W. were enroll ed.

A.W. would receive one-on-one i nstruc tion i n language arts, reading and mathemati cs. She would al so recei ve occupati onal the rapy , speech t herapy , and phy sical therapy . Moreover, the Dist rict also expec ted to de velop and i mplement a behavi or modification plan. A.W. would attend mai nstre am classes with other children in her a ge group in art, music, phy sical education, health, as well as lunch and recess.4 At the SinaiSchool, A.W. received i nstruc tion i n mathemati cs and soci al studi es with fi ve other girls, one of whom had Asperger’s Sy ndrome and the ot her four of whom had learning di sabil iti es. She al so attended a sci ence clas s with one ot her girl. The Sina i Sch ool h ad an exce llent soc ial skills de velop men t depa rtmen t and e mp loyed a f ulltime schoolpsyc hologis t. A.W. at tended mains tream l unch and it was planned that she
wo uld also atten d m ains tream physi cal e duc ation and synag ogu e.

A.W . rem aine d in the S inai S cho ol u ntil th e fa mily m ove d to Israe l in 2 003
. The p arents’ claim is for the ir expenditures a t the Sinai Sch ool for the sch ool years beginning i n September 2000, 2001 and 2002.

A ve rypa ti en t AL J p re si de d ov erex te ns iv e p re se nt atio n of ev id en ce bytwo committed a nd loquaci ous advocate s in the due process administ rati ve proceedi ng. At the conclusi on of the hearings, the ALJ stated, “I f ind Highland Par

k’s propos ed placement of A.W . did no t violate I DE A . . . I fin d all of Hig hland Park ’s action s after A .W. e nrolled in the Highland Park School Dist rict lead t o the concl usion that Highland Park would meet its respo nsibilities to A.W . . . . petitioner d id no t give H ighlan d Pa rk the o ppo rtunity to provide FAPE [free appr opriate public educati on] to A.W.”

Th e pla intif fs a ppe aled to th e D istrict Co urt f or th e D istrict of N ew Jers ey. After presenting oral arguments on legal is sues, the parti es stipulated to submit the case on t he a dm inistr ative reco rd w ith n o fu rthe r ev iden ce.5 The Distri ct Court reviewed the record and wrote a comprehensi ve opinion,
co nc lu di ng t

ha t S in ai was an ap pr opriate pl ac eme ntan d tha t A. W. h ad sh own improvement t

here. The Court

also hel d that t

he School Dist

rict ’s propos al did not pro vid e an app rop riate plac em ent a nd e nter ed ju dgm ent a gain st it.

The D istri ct Court’s determinati on rested on three factors: 1. Plaintiffs’ experts Trigani and Handleman had “a deeper knowledge of Asper ger’s Syndrome” than t he defe ndan t’s exp ert; 2. The Hig hland Park Ch ild Stud y Team of B artle School had not met

with A.W. before de ciding on he r placement; and 3. Defe ndant’s ex pert findings b ased on a 1996 test were inconsistent with t

hose of other examiners. The Distri ct Court he ld that , even though Sinai was a private parochia l school, neverthe less reimbursement to the parents was permissible. We do not reach that issue and inti mate no views on i t. On appeal , the defendant contends that the Dist rict Court erred in consi dering A.W.’ s placement in 1996 and 1997, and fail ed to givedue
we igh t to th e A LJ’ s de cisio n.

Ou r stan dar d of rev iew is ple nar y. S.H. v. St ate-Operated Sch. Dist. of the City of New ark , 336 F.3 d 26 0 (3 d C ir. 20 03)
. See also D.R. v. E. Bruns wick Bd. of Educ. , 109 F .3d 89 6 (3d Cir. 19 97); Carl isl e Area Sc h. v. Scott P. , 62 F.3d 5 20 (3d C ir. 1995) . The District

Court’s s tandard of

review is descri bed as modifi ed de novo
. See S. H. , 336 F.3 d at 2 69- 70.6 Distric t Cou rts are to g ive du e w eight to the fa ctual f inding s of a n A LJ in ID EA cas es. See Board of Educati on v. Rowley , 458 U .S. 176 , 206 ( 198 2); S. H. , 336 F.3 d at 2 69- 70. W e rec ently h ad o cca sion to d iscu ss th e ap pro pria te sta nda rd. [I]f a s tate administ

rati ve agency has heard l ive te sti mony and has found the te sti mony of one witness to bemore worthy of beli ef than the contradi ctorytestimony of another witness, that de termination i s due speci al we igh t. Id. ; Carl isl e Area Sc hool v . Scot t P. , 62 F.3d 5 20, 527-2 9 (3d C ir. 199 5). Sp ecifica lly, this mean s that a D istrict Co urt mu st acce pt the sta te agen cy’s cred ibility determ ination s “un less the non -testimo nial, extrin sic evidence i n the rec ord would justify a contrary conclusi on.” Carlisle , 62 F.3d at 529 ( emphasis added) . In t his context the word “justify ” demands essentiall y the same standard of revi ew given to a t rialcourt’ s findi ngs of fac t by a f ede ral ap pella te co urt. See A nd er so n v . C ity o f B es se m er C ity, N.C. , 470 U .S. 564, 574 (1985).

Wh en a D istrict Co urt dec ision in a case such as this is appealed t o us, we of cours e exerci se plenary r eview with re spect to the que stion of w heth er th e D istrict Co urt a ppl ied th e co rrec t lega l stan dar d, see Polk , 853 F.2d at

181, but we revi ew the District Court ’s fact ual fi ndings for clea r erro r. T.R. v. Kingwood Tp. Bd. of Educ. , 205 F.3d 572, 576 (3d Cir. 2000) . “A findi ng of fact i s clearly erroneous when, after reviewing the evi dence, t

he court of

appeals i s left

with a defi nite and firm convi ction that a mistake ha s been committed.” Ob erti , 995 F.2d at 1204 (internal quo tatio n m ark s om itted ). Shore Reg ’l Hi gh Sch. Bd. of Educ . v. P.S. , ___ F.3 d __ _, at _ __ - ___ (3d Cir . 200 4).7 Where the court

does not hear

additi onal evi dence, fac tual s upport for findings co ntrary to those of the A LJ m ust be fou nd in the reco rd. “M oreover, the co urt must explai n why it

does not acc ept the ALJ’s findi ngs of fact to avoid the impressi on that it is sub stituting its o wn notion s of so und educ ationa l policy fo r those of the agen cy it reviews. ” S. H. , 336 F.3d at 270. The issue i n the case before us i s not determined bycomparison between the progr ams at Highland and Sinai. As we explained i n Shore Reg’l High Sch. Bd. of Educ. , ___ F.3d at

___ - ___, where “parents seek rei mbursement for a unilateral place men t, the D istrict Co urt mu st first de termin e w hethe r the IE P af ford ed the stude nt a FAPE.” A comparison between t he two programs i s irrelevant to the a dequacy of the pro pos ed p lace me nt u nde r ID EA
.

M ore ove r, the pro prie ty of a n IE P m ust b e jud ged pro spe ctive ly. See Carlis le Area Sch. , 62 F .3d at 5 30. T he ID EA does not req uire a s choo l district to provide t he best pos sibl e educati on, but i t must be more than de minimus . IDEA demands an Indivi dualiz ed Education Pr ogram that will result

in some measurabl e benefit . The ben efit m ust b e ga uge d in relat ion to th e ch ild’s pot entia l. Polk v. Central Susque hanna Intermediate Unit

16 , 853 F .2d 17 1 (3d Cir. 19 88); see also Carlis le Area Sch. , 62 F.3d 520. The educ ation m ust be delive red in th e least re strictive a ppro priate
env iron me nt. See 20 U .S.C . § 14 12( a)(5 )(A ). See also Carlis le Area Sch. , 62 F.3d at8

533. The School Dis tri ct has t he burden to prove that its proposed progr am was app rop riate
. Oberti v. Bd. of Educ. , 995 F.2d 1204 (3 d Cir. 199 3).

We have pored through t he extensi ve record i n this case and i t is clear that the Dist rict Court dil igentl y r eviewed the matter. Nonetheless , despi te the competence displayed by the District Cou rt, we have differing view s on seve ral significant factors underlyi ng the grant of judgment for the parents.

Although the Court

fault ed the School Board for prepar ing a propos al without meeting with A.W., the tr anscri pt demonstr ates t hat such a meeting was indeed held in e arlyAugust 2000. I t was part of the proc ess le ading to a recommendation f

or plac em ent o f A .W . in S epte mb er 2 000
. See J.A. at 730, 746, 1499 & 1500. The court concluded that the plainti ff’s experts, Drs. Tri gani and Handleman, had a deeper knowledge of Asperger’ s Syndr ome than Ellyn Atherton, the Schoo l District expert. How ever, Dr. H andlem an’s testimony did no t support A .W.’s po si t i on t ha t Hi gh l an d P ar k w ou l d n ot

pr ov i de an ap pr op r i ate p r og r am . I n h i s v i ew , A. W. should not

have been moved because s he was thri ving at Si nai as of Oct ober 2000. When ques tioned directly abo ut w hethe r the H ighlan d Pa rk pro posa l was appr opriate , he said “the i ssue of ass essing whether anyprogram is appropri ate i s real ly a non-is sue for me.” J.A . at 12 32. Wh en asked whe ther any other con sideration ma de H ighland P ark inappropriate , Dr. Handle man responded: “ [Regressi on] is t he major factor.” J .A. at9

1233. “Movement would not be appr opriate for her . . . regardle ss of . . . what progr am.” J.A. at 1233-34. “. . . t

he issueof whether or not Highland Park coul d provide an appropri ate progr am becomes a non-is sue at t hat point , becausemy st rong feel ing was that A . sho uld not be m ove d fr om her cur ren t plac em ent.” J.A . at 12 40- 41.

Dr. Handleman did conce de that when he visited the Bartle School Spec ial Edu cation Clas s in O ctobe r 200 0, he “ didn ’t see an ything at th at poin t that w ould indica te any particul ar concern.” J. A. at 1240. He added that “[i ]f it was judged that

she was readyfor a move, t

hat the Highland Park pr ogram or some other program could be appropri ate for

her.” J .A. at

1264. Furthermore, he stated that “[t]he re was nothi ng at that poi nt to s uggest t

hat the component [at Bartle] couldn’t be enhanced or devel oped.” J.A. at 1265. In s um, Dr. Handleman did not opine that Highland Par k’s progr am was inap pro pria te.

Dr. T rigani’s testimo ny wa s leng thy, often repetitio us, an d freq uently devoted t o conditi ons at Si nai, an issue not rel evant i n apprais ing the program at Highl and Park. His objections t o the Highland Park program centered on t he fact t hat the class size would be nine, and that he beli eved that

none of the chi ldren i n that c lass would be potenti al fri ends for A.W. He conceded, however, that the Bartle c lass would not be abov e the le gal m axim um num ber o f stud ents H e note d that “ Hig hland Park is in
com plianc e w ith the law , but ac cepta ble pra ctice g oes f ar in ex cess o f ma ximu m lim its and goes down to one-on- one prett y much. ” J.A. at

822.10 Dr. T rigani a lso w as critica l of H ighlan d Pa rk’s lac k of expe rience in dealing with Asperger’s Syndrome children in a self-cont ained program, lack of success and fail ure to have a behavior al plan. All of t hese fact ors were cont

radicted by t

he Dis trict’s exp ert.

Defendant’s expe rt Ell yn Atherton has a Master s Degree in s peech and language pathology and audiology. She has taught at Highland Park for 24 years, includi ng student s who had Asperger’s Syndrome. She described the propos ed placement in her te stimo ny befo re the A LJ. A t the B artle sch ool, A .W. w ould be pla ced in Lois Bro wn’s spe ci al edu cat io n cl as sr oom. The credibi lit

y of t he expert witnesse s was a matter for dete rminati on by t

he AL J, w ho h ad th e op por tun ity to he ar an d ev alua te the ir de me ano r an d pe rsua sive nes s. Our studyof the transcript and gi ving due weight to the f indings of the ALJ does not l ead us to disa gre e w ith h is de term inati on o f the fac ts an d cr edib ility of th e w itnes ses. Moreover, we are i mpressed with the qual ific ations of Ms. Lois Brown, who was the teacher assign ed by High land Park to condu ct the special edu cation class. She had m ore than 14 years ex perience in the field of spec ial education, includ ing Asp erger’s Synd rom e. Dr. Handleman’s fe ar of regression i n the event of trans fer, whil e an obvious concern to the parents , is irr elevant to the l egal i ssue in t

his cas e - whether t

he Highlan d Park p roposal w as approp riate under ID EA . Just as comp arison w ith Sinai’s11

program is not a proper subject for eval uation, the possibili ty of regres sion caus ed by trans fer from that school , where theparents unilaterall y pl aced thei r daughter , has no bearing on t

he Highland Park program’s compli ance with I DEA . Although Dr. Trigani favo red an all-girl clas s for A .W., he failed to pro vide a ny prof ession al resea rch to supp ort that v iew a s a critica l elem ent in th e H ighlan d Pa rk plan . In sho rt, the reco rd is devoid o f any non-testimo nial, extrinsic evidence that wou ld justify a conclusion co ntrary to th e A LJ d ecis ion
.

It i s import ant to e mphasize once again that the ALJ found that , based upon its acti ons, i t was reas onable t o presume that Highland Park would meet s it s obli gations to provi de an appropri ate educat ion to A.W. However, by preempti velyplaci ng and continui ng the chi ld in cl asses at Sinai, the pare nts di d not give t he school di stri ct the opp ortu nity to p rov ide a free and app rop riate edu catio n.

We conclude, therefore, that t he District Court ’s deci sion was not s upported by the reco rd a nd, a cco rdin gly, the jud gm ent in fav or o f the par ents wil l be r eve rsed
.