NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 13-2212

____________

R.K. and D.K., individually, and on behalf of R.K.,

Appellants

v.

CLIFTON BOARD OF EDUCATION 

____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2:11-cv-06231)

District Judge: Honorable Katharine S. Hayden

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 1, 2014

Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges.

(Filed: October 8, 2014)

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OPINION

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CHAGARES, Circuit Judge.

R.K. and D.K., individually and on behalf of their son R.K. (collectively, “the 

plaintiffs”), appeal the District Court’s March 28, 2013 order granting the Clifton Board 

of Education (“the District”) summary judgment on the plaintiffs’ lawsuit alleging 

violations of the Individuals with Disabilities Education Act (“IDEA”) and denying the 
2

plaintiffs’ motion to supplement the record. The order effectively affirmed the decision 

of a New Jersey administrative law judge (“ALJ”) denying the plaintiffs’ petition for 

relief. For the following reasons, we will affirm the decision of the District Court. 

I.

We write solely for the parties and therefore recite only the facts that are necessary 

to our disposition. R.K. was diagnosed with autism when he was two years old. R.K., 

his parents, and his sister lived in Clifton, New Jersey at all times relevant to this opinion. 

When R.K. was three years old, the District classified R.K. as eligible for special 

education services. On July 27, 2007, the District proposed an Individual Education Plan 

(“IEP”) for R.K. However, R.K.’s parents disagreed with the proposed IEP, and on 

September 11, 2007, filed a due process hearing petition challenging the proposed IEP 

and seeking specific services for R.K.1 Pending resolution of the petition, the plaintiffs 

arranged and paid for R.K.’s educational program through Progressive Steps, a Stateapproved early intervention services provider. Around this time, the plaintiffs also 

learned about the Carbone Clinic,2a private clinic located in New York, and arranged for 

an assessment of R.K. The plaintiffs applied, and R.K. was placed on the Carbone 

Clinic’s waiting list. 

 

1 The plaintiffs specifically requested an “ABA/AVB program, ABA instruction at school 

and at home, a 1:1 aide trained in ABA and the support of a certified behaviorist.” 

Appendix (“App.”) 54. “ABA” stands for Applied Behavior Analysis and “AVB” stands 

for Applied Verbal Behavior, a subset of ABA that is related specifically to language 

development. 

2 The Carbone Clinic is not a school, and is not approved by the New York or New Jersey 

Department of Education. 
3

On March 20, 2008, the plaintiffs and the District reached a stipulated settlement 

of the plaintiffs’ petition, and the District agreed that it would provide, inter alia, 20 hours 

per week of direct one-to-one ABA/AVB instruction through Progressive Steps. The 

District also agreed to transition R.K. gradually and fully into a full-day AVB preschool 

disabled class by September 2008. The settlement stipulated that the parties would 

convene an IEP meeting prior to the 2008-2009 year to “determine appropriate 

accommodations, the need for further 1:1 ABA and other related services.” App. 56. 

The IEP meeting took place on August 11, 2008, at which the District’s Child 

Study Team (“CST”) set forth an IEP that placed R.K. in the full-day program and gave 

him related services, including ABA and AVB services provided by Progressive Steps. 

The plaintiffs attended this meeting, but deny signing the IEP. In accordance with the 

settlement and IEP, R.K. started full-time in a class taught by Ilene Platkin in September 

2008, and continued to receive 20 hours per week of one-to-one ABA/AVB services from 

Progressive Steps. R.K. attended the class from September 2008 to February 2009. At 

the due process petition hearing before the ALJ, several witnesses testified that R.K. 

made at least reasonable progress in the program during this time. 

By November 2008, the plaintiffs learned that the District had retained Dr. Irene 

Cook, a consultant and Board Certified Behavior Analyst, to review its AVB program. 

The plaintiffs requested a copy of the report prepared by Dr. Cook following her 

observation of the program (the “Cook Report”), but the District denied the request. 

On January 19, 2009, R.K. was accepted to the Carbone Clinic. The next day, the 

plaintiffs notified the District of R.K.’s acceptance to the clinic, and requested an IEP 
4

meeting to discuss changes to R.K.’s program. The plaintiffs followed up with another 

letter on January 23, 2009, expressing concerns about R.K.’s current program and 

requesting a meeting to discuss placement of R.K. at the Carbone Clinic in the mornings. 

In response, the District convened another IEP meeting on February 3, 2009. At the 

meeting, the District advised the plaintiffs that it would have to reevaluate R.K. because 

he had aged out of his class, and also that it would have to assess the Carbone Clinic 

before it could respond to the plaintiffs’ request. The plaintiffs informed the District that 

starting February 9, 2009, they planned to send R.K. to the Carbone Clinic three 

mornings per week, and then for five mornings starting March 1. They proceeded to start 

R.K. at the Carbone Clinic on this schedule. 

The CST completed a reevaluation of R.K. and an observation of the Carbone 

Clinic, and met with the plaintiffs again on April 23, 2009. At the meeting, the District 

denied the plaintiffs’ request that R.K. attend the Carbone Clinic in the mornings and 

instead proposed that beginning May 8, 2009, R.K. be placed full-time in Platkin’s 

preschool disabled AVB class and, for the 2009-2010 school year, in a kindergarten AVB 

class for children with autism. The District included these terms in a draft IEP, which 

was provided to the plaintiffs. 

On May 7, 2009, the plaintiffs filed a second due process petition claiming that 

R.K. was being denied an IDEA-guaranteed free appropriate public education (“FAPE”) 

during the 2008-2009 school year. The plaintiffs’ petition also challenged the April 23, 

2009 IEP proposal for the 2009-2010 school year, and sought services, including 

placement at the Carbone Clinic and reimbursement for costs. 
5

In or around June 2009, in preparation for the due process hearing, the plaintiffs 

requested that an expert be permitted to observe Platkin’s classroom. The District denied 

this request on June 11, 2009. 

On July 26, 2011, after 16 days of hearings, the ALJ held that the 2008-2009 

program and the 2009-2010 IEP provided R.K. a FAPE. The plaintiffs brought suit in the 

District Court for the District of New Jersey to appeal the ALJ’s decision, alleging 

violations of the IDEA, New Jersey’s special education law, and Section 504 of the 

Rehabilitation Act of 1973. The parties cross-moved for summary judgment, and the 

District Court granted the District’s motion for summary judgment on March 28, 2013. 

The plaintiffs also moved to supplement the record, requesting that the District 

Court admit the Cook Report, Dr. Cook’s deposition testimony, and exhibits. The 

District Court denied the motion, finding that the Cook Report was not “necessarily 

useful in assessing whether [the ALJ] properly determined that the District’s IEPs for 

R.K. were appropriate.” App. 27-28. The District Court observed that Dr. Cook never 

met R.K. or reviewed any documents related to R.K., and that other witnesses at the due 

process hearing had testified as to their observations of the District’s ABA/AVB 

program. The court also concluded “that the District’s denial of plaintiffs’ request to get 

a copy of Dr. Cook’s report did not violate plaintiffs’ procedural rights under IDEA such 

that R.K.’s right to a FAPE was impeded.” App. 29. The District Court further held that 

the District’s refusal to allow the plaintiffs’ expert to observe Platkin’s class did not 

violate the plaintiffs’ procedural rights because “access was not improperly denied and 

the opportunity to observe the class was sufficiently available to plaintiffs.” Id. 
6

The plaintiffs timely appealed, arguing that: (1) the District Court abused its 

discretion by denying plaintiffs’ motion to supplement the record; and (2) the District 

Court erred in concluding that the District had not denied R.K. of a FAPE by violating 

plaintiffs’ procedural rights.

3

 

II.

The District Court had jurisdiction to review the ALJ’s decision pursuant to 20 

U.S.C. § 1415(i)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. 

We exercise plenary review over a district court’s conclusions of law and 

application of legal standards under the IDEA. See Ridley Sch. Dist. v. M.R., 680 F.3d 

260, 268 (3d Cir. 2010). We “review the District Court’s findings of fact . . . under a 

clearly erroneous standard.” Id. 

We review a district court’s evidentiary rulings for abuse of discretion. See Susan 

N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). 

III.

A.

The plaintiffs assert that the District Court erred in finding that the District did not 

deny R.K. a FAPE by violating the plaintiffs’ procedural rights under the IDEA. 

Specifically, the plaintiffs argue that their procedural rights were violated by the 

 

3 The plaintiffs also assert that the District Court erred in holding that they failed to 

comply with Local Civil Rule 56.1 by failing to file a statement of undisputed material 

facts with their cross-motion for summary judgment. Because the District Court did not 

dismiss plaintiffs’ motion on this basis, but rather addressed the merits of plaintiffs’ 

arguments, it is not necessary for us to reach this argument. 
7

District’s refusal to both provide them a copy of the Cook Report and allow their expert 

to observe Platkin’s class in preparation for the due process hearing. 

Congress passed the IDEA to “ensure that all children with disabilities have 

available to them a free appropriate public education that emphasizes special education 

and related services designed to meet their unique needs. . . .” 20 U.S.C. § 

1400(d)(1)(A). The IDEA “specifies that the education the states provide to [children 

with disabilities] specially [be] 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.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010) (quotation 

marks omitted). These services are usually designed and implemented through an IEP, 

which is a program of individualized instruction for each special education student. See

id. at 557. If parents “believe that an IEP fails to provide their child with a free and 

appropriate public education, they may challenge the IEP in an administrative 

proceeding.” Id. However, if parents allege a procedural, rather than substantive, 

violation of the IDEA, such a violation is actionable only if it “results in a loss of 

educational opportunity for the student, seriously deprives the parents of their 

participation rights, or causes a deprivation of educational benefits.” Id. at 565.

The plaintiffs assert that the District’s refusal to give them a copy of the Cook 

Report violated the procedural rights guaranteed by 20 U.S.C. § 1415(b)(1), which 

provides that parents of a child with a disability shall have an opportunity to, inter alia,

“examine all records relating to [their] child.” We first note that there is no evidence in 

the record indicating that the Cook Report “relates” to R.K., as the Cook Report 
8

addressed the District’s program generally and Dr. Cook never met R.K. nor reviewed 

any documents pertaining to R.K. Accordingly, we hold that the plaintiffs’ procedural 

right to examine all records relating to R.K. has not been violated. 

However, even assuming the plaintiffs’ procedural rights were violated, there is no 

indication that this procedural violation resulted in an actionable deprivation of the 

plaintiffs’ participation rights, as they allege. The plaintiffs participated in several 

meetings about R.K.’s IEPs with the District’s CST, and provided input that was 

carefully considered by the District, as reflected by the fact that the CST engaged in an 

independent assessment of the Carbone Clinic in order to evaluate the plaintiffs’ request 

to send R.K. there in the mornings. We have held that parents who participated in and 

made suggestions at an IEP meeting had an opportunity to participate meaningfully in the 

decision-making process regarding their child’s education, despite procedural violations 

that had occurred prior to the meeting and despite the fact that not all of their suggestions 

were incorporated into the IEP. See D.S., 602 F.3d at 565. Accordingly, although the 

plaintiffs posit that the CST might have been more receptive to their concerns about the 

District’s autism program if those concerns had been supported by the Cook Report, the 

fact that the District’s proposed IEP did not adopt the plaintiffs’ suggestions does not 

mean that they were deprived of meaningful participation in the decision-making process 

regarding R.K.4 

 

4 To the extent the plaintiffs also argue that their procedural right to “participate in 

meetings with respect to the identification, evaluation, and educational placement of the 

child” under 20 U.S.C. § 1415(b)(1) was violated by the District’s failure to provide them 

a copy of the Cook Report, this argument fails for the reasons stated above. 
9

The plaintiffs also assert that the District’s refusal to allow their expert to observe 

Platkin’s class violated their right to an impartial due process hearing under 20 U.S.C. § 

1415(f)(1)(A). They note that 20 U.S.C. § 1415(h) provides for parents’ “right to be 

accompanied and advised by counsel and by individuals with special knowledge or 

training with respect to the problems of children with disabilities” and “right to present 

evidence and confront, cross-examine, and compel the attendance of witnesses.” 20 

U.S.C. § 1415(h)(1), (2). Once again, we do not believe that the record reflects a 

violation of these procedural rights. The ALJ held an extensive hearing, during which the 

plaintiffs presented testimony from a number of witnesses, both lay and expert. The 

plaintiffs do not allege that they were denied counsel or prevented from cross-examining 

the District’s witnesses or presenting their own; rather, they appear to assert that the 

inability to present an additional expert witness deprived them of their right to an 

impartial due process hearing. We do not find this argument persuasive.5 

However, even assuming a procedural due process violation, we once again hold, 

for the reasons stated above, that the District’s refusal to allow the plaintiffs’ expert 

access to Platkin’s class did not deprive the plaintiffs of their right to participate in the 

decision-making process regarding R.K.’s education. On the contrary, the plaintiffs 

 

5 The plaintiffs also appear to argue that the refusal to allow their expert to observe the 

District’s proposed program violates their procedural right to an “independent 

educational evaluation” under 20 U.S.C. § 1415(b)(1). However, the plaintiffs do not 

quote the relevant clause of the statute in its entirety. The section provides that a parent 

is entitled to an opportunity to “obtain an independent educational evaluation of the 

child.” 20 U.S.C. § 1415(b)(1) (emphasis added). Observation of the proposed program 

while R.K. is not in attendance does not implicate this procedural right. 
10

participated meaningfully in the process, had their concerns considered by the CST, and 

had the ultimate decision carefully reviewed by an ALJ after extensive testimony. 

B.

The plaintiffs also argue that the District Court abused its discretion in declining to 

supplement the record with the Cook Report and evidence of the District’s refusal to 

allow the plaintiffs’ expert to observe Platkin’s class.

6

 The IDEA permits a party to 

request that the court “hear additional evidence” beyond that which was admitted at the 

administrative hearing. 20 U.S.C. § 1415(i)(C). A district court must “exercise 

particularized discretion in its rulings so that it will consider evidence relevant, 

noncumulative and useful in determining whether Congress’ goal has been reached for 

the child involved.” Susan N., 70 F.3d at 760. 

As stated above, the Cook Report is not particularly relevant or useful, as it does 

not address or concern R.K. in any way. Similarly, evidence of the fact that the District 

Court denied access to a particular expert of the plaintiffs’ in June of 2009 would not be 

at all useful to determining whether R.K.’s specific education needs were being met, but 

rather would serve only potentially to prejudice the factfinder against the District. 

 

6 The plaintiffs assert that the District Court failed to consider the relevance of the 

proffered evidence to their procedural claims, focusing only on their substantive claims. 

This argument is unpersuasive in light of the fact that, although much of the District 

Court’s analysis focused on the relevance of the Cook Report to the plaintiffs’ 

substantive FAPE claims, the court explicitly held that the failure to provide the Cook 

Report and the denial of access to the plaintiffs’ expert did not violate plaintiffs’ 

procedural rights under the IDEA. See App. 29. For the reasons stated above, we agree 

with the District Court’s holding. 
11

Accordingly, we hold that the District Court did not abuse its discretion in denying the 

plaintiffs’ motion to supplement the record. 

IV. 

For the foregoing reasons, we will affirm the District Court’s order.