1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-22-1994

Bernardsville Bd. of Ed. v. J.H., et al.

Precedential or Non-Precedential:

Docket 93-5767

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Bernardsville Bd. of Ed. v. J.H., et al." (1994). 1994 Decisions. Paper 197.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/197
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-5767 

 ___________ 

 BERNARDSVILLE BOARD OF EDUCATION 

 Appellant

 vs. 

 J. H., Individually and on behalf of their minor son 

J.H.; E. H., Individually and on behalf of their minor 

son, J.H.; J. H., Individually 

 ___________ 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civ. No. 92-cv-03694) 

 ___________ 

 

Argued 

 August 8, 1994 

 Before: MANSMANN, COWEN and McKEE, Circuit Judges. 

 (Filed November 22, 1994) 

 ___________ 

Nathanya G. Simon, Esquire (ARGUED) 

David L. Rosenberg, Esquire 

Schwartz, Simon, Edelstein, 

 Celso & Kessler 

293 Eisenhower Parkway 

Suite 300 

Livingston, NJ 07039 

 COUNSEL FOR APPELLANT 

Theodore A. Sussan, Esquire (ARGUED) 

Staci J. Greenwald, Esquire 

Sussan & Greenwald 

407 Main Street 

Spotswood, NJ 08884 

 COUNSEL FOR APPELLEES 

 ___________ 

 OPINION OF THE COURT 
 __________ 
MANSMANN, Circuit Judge. 

 Through the exercise in "cooperative federalism" which 

is the hallmark of the implementation of the Education of the 

Handicapped Act, 20 U.S.C. §§ 1400 et seq., now known as the 

Individuals with Disabilities Education Act, local school boards 

are mandated to provide a free, appropriate public education for 

handicapped children alongside their peers who are not so 

impaired. The Act authorizes federal assistance to states and 

localities for educational programs which confer an educational 

benefit on disabled students. The Bernardsville School District 

receives an allocation of funds under this Act and thus incurs 

the responsibility to confer an educational benefit on learning 

disabled students enrolled in a public school within its 

jurisdiction. 

 J.H., the child who is the subject at the heart of this 

case, was denied the benefit of a free appropriate public 

education throughout his several years as an elementary school 

student within the Bernardsville School District. Year after 

year the School District failed to design an Individualized 

Educational Program suitable to J.H.'s special needs, and failed 

to intervene responsibly in his quite apparent trend of academic 

and social deterioration. Observing their son's educational 

predicament and dissatisfied with the school program in 

Bernardsville, J.H.'s parents unilaterally removed J.H. from the 

School District and enrolled him in a private out-of-state 

residential school, where J.H. improved significantly under a 

program responsive to his needs. More than two years later, 
J.H.'s parents sought reimbursement from the Bernardsville School 

District for tuition and expenses for J.H.'s private education. 

J.H.'s parents argued that Bernardsville was by law obliged to 

provide J.H. with a free appropriate public education, that it 

failed utterly in this regard, and that they were virtually 

forced to enroll J.H. in an out of district school in order to 

ensure him an appropriate educational benefit. The Act and the 

implementing regulations offer no guideline with regard to the 

timeliness of this claim for retroactive reimbursement. 

 We must decide whether J.H.'s parents requested due 

process for their son within an appropriate time limitation. 

Notwithstanding an acknowledgement of good cause for the 

frustration of J.H.'s parents and the reasonableness of their 

educational decision, we conclude that the request for 

reimbursement for the first two years after J.H. was removed from 

Bernardsville and enrolled in a private institution was untimely. 

We will award reimbursement only for J.H.'s third year of private 

education and for partial attorney's fees. 

I. 

 J.H. entered the Bernardsville School District in 

September, 1980, after he had completed kindergarten at a 

parochial school and it had become apparent that his academic 

progress was not commensurate with the other children in his 

class. In the Bernardsville School District, J.H. repeated 

kindergarten, at the end of which it was again apparent that 

J.H.'s academic skills were significantly deficient and that he 
had not progressed much during the academic year. By November of 

academic year 1981-82, while J.H. was in the first grade, J.H.'s 

parents still observed a lack of progress in their son, and hired 

a private tutor for reading and math once a week. In January, 

1982, a private learning consultant advised Mr. and Mrs. H. that 

J.H. required one-on-one academic assistance. In January, 1982, 

the Bernardsville School District, also well aware of J.H.'s 

academic difficulties, referred J.H. to their Child Study Team,1

and on April 8, 1982, classified J.H. as perceptually impaired. 

The District placed J.H. in a small resource room reading and 

math group, and mainstreamed J.H. for other subjects. J.H. also 

attended summer school in the Bernardsville school district after 

completing the first grade. 

 J.H. remained in resource room instruction in the 

Bernardsville school through the end of the third grade, showing 

 

1. The Bernardsville elementary school's referral for 

evaluation in J.H.'s case listed the following specific reasons 

for referral: 

 1. [J.H.] is very inattentive unless its a 

one to one situation. 

 2. He often fails to respond when his name 

is called. 

 3. We are concerned that there may be an 

articulation problem. There are many words 

he cannot pronounce. 

 4. His answers to questions are often 

inappropriate. 

 5. He cannot work independently. 

A. 2095-96. 
very limited progress and great difficulty keeping academic pace 

with his peers. The Individualized Educational Program (IEP) 

reports created by the Bernardsville district for the years 1982-

83, 1983-84 and 1984-85, as well as Bernardsville's psychological 

evaluations of J.H., attest to J.H.'s lack of academic progress 

and a disturbing deterioration in his confidence, self-esteem and 

social interaction with peers. The district court found that 

academic frustration and social isolation marked J.H.'s education 

experience in Bernardsville. 

 As early as October of 1982, J.H.'s resource room 

teacher, Mrs. Garland, recorded Mrs. H.'s "persistent anxiety" 

regarding the efficacy of the IEP. Mr. Walter Mahler of the 

Bernardsville Child Study Team was also apprised in 1982 of an 

audiological evaluation and assessment of central auditory 

functioning performed by a private neurologist, which revealed 

that J.H. was experiencing significant difficulty with auditory 

figure-ground discrimination ability,2 auditory closure ability3

and appeared also to suffer with auditory memory deficits.4 A. 

 

2. The report, which was done through St. Clare's 

Hospital, indicates that auditory figure ground discrimination 

deficits may manifest as inability to communicate in an 

environment of background noise. Communication difficulties may 

be circumvented if optimal listening conditions, including a 

quiet room with few distractions, are provided for learning. A. 

2127. 

3. Auditory closure deficits cause difficulty in blending 

sounds and manifest as reading, spelling and articulation 

problems. A. 2128. 

4. Auditory memory deficits may manifest as problems with 

following verbal instructions, reading comprehension and other 

verbal abilities. A. 2128. 
2126-2128. That report recommended optimal listening conditions 

for J.H. in order to enhance his academic development. The 

report recommended specifically a quiet learning room with few 

distractions, preferential seating in a classroom, eliciting 

frequent feedback from J.H., certain speech and common memory 

training techniques, and counseled against a phonetics approach 

to reading. Phonetics was nevertheless emphasized in J.H.'s IEPs 

for reading.5 Moreover, Mrs. H. testified before the 

administrative law judge that J.H.'s resource room was not 

reasonably free from background noise which could sabotage 

efforts to educate this attention deficit child. 

 In academic year 1986-87, at the end of J.H.'s sixth 

grade, his reading level, as measured by the Woodcock Johnson 

Psychoeducational Battery, had only progressed from 1.0 in the 

first grade to 2.9. Notwithstanding J.H.'s lack of success in 

prior years, the IEP provided by the district for the 1987-88 

school year, J.H.'s grade 7, was virtually identical to the prior 

unsuccessful IEPs. Dr. Howard Margolis, testifying as an expert 

on behalf of J.H. at trial, characterized J.H.'s placement as 

 

5. Dr. Margolis, Ed.D., Reading and Special Education 

Consultant, in testimony before the administrative law judge and 

in a written evaluation report on J.H.'s educational program 

prior to his enrollment at Landmark, A. 2561 et seq., concluded 

that Bernardsville maintained a phonetics approach to reading 

year after year despite its inappropriateness given J.H.'s 

handicapping condition. A. 2572. The administrative law judge 

was persuaded by Dr. Margolis' findings and conclusions, and 

specifically found that J.H.'s reading program deprived J.H. an 

opportunity to acquire reading skills. The district court 

endorsed the determination of the administrative law judge, 

specifically noting the inappropriateness of the reading program. 
inappropriate and not reasonably calculated to confer educational 

benefit on J.H. 

 In September of 1987, J.H.'s parents unilaterally 

removed J.H. from the Bernardsville school system and placed him 

at the Landmark School in Massachusetts, a residential school for 

handicapped children. J.H. attended school at Landmark for 

academic years 1987-88 through 1989-90, J.H.'s grades 7, 8 and 9. 

In December of 1987 and November of 1988, at the request of 

J.H.'s parents, the Bernardsville District conducted educational 

assessments of J.H., but never approved J.H.'s placement at 

Landmark. 

 In September of 1989, after J.H. had been in attendance 

at Landmark for more than two years, the parents of J.H. 

petitioned for an administrative hearing concerning J.H.'s 

placement and program from September 1987 to his current 

situation, and sought retroactive reimbursement for J.H.'s outof-district residential schooling at Landmark. The Board of 

Education denied J.H.'s parents' request for reimbursement and 

defended their proposed IEP for academic year 1987-88. J.H.'s 

parents filed a new request for an administrative hearing on 

November 17, 1989. 

 Between November and December of 1989, the parties 

negotiated and reached various agreements, and the matter did not 

proceed to a hearing at that time. The parties agreed that 

Deputy Public Advocate for the State of New Jersey, David Harris, 

would provide a release for Bernardsville to obtain the current 

records of J.H., that J.H. would be evaluated by the 
Bernardsville Child Study Team on December 22, 1989, that in 

early January, 1990, the Bernardsville school psychologist would 

visit Landmark to observe and evaluate J.H., that a meeting would 

be held to discuss the recommendations of the Child Study Team 

and that, if necessary, due process procedures could be 

activated. 

 Pursuant to the agreement, the Child Study Team did 

conduct a reevaluation of J.H. in order to develop an appropriate 

IEP. On April 11, 1990, Lynn Caravello, Ed.D., Director of 

Special Services, advised J.H.'s parents that a new IEP had been 

developed for J.H. and recommended that J.H. be placed in the 

Bernards High School as a ninth grader eligible for part-time 

special education. 

 In May of 1990, J.H.'s parents removed J.H. from the 

eighth grade at Landmark and reenrolled him in the Bernardsville 

School. Bernards High School implemented the newly developed IEP 

for the balance of the 1989-90 school year, and appeared to be 

responsive to Dr. Margolis' revisional recommendations for the 

1990-91 academic year. 

 On September 4, 1990, Mr. H. authorized J.H.'s 

placement in Bernards High School conditioned upon pending 

agreement on the IEP, and "upon agreement by the Bernardsville 

Board of Education that such placement [would] not thereby become 

the current educational placement of [J.H.] within the meaning of 

federal or state statutes and regulations pertaining to special 

education." J.H. in fact completed the 1990-91 academic year as 

a tenth grader at Bernards High School. 
 On January 4, 1991, J.H.'s parents through their 

attorney filed a request for due process and for the matter to be 

transmitted to the office of administrative law for trial. The 

petition contended that the Bernardsville Board of Education had 

offered an inappropriate program for J.H. through June of 1987, 

forcing J.H.'s parents to place J.H. at the Landmark School so as 

not to deprive him of his statutory right to a free appropriate 

public education. The petition alleged among other things that 

the IEPs prepared by the Board of Education prior to J.H.'s 

enrollment at Landmark did not comply with the requirements of 

New Jersey Administrative Code 6:28-3.6 in that they were not 

reasonably calculated to confer any educational benefit upon 

J.H., and did not contain specific or measurable goals or 

instructional objectives. The petition requested reimbursement 

for all monies expended on behalf of J.H. relative to his 

placement at the Landmark school commencing in the summer of 1987 

through May of 1990. The matter was forwarded to the Office of 

Administrative Law on January 16, 1991, and hearings began on 

February 19, 1991. 

 On June 24, 1992, the administrative law judge decided 

the case against the Bernardsville Board of Education, ordering 

reimbursement to the parents of J.H. for Landmark tuition 

expenses for the academic years 1987-88 through 1989-90, 

excluding the cost of J.H.'s room and board. Decision of 

Administrative Law Judge, OAL Dkt. No. EDS 576-91 (June 24, 

1992), A. 24-50. In pertinent part, the administrative law judge 

found: 
 The [IEPs] were not compliant with the New 

Jersey Administrative Code as it then existed 

and, did not enable J.H. to receive either an 

appropriate education, or to best achieve 

educational success.[6] Specifically, J.H.'s 

IEP's were severely lacking in adequate 

statements of current educational status, the 

annual goals were vague, non-specific and 

incapable of being measured, and repeated 

themselves, for the most part, in each 

succeeding year. 

 The IEP's . . . did not enable J.H. to 

improve in any meaningful way in his reading 

. . . . 

 Despite parental concern and intervention 

through regular contact and communication 

with the District and the hiring of tutors, 

J.H.'s lack of progress in reading caused him 

to suffer emotionally, and significantly 

affected his self-esteem. 

 

6. The administrative law judge recognized that prior to 

May 15, 1989, the New Jersey standard for a free appropriate 

public education reflected in N.J.A.C. 6:28-2.1(a), was an 

education that would allow a handicapped child to best achieve 

success in learning. Geis v. Board of Education, 774 F.2d 575, 

582 (3d Cir. 1985). A. 47. The Court further acknowledged that 

subsequent to May 15, 1989, the New Jersey Department of 

Education rejected the Geis standard in favor of the federal 

standard set forth in the Education For All Handicapped Act, 20 

U.S.C. § 1400 et seq., which was defined as an education which 

merely confers educational benefit on a handicapped person. The 

1989 amended N.J.A.C. 6:28-1.1 specifically provides that New 

Jersey is obliged to ensure that all educationally disabled 

pupils "have available to them a free, appropriate public 

education as that standard is set under the [federal Act]," 20 

U.S.C. § 1400 et seq. (Emphasis added.) See Board of Education 

v. Rowley, 458 U.S. 176 (1982). 

 The administrative law judge determined that for all 

the relevant time periods, including 1982 through May 15, 1989, 

the standard set forth in Geis was operative, and found that 

under the more stringent local standard, the Bernardsville Board 

of Education failed to comply with the procedural requirements of 

N.J.A.C. 6:28-1.1. A. 48. 
 As a result, J.H. had significant problems 

with his peers and socialization . . . . 

 Although one-to-one instruction in reading 

was recommended by independent evaluations 

. . . with little exception, the same was not 

offered to J.H. . . . . 

 The program offered to J.H for seventh grade 

. . . was a continuation of prior programs 

which did not address J.H.'s handicapping 

condition. 

 Petitioners were justified in seeking a free, 

appropriate public education under the 

circumstances recognizing that J.H.'s reading 

handicap was not being addressed. 

 . . . [P]etitioners [sic] decision to enroll 

[J.H. in the Landmark School] was reasonable. 

 The program at Landmark School was 

appropriate for J.H. to meet his needs, and 

offered the best opportunity to enable J.H. 

to achieve educational success and benefit 

from his education. 

OAL Dkt. No. EDS 576-91, pp.19-20; A. 42-43. 

 The Bernardsville Board of Education appealed the 

matter to the United States District Court for the District of 

New Jersey on September 2, 1993 pursuant to 20 U.S.C. § 

1415(e)(2).7 Bernardsville Board of Education v. J.H., Civil No. 

92-3694 (D.N.J. March 22, 1993). The parents of J.H. moved for 

 

7. Section 1415(e)(2) provides in pertinent part: 

 Any party aggrieved by the 

[administrative] findings and decision . . . 

shall have the right to bring a civil action 

with respect to the complaint presented 

pursuant to this section, which action may be 

brought in any State court of competent 

jurisdiction or in a district court of the 

United States without regard to the amount in 

controversy. . . . 
summary judgment on the ground that the Board of Education's 

appeal was untimely under 20 U.S.C. § 1415(e)(2). Following the 

opinion of this circuit in Tokarcik v. Forest Hills School 

District, 665 F.2d 443, 450-54 (3d Cir. 1981) (30-day state 

limitation statute for state administrative appeals to state 

courts does not apply to federal claim brought in federal court 

under Education of Handicapped Act), cert. denied, 458 U.S. 1121 

(1982), the district court dismissed J.H.'s parents' summary 

judgment motion. The district court denied the Board of 

Education's cross-motion for summary judgment brought on the 

ground that J.H.'s parents waived their right to reimbursement by 

unilaterally placing J.H. in Landmark and failing to initiate 

review proceedings prior to seeking reimbursement. The district 

court also denied the Board of Education's alternative argument 

for summary judgment that J.H.'s parents failed to comply with 

the 90-day statute of limitations contained in N.J.A.C. 6:24-

1.2(c), which the Board argued should be applied to challenges to 

IEPs. The court noted that the New Jersey Administrative Code 

does not contain any explicit time limitation within which a 

party must request a due process hearing in the special education 

context, and no caselaw has held that the 90-day time limit would 

be applicable. 

 Prior to trial, on September 9, 1993, the district 

court ruled on the parties' motions in limine. J.H.'s parents 

had filed a motion seeking to limit the testimony of two expert 

witnesses for the Board of Education, Joanne Seelaus, school 

psychologist and Supervisor of Special Education, and Dr. Lynn 
Caravello, Director of Special Services for the Bernardsville 

Board of Education. Seelaus and Caravello had prepared a joint 

report which contained references to the IEP prepared for J.H. 

for the 1987-88 school year, references to testimony previously 

given during the administrative hearing, and references to the 

reevaluation of J.H. preparatory to his return to the district in 

1990. The court excluded these portions of their testimony on 

the ground that such evidence would have been cumulative and 

improper "additional evidence" pursuant to 20 U.S.C. § 

1415(e)(2),8 and with regard to that portion of the report 

discussing J.H.'s anticipated return to Bernardsville in the fall 

of 1990, that it would have been irrelevant to the request for 

reimbursement for tuition from 1987 through the spring of 1990. 

 The district court also granted the Board of 

Education's motion to preclude J.H.'s parents from testifying at 

the hearing about issues that they had already or could have 

addressed at the administrative proceeding. 

 The court ruled on the merits of the appeal on November 

15, 1993, after conducting a de novo review of the state 

administrative decision. Affording the administrative law judge 

 

8. Section 1415(e)(2) provides in pertinent part: 

 . . . In any action brought under this 

paragraph the court shall receive the records 

of the administrative proceedings, shall hear 

additional evidence at the request of a 

party, and basing its decision on the 

preponderance of the evidence, shall grant 

such relief as the court determines is 

appropriate. 
due deference in consideration of a perceived expertise on the 

part of the administrative agency to articulate state educational 

policy, and with respect to the administrative law judge's 

credibility determinations, the district court concluded that the 

Bernardsville School District failed to confer upon J.H. even the 

minimally satisfactory educational benefit under the least 

stringent standard which could arguably have been applied. The 

district court concluded that the IEPs developed for J.H. during 

the relevant school years were not reasonably calculated to 

confer an educational benefit. After an independent examination 

of the record, the district court affirmed the administrative law 

judge's specific findings, including that the IEPs did not 

contain adequate statements of current educational status or 

measurable annual goals, were virtually redundant from year to 

year and hence unresponsive to J.H.'s apparent difficulties, and 

that Bernardsville failed to offer J.H. adequate one-to-one 

instruction. The district court held that Bernardsville failed 

to sustain its burden of proof to show by a preponderance that 

its IEPs provided J.H. with a free, appropriate, public 

education, and further held that the Landmark placement was 

appropriate. 

 On equitable considerations and on the power conferred 

on the district court by 20 U.S.C. § 1415(e)(2) to "grant such 

relief as the court determines is appropriate," the district 

court awarded J.H.'s parents retroactive reimbursement of 

Landmark School tuition, exclusive of room and board, for 

academic years 1987-88 through 1989-90, affirming the order of 
the administrative law judge. The court further designated 

J.H.'s parents as the prevailing party for purposes of awarding 

attorney's fees and costs pursuant to 20 U.S.C. § 1415(e)(4)(B),9

but left open the determination of the specific calculation of 

reasonable fees. By order of the court on February 2, 1994, the 

award of attorney's fees was set in the amount of $91,494.85. 

 Pursuant to 28 U.S.C. § 1291, on December 14, 1993, the 

Bernardsville Board of Education timely appealed the final order 

of the district court of November 15, 1993, which affirmed the 

decision of the administrative law judge, and from the February 

2, 1994, order of the district court awarding attorney's fees.10 

The Board of Education also appealed the two interlocutory 

 

9. Section 1415(e)(4)(B) provides: 

 In any action or proceeding brought 

under this subsection, the court, in its 

discretion, may award reasonable attorneys' 

fees as part of the costs to the parents or 

guardian of a handicapped child or youth who 

is the prevailing party. 

10. Although Bernardsville's notice of appeal explicitly 

specifies only the district court's November 15, 1993 order and 

opinion, we construe the notice as incorporating the unspecified 

February 2, 1994 order quantifying the attorneys' fees award. 

Because the November order designates the prevailing party for 

purposes of attorneys' fees, we recognize an adequate connection 

between it and the February 2 order for purposes of extending our 

jurisdiction over the latter, given that the subsequent appellate 

proceedings manifest the appellant's intent to appeal the 

attorneys' fees issue. Importantly, here the opposing party had 

and exercised a full opportunity to brief the issue and did not 

raise any claim of prejudice. A copy of the district court's 

February 2 order and opinion setting the attorneys' fees was also 

attached to the appellant's brief. See Williams v. Guzzardi, 875 

F.2d 46, 49 (3d Cir. 1989) (and cases cited therein). 
opinions denying its motion for summary judgment and excluding 

the testimonies of two witnesses. 

II. 

 Upon an examination of the record on appeal, we are 

confident that the district court properly ruled that, under any 

arguably appropriate legal standard, the Bernardsville Board of 

Education failed to establish by a preponderance that its program 

and placement for J.H. assured him a free, appropriate, public 

education as required under the Education of the Handicapped Act, 

20 U.S.C. § 1412(1).11 The record bespeaks an appalling failure 

 

11. The Education of the Handicapped Act, 20 U.S.C.§ 1400 

et seq., now known as the Individuals With Disabilities Education 

Act ("IDEA"), provides federal financial assistance to states and 

local agencies for the education of handicapped children, 

provided that the state can demonstrate that it "has in effect a 

policy that assures all children with disabilities the right to a 

free appropriate public education." 20 U.S.C.§ 1412(1). In 

Board of Education v. Rowley, 458 U.S. 176, 200-04 (1982), the 

Supreme Court held that the Federal Act requires state or local 

school districts to provide a program designed to confer an 

educational benefit on the child. 

 The state of New Jersey implements the Federal Act 

through state statute and regulations promulgated by the New 

Jersey State Board of Education. N.J.S.A. §§ 18A:46-1 through 

18A:46-46. Until May 15, 1989, New Jersey law established a 

higher standard for local school boards than the Act mandates, 

requiring not only that the program be designed to confer an 

educational benefit, but that the program be designed to permit 

the child to best achieve success in education. N.J.A.C. § 6:28-

2.1 (1978). See Geis v. Board of Education, 774 F.2d 575, 582-83 

(3d Cir. 1985). Furthermore, New Jersey statutes set forth in 

detail the specific requirements for each Individualized 

Education Program. N.J.A.C. §§ 6:28-3.6; 6:28-1.1 et seq.

 Because we agree with the district court that the Board 

of Education failed under either standard, we need not address 

the parties' contentions as to which standard applies. 
on the part of the education bureaucracy to develop and implement 

an appropriate IEP. We will not belabor this point. We turn our 

attention directly to the question of the timeliness of J.H.'s 

parents' request for reimbursement. 

A. 

 The Bernardsville Board of Education contends that 

J.H.'s parents' more than two year delay in commencing the review 

process renders their claim ineligible for reimbursement for any 

portion of the private tuition in question. The Board cites a 

number of cases in which parents have been awarded prospective 

private school tuition and/or expenses incurred while a challenge 

to the student's IEP was pending through administrative review to 

support its position that parents must commence the review 

process in order to be entitled to relief.12 See, e.g., School 

Committee of Burlington v. Department of Education, 471 U.S. 359, 

370 (1985) (Act authorizes prospective injunction and 

 

12. Caselaw qualifies 20 U.S.C. § 1415(e)(3), which 

provides: 

 During the pendency of any proceedings 

. . ., unless the State or local educational 

agency and the parents or guardian otherwise 

agree, the child shall remain in the then 

current educational placement of such child . 

. . . 

 Authorization for a judicial grant of retroactive 

reimbursement for interim unilateral placements ultimately proven 

to be reasonable and appropriate, where the IEP is adjudged 

inappropriate, is justified under the court's equitable powers to 

grant appropriate relief under 20 U.S.C. § 1415(e)(2). 
reimbursement for appropriate unilateral private placement during 

interim pending review of public placement later adjudged 

inappropriate); Lascari v. Board of Education, 116 N.J. 30, 50, 

560 A.2d 1180 (1989) (parents may be reimbursed for private 

school tuition during pendency of any proceeding which determines 

that the district's IEP was inappropriate); Garland Independent 

School Dist. v. Wilks, 657 F. Supp. 1163, 1167 (N.D. Tex. 1987) 

(parent not entitled to tuition reimbursement incurred prior to 

bringing dissatisfaction with district's IEP to school district's 

attention); Lewisville Independent School District v. Brooke P., 

16 EHLR 1313, 1315-16 (E.D. Tex. 1990) (parents' failure to 

request due process hearing constitutes waiver of right to 

reimbursement for cost of extended school year services prior to 

initiation of due process proceedings, but court ordered 

prospective injunction against school district); but cf. 

Northeast Central School Dist. v. Sobol, 170 A.D.2d 80, 85-87, 

572 N.Y.S.2d 752, 755-57 (N.Y. App. Div. 1991) (the ability to 

order retroactive reimbursement within the statutory context and 

public policy is necessary to ensure a child's right to a free, 

appropriate, public education). Thus, Bernardsville argues that 

reimbursement for J.H.'s private placement prior to commencement 

of review proceedings is not warranted in this case, and that the 

district court erroneously denied the Board of Education's motion 

for summary judgment. 

 J.H.'s parents assert that the caselaw in this area 

does not explicitly, or necessarily by inference, preclude preproceedings reimbursement; they argue that costs incurred 
subsequent to their expressions of dissatisfaction with J.H.'s 

IEP, before they officially commenced a review, should be 

reimbursed. J.H.'s parents informed the Board of Education of 

their concerns regarding J.H.'s program and placement in August 

of 1987 and requested placement at Landmark. The Board denied 

that request, but since at least that time the Board was arguably 

on effective notice of the IEP's inadequacy and the Board's 

potential liability to J.H.'s parents. Furthermore, the Board's 

annual monitoring of J.H.'s program and progress while at 

Landmark served to keep the Board on notice for the duration of 

J.H.'s out-of-district enrollment. 

 J.H.'s parents' argument is not without merit. The 

fact that here the regulations do not specify a time limitation 

within which to bring a due process hearing, as well as the very 

nature and social significance of the education of children with 

disabilities, incline us to equitable considerations. The fact 

that the school district was notified of the parents' 

dissatisfaction, albeit not through the initiation of official 

proceedings, from the very first summer that J.H. attended 

Landmark, that the parents did request a new placement for J.H., 

and that there was continued contact between the school district 

and J.H. for the duration of J.H.'s enrollment at Landmark 

support Mr. and Mrs. H's argument. There is no evidence 

whatsoever that J.H.'s parents acted in bad faith, and given the 

apparent severe deficiencies in the IEPs developed for J.H. at 

Bernardsville, it is clear that J.H.'s parents acted reasonably 

in securing an appropriate education for their son outside the 
district. At the time J.H. left Bernardsville, the IEP developed 

for him was both procedurally and substantively inadequate, and 

it is untenable for the school district to maintain the argument 

that it was not aware of a problem with the IEP it offered, 

virtually unmodified, to J.H. year after year despite his lack of 

academic progress, and in the face of his social regression. We 

do not hesitate to affirm the right to reimbursement for private 

tuition incurred from a unilateral enrollment during the pendency 

of any proceeding if it is ultimately determined that the IEP in 

question was inappropriate. See Burlington, 471 U.S. at 370, and 

related cases cited above. 

 Nevertheless, here, where proceedings were initiated 

more than two years after J.H.'s transfer, we must place into our 

equation the practical opportunity afforded the school district 

to modify its IEP or to determine definitively whether 

expenditures occurred outside the district could have been 

obviated by the filing of a prompt complaint. We are cognizant 

of the fact that the school district serves a very large student 

population, and in light of the numerous contacts it has with 

parents seeking the individual welfare of their respective 

children, mere notice of parental "dissatisfaction" does not 

alone put the Board on reasonable notice that the parents will 

challenge a particular IEP in the future and seek reimbursement 

for an interim unilateral placement in a private institution. 

Absent initiation of review proceedings within a reasonable time 

of a unilateral decision to transfer a child to a private 

institution, a school district would not know to continue to 
review and revise an IEP, and the court would be left to hazard 

conjecture or hypothesis as to what the Board of Education might 

have proposed if it had been informed of the parents' continued 

intent to pursue an appropriate education for their child within 

the school district. We, of course, recognize that the school 

district has the duty in the first instance to provide an 

appropriate IEP, and moreover, to demonstrate by a preponderance 

at a due process hearing that the IEP it offered was indeed 

appropriate. With that foremost in mind, we must nevertheless 

also recognize that as a practical reality, and as a matter of 

procedural law13 of which J.H.'s parents were fully apprised, the 

right of review contains a corresponding parental duty to 

 

13. The IDEA, 20 U.S.C. § 1415(b)(1)(E), requires that the 

state or local agency receiving federal funds under the Act 

provide a grievance process with regard to the placement and 

programs offered to any child. Section 1415(b)(2) requires that 

the state or appropriate state agency provide parents who have 

filed a complaint the opportunity for an impartial due process 

administrative hearing. Section 1415(e)(2) provides for appeal 

from the decision of such a hearing to any state court of 

competent jurisdiction, or to a United States district court 

without regard to amount in controversy. 

 New Jersey implements the IDEA with extensive statutory 

and regulatory provisions designed to provide any parent who 

believes that his or her child is being or has been denied the 

rights secured by IDEA an opportunity for mediation and an 

impartial due process administrative hearing. N.J.S.A. 18A:46-1-

46 and N.J.A.C. 6:28-1-11. The New Jersey Administrative Code 

requires that parents be sent a copy and explanation of all 

procedures pertaining to the IDEA and the New Jersey Code. 

N.J.A.C. 1:6A-2.1 et seq.

 It is undisputed that in 1987 J.H.'s parents received 

this information regarding the proper steps to invoke the 

administrative review process, but delayed invoking their rights 

to any part of the administrative process until more than two 

years after unilaterally placing J.H. at Landmark. 
unequivocally place in issue the appropriateness of an IEP. This 

is accomplished through the initiation of review proceedings 

within a reasonable time of the unilateral placement for which 

reimbursement is sought. We think more than two years, indeed, 

more than one year, without mitigating excuse, is an unreasonable 

delay.14 We will vacate the district court's November 15, 1993 

 

14. We concur largely with the dissent, except, of course, 

on the critical issue of whether the Act implicitly can recognize 

a duty on the part of the parents to place in question the 

appropriateness of the IEP within a reasonable time of the year 

for which they seek reimbursement. We certainly agree that the 

handicapped child's education is an interest both of the parents 

and of the district, and that here the parents' decision to 

withdraw J.H. was reasonable. Nevertheless, we believe that the 

provisions of the Act can only be effectively and fairly 

implemented if we recognize that the interest of both the parents 

and the district on behalf of the child bear a corresponding 

respective duty -- on the district to develop and justify its 

IEP, and on the parents to unambiguously challenge the IEP when 

they think it inappropriate. We think this allocation of burdens 

comports fully with the Act and the relevant implementing 

regulations. 

 We note, as does the dissent, that given the Act's lack 

of specificity on the question of timeliness and the nature of 

the issue here, a balancing of the equities is unavoidable. We 

resort to the standard of reasonableness under the circumstances, 

and a consideration of mitigating circumstances for any delay in 

the initiation of review proceedings which might otherwise be 

deemed unreasonable. Our disagreement with the dissent is over 

the questions of whether the unmitigated delay here was 

reasonable, and, perhaps more dispositive, whether the district 

was placed on reasonably adequate notice of the parents' 

intention to seek reimbursement. 

 We wish to clarify that our weighing of the equities 

was not unduly influenced by the isolated fact that the district 

must cope with a large student population, as the dissent perhaps 

implies, although we believe that this fact has relevance to the 

question of what constitutes reasonably adequate notice in these 

particular circumstances. We agree with the dissent, however, 

that the Act imposes the same duty to provide a free, appropriate 

education to a child in a large urban district as it does to a 

child in a small urban community. 
order directing Bernardsville to reimburse Mr. & Mrs. H. for 

tuition at Landmark to the extent it covers school years 1987-88 

and 1988-89.15

B. 

 The issue of retroactive reimbursement for the school 

year 1989-90 requires closer scrutiny of the equities. At the 

beginning of the 1989-90 academic year, J.H.'s parents sought an 

administrative hearing regarding J.H.'s placement and began 

intensive negotiations with Bernardsville resulting in a reentry 

of J.H. in a newly developed IEP within the district shortly 

before that academic year expired. J.H.'s parents subsequently 

continued actively to pursue the review process, and ultimately 

requested a due process hearing for retroactive reimbursement in 

the middle of academic year 1990-91. Thus from the beginning of 

1989-90, J.H.'s parents set in motion the firm steps which fairly 

notified the school board that retroactive liability was a 

possibility and afforded the board a fair opportunity to revise 

its IEP for J.H. 

 The Board of Education asserts that the district court 

was constrained to dismiss even the reimbursement request for 

1989-90 as time-barred pursuant to the 90-day rule set forth in 

N.J.A.C. 6:24-1.2. That provision provides in relevant part: 

 

15. Because the circumstances here make this case merely 

analogous to the caselaw upon which the Board of Education 

relies, the district court properly denied the Board of 

Education's motion for summary judgment based on the parents' 

late initiation of review proceedings. 
 (a) To initiate a contested case for the 

Commissioner's determination of a controversy 

or dispute arising under the school laws, a 

petitioner shall serve a copy of a petition 

upon each respondent . . . . 

* * * 

 (c) The petitioner shall file a petition no 

later than the 90th day from the date of 

receipt of the notice of a final order, 

ruling or other action by the district board 

of education, individual party, or agency, 

which is the subject of the requested 

contested case hearing. 

The Board of Education cites a number of cases in which the 90-

day rule has been applied in the education context. See North 

Plainfield Education Assoc. v. Board of Education, 96 N.J. 587, 

594, 476 A.2d 1245 (1984) (because award of teacher salary scale 

increment is not statutory right, it is subject to 90-day time 

bar); Riely v. Board of Education, 173 N.J. Super. 109, 113-14, 

413 A.2d 628 (App. Div. 1980) (teacher's petition of appeal with 

Commissioner of Education concerning reinstatement time-barred by 

90-day rule, and pendency of arbitration does not relieve 

compliance with 90-day rule); Lombardi v. Board of Education, OAL 

Dkt. No. EDU 6808-86 (January 30, 1987) (Commissioner of 

Education); Markman v. Board of Education , OAL Dkt. No. EDU 

0317-86 (August 22, 1986) (Commissioner of Education). 

 In addition to citing arguably supporting caselaw, the 

Board of Education contends that the scheme of the New Jersey 

Code also compels application of the 90-day rule. The Board 

cites N.J.A.C. 1:6 A-1.1, which provides: 

 The rules in this chapter shall apply to 

the notice and hearing of matters arising out 

of the Special Education Program of the 
Department of Education, pursuant to N.J.A.C. 

6:28. Any aspect of notice and hearing not 

covered by these special rules shall be 

governed by the Uniform Administrative 

Procedure Rules (U.A.P.R.) contained in 

N.J.A.C. 1:1 . . . . 

N.J.A.C. 1:1-3.1 provides: 

 A contested case shall be commenced in 

the State agency with appropriate subject 

matter jurisdiction. A contested case may be 

commenced by the agency itself or by an 

individual or entity as provided in the rules 

and regulations of the agency. 

 The appropriate state agency here is the Commissioner 

of Education. N.J.A.C. 6:24-1.2 is the code provision which 

limits the time within which a parent may seek a hearing before 

an administrative law judge for the Commissioner of Education. 

Thus the Board argues that N.J.A.C. 6:24-1.2(c), which sets forth 

the 90-day rule, mandated that J.H.'s parents file a petition 

with the Commissioner within 90 days from receipt of the disputed 

IEP, and that their delay results in a time-bar from all relief. 

 We have already decided that a mere expression of 

dissatisfaction with a proposed IEP and placement is not 

sufficient to guarantee retroactive reimbursement for the cost of 

a reasonable unilateral placement, even where the IEP is 

ultimately found to have been inappropriate. Even a liberal 

understanding of the operative policies of the IDEA cannot 

obviate the practical necessity for a reasonable timeframe for 

filing due process claims. Nevertheless, we find no precedent 

for applying the 90-day rule to special education matters, though 

undoubtedly that limitation applies to disputes arising under 
school laws other than special education matters. The district 

court accurately noted that the rules which expressly pertain to 

special education do not contain a time limit, and no caselaw has 

adopted the 90-day rule in the context of the IDEA. The district 

court correctly rejected the 90-day rule here. 

 Under the facts of this case in light of all the 

equities, recognizing the operative policies of the IDEA and 

acknowledging all relevant statutes and regulations, we believe 

that J.H.'s parents adequately placed in issue their 

dissatisfaction with J.H.'s IEP for purposes of reimbursement at 

the time they requested an administrative hearing in September of 

1989. Due process procedures were not activated at that time 

only because the parties were attempting to negotiate a 

settlement. A formal request for due process was eventually made 

when it became apparent that a resolution could not otherwise be 

negotiated. Although we cannot award compensation for 

Bernardsville's past failure to provide J.H. a free appropriate 

public education, we believe substantial justice can be achieved 

by awarding reimbursement for tuition costs incurred while in 

attendance at Landmark for the 1989-90 academic year. We will 

affirm the district court's award of reimbursement tuition costs 

for the 1989-90 school year, excluding the costs associated with 

room and board.16

 

16. We reject the Board of Education's argument that 

reimbursement for academic year 1989-90 should be precluded on 

the ground that it was incapable of formulating a timely IEP for 

that year, given the unilateral action of J.H.'s parents. 

Bernardsville's long history with J.H. and its continued contact 

with him and educational assessments of his progress after the 
III. 

 In light of the IDEA, 20 U.S.C. § 1415(e)(4)(B), which 

provides that "the court, in its discretion, may award reasonable 

attorneys' fees as part of the costs to the parents or guardian 

of a handicapped child or youth who is the prevailing party," and 

consistent with our holding, we must vacate the district court's 

February 2, 1994 order awarding full attorneys' fees in the 

amount of $91,494.85. We find, however, that the district court 

was correct in its rejection of the Board of Education's 

contention that the court should disallow those fees associated 

with J.H.'s parents' motion for summary judgment pertaining to a 

statute of limitations issue on appeal. We find that counsel for 

J.H. has made "a good-faith effort to exclude from [the] fee 

request hours that are excessive, redundant, or otherwise 

unnecessary," and has exercised sound billing judgment as 

required in Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) 

(citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) 

(en banc)). We also find that the district court did not err in 

its acceptance of the $235 hourly billing rate charged by counsel 

for J.H. as reasonable in light of comparable prevailing rates. 

 Furthermore, we agree with the district court that the 

award of fees should not be reduced to reflect J.H.'s counsel's 

(..continued) 

unilateral act belie this contention. Under a just and proper 

consideration of the equities and the court's discretionary power 

to grant "appropriate" relief, which includes a qualified power 

to grant retroactive reimbursement, we are convinced of the 

appropriateness of an award for the 1989-90 year. 
partial success by virtue of the district court's refusal to 

award reimbursement costs for room and board as requested. The 

issue of reimbursement for residential costs involved a "common 

core of facts" relative to the issue of tuition reimbursement, 

was based on "related legal theories," and cannot be viewed as a 

discrete claim capable of disassociation from the tuition claim 

for purposes of awarding attorneys' fees. Id. at 435. 

Nevertheless, since J.H. has failed to prevail on his claim for 

reimbursement costs for academic years 1987-88 and 1988-89, we 

must remand to the district court to calculate an appropriate 

reduced fee award to reflect the adjusted scope of J.H.'s 

success. 

IV. 

 Lastly, the Board of Education argues that the district 

court erroneously excluded the testimonies of Dr. Lynn Caravello, 

the Director of Special Services at the time J.H. reentered the 

Bernardsville School District in 1990, and Ms. Joanne Seelaus, 

school psychologist, from the de novo hearing the district court 

held. The Board of Education sought to admit a joint report 

prepared by Dr. Caravello and Ms. Seelaus which included a 

reevaluation of J.H. in anticipation of his return and other 

information relevant to the 1990-91 IEP prepared for J.H. 

 During the prior administrative law hearing, the 

administrative law judge had excluded this report. Nevertheless, 

Ms. Seelaus had offered testimony at the hearing on the Board's 

behalf exclusive of matters concerning J.H.'s post-reentry 
experience. Dr. Caravello had also been present and available to 

testify before the administrative law judge on June 4, 1991, 

although she did not testify. 

 At the district court hearing, the court excluded their 

testimony in part on the ground that the IEP subsequently 

developed for J.H. in 1990-91, which was not at issue in the 

present litigation, was irrelevant to the issue of the 

appropriateness of the public education offered to J.H. in the 

prior contested years. The district court further held that the 

testimony would be cumulative and would improperly embellish 

testimony previously given at the administrative hearing. Order 

of the District Court, Civ. No. 92-3694 (D.N.J. Sept. 9, 1993). 

See Burlington v. Department of Education, 736 F.2d 773, 790-91 

(1st Cir. 1984) ("additional evidence" under 20 U.S.C. § 

1415(e)(2) "does not authorize witnesses at trial to repeat or 

embellish their prior administrative hearing testimony"; the 

trial court in its discretion must not allow "such evidence to 

change the character of the hearing from one of review to a trial 

de novo"), aff'd, 471 U.S. 359 (1985); Egg Harbor Township Board 

of Education v. S.O., by his Guardian ad litem, R.O., Civil 

Action No. 90-1043, slip op. at 3 n.1 (D.N.J. Aug. 19, 

1992)("additional evidence" under 20 U.S.C. § 1415(e)(2) should 

not be cumulative, introduced to impeach credibility of 

administrative hearing witnesses, nor embellish testimony from 

the administrative hearing, and should not have been available 

for proffer during the administrative hearing). 
 We do not find any error of law or abuse of discretion 

in the district court's decision to exclude the joint report on 

J.H.'s parents' motion in limine. The Bernardsville School 

District's performance with regard to the IEP it developed for 

J.H. for the 1990-91 school year and for prospective years are 

not at issue here and admission of the joint report would not 

affect the disposition of this case. 

V. 

 We will thus vacate that portion of the district 

court's November 15, 1993 judgment which awards J.H.'s parents 

reimbursement for tuition at the Landmark School for the academic 

years 1987-88 and 1988-89, and we will affirm that portion which 

awards J.H.'s parents reimbursement for tuition at the Landmark 

School for academic year 1989-90. Although we agree with the 

district court's designation of J.H.'s parents as a "prevailing 

party" pursuant to 20 U.S.C. § 1415(e)(4)(B), we will vacate the 

amount of attorneys' fees set by the district court by order 

dated February 2, 1994, and remand to the district court for 

recalculation. 
BERNARDSVILLE BOARD OF EDUCATION V. J.H., ET AL.

NO. 93-5767 

 MCKEE, Circuit Judge, concurring in part and dissenting in part. 

 I concur with Part IV of the majority opinion. In 

addition, I agree that J.H.'s parents are entitled to 

reimbursement for the 1989-90 academic year and thus concur with 

Part II B of the majority opinion. However, I believe that 

J.H.'s parents are entitled to be reimbursed for 1987-88 and 

1988-89 as well. Therefore, I respectfully dissent from Part II 

A of the majority opinion. 

I. 

 The majority errs by allowing the timeliness of 

the parents' request for due process to define and control its 

analysis.17 The majority states: 

[W]here proceedings were initiated more than 

two years after J.H.’s transfer, we must 

place into our equation the practical 

opportunity afforded the school district to 

modify its IEP or to determine definitively 

whether expenditures occurred outside the 

district could have been obviated by the 

filing of a prompt complaint. . . . We, of 

course, recognize that the school district 

has the duty in the first instance to provide 

an appropriate IEP, and moreover, to 

demonstrate by a preponderance at a due 

process hearing that the IEP it offered was 

indeed appropriate. With that foremost in 

mind, we must nevertheless also recognize 

that as a practical reality, and as a matter 

of procedural law of which J.H.’s parents 

were fully apprised, the right of review 

contains a corresponding parental duty to 

 

 

17 Because I agree with much of the majority’s assessment of 

this case, I take the liberty of quoting at length from the 

majority opinion in explaining my reasons for dissenting. 
unequivocally place in issue the 

appropriateness of an IEP. This is 

accomplished through the initiation of review 

proceedings within a reasonable time of the 

unilateral placement . . . . We think more 

than two years, indeed, more than one year, 

without mitigating excuse, is an unreasonable 

delay. 

Majority opinion at 20-22 (footnote omitted). 

 I do not agree that the Act "contains a 

corresponding parental duty." The Act does not state that the 

parental right to reimbursement is conditioned upon the parents' 

request for a due process hearing. Further, the Act does not 

specify a time frame within which parents must seek evaluation of 

an IEP upon pain of forfeiting their child’s right to the 

benefits of the Act. “[B]oth the parents and the district have 

an interest in assuring that a handicapped child receives an 

appropriate education." Lascari v. Board of Educ., 560 A.2d 

1180, 1188 (N.J. 1989) (emphasis added). I fail to see where the 

Act imposes the unilateral parental obligation to which the 

majority refers and it clearly does not impose a time limitation 

upon the district court's authority to grant retroactive 

reimbursement. The majority has effectively amended the Act in a 

manner which is inconsistent with its purpose and with the 

remedial authority that the Act vests in a district court. 

 A district court's power to award retroactive 

reimbursement arises from its authority to grant relief that 

effectuates the provisions of the Act. 

The statute directs the court to ‘grant such 

relief as [it] determines is appropriate.' 
The ordinary meaning of these words confers 

broad discretion on the court. The type of 

relief is not further specified, except that 

it must be 'appropriate.' Absent other 

reference, the only possible interpretation 

is that relief is to be 'appropriate' in 

light of the purpose of the Act. 

School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 

369 (1985) (emphasis added). The purpose of the Act is "'to 

assure that all handicapped children have available to them . . . 

a free appropriate public education which emphasizes special 

education . . . designed to meet their unique needs [and] to 

assure that the rights of handicapped children and their parents 

. . . are protected.'" Id. at 367 (citing 20 U.S.C. § 1400(c)). 

The Supreme Court in Burlington unequivocally declared that “a 

free appropriate public education” means “special education and 

related services which [] have been provided at public expense, 

under public supervision and direction, and without charge . . . 

.” Id. at 367-68 (quoting 20 U.S.C. § 1401(18)) (internal 

quotation marks omitted). 

 The Act clearly requires that a school district 

provide a free appropriate education for eligible students. 

Thus, the issue before us is not "whether J.H.'s parents 

requested due process for their son within an appropriate time 

limitation," as the majority states. See majority opinion at 3. 

Rather, the issue we should address is whether the requested 

relief is "appropriate" in light of the purposes of the Act. 
 Accordingly, we must examine the circumstances 

surrounding the request for reimbursement. Our analysis should 

examine the length of the delay in requesting formal due process 

and the number of years for which compensation is requested, the 

adequacy of the IEP that caused the parents to withdraw J.H., the 

bona fides of the parties, and the school district's notice of 

the problem and of the likelihood that it may be asked to 

reimburse J.H.'s parents. 

 The Length of the Delay. 

 This is not a case of parents seeking 

reimbursement for an entire elementary and secondary education 

after allowing many years to pass before requesting a due process 

hearing. The delay in commencing due process was not exorbitant. 

Moreover, "[t]he fact that here the regulations do not specify a 

time limitation within which to bring a due process hearing, as 

well as the very nature and social significance of the education 

of children with disabilities, [should] incline us to equitable 

considerations." Majority opinion at 19. Furthermore, although 

the school district would no doubt prefer to avoid any additional 

expenditures, the school district does not claim that the cost of 

having to reimburse J.H.'s parents for J.H.'s entire three years 

at Landmark will interfere with its ability to educate other 

children. 

 The IEP. 
 The IEP that caused J.H.'s parents to withdraw him 

from Bernardsville was, indeed, woefully inadequate. The 

majority opinion sets forth at length the inadequacy of that 

IEP18 and appropriately concludes that “[t]he record bespeaks an 

appalling failure on the part of the educational bureaucracy to 

develop and implement an appropriate IEP.” Majority opinion at 

16-17. Moreover, 

the district court concluded that the 

Bernardsville School District failed to 

confer upon J.H. even the minimally 

satisfactory educational benefit under the 

least stringent standard which could arguably 

have been applied, and that the IEPs 

developed for J.H. during the relevant school 

years were not reasonably calculated to 

confer an educational benefit. . . . [T]he 

district court affirmed the administrative 

law judge’s specific findings, including that 

the IEPs did not contain adequate statements 

of current educational status or measurable 

annual goals, were virtually redundant from 

year to year and hence unresponsive to J.H.’s 

apparent difficulties . . . . 

Majority opinion at 14. In short, "the IEP developed for [J.H.] 

was both procedurally and substantively inadequate." Majority 

opinion at 20. It is thus little wonder that J.H. failed to 

progress educationally, socially, or developmentally from 

kindergarten to seventh grade when his parents finally said 

“enough” and withdrew him from the Bernardsville district. 

 The Good Faith of the Parties. 

 

18 See majority opinion at 10-11. 
 "There is no evidence whatsoever that J.H.’s 

parents acted in bad faith, and given the severe deficiencies in 

the IEPs developed for J.H. at Bernardsville, it is clear that 

J.H.’s parents acted reasonably . . . .” Majority opinion at 19-

20. Indeed, given their concern for their child, they had no 

option but to withdraw J.H. from the Bernardsville district. 

 The good faith of J.H.’s parents is in stark 

contrast to the attitude and behavior of the school district. 

J.H.’s placement at Bernardsville was "inappropriate and not 

reasonably calculated to confer educational benefit on J.H.” 

Majority opinion at 7. “Year after year the School District 

failed to design an Individualized Educational Program suitable 

to J.H.’s special needs, and failed to intervene responsibly in 

his quite apparent trend of academic and social deterioration.” 

Majority opinion at 2. Thus, the school district almost totally 

disregarded its duty to J.H. and his welfare. 

 Notice. 

 The Bernardsville District had been aware of 

J.H.’s developmental problems since J.H.'s enrollment in 

kindergarten. J.H. had been evaluated and assessed by the 

appropriate school personnel since J.H.’s earliest days in the 

Bernardsville School District. Accordingly, “it is untenable for 

the school district to maintain the argument that it was not 

aware of a problem with the IEP it offered, virtually unmodified, 

to J.H. year after year despite his lack of academic progress, 
and in the face of his social regression.” Majority opinion at 

20. Quite naturally, J.H.'s parents were dissatisfied, and the 

school district was well aware of their dissatisfaction. In 

August of 1987, J.H.’s parents requested that school officials 

place J.H. at Landmark. Upon the district’s refusal to do so the 

parents unilaterally withdrew J.H. and placed him at Landmark 

themselves. 

II. 

 The majority's analysis fails to adequately 

consider the totality of these factors which weigh so heavily in 

favor of the parents. Instead, the majority leans with sufficient 

force upon the parents' delay in requesting due process hearings 

to tip the equitable balance in favor of the school district: 

We are cognizant of the fact that the school 

district serves a very large student 

population, and in light of the numerous 

contacts it has with parents seeking the 

individual welfare of their respective 

children, mere notice of parental 

"dissatisfaction" does not alone put the 

Board on reasonable notice that the parents 

will challenge a particular IEP in the future 

and seek reimbursement for an interim 

unilateral placement in a private 

institution. 

Majority opinion at 20-21. J.H.’s situation presents far more 

than “mere notice of parental ‘dissatisfaction.’" This is not a 

case of disgruntled and unrealistic parents who are concerned 

that the school’s curriculum is not sufficiently challenging 

their child. Furthermore, the size of the student population and 

the number of parental contacts is not pertinent to our inquiry. 
An eligible child in a large urban school district is entitled to 

the same free appropriate education as a child in the smallest 

rural community. The Act does not distinguish based upon the 

size of the student population and we should not allow that 

distinction to influence our analysis. The school district’s 

size is no excuse for its conduct in this case. 

 The Bernardsville District was clearly on notice, 

albeit not through a formal due process request, that J.H.’s 

parents wanted the school district to pay for the cost of 

Landmark. The district could have requested hearings in order to 

have the adequacy of its IEP promptly determined and thereby 

prevented the very problem it now complains of, notwithstanding 

the majority’s conclusion that the Act imposes a unilateral 

obligation on the parents. "When a dispute arises between the 

board and the parents, either party has the right to resolve the 

matter through an administrative proceeding known as an 

`impartial due process hearing.'" Lascari, 560 A.2d at 1183 

(citing 20 U.S.C. § 1415(b)(2)). 

 Courts have routinely held that equity requires 

the burdens of the Act be placed on the school district and not 

on the parents. See McKenzie v. Smith, 771 F.2d 1527, 1531 (D.C. 

Cir. 1985) (where district sought to change child's IEP, it had 

the burden of proving that the proposed placement complied with 

the requirements of the Act); Grymes v. Madden, 672 F.2d 321, 322 

(3d Cir. 1982) (affirming district court's decision that the 
district had "failed to sustain its burden of proof that an 

appropriate public program existed"); Cf. S-1 v. Turlington, 635 

F.2d 342, 348-49 (5th Cir.) (burden on district to question 

whether student's misconduct is due to handicap because parents 

lack expertise to develop an appropriate IEP for their child), 

cert. denied 454 U.S. 1030 (1981), abrogated on other grounds by

Honig v. Doe, 484 U.S. 305 (1988). It is understandable that a 

school district may be reluctant to initiate formal proceedings 

against a parent. However, the district’s failure to do so ought 

to be considered when it asserts that parental delay exonerates 

it from its failure to provide a student with a free appropriate 

public education. 

 Moreover, an argument similar to that accepted by 

the majority was rejected by the Supreme Court in Burlington. 

The town in Burlington argued that the parents had forfeited 

their claimed right to reimbursement for alternative placement by 

removing their child from public school during the pendency of 

administrative proceedings in violation of 20 U.S.C. § 

1415(e)(3).19 The Supreme Court responded by stating: 

We do not agree with the Town that a parental 

violation of § 1415(e)(3) constitutes a 

waiver of reimbursement. The provision says 

nothing about financial responsibility, 

waiver, or parental right to reimbursement at 

the conclusion of judicial proceedings. 

 

 

19 Section 1415(e)(3) states in part: "During the pendency 

of any proceedings conducted pursuant to [§ 1415], unless the 

State or local educational agency and the parents . . . otherwise 

agree, the child shall remain in the then current educational 

placement . . . ." 20 U.S.C. § 1415(e)(3) (1988). 
Moreover, if the provision is interpreted to 

cut off parental rights to reimbursement, the 

principal purpose of the Act will in many 

cases be defeated in the same way as if 

reimbursement were never available. . . . The 

Act was intended to give handicapped children 

both an appropriate education and a free one; 

it should not be interpreted to defeat one or 

the other of those objectives. 

Burlington, 471 U.S. at 372. This case is different because we 

are concerned with parents who withdrew their child prior to 

requesting administrative hearings. Yet, the situation before us 

is analogous to Burlington and the difference does not allow us 

to abandon the Supreme Court's reasoning. 

III. 

 We do not achieve “substantial justice” by 

awarding reimbursement for the 1989-90 academic year and 

requiring the parents to pay the remaining two thirds of J.H.’s 

tuition expense. See majority opinion at 26-27. These parents 

are seeking reimbursement, not damages. “Reimbursement merely 

requires the [Bernardsville School District] to belatedly pay 

expenses that it should have paid all along and would have borne 

in the first instance had it developed a proper IEP." 

Burlington, 471 U.S at 370-71. 

 The parents' request for the 1987-88 and 1988-89 

academic years is appropriate and should be granted. Our failure 

to affirm the district court effectively shifts most of the 

obligation of providing an appropriate education from the Board 
to the shoulders of J.H.'s parents. Accordingly, I respectfully 

dissent from Part II A of the majority opinion.