1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-1999

Ridgewood Bd of Ed v. N.E.

Precedential or Non-Precedential:

Docket 98-6276

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"Ridgewood Bd of Ed v. N.E." (1999). 1999 Decisions. Paper 84.

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Filed March 30, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-6276 

RIDGEWOOD BOARD OF EDUCATION 

v. 

N.E., as Guardian Ad Litem for M.E., an infant; 

MARY E., Individually and as Guardian Ad Litem for 

M.E., an infant, 

 Defendants/Third-party Plaintiffs 

v. 

FREDERICK STOKLEY, Superintendent; JOHN CAMPION, 

Director of Special Programs; CHARLES ABATE, Principal; 

WILLIAM WARD, Principal; LORRAINE ZAK, Psychologist; 

KATHLEEN McNALLY, Social Worker; CAROLINE 

JANOVER, LDT-C; GEORGE NEVILLE, Principal; 

HENRY HOGUE, Psychologist; JUNE ANN DIBB, Dr., 

Psychiatrist; JOAN CHRISTIAN, LDT-C; 

SUSAN LYNAUGH, Psychologist, 

 Third-party Defendants 

 N.E., as Guardian Ad Litem for M.E., an 

 infant; Mary E., Individually and as 

 Guardian Ad Litem for M.E., an infant, 

 Appellants 

On Appeal from the United States District Court 

for the District of New Jersey 

D.C. Civil Action No. 97-cv-02039 

(Honorable Nicholas H. Politan) 
Argued November 4, 1998 

Before: SCIRICA and ALITO, Circuit Judges, 

and GREEN, District Judge* 

(Filed March 30, 1999) 

 REBECCA K. SPAR, ESQUIRE 

 (ARGUED) 

 Cole, Schotz, Meisel, Forman 

 & Leonard 

 25 Main Street 

 Hackensack, New Jersey 07601 

 Attorney for Appellants 

 CHERIE L. MAXWELL, ESQUIRE 

 (ARGUED) 

 Sills, Cummis, Zuckerman, Radin, 

 Tischman, Epstein & Gross 

 One Riverfront Plaza 

 Newark, New Jersey 07102 

 Attorney for Appellees 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

I. 

The issue on appeal is whether Ridgewood Board of 

Education provided its student M.E. with a "free 

appropriate public education" as required by the 

Individuals with Disabilities Education Act, 20 U.S.C.A. 

S 1400 et seq. (Supp. 1998). The District Court found the 

board of education satisfied IDEA because it provided M.E. 

"more than a trivial educational benefit." Because we hold 

that IDEA imposes a higher standard, we will vacate and 

remand. 

_________________________________________________________________ 

*The Honorable Clifford Scott Green, United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 

 2 
II. 

A. 

M.E.1 is a seventeen-year old high-school student whose 

learning disabilities qualify him as a "child[ ] with 

disabilities" under the Individuals with Disabilities 

Education Act ("IDEA"), 20 U.S.C.A. S 1400 et seq. (Supp. 

1998). M.E. has attended schools in Ridgewood Board of 

Education's school district since the fall of 1988, when he 

started second grade at the Orchard School. At the 

beginning of the second grade, his teacher noticed that his 

academic skills were far below those of his classmates and 

the school moved him to the first grade. At that time, the 

school told M.E.'s parents that he did not have a learning 

disability and was in fact very intelligent. 

M.E.'s difficulties continued in the first grade. On the 

recommendation of his teacher, his parents enrolled him in 

summer school. Despite this extra instruction, M.E.'s 

second grade teacher commented that his skills remained 

very weak. Standardized tests conducted during the second 

grade confirmed his teacher's assessment: M.E.'s scores 

ranged between the fourth and ninth percentiles. M.E. 

again attended summer classes on the school's 

recommendation. 

Hoping that a new school might help their son, M.E.'s 

parents asked Ridgewood to transfer M.E. to Ridge School, 

another elementary school in the Ridgewood district, for the 

third grade. But M.E.'s difficulties continued at Ridge. As a 

result, Ridgewood and M.E.'s parents agreed that M.E. 

should receive Basic Skills Instruction twice a week and 

work with his teacher after school twice a week. M.E.'s 

parents also had M.E. examined by independent learning 

disabilities teacher consultant Howard Glaser. Glaser's 

October 1990 evaluation found that there was a great 

discrepancy between M.E.'s intellectual abilities and his 

academic performance: although M.E.'s intelligence was at 

_________________________________________________________________ 

1. M.E.'s claims were brought by M.E.'s father as guardian ad litem and 

his mother as guardian ad litem and individually. To minimize 

confusion, we also refer to the family as "M.E." 

 3 
the ninety-fifth percentile, his reading skills were at the 

second percentile. Glaser also found that M.E. was learning 

disabled and recommended that M.E.'s parents ask 

Ridgewood to evaluate M.E. 

Ridgewood's Child Study Team (CST) evaluated M.E. in 

March, 1991. The Ridgewood CST agreed with Glaser's

assessment that there was a great discrepancy between 

M.E.'s abilities and his performance in school. It also noted 

that the discrepancy was growing and that M.E. was 

becoming very anxious about his academic performance. 

But it refused to classify him as learning disabled because 

it concluded that he was not "perceptually impaired" within 

the meaning of New Jersey law.2 The Ridgewood CST 

recommended that Ridgewood provide M.E. with "increased 

multi-sensory support" and that his parents obtain 

counseling for him. 

M.E.'s academic difficulties continued throughout the 

remainder of elementary school. In fifth grade, M.E.'s 

teacher and his parents asked Ridgewood to evaluate him 

again. Ridgewood refused to do so. In sixth grade, 

Ridgewood agreed to re-evaluate M.E. only after a learning 

disabilities teacher consultant hired by M.E.'s parents 

recommended it do so. The Ridgewood CST's May-June 

1994 evaluations consisted of an educational assessment, a 

psychological assessment, a health appraisal and a 

psychiatric evaluation. The CST concluded that M.E.

remained far behind his classmates and recommended that 

he and his parents seek counseling to explore his feelings 

of inadequacy and depression. But the CST maintained that 

M.E showed no signs of perceptual deficits, again refused to 

classify him as perceptually impaired and determined that 

he was not eligible for special education. 

M.E.'s in-class troubles worsened during the seventh 

_________________________________________________________________ 

2. N.J. Admin. Code tit. 28, S 6:28 (1991) defines "perceptually impaired" 

as "a specific learning disability manifested in a disorder in 

understanding and learning, which affects the ability to listen, think, 

speak, read, write, spell and/or compute to the extent that special 

education is necessary for achievement in an educational program." New 

Jersey uses the phrase "perceptually impaired" instead of IDEA's phrase 

"specific learning disabilities." 

 4 
grade, where he consistently failed English and received 

incompletes in other classes. Concerned that Ridgewood's 

CST had erred in failing to classify M.E. as perceptually 

impaired, M.E.'s parents asked Ridgewood to provide an 

evaluation by an independent child study team. After the 

parents filed for an administrative hearing, Ridgewood 

agreed to the request and contracted with Bergen 

Independent Child Study Teams for the evaluation. 

Ridgewood Director of Special Programs John Campion

ordered Bergen not to recommend whether M.E. should be 

classified as perceptually impaired or how he should be 

educated. M.E.'s parents strongly disagreed with these 

limitations and asked the Parent Information Center of New 

Jersey to intervene. After the Parent Information Center 

determined that Bergen could make classification and 

placement recommendations, Bergen agreed to make these 

recommendations in the final team report it would provide 

to Ridgewood but not in the preliminary evaluation reports 

individual team members would prepare. 

Bergen's team staffing report diagnosed M.E. with a

learning disability in reading and writing and recommended 

that Ridgewood classify him as perceptually impaired. 

M.E.'s parents allege that Ridgewood intentionally withheld 

this report from them despite their repeated requests and 

that Ridgewood gave them the team staffing report only 

after the New Jersey Department of Education ordered it to 

do so. 

On March 17, 1995, Ridgewood agreed to classify M.E. as 

perceptually impaired. It recommended that he continue in 

the Basic Skills Instruction he had been receiving for six 

years and developed an individualized education program 

(IEP) for the 1995-96 school year. The IEP called for thirty 

minutes of individual Orton Gillingham3 instruction in 

reading and spelling, resource center instruction in English 

_________________________________________________________________ 

3. The Orton-Gillingham technique is a "linguistic-phonetic approach 

[towards reading] with an emphasis on teaching the student to learn how 

to decode words." Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 

501, 505 n.4 (E.D.N.Y. 1996). It is designed to "enhance a dyslexic 

individual's capacity to read, write, and spell." Pascoe v. 

Washingtonville 

Cent. Sch. Dist., 1998 WL 684583, at *1 (S.D.N.Y. Sep. 29, 1998). 

 5 
and supplementary instruction in science and social

studies. M.E.'s parents maintain they objected to the IEP 

and allege that Ridgewood coerced them to agree to it by 

threatening to break off all discussions concerning M.E.'s 

educational program unless they approved the IEP. The IEP 

proved ineffective. M.E. made minimal improvements and 

Ridgewood changed his grades to pass-fail in order to 

minimize the impact on his self-esteem. 

At the end of the eighth grade, Ridgewood decided that 

M.E. should no longer be placed in regular classes. For the 

1996-97 school year, it proposed an IEP that provided for 

resource center instruction in all academic classes, two 

daily periods of supplementary instruction with a teacher 

trained in the Wilson reading program and 

speech/language therapy once a week. It also scheduled 

regular classroom instruction for physical education and 

electives. M.E.'s parents disagreed with the IEP, claiming it 

provided fewer services than his inadequate 1995-96 IEP 

and arguing it would stigmatize M.E., damaging his 

already-fragile self-esteem. On May 27, 1996, M.E.'s 

parents requested a due process hearing before the New 

Jersey Department of Education, contending that 

Ridgewood's proposed IEP for 1996-97 failed to provide a 

"free appropriate public education" within the meaning of 

IDEA and requesting that M.E. be placed in private school 

at Ridgewood's expense. Concerned that Ridgewood would 

not provide their son an adequate education, M.E.'s parents 

began to visit other schools and eventually asked 

Ridgewood to place M.E. at the Landmark School, a private 

school in Massachusetts that specializes in educating 

students with learning disabilities. After Ridgewood refused 

their request, M.E.'s parents then asked that Ridgewood 

pay for him to attend Landmark's summer program. After 

Ridgewood refused, M.E. attended Landmark's summer 

program at his parents' expense and, according to his 

instructors there, made steady and considerable progress. 

B. 

While M.E. was at Landmark, an Administrative Law 

Judge conducted seven days of hearings on his parents' 

complaint. In the fall of 1996, M.E. returned to Ridgewood 

 6 
to begin ninth grade. On November 27, 1996, the ALJ held 

that Ridgewood's 1996-97 IEP failed to provide M.E. with a 

free appropriate public education. In arriving at this 

conclusion, she considered the testimony of M.E.'s parents, 

Howard Glaser, Dr. Mae Balaban of Bergen, M.E.'s 

classroom teachers and the Ridgewood CST. She also 

considered a letter written by Dr. Balaban on November 4, 

1996, over a month after the last hearing. In that letter, Dr. 

Balaban criticized the 1996-97 IEP, stating that she was 

"convinced that [it] will not result in . .. an adequate 

education." She strongly recommended that M.E. be placed 

at Landmark, where he would "be given the chance to

develop at least average reading and writing skills so as to 

become a functional adult." 

The ALJ then ordered Ridgewood to pay M.E.'s tuition at 

Landmark, holding such a placement is warranted when"it 

is shown that it is not appropriate to provide educational 

services for the pupil in a public setting." Concluding that 

M.E.'s Landmark placement would remain appropriate until 

Ridgewood "offers an appropriate program and placement", 

the ALJ nonetheless refused to order Ridgewood to pay for 

the non-tuition costs of the Landmark placement. The ALJ 

also denied M.E.'s request for compensatory education, 

finding that Ridgewood's failure to classify M.E. as disabled 

did not rise to the required level of bad faith or willful 

misconduct. Finally, the ALJ concluded that M.E. was 

entitled to reimbursement for the tuition costs of attending 

Landmark's summer program in 1996. 

C. 

On January 20, 1997, pursuant to the ALJ's decision, 

M.E. enrolled in Landmark at Ridgewood's expense. In April 

1997, Ridgewood filed a complaint in federal court under 

20 U.S.C.A. S 1415(i)(2) (1998), an action that had the effect 

of appealing the ALJ's decision. M.E. brought a 

counterclaim seeking compensatory education and the nontuition costs of attending Landmark. He also filed a thirdparty complaint against various Ridgewood administrators 

and child study team members, alleging violations of IDEA, 

the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq., 42 

U.S.C. S 1985(3), 42 U.S.C. S 1983, New Jersey state law 

 7 
and the United States Constitution and seeking 

compensatory and punitive damages under 42 U.S.C. 

S 1983. 

On July 30, 1998, the District Court reversed the ALJ's 

decision that Ridgewood had not provided M.E. a free 

appropriate education. The District Court also held that the 

ALJ should not have considered Dr. Balaban's November 4, 

1996 letter because Ridgewood never consented to its 

admission and because Ridgewood had not been given a 

"full and fair opportunity" to cross-examine Dr. Balaban on 

the portions of the letter that contradicted her live 

testimony before the ALJ. 

In finding that Ridgewood had provided M.E. a free 

appropriate public education, the District Court stated that 

IDEA requires only that an IEP provide a disabled student 

with "more than a trivial educational benefit" and, relying 

on the testimony of Ridgewood's witnesses and Dr. 

Balaban, concluded that Ridgewood's IEP had done so. The 

District Court found that Dr. Balaban never characterized 

M.E.'s IEP as "inappropriate" but testified that the IEP 

would provide M.E. with an educational benefit. 

Because it reversed the ALJ's determination that 

Ridgewood had not provided M.E. a free appropriate public 

education, the District Court also reversed the ALJ's 

decision that Ridgewood pay M.E.'s tuition at Landmark, 

stating that even if M.E.'s IEP were inappropriate, no 

evidence suggested that he could not be educated in a 

public setting. 

The District Court affirmed the ALJ's decision to deny 

M.E. compensatory education and reimbursement for 

tutoring expenses. It rejected the ALJ's conclusion that 

compensatory education requires bad faith, stating our 

opinion in Carlisle Area School District v. Scott P., 62 F.3d 

520 (3d Cir. 1995) established the right to compensatory 

education once the school district knows or should have 

known its IEP has failed. But the District Court held M.E. 

had no right to compensatory education because M.E.'s IEP 

had not been a failure. At the same time, the District Court 

dismissed M.E.'s request for expenses and costs in the 

administrative proceedings because M.E. was no longer the 

prevailing party. 

 8 
The District Court also granted Ridgewood summary 

judgment on M.E.'s third-party complaint seeking 

compensatory and punitive damages under 42 U.S.C. 

S 1983. M.E.'s S 1983 claims asserted violations of S 504 of 

the Rehabilitation Act of 1973, the equal protection clause 

of the Fourteenth Amendment, 42 U.S.C. S 1985 and IDEA. 

The District Court dismissed M.E.'s S 504 claims because 

he had not demonstrated he was " `excluded from 

participation in, denied the benefits of, or subject to 

discrimination at, the school' " and dismissed his S 1985 

claim because he had not shown that the alleged violation 

of his rights was motivated by "racial or `otherwise classbased' animus." It dismissed M.E.'s IDEA claims because it 

determined Ridgewood had fully complied with IDEA. In 

addition, the District Court held all of M.E.'s third-party 

claims failed "to overcome the qualified immunity enjoyed 

by municipal employees sued in their individual capacity." 

M.E. appealed to this court on August 26, 1998. Before 

we heard argument, the District Court on September 1, 

1998 enjoined implementation of its July 30 order, an act 

that kept M.E. enrolled in Landmark at Ridgewood's 

expense. On September 9, a motions panel of this court 

stayed the District Court's September 1 order, which 

effectively reinstated the District Court's July 30 order. But 

M.E. remained at Landmark pursuant to an agreement 

between his parents and the school. At oral argument on 

November 4, 1998, M.E. asked this panel to require 

Ridgewood to pay his Landmark expenses. After oral 

argument, we ordered Ridgewood to comply with the 

District Court's September 1 order and pay M.E.'s tuition, 

residential and transportation costs at Landmark. M.E. 

remains at Landmark at the present time. 

III. 

A. 

The initial question is whether the District Court erred in 

deciding that Ridgewood's 1996-97 IEP provided M.E. with 

a free appropriate education.4 We review the grant of 

_________________________________________________________________ 

4. In his brief, M.E. contends the District Court applied an improper 

standard of review to the ALJ's decision that his 1996-97 IEP was 

 9 
summary judgment under a plenary standard. See In re 

Chambers Dev. Co., 148 F.3d 214, 229 n.12 (3d Cir. 1998). 

Congress enacted the Individuals with Disabilities 

Education Act ("IDEA"), 20 U.S.C.A. S 1400 et seq., to assist 

states in educating disabled children. In order to receive 

funding under IDEA, a state must provide all disabled 

students with a "free appropriate public education." 20 

U.S.C.A. S 1412(1) (Supp. 1998).5 This education must be 

tailored to the unique needs of the disabled student 

through an individualized educational program ("IEP"). See 

Board of Educ. v. Rowley, 458 U.S. 176, 181-82 (1982). 

IDEA leaves to the courts the task of interpreting "free 

appropriate public education." See Rowley, 458 U.S. at 

188-89. The Supreme Court began this task in Board of 

Education v. Rowley, 458 U.S. 176 (1982), holding that 

while an IEP need not maximize the potential of a disabled 

student, it must provide "meaningful" access to education, 

id. at 192, and confer "some educational benefit" upon the 

child for whom it is designed. Id. at 200. In determining the 

quantum of educational benefit necessary to satisfy IDEA, 

the Court explicitly rejected a bright-line rule. Noting that 

children of different abilities are capable of greatly different 

achievements, the Court instead adopted an approach that 

requires a court to consider the potential of the particular 

disabled student before it. See id. at 202; see also Hall v. 

Vance Cty. Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985) 

(stating that Rowley holds that "no single substantive 

standard can describe how much educational benefit is 

sufficient to satisfy [IDEA]"). 

We first interpreted the phrase "free appropriate public 

_________________________________________________________________ 

inappropriate. Because we will vacate the District Court's judgment that 

the IEP was appropriate, we need not determine whether the District 

Court applied the proper standard of review to the ALJ's decision. 

5. IDEA defines "children with disabilities" as children who need special 

education because of "mental retardation, hearing impairments including 

deafness, speech or language impairments, visual impairments including 

blindness, serious emotional disturbance, orthopedic impairments, 

autism, traumatic brain injury, other health impairments, or specific 

learning disabilities." 20 U.S.C.A. S 1401(a)(1)(A)(i) (Supp. 1998). 

 10 
education" in Board of Education v. Diamond, 808 F.2d 987 

(3d Cir. 1986), when we rejected the notion that the 

provision of any educational benefit satisfies IDEA, holding 

that IDEA "clearly imposes a higher standard." Id. at 991. 

Examining the quantum of benefit necessary for an IEP to 

satisfy IDEA, we held in Polk v. Central Susquehanna 

Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), that 

IDEA "calls for more than a trivial educational benefit" and 

requires a satisfactory IEP to provide "significant learning," 

id. at 182, and confer "meaningful benefit." Id. at 184. We 

also rejected the notion that what was "appropriate" could 

be reduced to a single standard, id., holding the benefit 

"must be gauged in relation to the child's potential." Id. at 

185. When students display considerable intellectual 

potential, IDEA requires "a great deal more than a 

negligible [benefit]." Id. at 182. 

As noted, the District Court held that an IEP need only 

provide "more than a trivial educational benefit" in order to 

be appropriate, equating this minimal amount of benefit 

with a "meaningful educational benefit." But the standard 

set forth in Polk requires "significant learning" and 

"meaningful benefit." The provision of merely "more than a 

trivial educational benefit" does not meet these standards. 

It appears also that the District Court may not have given 

adequate consideration to M.E.'s intellectual potential in 

arriving in its conclusion that Ridgewood's IEP was

appropriate. Although its opinion discussed the IEP in 

considerable detail, it did not analyze the type and amount 

of learning of which M.E. is capable. As we have discussed, 

Rowley and Polk reject a bright-line rule on the amount of 

benefit required of an appropriate IEP in favor of an 

approach requiring a student-by-student analysis that 

carefully considers the student's individual abilities. 

Therefore we will vacate the judgment of the District 

Court on this issue and remand for proceedings consistent 

with this opinion.6 

_________________________________________________________________ 

6. We see no error in the District Court's decision to strike Dr. 

Balaban's 

November 4, 1996 letter for the reasons stated by the District Court. 

 11 
B. 

Because we have vacated the District Court's judgment 

that Ridgewood provided M.E. with a free appropriate 

public education, we must review all the judgments that 

flow from it, specifically, that M.E. was not entitled to 

placement at Landmark, that he was not entitled to 

compensatory education, that he was not entitled to

expenses and costs as the prevailing party at the 

administrative hearing and that he could assert no thirdparty claims under 42 U.S.C. S 1983. 

1. Placement at Landmark 

The District Court held that Ridgewood was not required 

to pay M.E.'s tuition at Landmark for the 1996-1997 school 

year because his IEP had provided him a free appropriate 

public education. But even if M.E.'s IEP were inappropriate, 

the District Court said there was no "evidence in the record 

suggesting that it is not appropriate to provide educational 

services for [M.E.] in a public setting." M.E. contends the 

District Court's approach requires a student seeking private 

placement to show not only that private placement is 

appropriate but also that all public placements are

inappropriate. This approach, he argues, places an 

impossible burden on the student. We are not convinced 

that M.E. correctly interpreted the District Court's holding. 

Nonetheless, we do not believe that IDEA requires the 

student to prove that all public placements are 

inappropriate. 

To determine when a disabled student is entitled to a 

private placement, we look to Florence County School 

District Four v. Carter, 510 U.S. 7 (1993), in which the 

Supreme Court held that a student may be entitled to 

reimbursement if "a federal court concludes both that the 

public placement violated IDEA and that the private school 

placement was proper under [IDEA]." Id. at 15. Under 

Florence County, a court may award a disabled student the 

cost of his private placement if (1) the court determines the 

student's IEP is inappropriate and (2) the student 

demonstrates that the private placement he seeks is proper. 

See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 

 12 
129 (2d Cir. 1998).7 A private placement may be proper if 

it is appropriate and provided in the least restrictive 

educational environment. See Oberti v. Board of Educ., 995 

F.2d 1204, 1213 (3d Cir. 1993). To meet the Florence 

County standard, a disabled student is not required to 

demonstrate that he cannot be educated in a public setting. 

Under IDEA, the relevant question is not whether a student 

could in theory receive an appropriate education in a public 

setting but whether he will receive such an education. We 

note the ALJ concluded that Landmark would remain 

appropriate until Ridgewood offered an appropriate IEP. 

Ridgewood contends that the "least restrictive educational 

environment" requirement bars M.E. from attending 

Landmark because Landmark's residential program is more 

restrictive than Ridgewood's. Under this approach, M.E. 

could receive an inappropriate education in Ridgewood's 

schools but be denied a private placement because it is 

more restrictive than placement in a Ridgewood public 

school. But IDEA requires that disabled students be

educated in the least restrictive appropriate educational 

environment.8 See Oberti v. Board of Educ., 995 F.2d 1204, 

1213 (3d Cir. 1993) (stating that IDEA requires an 

education to be appropriate and provided in the least 

restrictive educational environment); Kruelle v. New Castle 

Cty. Sch. Dist., 642 F.2d 687, 695 (3d Cir. 1981) (stating 

that inappropriate educational environments are not

relevant for "least restrictive environment" analysis); see 

also Cleveland Heights-University Heights City Sch. Dist. v. 

Boss, 144 F.3d 391, 400 (6th Cir. 1998) (holding that 

private school's failure to satisfy least restrictive 

environment requirement does not bar parents' claim for 

_________________________________________________________________ 

7. We note that the District Court has the discretion to determine the 

appropriate amount of reimbursement. See Florence County, 510 U.S. at 

16 (stating that reimbursement is equitable relief to be awarded after 

consideration of all relevant factors). For example, the student cannot 

receive total reimbursement if the fees of the private school are 

unreasonable. 

8. We also note that the appropriateness of a private placement is 

evaluated by the same standard set forth in part III.A. of this opinion. 

In 

other words, parents of a disabled student need not seek out the perfect 

private placement in order to satisfy IDEA. 

 13 
reimbursement); Board of Educ. of Murphysboro v. Illinois 

Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994) (stating 

that the least restrictive environment requirement"was not 

developed to promote integration with non-disabled peers at 

the expense of other IDEA educational requirements" and 

does not apply unless education is appropriate). 

We are unable to determine if the District Court applied 

this standard in concluding M.E. was not entitled to 

placement at Landmark and therefore will remand this 

issue to the District Court for reconsideration. 

2. Compensatory Education 

Under IDEA, a disabled student is entitled to a free 

appropriate public education until the student reaches age 

twenty-one. See 20 U.S.C.A. S 1412(2)(B). An award of 

compensatory education allows a disabled student to

continue beyond age twenty-one in order to make up for the 

earlier deprivation of a free appropriate public education. 

See M.C. v. Central Reg. Sch. Dist., 81 F.3d 389, 395 (3d 

Cir. 1996). In Carlisle Area School District v. Scott P., 62 

F.3d 520 (3d Cir. 1995), we declined to state a precise 

standard for the award of compensatory education, but 

noted that most of our cases awarding compensatory 

education involve egregious circumstances or the flagrant 

failure to comply with IDEA. Id. at 536-37. One year later, 

in M.C. v. Central Regional School District, we "flesh[ed] out 

the standard left sparse by Carlisle" and held that the right 

to compensatory education accrues when the school knows 

or should know that its IEP is not providing an appropriate 

education. See M.C., 81 F.3d at 396. We specifically 

rejected a bad faith or egregious circumstances standard, 

stating that "a child's entitlement to special education 

should not . . . be abridged because the [school] district's 

behavior did not rise to the level of slothfulness or bad 

faith." Id. at 397. 

Applied narrowly, M.C.'s "inappropriate IEP" requirement 

might prohibit the award of compensatory education for 

years in which a disabled student received an inappropriate 

education via means other than an IEP.9 But we do not 

_________________________________________________________________ 

9. In M.C., we stated that "the right to compensatory education should 

accrue from the point that the school district knows or should know of 

 14 
think the M.C. court intended such an application because 

it held the denial of an appropriate education--and not 

merely the denial of an appropriate IEP--creates the right 

to compensatory education. See M.C., 81 F.3d at 391-92 ("A 

school district that knows or should know that a child has 

an inappropriate [IEP] or is not receiving more than a de 

minimis benefit must, of course, correct the situation. We 

hold that . . . a disabled child is entitled to compensatory 

education for a period equal to the deprivation."); id. at 395 

(citation omitted) ("Under IDEA, a disabled student is 

entitled to free, appropriate education until he or she 

reaches age twenty-one. A court award of compensatory 

education requires a school district to . . . make up for any 

earlier deprivation."). IDEA's central goal is that disabled 

students receive an appropriate education, not merely an 

appropriate IEP. Therefore, a disabled student's right to 

compensatory education accrues when the school knows or 

should know that the student is receiving an inappropriate 

education. 

The District Court rejected M.E.'s request for 

compensatory education and reimbursement for tutoring 

because it believed those remedies were available only when 

an IEP was inappropriate. As noted, it concluded that 

M.E.'s 1996-97 IEP was appropriate. M.E. maintains that 

he never received a free appropriate public education from 

Ridgewood and that he presented substantial evidence that 

Ridgewood knew or should have known he was disabled

shortly after he enrolled at the Orchard School in 1988. He 

contends that the District Court erred as a matter of law 

when it dismissed his claim for compensatory education 

from 1988 to 1997 after a finding that M.E. had received a 

free appropriate education during the 1996-97 school year. 

He also contends his parents are entitled to reimbursement 

for $6,400 in tutoring expenses incurred from 1989 to 

1992. 

_________________________________________________________________ 

the IEP's failure," M.C., 81 F.3d at 396, and that an "award of 

compensatory education require[s] a finding that an IEP was 

inappropriate." Id. at n.6. The M.C. court did not have to consider 

whether compensatory education was awardable for years in which a 

disabled student had no IEP because the plaintiff did not ask for 

compensatory education for such years. 

 15 
Ridgewood responds that M.E. cannot recover 

compensatory education because he received a free 

appropriate public education. It also contends there is no 

evidence of culpable conduct or egregious circumstances, 

asserting it provided M.E. with extensive assistance. 

Further, Ridgewood argues M.E.'s parents' failure to object 

to his programs and placements from 1988 to 1996 created 

"presumptively a free and appropriate education" during 

those years and bars claims for compensatory education. 

Finally, Ridgewood asserts that all compensatory education 

claims involving events that occurred more than two years 

ago are barred by a two-year statute of limitations adopted 

by this court in Jeremy H. v. Mount Lebanon School District, 

95 F.3d 272 (3d Cir. 1996). 

Whether Ridgewood's 1996-97 IEP provided M.E. with an 

appropriate education will be decided by the District Court 

on remand. As we stated in M.C., an award of 

compensatory education does not require a finding of bad 

faith or egregious circumstances. See M.C., 81 F.3d at 397. 

Furthermore, failure to object to M.E.'s placement does not 

deprive him of the right to an appropriate education. In 

M.C., we held that "a child's entitlement to special 

education should not depend upon the vigilance of the 

parents." See M.C., 81 F.3d at 396. Finally, Ridgewood's 

statute of limitations argument lacks merit and its reliance 

on Jeremy H. is misplaced. In Jeremy H. we expressly 

declined to choose a statute of limitations for IDEA actions, 

see Jeremy H., 95 F.3d at 280 n.15 ("We . . . need not, and 

do not, decide between a two-year and a six-year limitations 

period."), but decided the limitations period begins to run 

"once the state administrative process has run its course." 

Id. at 280. Also, Jeremy H. considered the appropriate 

statute of limitations for IDEA claims brought in 

Pennsylvania, not New Jersey. See Wilson v. Garcia, 471 

U.S. 261, 266-67 (1985) (stating that if a federal statute 

does not specify a statute of limitations, courts apply the 

relevant statute of limitations of the forum state); Beauty 

Time, Inc. v. Vu Skin Sys. Inc., 118 F.3d 140, 144 (3d Cir. 

1997) (same); Tokarcik v. Forest Hills Sch. Dist., 665 F.2d 

443, 448 (3d Cir. 1981) (same). 

In assessing the statute of limitations governing a

 16 
compensatory education claim brought in New Jersey, we 

must determine the most analogous cause of action under 

New Jersey law. An analogous cause of action is a "claim[ ] 

against [a] public entity" alleging "injury or damage to 

person," N.J. Stat. Ann. S 59:8-8, under the New Jersey 

Tort Claims Act, in which the statute of limitations is two 

years.10 We have previously held that IDEA claims closely 

resemble actions to recover damages for injuries caused by 

another. See Tokarcik, 665 F.2d at 454. Another analogous 

cause of action might be a basic personal injury claim, 

which also carries a two-year statute of limitations. See 

N.J. Stat. Ann. S 2A:14-2. 

Because M.E. brought his claim for compensatory 

education within either statute of limitations, we need not 

decide whether his claim is more analogous to a Tort 

Claims Act claim or a basic personal injury claim. Under 

either cause of action, the statute begins to run once 

plaintiff 's cause of action accrues. See N.J. Stat. Ann. 

S 59:8-8; N.J. Stat. Ann. S 2A:14-2. As noted, Jeremy H. 

held that a federal IDEA claim accrues at the conclusion of 

the state administrative process. See Jeremy H., 95 F.3d at 

280. The limitations period for M.E.'s claim began to run on 

November 27, 1996, when the ALJ issued her ruling, and 

M.E. filed his complaint on July 3, 1997. 

Therefore we conclude the District Court erred when it 

dismissed M.E.'s claim for compensatory education for the 

years 1988-1996 on a finding that his 1996-1997 IEP was 

appropriate. The appropriateness of M.E.'s 1996-1997 

education is irrelevant to the appropriateness of his 

education from 1988 to 1996.11 In addition, our decision to 

vacate the judgment that M.E.'s 1996-1997 IEP was 

appropriate compels us to vacate the grant of summary 

_________________________________________________________________ 

10. Such a claim must be brought against a "public entity", which 

includes "any county, municipality, district, public authority, public 

agency and any other . . . public body in the State." N.J. Stat. Ann. 

S 59:1-3. Ridgewood meets this definition. 

11. Because the dismissal of M.E.'s claim for 1989-1992 tutoring 

expenses was also based on the conclusion that the 1996-97 IEP was 

appropriate, we will vacate the dismissal of tutoring expenses claim and 

remand it to the District Court. 

 17 
judgment on M.E.'s claim for compensatory education for 

the 1996-1997 school year. On remand, the District Court 

should determine whether M.E. received an appropriate 

education in each school year and, if it concludes he did 

not, determine when Ridgewood knew or should have 

known of that fact. 

3. Costs and Fees at the Administrative Hearing 

A plaintiff may obtain fees and costs when he "prevails," 

or obtains merits-based relief that " `materially alters the 

legal relationship between the parties by modifying the 

defendant's behavior in a way that directly benefits the 

plaintiff.' " D.R. v. East Brunswick Bd. of Educ., 109 F.3d 

896, 902 (3d Cir. 1997) (quoting Farrar v. Hobby, 506 U.S. 

103, 112 (1992)). The District Court denied M.E.'s request 

for costs and fees because its reversal of the ALJ's decision 

meant that M.E. was no longer a prevailing party. Our 

decision to vacate the District Court's reversal requires that 

we vacate and remand the denial of fees and costs. 

4. Third-Party Claims Under 42 U.S.C. S 1983 

42 U.S.C. S 1983 does not confer substantive rights but 

"merely redresses the deprivation of . . . rights. . . created 

by the Constitution or federal statute." W.B. v. Matula, 67 

F.3d 484, 493 (3d Cir. 1995). In other words, a S 1983 suit 

must allege the violation of a federal right provided 

elsewhere. The District Court granted Ridgewood summary 

judgment on all of M.E.'s third-party claims because it 

concluded the third-party complaint asserted individual 

capacity claims against which the third-party defendants 

enjoyed qualified immunity. It also held that many of the 

claims were subject to dismissal on other grounds. 

In reviewing the grant of summary judgment, we apply 

the same standards as does a District Court. We will affirm 

the grant of summary judgment only if there is no genuine 

issue of material fact and the movant is entitled to 

judgment as a matter of law. See Newport Assocs. Dev. Co. 

v. Travelers Indemnity Co., 162 F.3d 789 (3d Cir. 1998). 

Once the moving party points to evidence demonstrating no 

issue of material fact exists, the non-moving party has the 

 18 
duty to set forth specific facts showing that a genuine issue 

of material fact exists and that a reasonable factfinder 

could rule in its favor. See Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574 (1986); Groman v. 

Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). 

Speculation and conclusory allegations do not satisfy this 

duty. Groman, 47 F.3d at 637. 

a. Nature of Third-Party Complaint 

In order to prevail on a S 1983 suit brought against 

defendants in their official capacity, the plaintiff must 

establish that the deprivation of his rights was the result of 

an official policy or custom. See Board of Cty. Comm'rs v. 

Brown, 520 U.S. 397, 400 (1997); Monell v. New York City 

Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). 

The District Court held that M.E. provided no evidence 

that third-party defendants acted pursuant to a municipal 

policy. M.E. contends his third-party complaint was"clearly 

brought against third-party defendants in both their 

individual and official capacities" and that the third-party 

defendants acted pursuant to "some policy or custom" of 

Ridgewood. We disagree. M.E. has provided no evidence 

that Ridgewood's policy is to ignore the responsibilities 

imposed by IDEA. Rather the evidence presented was that 

Ridgewood failed to fulfill its responsibilities. Therefore we 

will affirm the order of the District Court granting summary 

judgment on this issue. 

b. IDEA Claims 

Initially we note that the Court of Appeals for the Fourth 

Circuit recently held that a plaintiff may not sue under 42 

U.S.C. S 1983 for IDEA violations because"IDEA provides a 

comprehensive remedial scheme for violations of its own 

requirements." Sellers v. School Board, 141 F.3d 524, 529 

(4th Cir. 1998). But we must follow our decision in W.B. v. 

Matula, 67 F.3d 484 (3d Cir. 1995), which held that IDEA 

claims may be actionable under S 1983. The District Court 

entered summary judgment on M.E.'s S 1983 claims 

alleging IDEA violations because it held Ridgewood had 

"fully complied" with IDEA. M.E. contends the District 

 19 
Court erred when it entered summary judgment on his

IDEA claims alleging violations from 1988 to September 

1996 on a finding that his 1996-97 IEP was appropriate. He 

claims that from 1988 to 1996 Ridgewood failed in its 

obligation to timely evaluate him, to inform his parents of 

their rights and to provide him with special education. 

Because the District Court discussed only the 1996-97 

school year, it would appear that the grant of summary 

judgment on M.E.'s IDEA claims was based solely on a 

finding that the 1996-97 IEP was appropriate. Because a 

satisfactory 1996-97 IEP has no bearing on whether 

Ridgewood complied with IDEA before the 1996 school year, 

we will vacate the grant of summary judgment on M.E.'s 

IDEA claims. 

c. Section 504 Claims 

The Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq. 

(Supp. 1998), prohibits discrimination on the basis of 

disability in federally funded programs. In order to 

establish a violation of S 504 of the Rehabilitation Act, a 

plaintiff must prove that (1) he is "disabled" as defined by 

the Act; (2) he is "otherwise qualified" to participate in 

school activities; (3) the school or the board of education 

receives federal financial assistance; and (4) he was 

excluded from participation in, denied the benefits of, or 

subject to discrimination at, the school. W.B. v. Matula, 67 

F.3d 484, 492 (3d Cir. 1995) (quoting Nathanson v. Medical 

Coll. of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991)). 

In addition, the plaintiff must demonstrate that defendants 

know or should be reasonably expected to know of his 

disability. See id. But a plaintiff need not prove that 

defendants' discrimination was intentional. See id. We have 

held that there are few differences, if any, between IDEA's 

affirmative duty and S 504's negative prohibition and have 

noted that the regulations implementing S 504 require that 

school districts "provide a free appropriate education to 

each qualified handicapped person in [its] jurisdiction." Id. 

at 492-93. 

The District Court granted Ridgewood summary 

judgment on M.E.'s S 504 claim[s] because it found "no 

 20 
evidence . . . that M.E. `was excluded from participation in, 

denied the benefits of, or subject to discrimination' " at 

Ridgewood schools. M.E. argues that Ridgewood violated 

S 504 when it failed to identify him as learning disabled, 

when it failed to inform his parents of Ridgewood's IDEA 

responsibilities and when it failed to provide him a free 

appropriate public education. 

We believe M.E. has presented evidence demonstrating 

that a genuine issue of fact exists. In W.B. v. Matula, we 

held that a school's failure to notify parents of its IDEA 

duties could violate S 504, see Matula, 67 F.3d at 501 n.13, 

and also held that S 504 imposes a "childfind" duty, or the 

duty to identify a disabled child "within a reasonable time 

after school officials are on notice of behavior that is likely 

to indicate a disability." Id. at 500-01. In addition, the 

failure to provide a free appropriate public education 

violates IDEA and therefore could violate S 504. See id. at 

492-93 (stating that IDEA and S 504 impose nearly 

identical duties and noting that S 504's implementing 

regulations require that schools provide a "free appropriate 

public education"). Therefore we will vacate the District 

Court's grant of summary judgment on M.E.'s S 504 claims 

and remand for proceedings consistent with this opinion.12 

d. Section 1985 Conspiracy Claim 

42 U.S.C. S 1985(3) prohibits conspiracies predicated on 

"racial, or perhaps otherwise class-based, invidiously 

discriminatory animus." Griffin v. Breckenridge, 403 U.S. 

88, 102 (1971). In order to state a claim under 42 U.S.C. 

S 1985(3), the plaintiff must allege "(1) a conspiracy; (2) 

motivated by a racial or class based discriminatory animus 

_________________________________________________________________ 

12. M.E.'s S 504 claims assert both procedural and substantive 

violations. In a footnote, the District Court stated "[t]he ALJ determined 

that [Ridgewood] had complied with IDEA's procedural requirements. 

This Court finds that the ALJ's conclusion is supported by a 

preponderance of the evidence in the record." We do not read the ALJ's 

opinion as finding that Ridgewood complied with IDEA's procedural 

requirements. The ALJ merely concluded that any procedural violations 

did not involve bad faith. We do not think this conclusion supports a 

finding that Ridgewood complied with IDEA's procedural requirements. 

 21 
designed to deprive, directly or indirectly, any person or 

class of persons . . . [of] the equal protection of the laws; (3) 

an act in furtherance of the conspiracy; and (4) an injury to 

person or property or the deprivation of any right or 

privilege of a citizen of the United States." Lake v. Arnold, 

112 F.3d 682, 685 (3d Cir. 1997). In Lake, we held that the 

mentally retarded are a class protected by S 1985(3), but we 

expressly declined to make this determination with respect 

to handicapped persons. See id. at 685-86 & n.5. 

The District Court granted summary judgment on M.E.'s 

S 1985 claim because it found no evidence that suggested 

the alleged violation of M.E.'s rights was motivated by racial 

or "otherwise class-based" animus. We agree. Even were we 

to decide that S 1985 protects the disabled in general, there 

is no evidence that Ridgewood's alleged actions were 

motivated by discriminatory animus towards the disabled. 

e. Section 1983 Conspiracy Claim 

Count Seven of M.E.'s complaint also alleges a S 1983- 

only conspiracy. In order to prevail on a conspiracy claim 

under S 1983, a plaintiff must prove that persons acting 

under color of state law conspired to deprive him of a 

federally protected right. See Dennis v. Sparks, 449 U.S. 24, 

29 (1980); Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 

1997). Unlike S 1985(3), a S 1983 conspiracy claim does not 

require that the conspiracy be motivated by invidious 

discrimination. 

We will affirm the grant of summary judgment on this 

claim. M.E. has not demonstrated that a genuine issue of 

material fact exists. At most he has supplied ambiguous 

allegations and vague inferences that cannot defeat

summary judgment. See Groman, 47 F.3d at 633. 

f. Qualified Immunity 

A municipal official sued in his individual capacity enjoys 

qualified immunity if his conduct "does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known." W.B. v. Matula, 67 

F.3d 484, 499 (3d Cir. 1995) (quoting Harlow v. Fitzgerald, 

 22 
457 U.S. 800 (1982)). To defeat qualified immunity in an 

IDEA action, the plaintiff must show that " `the particular 

actions taken by defendants were impermissible under law 

established at that time.' " Matula, 67 F.3d at 500 (quoting 

P.C. v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir. 1990)). We 

review the grant of qualified immunity de novo. See Torres 

v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998). 

The District Court held that the third-party defendants 

could assert qualified immunity because there was not 

"even a scintilla of evidence from which a reasonable factfinder could infer that the third-party defendants violated 

M.E.'s clearly established federal rights". Because we 

addressed qualified immunity in IDEA claims in W.B. v. 

Matula, 67 F.3d 484 (3d Cir. 1995), we will vacate and 

remand so that the District Court may reconsider its 

decision in light of Matula. 

g. State Law Claims 

The District Court dismissed M.E.'s state law claims 

alleging violations of the New Jersey Law Against 

Discrimination and the New Jersey Constitution's 

guarantee of a thorough and efficient education because it 

determined third-party defendants enjoyed qualified

immunity. Because we have vacated the decision that thirdparty defendants enjoy qualified immunity, we will vacate 

the dismissal of M.E.'s state law claims. 

IV. 

For these reasons, the judgment is affirmed in part and 

vacated and remanded in part. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23