Warren G. v. Cumberland County School Dist.

• Citation: 190 F.3d 80
• Decision Date: 25 August 1999
• Docket Number: Nos. 98-7512,s. 98-7512
• Parties: (3rd Cir. 1999) WARREN G.; GRANT G., by and through their parents and nearest friends, Tom G. and Louisa G., Appellants in 98-7512 v. CUMBERLAND COUNTY SCHOOL DISTRICT, Appellant in 98-7517 & 98-7517
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 80

190 F.3d 80 (3rd Cir. 1999)

WARREN G.; GRANT G., by and through their parents and nearest friends, Tom G. and Louisa G., Appellants in 98-7512 v. CUMBERLAND COUNTY SCHOOL DISTRICT, Appellant in 98-7517

Nos. 98-7512 & 98-7517

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued June 2, 1999

August 25, 1999

On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Civ. No. 97-cv-00946 (Honorable Sylvia H. Rambo) [Copyrighted Material Omitted]

VIVIAN B. NAREHOOD, ESQUIRE (ARGUED), Gibbel, Kraybill & Hess, 41 East Orange Street, Lancaster, PA 17602, Attorney for Warren G. and Grant G., Appellants/ Cross-Appellees

JANE M. WILLIAMS, ESQUIRE (ARGUED), Sweet, Stevens, Tucker & Katz, LLP, 116 East Court Street P.O. Box 150, Doylestown, PA 18901, Attorney for Cumberland County, School District, Appellee/Cross- Appellant

Before: SCIRICA, McKEE, Circuit Judges, and SCHWARZER,^* District Judge

OPINION OF THE COURT

SCHWARZER, District Judge

Plaintiffs Grant and Warren, through their parents, brought this action against the Cumberland Valley School District (District) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. SS 1400-1491o (1994), to recover reimbursement of private school tuition and the cost of independent educational evaluations (IEEs) of plaintiffs. The District Court, on cross-motions for summary judgment, affirmed the decisions of a Special Education Appeals Panel (Panel) granting the request for tuition reimbursement but limiting the amount on equitable grounds, and reversed the decision denying reimbursement for the cost of the IEEs. Plaintiffs appeal and the District cross-appeals. We hold that the IDEA did not permit reduction of tuition reimbursement to which plaintiffs are otherwise entitled based on an assessment of the relative reasonableness of the parties' conduct. We further hold that plaintiffs are entitled to reimbursement for the IEEs, the District having failed to establish that its evaluations were appropriate.

FACTS AND PROCEDURAL BACKGROUND

Warren and Grant are both gifted students with learning disabilities. For several years they attended public school in the District, which provided them with individual educational programs (IEPs) as required by the IDEA. In the fall of 1993, their parents became dissatisfied with their sons' IEPs and obtained IEEs of them. From November 1993 until May 1994, the parents were in discussions with the District over the design of appropriate IEPs for their sons but failed to reach agreement. At the end of the 1993- 94 school year, the District sent the parents revised IEPs for both Warren and Grant together with a notice of parents' rights. The parents responded in August 1994, by advising that they were withdrawing Warren and Grant from the District and enrolling them in the Janus School ("Janus"), a private school for students with learning disabilities. On September 9, 1994, the District notified the parents of their right to have the children educated at Janus at their own expense but warned that if they wished to challenge the District's IEPs and receive tuition reimbursement, they would have to request a due process hearing.

The parents did not make such a request for tuition reimbursement or, in the alternative, for a hearing, until December 1995, sixteen months later. The District rejected the request for reimbursement, but offered to develop updated IEPs and agreed to a hearing. Hearings for both children were held between July and October 1996. The hearing officer issued separate opinions, finding the District's proposed IEPs appropriate and denying the request for reimbursement for tuition and for the cost of the IEEs. The parents appealed to the Panel, which reversed. In separate opinions, the Panel found both Grant's and Warren's IEPs inappropriate. With respect to Grant, it found that the District was liable prospectively for tuition reimbursement for violating its duty to provide a "defensible IEP" but reduced its liability by the equivalent of one semester (the last semester of the 1995-96 school year) because of the unreasonableness of the parents' demands. With respect to Warren, the Panel also held that because the District had violated its "clear duty to provide a reasonably defensible proposed IEP" it was liable prospectively for tuition reimbursement but reduced its liability (by deferring reimbursement until the second semester of the 1996-97 school year) by the equivalent of one year because of the "excessiveness of the parents' conduct." The Panel also denied reimbursement for the IEEs on equitable grounds, both because the parents had not expressed disagreement with the District's IEE and because they had waited for over two and one-half years to seek reimbursement.

Plaintiffs appealed to the District Court. The court, on cross-motions for summary judgment, affirmed the Panel, except with respect to the IEE reimbursement. Plaintiffs now appeal from the District Court's judgment and the District cross-appeals contending that all tuition reimbursement should be denied because Janus was not a proper private placement and that IEE reimbursement should be denied because the school district's evaluations were appropriate.

The District Court had subject matter jurisdiction under former 20 U.S.C. S 1415(e)(2) (1994) (amended in 1997 as 20 U.S.C. S 1415(I)(2)(A)).¹ We have appellate jurisdiction pursuant to 28 U.S.C. S 1291 (1994), and we "exercise plenary review over the district court's conclusions of law and review its findings of fact for clear error." See Carlisle Area Sch. v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995).²

DISCUSSION

I. REIMBURSEMENT FOR PRIVATE SCHOOL TUITION

A. Proper Private Placement

The District contends that Janus is not a proper placement because it is not an approved private school in Pennsylvania and does not comply with Pennsylvania's licensure requirements or the state's educational standards. Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993), disposes of the District's contention. There, the Court held that a private school's failure to meet state education standards is not a bar to reimbursement under the IDEA. Insofar as the District's argument is based on particular alleged deficiencies, in the absence of any showing of clear error, we defer to the Panel's and the District Court's finding that Janus is an appropriate placement.

The District further contends that because only students with learning disabilities attend Janus, it did not provide the least restrictive environment--that is, an environment where disabled and nondisabled children are integrated to the maximum extent possible--as required by the IDEA. See 20 U.S.C. S 1412(5)(B) (1994) (now 20 U.S.C. S 1412(a)(5)(A)). The District Court held, relying on Cleveland Heights-University Heights City School District v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998), that Janus's failure to provide Grant and Warren with opportunities to interact with nondisabled students did not render it an inappropriate placement reasoning that imposition of the least-restrictive environment requirement on private placements would vitiate the parental right of unilateral withdrawal. Subsequently, in Ridgewood Board of Education v. N.E., this court reached the same conclusion, holding that when the public school fails to provide an appropriate IEP, tuition reimbursement may be made to students placed in private schools that specialize in educating students with learning disabilities. See 172 F.3d at 245, 249 (citing Boss and other authorities). The least- restrictive environment requirement does not bar reimbursement because "the IDEA requires that disabled students be educated in the least restrictive appropriate educational environment." Id. An appropriate private placement is not disqualified because it is a more restrictive environment than that of the public placement. See id. Thus, the test for the parents' private placement is that it is appropriate, and not that it is perfect. See id. at 249 n.8. "Since the court was presented with only one option, it was not required to locate another school that would satisfy the least restrictive alternative requirement based on the entire pool of schools available, but rather was required simply to determine whether that one available choice would provide an appropriate education for [the student]." Board of Educ. v. Illinois State Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994). Both the Panel and the District Court having found that the Janus School offered an appropriate education for Grant and Warren, the parents are not barred from tuition reimbursement.

B. Reductions of Tuition Reimbursement

1. Tuition Prior to Parents' Request for Due Process Hearing

Relying on Bernardsville Board of Education v. J.H., 42 F.3d 149 (1994), the District Court, affirming the Panel, rejected plaintiffs' claim for tuition reimbursement for the sixteen- month period during which Grant and Warren were enrolled at Janus prior to the parents' request for a due process hearing in December 1995. Plaintiffs did not challenge this ruling in their brief on appeal but first raised the issue at oral argument. " `An issue is waived unless a party raises it in its opening brief . . . .' " See Reform Party v. Allegheny County Dept. of Elections, 174 F.3d 305, 316 n.11 (3d Cir. 1999) (quoting Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)). Even if we were to consider this claim, we would be bound by our decision in Bernardsville holding that when parents unilaterally withdraw their children from public school, absent mitigating circumstances, they are not entitled to reimbursement for private school tuition until they request review proceedings. See Bernardsville, 42 F.3d at 156-58 & n.14 ("[T]he right of review contains a corresponding parental duty to unequivocally place in issue the appropriateness of an IEP. ...