224 F.3d 60 (2nd Cir. 2000), 99-9263, J.D. v Pawlet School Dist.

Docket Nº:Docket No. 99-9263
Citation:224 F.3d 60
Case Date:August 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 60

224 F.3d 60 (2nd Cir. 2000)

J.D., BY HIS PARENT, J.D., Plaintiff-Appellant,



Docket No. 99-9263

United States Court of Appeals, Second Circuit

August 15, 2000

Argued: June 30, 2000

Appellant appeals from a judgment of the United States District Court for the District of Vermont (Jerome J. Niedermeier, Magistrate Judge), granting summary judgment in favor of the appellees.


Page 61

[Copyrighted Material Omitted]

Page 62

KARL C. ANDERSON, Anderson & Eaton, P.C., Rutland, VT, for Appellant.

PATTI R. PAGE, Stitzel, Page & Fletcher, P.C., Burlington, VT, for Appellees Pawlet School District and Bennington-Rutland Supervisory Union.

GEOFFREY A. YUDIEN, Special Assistant Attorney General, Vermont Department of Education, Montpelier, VT, for Appellees Vermont Department of Education and Commissioner Marc Hull.

Before: LEVAL, PARKER, AND KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

J.D., by his parent J.D., appeals from a final judgment of the United States District Court for the District of Vermont (Jerome J. Niedermeier, Magistrate Judge), granting the defendants-appellees' motion for summary judgment dismissing the complaint in its entirety. The district court held that: (1) J.D. failed to meet the "adverse effect" eligibility criterion of the Vermont Department of Education Special Education Regulations ("VSER"), which implement the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.;1 (2) the defendants-appellees did not discriminate against J.D. in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and (3) J.D. was not entitled to relief based on alleged violations of certain procedural safeguards in the IDEA. We affirm.


A. Factual Background

The following facts are undisputed except where noted. J.D., a minor of high school age at all times relevant to this action, is an academically gifted child who also has emotional and behavioral problems. Defendants Bennington-Rutland Supervisory Union and Pawlet School District (collectively, the "School District") are local educational agencies within the meaning

Page 63

of 20 U.S.C. § 1401(a)(8) and receive federal funds. Defendant Vermont Department of Education is a State educational agency within the meaning of 20 U.S.C. § 1401(a)(7) and also receives federal assistance. (The Department and its commissioner, Marc Hull, are collectively referred to as the "State Defendants.")

J.D. attended Pawlet Elementary School through the third grade when he transferred to Poultney Elementary School outside the Pawlet School District for the fourth and fifth grades. Partly because of his academic progress, he skipped the sixth grade and was placed in Poultney High School ("PHS") for the seventh grade, where he was allowed to take ninth grade English. While in the seventh grade, J.D. took an IQ test on which he scored in the top two percent of his age group. In the eighth grade, J.D. took the Comprehensive Test of Basic Skills, a norm-based examination on which he received grade equivalency scores for reading, language, and mathematics that were predominantly in the tenth, eleventh, and twelfth grade levels. Even his lowest score, in spelling, placed him at the mid-eighth grade level. In the ninth grade, he took classes at or above his grade level in a variety of subjects and achieved grades ranging from B to A+.

1. The IDEA Evaluation

During the summer of 1996, between J.D.'s ninth and tenth grade years, J.D.'s parents requested that he be evaluated for special education because they were concerned that PHS was not meeting their son's intellectual or emotional needs. In response, the School District convened an Evaluation and Planning Team (the "EPT") to determine J.D.'s eligibility for special education. The EPT considered J.D.'s results on standardized academic achievement tests, his cumulative school file consisting of grades, progress reports, and teacher comments, and a psychological evaluation conducted by Dr. Roger Meisenhelder, a psychologist selected by J.D.'s parents. According to Dr. Meisenhelder, J.D. had "superior" verbal and language skills, together with good concentration and "highly developed" conceptual and abstract thinking skills. These conclusions were largely consistent with J.D.'s academic record from kindergarten through the ninth grade.

However, Dr. Meisenhelder also observed that J.D. experienced "frustration, boredom, alienation, apathy, and hopelessness" because of an absence of intellectual peers at PHS, and that these feelings persisted despite a "somewhat differentiated curriculum at school," leading to passive resistance as well as aggressive behavior at school. Dr. Meisenhelder recommended that J.D. be: (1) classified as a student with an "emotional and behavioral" disability; (2) placed in a school environment in which he has academically challenging courses and intellectual peers; and (3) given individual and family counseling.

Based on Dr. Meisenhelder's report, the EPT concluded that J.D. had an emotional-behavioral disability within the meaning of Rule 2362.1(h) of the VSER, as further explained below. When the EPT members were unable to reach consensus on whether J.D.'s disability adversely affected his educational performance, the School District, pursuant to Rule 2364.1, offered its decision that J.D. did not meet this criterion and notified J.D.'s parents of their right to challenge this decision.

2. The 504 Evaluation

Having decided that J.D. was ineligible for special education under the IDEA, the EPT referred his request to an evaluation team (the "504 Team") to determine whether he qualified for protection under § 504 of the Rehabilitation Act, 29 U.S.C. § 794; see also 34 C.F.R. § 104.35 (entitled "Evaluation and placement"). In December 1996, the 504 Team informed J.D.'s parents that J.D. was a "qualified individual with a disability" and was eligible for accommodations. On January 10, 1997, the 504 Team offered J.D. a two-part program

Page 64

of support which was to include (1) individual counseling, and (2) training in peer relationship skills in the academic setting. In the same letter, the 504 Team stated that another meeting would be held on January 21, 1997 to determine academic accommodations, if any. Rather than await the outcome of that meeting, J.D.'s parents notified the School District on January 15 that they had unilaterally enrolled their son in Simon's Rock College, an out-of-state boarding school for the academically gifted, and requested funding for his tuition and costs.

Notwithstanding the parents' decision, the 504 Team proceeded with the January 21 meeting and subsequently informed J.D.'s parents that the Team considered three placements: at PHS, which J.D. had been attending since the seventh grade; at Troy Academy, an approved independent local secondary school which is affiliated with PHS; and at Simon's Rock College. The School District recommended PHS, noting that it offered courses in advanced placement biology, chemistry, United States history, and Pacesetter mathematics, with additional access to literature and English courses at a nearby college. The Team specifically rejected Simon's Rock because it is a post-secondary institution, explaining, among other things, that the School District had no duty to provide post-secondary education. The School District did not expressly offer or reject Troy Academy.

3. The Proceedings Below

Not satisfied with the offered program, J.D.'s parents requested an administrative due process hearing on or about March 6, 1997, seeking reimbursement for J.D.'s tuition and costs at Simon's Rock. On April 21, 1997, J.D.'s attorney informed the State hearing officer that J.D. intended to proceed pro se and had authorized him to waive up to that date the regulatory requirement that a decision be issued within 45 days of the receipt of a request for a hearing. The parties dispute as to whether J.D., by his father or other representative, consented to any further delay after April 21. The State Defendants allege, and J.D. does not dispute, that J.D. asserted a 45-day violation for the first time in a reply brief submitted to the hearing officer on June 16.

On June 18, the hearing officer rendered an oral decision granting partial summary judgment for the School District on the substantive IDEA claim. The oral decision was confirmed by a thorough written opinion dated July 8, 1997, which held that: (1) J.D. was ineligible for special education under the IDEA because he was performing at or above age and grade norms in each of eight basic skill areas; (2) the School District had provided J.D. with a free appropriate public education under § 504 of the Rehabilitation Act and was not further obligated to place him among his intellectual peers outside his residential community; and (3) summary disposition of the complaint was proper and the failure to decide the complaint within 45 days was harmless error. See In re J.D., 26 IDELR 501 (Vt. July 8, 1997) ("J.D. I"). Pursuant to 20 U.S.C. § 1415(e)(2), J.D. appealed to the United States District Court for the District of Vermont, which affirmed for substantially the reasons stated in the administrative decision. See J.D. v. Pawlet Sch. Dist., No. 97-CV-290, slip op. (D. Vt. Sept. 17, 1999) ("J.D. II").


A. Standard of Review

Whether the district court accurately applied the...

To continue reading