Shore Regional High School Bd. of Educ. v. P.S.

• Citation: 381 F.3d 194
• Decision Date: 20 August 2004
• Docket Number: No. 03-3438.,03-3438.
• Parties: SHORE REGIONAL HIGH SCHOOL BOARD OF EDUCATION v. P. S., on Behalf of P.S., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

381 F.3d 194

SHORE REGIONAL HIGH SCHOOL BOARD OF EDUCATION v. P. S., on Behalf of P.S., Appellant.

No. 03-3438.

United States Court of Appeals, Third Circuit.

Argued June 16, 2004.

August 20, 2004.

Appeal from the United States District Court for the District of New Jersey, Mary L. Cooper, J Michaelene Loughlin (argued), Loughlin and Latimer, Hackensack, for Appellant.

David M. Hawkins (argued), Natalie S. Shahinian, Christopher Lazas, Purcell, Ries, Shannon, Mulcahy & O'Neill, Bedminster, for Appellee.

Before ALITO, SMITH, and DUBOIS,^* Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

This is an appeal from a District Court order overturning a state administrative law judge's decision holding that a school district failed to provide a "free appropriate public education" within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487, for a student who had been subjected to severe and prolonged harassment by other students. We hold that the District Court improperly failed to give "due weight" to the ALJ's determination, and we therefore reverse.

I.

P.S. was born in 1986 and attended public schools in the Oceanport (New Jersey) School District from kindergarten through eighth grade. In elementary school, P.S. was teased by other children who viewed him as "girlish," but when P.S. began to attend the Maple Place Middle School in fifth grade, the bullying intensified. In the words of the District Court, P.S "was the victim of relentless physical and verbal harassment as well as social isolation by his classmates." App. 13.

Most of the harassment of P.S. focused on his lack of athleticism, his physique, and his perceived effeminacy. Bullies constantly called P.S. names such as "faggot," "gay," "homo," "transvestite," "transsexual," "slut," "queer," "loser," "big tits," and "fat ass." Bullies told new students not to socialize with P.S. Children threw rocks at P.S., and one student hit him with a padlock in gym class. When P.S. sat down at a cafeteria table, the other students moved. Despite repeated complaints, the school administration failed to remedy the situation.

The constant harassment began to cripple P.S. He became depressed, and his schoolwork suffered. When P.S. was in fifth grade, his mother, on the recommendation of the school psychologist, obtained private psychiatric counseling for him. The psychiatrist diagnosed P.S. with depression and prescribed medication, but there was no appreciable improvement. After P.S.'s grades slipped badly, Maple Place evaluated him and classified him as eligible for special education and related services based on perceptual impairment. The Oceanport Child Study Team ("CST") then developed an Individualized Education Program ("IEP") that placed P.S. in the "resource room" for math and gave him extra teacher attention to help with his organizational skills. The CST manager believed that P.S.'s poor academic work was due to the bullying rather than any cognitive deficiencies.

P.S.'s classification remained throughout sixth and seventh grade, and his IEP was expanded to include a daily resource-center literature class and an alternative physical education class to help him with his physical skills and to avoid the locker room changing period, during which other children ridiculed his physique. The school also permitted P.S. to change classes at special times so that he would not encounter other students in the hallways and could thus avoid the harassment that customarily occurred there. In eighth grade, the harassment became so intense that P.S. attempted suicide. At the request of his psychiatrist, who told the CST manager that P.S.'s life and health were at stake, P.S. received home schooling for six weeks. In February and March of that year, Maple Place changed P.S.'s classification, finding him eligible for special education on the basis of emotional disturbance.

The public high school serving P.S.'s community is Shore Regional High School ("Shore"), but P.S.'s parents had begun to look for a different school for their son some years earlier, and they eventually became interested in Red Bank High School ("Red Bank"), the public high school in a neighboring school district. Red Bank was attractive both because it did not enroll students from Maple Place and because it had a drama program that appealed to P.S.'s interests. P.S. auditioned for the Red Bank drama program and was accepted. P.S.'s parents then asked Shore to place him at Red Bank, and the Oceanport CST concurred. The CST believed that if P.S. attended Shore Regional High School he would experience the same harassment that had occurred at Maple Place because the bullies who were responsible would also be there.

Shore undertook its own evaluation, relying mostly on the Maple Place IEP and a surveillance of P.S. in his classes. Despite the recommendation from the CST, Shore rejected P.S.'s request to attend Red Bank and concluded that he should attend Shore for ninth grade. Shore apparently believed that if it granted P.S.'s request, it would have to grant the request of non-disabled students who wished to attend Red Bank. Shore's affirmative action officer, Dr. Barbara Chas, contended that Shore could contain the bullying by disciplining bullies and by utilizing peer and social worker mediation. Shore also proposed an IEP in which P.S. would attend the resource room for math and would have a supplemental course in learning skills, adaptive gym classes, and weekly counseling. Based on this program, the Shore authorities concluded that their school would be the "least restrictive environment" for P.S. See 20 U.S.C. § 1412(a)(5) (school must provide education in least restrictive environment).

P.S.'s parents strongly disagreed with Shore's decision and unilaterally placed him in Red Bank for the ninth grade. Initially, Red Bank did not create an IEP for P.S., but did provide him with a special education class in algebra and academic support. While Red Bank did not schedule weekly counseling sessions, it made clear to P.S. that counseling was available upon request. Red Bank's plan was to mainstream P.S. for all his classes. When P.S. was in ninth grade, Red Bank created an IEP for him that maintained his academic support center class, but mainstreamed him for all other classes. Like Shore, Red Bank offered a program to combat bullying that included discipline and diversity seminars. As the District Court noted, P.S. "thrived both academically and socially at Red Bank." App. 23.

After Shore rejected P.S.'s request to attend Red Bank, P.S.'s father filed a mediation request with the New Jersey Department of Education. Mediation proved unsuccessful, and the action was transferred to the New Jersey Office of Administrative Law for a "due process hearing." Before the hearing, both sides agreed to an independent evaluation by the Institute for Child Development at the Hackensack University Medical Center ("Hackensack"). Hackensack recommended that P.S. attend a school such as Red Bank.

At the due process hearing, the ALJ heard testimony from several witnesses, including P.S., his mother, Dr. Chas, Dr. Mina Corbin-Fliger (a member of the Oceanport CST), and Dr. Carol Friedman (a psychologist at Hackensack). All of the witnesses agreed that P.S. had been subjected to unusual levels of harassment. While Dr. Chas testified that she believed that Shore could control the bullying, P.S., his mother, Dr. Corbin-Fliger, and Dr. Friedman all disagreed. The ALJ also reviewed several documents relating to P.S.'s case, including his IEPs and recommendations regarding placement.

The ALJ concluded that Shore could not provide P.S. with a "free appropriate public education," as required by the IDEA, see 20 U.S.C. § 1412(a)(1), because of the "legitimate and real fear that the same harassers who had followed P.S. through elementary and middle school would continue [to bully him.]" App. 41. The ALJ was particularly concerned that the bullies from P.S.'s area would harass him during largely unsupervised school bus rides to Shore and that Shore would be unable to provide for P.S.'s emotional needs within its very large student body. App. 42, 47. The ALJ ordered Shore to reimburse P.S. for the out-of-district tuition and related costs, including P.S.'s reasonable attorneys' fees.

Shore then commenced this action in the District Court, naming P.S.'s father as the defendant, and P.S.'s father filed a counterclaim for attorneys' fees. Relying on the administrative record, the District Court reversed the ALJ's decision. Crediting Dr. Chas's testimony, the District Court found that Shore offered P.S. a free appropriate public education. The Court wrote:

The inability of the Maple Place administration to successfully discipline its students does not make Shore an inappropriate placement. No school can ever guarantee that a student will not be harassed by other students .... However, we find that, in light of the structured disciplinary mechanism in place at Shore and Chas's opinion regarding the supportive nature of students involved in drama there, the risk that the harassment would continue was not so great as to render Shore inappropriate.

App. 31-32 (emphasis in original).

The District Court did not accept the testimony of Dr. Corbin-Fliger and Dr. Friedman, stating that they had "focused on the failure of the Maple Place administration to discipline [the] tormenters; they did not address whether the Shore administration would have been able to address the problem." App. 23. The Court also implicitly faulted Dr. Friedman on the ground that she had "never visited Shore to investigate their disciplinary measures or the type of environment supplied by its drama program." Id. at 30 n. 21. In addition, the District Court concluded that "Shore was the least restrictive environment for P.S. because it was his local public high school, where he would have been educated with...