381 F.3d 194 (3rd Cir. 2004), 03-3438, Shore Regional High School Bd. of Educ. v. P.S. ex rel. P.S.

Docket Nº:03-3438.
Citation:381 F.3d 194
Party Name:SHORE REGIONAL HIGH SCHOOL BOARD OF EDUCATION v. P. S., on Behalf of P.S., Appellant.
Case Date:August 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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381 F.3d 194 (3rd Cir. 2004)

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

August 20, 2004

Argued June 16, 2004.

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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

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

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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...

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