Fuhrmann on Behalf of Fuhrmann v. East Hanover Bd. of Educ.

• Citation: 993 F.2d 1031
• Decision Date: 08 June 1993
• Docket Number: No. 92-5218,92-5218
• Parties: 83 Ed. Law Rep. 71, 2 A.D.D. 14 Myron FUHRMANN; Perri Fuhrmann, on Behalf of their minor son, Garrett FUHRMANN v. EAST HANOVER BD. OF EDUCATION. (Two Cases) G.F., a minor child by his parents, M.F. and P.F., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1031

993 F.2d 1031

83 Ed. Law Rep. 71, 2 A.D.D. 14

Myron FUHRMANN; Perri Fuhrmann, on Behalf of their minor son, Garrett FUHRMANN v. EAST HANOVER BD. OF EDUCATION. (Two Cases)

G.F., a minor child by his parents, M.F. and P.F., Appellants.

No. 92-5218.

United States Court of Appeals,

Third Circuit.

Argued Nov. 17, 1992.

Decided May 6, 1993.

Rehearing Denied June 8, 1993.

Herbert D. Hinkle (argued), Lawrenceville, NJ, for appellant.

Joseph S. Accardi (argued), Litvak & Accardi, Livingston, NJ, for appellee.

Before: MANSMANN, HUTCHINSON and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal presents us with the question of whether the appellant, G.F., a handicapped child, received proper educational placement in accordance with the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. § 1401 et seq. (West Supp.1992). After reviewing the record developed by the Administrative Law Judge pursuant to 20 U.S.C.A. § 1415(e)(2) (West Supp.1992), the Honorable Maryanne Trump Barry of the New Jersey District Court determined that compliance had been had with both the procedural and substantive requirements of the IDEA as well as with the federal and state regulations promulgated thereunder.

Judge Barry found that G.F.'s placements for the school years 1989-90 and 1990-91 were appropriate within the meaning and terms of the Act in that they were reasonably calculated to enable G.F. to receive educational benefits and meet his individual needs. See Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982). In so finding, Judge Barry reviewed the entire record and addressed all of the arguments advanced by G.F. and by the East Hanover Board of Education.

Our review of Judge Barry's decision is plenary with regard to its legal analysis, however, "our review must be conducted within the general framework of deference to state decision-makers dictated by the [IDEA and the Supreme Court's opinion in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).]" Wexler v. Westfield Board of Education, 784 F.2d 176, 181 (3d Cir.1986). Therefore, like Judge Barry, who gave "due weight" to the record before her, we too must afford "due weight" to the underlying administrative proceedings. Rowley, 458 U.S. at 206, 102 S.Ct. at 3051.

Judge Barry's thoughtful and well reasoned opinion in this case not only satisfies our review under the relevant standard, but convinces us that her analysis is not one upon which we can improve. By writing separately we would be adding nothing of substance to Judge Barry's review of the record and hence we would be doing no more than paraphrasing what has already been written by a perceptive and distinguished judge. Accordingly, because Judge Barry's opinion was not published, we take this occasion to reprint it in full. We adopt its analysis, reasoning and holding as our own.

I.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

G.F., a minor child by his

parents, M.F. and P.F.

Plaintiff,

VS.

EAST HANOVER BOARD OF EDUCATION

Defendant.

Civil Action No.

89-4858(MTB)

OPINION

I. Introduction

Presently before the court is an application by G.F., an eight year old boy classified as preschool handicapped, for an independent review of two New Jersey Office of Administrative Law decisions regarding his education in the 1989 and 1990 school years. Specifically, G.F. seeks a determination that respondent East Hanover Board of Education ("East Hanover" or "the Board") violated the procedural and substantive requirements of the Individuals with Disabilities Education Act ("IDEA" or the "Act"), 20 U.S.C. § 1401 et seq. The Board contends that its actions complied with the Act and maintains that its placement was proper according to law.

II. Background

Mr. and Mrs. Fuhrmann, G.F.'s parents, began to notice developmental problems with G.F. when he was approximately one year old. 89T2:5. ¹ He would tap his ear with a shoelace for long periods of time and make whistling sounds. As he got older, he also began hitting and pinching others and being destructive. 89T2:4-9. In September, 1988, G.F. became eligible for and was enrolled in the East Hanover Preschool Education Program for the 1988-89 school year. Pretrial Stipulation at 2. The program lasted two and one half hours per day, four days a week, with occupational therapy two times a week. In addition, the Fuhrmanns provided supplemental speech and occupational therapy on their own.

Although characterized differently by the parties, G.F.'s progress over the course of the 1988-89 school year was, by all accounts, slow. Mrs. Fuhrmann testified that she noticed some progress in the language area, where G.F.'s spoken vocabulary increased and he was able to point to objects on picture cards. She also noticed slight social progress in that G.F. recognized children and would touch their hair. 89T2:39-41. G.F.'s speech therapist at East Hanover, Theresa Gallagher, testified that he began to recognize common objects and that his in-school vocabulary increased from 0 to approximately 25 words. 89T4:194-96. Joanne Petriello, G.F.'s occupational therapist, noted that his improvement with building blocks, jumping on a trampoline, and catching a ball indicated improvement in his fine and gross motor skills. 89T4:243-45. Similarly, G.F.'s teacher, Delores DelPlato, testified that his fine motor skills increased somewhat over the course of the year. 89T4:99-102. Nevertheless, of the 41 goals and objectives set out for G.F. for the 1988-89 school year, only one was fully accomplished, while the other 40 were carried over as goals for 1989-90. 89T4:150-62; 89E9, 23, & 26. Certainly, serious behavioral problems remained.

In the spring of 1989, the Fuhrmanns retained a behavioral therapist for G.F. at their own expense. G.F. responded very quickly to the methods used by the behavioral therapist, and Mrs. Fuhrmann began using the techniques at home. 89T2:50-53. Within weeks, G.F. was toilet trained. Id. Indeed, G.F.'s occupational therapist at school asked if Mrs. Fuhrmann would demonstrate her methods to the other teachers. 89T2:56-57. Based on G.F.'s progress, the Fuhrmanns requested that East Hanover place him in a full day behavioral oriented program beginning in the summer of 1989. East Hanover denied this request, indicating that G.F.'s current program was appropriate and that, in any event, summer preschool handicapped programs would be offered only to children who would suffer irrevocable regression during the summer. See 89E11 at 2. The Fuhrmanns subsequently enrolled G.F. at the State Street School ("State Street") at their own expense. Pretrial Stipulation at 3.

G.F. remained at State Street for the summer of 1989 and throughout the 1989-90 school year. His progress was considerably more dramatic than the previous year. Carolyn Gallagher, ² the director of State Street, testified that over the course of the 1989-90 school year, G.F. showed significant gains in many areas of development, accomplishing approximately 42 or 43 of 50 goals set for that period. 90T3:61. At the end of the year he was more willing to learn, more social, more aware, and more verbal. 90T3:63. Mrs. Fuhrmann also testified as to G.F.'s improvement in the areas of self-help and play skills. 90T4:197-98. For the 1990-91 school year, East Hanover recommended that G.F. be placed in the Morris Union Jointure School. Again, the Fuhrmanns continued him at State Street.

III. Legal Standard

G.F., through his parents, seeks relief for East Hanover's alleged violations of the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. § 1401 et seq. The action is brought in federal court pursuant to 20 U.S.C. § 1415(e)(2), which provides that an IDEA decision of a state educational agency can be appealed to federal district court. ³ In determining the scope of the district court's review under the IDEA, the Supreme Court has opined that the court must make a twofold inquiry: first, whether the state has complied with the procedures set forth in the Act, and second, whether the individualized educational program ("IEP") developed pursuant to these procedures is "reasonably calculated to enable the child to receive educational benefits." Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). The Court further stated that the statute's language instructing that the district court, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate," does not mean that courts are free to substitute their own notions of sound education policy for those of the educational agencies they review, but rather that "due weight" should be given to administrative proceedings. Id. at 205-06, 102 S.Ct. at 3050-51. Finally, it is quite clear that when a change in a child's IEP is sought, regardless of whether the party seeking the change is the school district or the parents, the burden of showing that the placement is "appropriate" rests with the school district. Lascari v. Board of Education of the Ramapo Indian Hills Regional High School District, 116 N.J. 30, 44, 560 A.2d 1180 (1989).

In reviewing the record as to plaintiff's challenges to East Hanover's education plan for G.F. for the years 1989 and 1990, each year must be examined independently to determine if the IDEA's procedural and substantive requirements were met. The procedural requirements of the IDEA are set forth in 20 U.S.C. § 1414 and state and federal regulations promulgated thereunder. See 34 C.F.R. § 300.340-300.349; N.J.A.C. 6.28-2.1-3.9. Generally, the regulations require that a child study team ("CST"), consisting of a school psychologist, a learning disabilities...