Upper Freehold Regional Board of Education v. T. W., 090712 FED3, 11-2151

Docket Nº:11-2151
Opinion Judge:RENDELL, Circuit Judge.
Party Name:UPPER FREEHOLD REGIONAL BOARD OF EDUCATION v. T. W.; M. W., o/b/o T.W., Appellants *Dismissed pursuant to Clerk's order of December 22, 2011
Attorney:Pedro De Oliveira, Esq. [ARGUED] Mark W. Friedman, Esq. Debevoise & Plimpton Denise Lanchantin Dwyer, Esq. 5 Duxbury Court, Counsel for Appellants Cherie L. Adams, Esq. [ARGUED] Adams, Stern, Gutierrez & Lattiboudere, Paul C. Kalac, Esq. Parker McCay Counsel for Appellee
Judge Panel:Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges HARDIMAN, Circuit Judge, dissenting.
Case Date:September 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit



T. W.; M. W., o/b/o T.W., Appellants

*Dismissed pursuant to Clerk's order of December 22, 2011

No. 11-2151

United States Court of Appeals, Third Circuit

September 7, 2012


Argued May 22, 2012

Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-09-cv-01847) District Judge: Honorable Joel A. Pisano

Pedro De Oliveira, Esq. [ARGUED] Mark W. Friedman, Esq. Debevoise & Plimpton Denise Lanchantin Dwyer, Esq. 5 Duxbury Court, Counsel for Appellants

Cherie L. Adams, Esq. [ARGUED] Adams, Stern, Gutierrez & Lattiboudere, Paul C. Kalac, Esq. Parker McCay Counsel for Appellee

Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges


RENDELL, Circuit Judge.

This is an appeal from the District Court's reversal of a state administrative law judge's (ALJ) award of tuition reimbursement for plaintiffs in an Individuals with Disabilities in Education Act ("IDEA") case. We will vacate the judgment below and remand.

I. Background

T.W. is a child with learning disabilities. His parents, along with the school district of Upper Freehold (the "District"), developed an individualized education plan ("IEP") for the 2006-07 school year that called for T.W. to split his school days between the District's preschool and the "Project Child" preschool in the Mercer County Special Services School District. Although T.W. turned four early in the 2006-07 school year, he was placed in a classroom at Project Child with three-year olds who would turn four in the calendar year 2007. T.W.'s birthday is in September 2002, shortly before the October 1st date that the District uses as a cut-off for class years. Therefore, if T.W. was placed in a classroom based on his date of birth, he would be one of the youngest students. In his Project Child classroom, by contrast, he was one of the oldest students.

The current dispute relates to a disagreement between T.W.'s parents and the District about T.W.'s education for the 2007-08 school year. Prior to a June 15, 2007 meeting of T.W.'s IEP team, the District provided T.W.'s parents with a draft IEP, proposing that T.W. be placed in kindergarten the following fall and receive certain additional services and therapies. At the June 15 meeting, the parents urged that T.W. be placed in preschool for another year. The meeting adjourned without agreement on an IEP. Another meeting was scheduled for June 29, 2007, but never took place. The District asserts that T.W.'s parents cancelled the meeting, whereas the parents contend that they merely requested a postponement to give a psychologist working with T.W. time to complete her full report.

By letter dated June 29, 2007, the District sent T.W.'s parents an amended IEP for the 2007-08 school year, again calling for T.W.'s placement in kindergarten but adding additional supports and services recommended by a team of Yale researchers that analyzed T.W. at his parents' behest. The cover letter enclosing the amended IEP stated "[y]ou have 15 days to respond." (A2109.)

T.W.'s parents responded by letter dated July 3, 2007, stating that "the document purporting to be an IEP was generated without our participation" and that, because the parties had not discussed their "unresolved issues" at an IEP meeting, "the document [the parents] received could not constitute the district's formal proposal." (A2110.) The letter concluded by stating, "[w]e look forward to your response." (A2110.)

On July 12, 2007, T.W.'s parents filed a request for mediation and a due process hearing. They claim they filed their petition when they did because they believed that, under New Jersey law, the District's June 29 IEP placing T.W. in kindergarten would have gone into effect unless they requested mediation or a due process hearing within 15 days of the IEP proposal. See N.J.A.C. § 6A:14-2.3(h)(3).

The parties met again in August 2007 to try to resolve their dispute. At that meeting, the parents presented the district with a letter from T.W.'s developmental pediatrician, Dr. Anna Baumgaertel, explaining that she recommended another year of preschool for T.W. so that he could "work on his significant social deficits." (A2124.) The meeting concluded without an agreement.

In September 2007, T.W.'s parents unilaterally placed him as a regular student in the Project Child preschool program. On September 11, 2007, they advised the District by letter that they would be making the placement immediately and that they were "unable to wait ten business days to make the placement [pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb)] because to do so would cause [T.W.] to suffer severe harm." (A2125.)

In the beginning of the 2007-08 school year, T.W. did not receive one-on-one services and therapies at Project Child. However, on November 19, 2007, T.W.'s parents and Project Child agreed on an educational plan for T.W. that called for him to receive additional services and be in a smaller classroom setting. The District did not participate in the making of this plan.

An ALJ hearing was conducted over eleven days in 2008 and early 2009. The ALJ thoroughly described the evidence presented in a 54-page opinion. He found both the District's witnesses and T.W.'s expert witnesses credible. He found that "[i]f placed in kindergarten in the 2007-08 school year, T.W. would do 'fine academically, ' but it could increase his social awkwardness and withdrawal . . . . [F]or the 2007-08 school year placement in kindergarten pursuant to an IEP with supports and services was necessary for T.W. to have a FAPE." (A58 (emphasis added).) The ALJ noted that when T.W. was placed in Project Child's full-day preschool program for the 2007-08 school year, he "did not receive the therapies and/or related services that the [District] would have provided pursuant to the draft IEP and I find that this placement in Project Child did not provide T.W. with a FAPE." (A58.) However, the ALJ found that "[o]n November 19, 2007, without inviting the [District] educators to participate in an IEP meeting [T.W.'s parents] and Project Child agreed to an IEP for T.W." (A59.)

The District argued that it offered an IEP for the 2007-08 school year that would have provided a FAPE and that T.W.'s parents refused and/or failed to participate meaningfully in the IEP-development process, so their claim for reimbursement should therefore be dismissed. The ALJ's complete response follows:

[D]uring the summer of 2007 the parties had reached an impasse: the petitioners would not agree to an IEP that provided for placement in kindergarten for the 2007-08 school year and, consistent with the findings of fact, placement in kindergarten would not have provided a FAPE. On the other hand, the placement of T.W., a disabled child, in Project Child as a regular student and without an IEP also did not provide him with a FAPE. T.W. did not have an IEP until after November 19, 2007, and the unilateral placement did not provide a FAPE until after November 19, 2007. Consequently, the [District] cannot be ordered to reimburse [T.W.'s parents] for the unilateral placement before that time. However, the [District] is responsible for the reimbursement for the unilateral placement for the period after November 19, 2007, until the end of the 2007-08 school year.

(A63.) The ALJ made no specific finding as to whether the District's draft amended IEP offered a FAPE or whether the IEP provided sufficient "supports and services" to make the placement in kindergarten a FAPE. (See A58 (ALJ...

To continue reading