D.F. v. Collingswood Borough Bd. of Educ.

• Decision Date: 12 September 2012
• Docket Number: No. 11–2410.,11–2410.
• Citation: 694 F.3d 488
• Parties: D.F., a minor, individually and by his parent and legal guardian A.C., Appellant v. COLLINGSWOOD BOROUGH BOARD OF EDUCATION, a/k/a Collingswood Public Schools.
• Court: U.S. Court of Appeals — Third Circuit

694 F.3d 488

D.F., a minor, individually and by his parent and legal guardian A.C., Appellant

v.COLLINGSWOOD BOROUGH BOARD OF EDUCATION, a/k/a Collingswood Public Schools.

No. 11–2410.

United States Court of Appeals, Third Circuit.

Argued June 4, 2012.

Opinion Filed: Sept. 12, 2012.

Jamie Epstein (argued), Cherry Hill, NJ, for Appellant.

Richard L. Goldstein, Walter F. Kawalec, III (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, NJ, for Appellee.

John D. Rue, Rafael Rosario (argued), White & Case, New York, NY, Ruth Deale Lowenkron, Education Law Center, New York, NY, for Amici Curiae, Education Law Center, et al.

Before: SCIRICA, GREENAWAY, JR., and NYGAARD, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Appellant D.F. was a five-year-old kindergartener during the 2008–2009 school year, his first under the supervision of Appellee Collingswood Borough Board of Education (“Collingswood”). He had previously been educated in the Camden school system, which had identified him as a special needs student and developed an Individualized Education Plan (“IEP”) for him. Collingswood adopted the Camden IEP in substantial part, with the consent of D.F.'s mother, A.C. In January 2009, A.C. filed a due process petition alleging violation of D.F.'s rights under the Individuals with Disabilities in Education Act (“IDEA”). Sometime later, she filed a second due process petition expanding the claims. D.F. and A.C. subsequently moved out of state, at which point the New Jersey Administrative Law Judge (“ALJ”) dismissed the pending due process petitions as moot. D.F. filed this suit in the District Court challenging the ALJ's orders. The parties filed cross-motions for summary judgment and the District Court granted Collingswood's motion, thereby upholding the ALJ's orders. D.F. timely appealed.

We must now resolve three questions: (1) whether the out-of-state move rendered all of D.F.'s claims moot; (2) if the claims are not moot, whether summary judgment was nonetheless proper because D.F.'s IDEA rights were not violated; and (3) whether D.F. was a prevailing party for purposes of attorneys' fees. We hold that the District Court erred in determining that the claims were moot and in entering summary judgment. It correctly found that D.F. was not a prevailing party entitled to attorneys' fees. We therefore affirm in part, reverse in part, and remand this case to the District Court for further factual development.

I. BACKGROUND

A. 2008

D.F., an African–American male with special educational needs, was enrolled in an inclusion ¹ pre-school class in the Camden City Public Schools for the 2007–2008 school year. There were fewer than ten students in the class, supervised by four adults. According to the IEP generated in Camden, he exhibited characteristics consistent with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”). (Appellant's App. 8.) Although his cognitive abilities were at or above grade level, he had difficulty with visual-motor integration skills. Generally speaking, he experienced problems with hyperactivity, aggression, distractibility, and impulsivity. In Camden, D.F. had experienced issues with throwing objects, hitting peers, running away, and temper tantrums. Once a Behavior Intervention Plan (“BIP”) was created, his negative behaviors began to diminish.

The IEP required an extended school year program (“ESY”) of at least thirty days, in a self-contained ² behavioral disabilities program with counseling services. This summer program was intended to modify his aggressive and impulsive behaviors before he entered a regular kindergarten with support services in September 2008. The IEP specifically noted that D.F. would be at high risk for failure in a regular kindergarten without supportive services.

D.F. and his family moved to Collingswood, a suburb of Camden, in September 2008 and enrolled D.F. in Collingswood schools.³ The IEP team in Collingswood essentially adopted the IEP developed in Camden. The team consisted of a case manager, D.F.'s regular education teacher, his special education teacher, a psychologist, and A.C. A.C. declined to have D.F. placed in the self-contained special education kindergarten because his brother was in that class. It is indisputable that D.F. was placed in a regular classroom, with typically developing children and pull-out sessions for speech and counseling. D.F. had no one-to-one aide or other supportive services in that regular kindergarten classroom.

Although the behavior plan from Camden remained part of D.F.'s IEP, it was not implemented in Collingswood, and he experienced behavioral issues in the early part of the school year. On November 19, 2008, A.C. requested that a functional behavior assessment of D.F. be performed, in hopes of addressing D.F.'s behavioral issues. Collingswood agreed. Philip Concors, a certified behavior analyst with whom Collingswood frequently works, performed the assessment.

B. Spring 2009

On January 8, 2009, Collingswood began providing D.F. with a one-to-one aide in the classroom.

A.C., initially unrepresented by counsel, filed a due process petition on January 21, 2009. She alleged that Collingswood had placed D.F. in a regular classroom and had failed to provide the one-to-one aide until January, in violation of the IEP. She also alleged that he had been subject to discipline without consideration of the fact that his behavior was a manifestation of his disability. Finally, she asserted that the IEP and behavior plan were incomplete because they did not include specific target behaviors, methods, and documentation processes, and because they were not developed from the baseline of a behavior assessment. The petition sought: 1) an independent psychiatric evaluation; 2) an independent behavioral assessment and a positive behavior intervention plan designed by a consultant who would oversee it; 3) compensatory education for the period of time D.F. did not have a one-to-one aide; 4) an ESY; and 5) a requirement that the IEP include proper goals and objectives.

By filing the petition, A.C. triggered the IDEA's “stay-put” requirement. Pursuant to 20 U.S.C. § 1415(j), the child who is the subject of due process proceedings “shall remain in [his] then-current educational placement ... until all such proceedings have been completed.” Approximately a month after the filing of the petition, Collingswood conducted an IEP meeting at which it implemented a behavior plan based on Concors' evaluation. The plan specifically approved the use of physical restraints on D.F. A.C. refused to attend this meeting, although she was part of the IEP team. She argued that the stay-put requirement mandated continuation of the old IEP until the ALJ held otherwise.

In March 2009, Collingswood filed a motion to dismiss the second claim in the petition, which sought an independent psychiatric evaluation and an independent behavioral assessment. Collingswood argued that A.C. had not requested them before she filed the petition, as she was required to do under New Jersey law. Collingswood also claimed that it had already agreed to provide them. D.F. argues to this Court that, although Collingswood has repeatedly represented to the ALJ that it agreed to provide these evaluations at its own expense, using the experts provided by A.C., it stalled for five months. In June 2009, the ALJ ordered that Collingswood pay for the evaluations.

D.F. remained in the regular classroom, with an aide, through April 2009. There were numerous incidents involving his behavior, including some in which he was physically aggressive toward other students, his aide, and other adults in the building. (Appellant's App. 64–69.) Parents of other students in his class became upset with his presence in the classroom and even organized online to agitate for his removal from the classroom.

Toward the close of the 2008–2009 school year, the IEP team met again and proposed an out-of-district placement for D.F. Collingswood sent A.C. a letter seeking her authorization to send D.F.'s records to several out-of-district programs so that those programs could determine whether they would accept him as a student. A.C. refused, invoking her stay-put rights.

Apparently as a result of her frustration with the use of restraints against D.F. and his treatment in the classroom, A.C. unilaterally decided to keep D.F. at home for the last six weeks of the school year. D.F.'s IEP required an ESY, and Collingswood provided D.F. with tutoring in a vacant classroom during that summer. It was A.C.'s opinion that this placement violated the IEP, which provided that ESY be in a self-contained classroom. (Appellant's App. 80–81.) ⁴

C. 2009–2010 Academic Year

D.F. began the 2009 school year in a regular classroom with a one-to-one aide. His behavior problems continued. In late August, Collingswood filed for emergent relief, seeking a change in D.F.'s stay-put status so that it could officially implement the behavior intervention plan that was designed at the February 2009 IEP meeting and which had, arguably, been in use unofficially in the spring of 2009. In the alternative, Collingswood sought to place D.F. outside the district and asked that the ALJ order A.C. to authorize the release of D.F.'s records for this purpose. The ALJ denied this motion without prejudice, as Collingswood had failed to include any facts relating to the current school year.

In September 2009, D.F.'s chosen expert, Dr. Kathleen McCabe–Odri, completed her functional behavior assessment and his second expert, Dr. Robertson Tucker, completed his psychiatric evaluation. Dr. McCabe–Odri observed D.F. at home and in his classroom. She concluded that “the overall behavior system is severely inadequate in addressing [D.F.'s] behavioral and social challenges.” (Appellant's App. 141.) She recommended particular behavior intervention strategies and suggested that the Collingswood staff...