Ridgewood Bd. of Educ. v. N.E. ex rel. M.E.

• Decision Date: 30 March 1999
• Docket Number: LDT-C,No. 98-6276,98-6276
• Citation: 172 F.3d 238
• Parties: 133 Ed. Law Rep. 748 RIDGEWOOD BOARD OF EDUCATION v. N.E., as Guardian Ad Litem for M.E., an infant; Mary E., Individually and as Guardian Ad Litem for M.E., an infant, Defendants/Third-party Plaintiffs, v. Frederick Stokley, Superintendent; John Campion, Director of Special Programs; Charles Abate, Principal; William Ward, Principal; Lorraine Zak, Psychologist; Kathleen McNally, Social Worker; Caroline Janover,; George Neville, Principal; Henry Hogue, Psychologist; June Ann Dibb, Dr., Psychiatrist; Joan Christian,; Susan Lynaugh, Psychologist, Third-party Defendants, N.E., as Guardian Ad Litem for M.E., an infant; Mary E., Individually and as Guardian Ad Litem for M.E., an infant, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 238

172 F.3d 238

133 Ed. Law Rep. 748

RIDGEWOOD BOARD OF EDUCATION v. N.E., as Guardian Ad Litem for M.E., an infant; Mary E., Individually and as Guardian Ad Litem for M.E., an infant, Defendants/Third-party Plaintiffs, v. Frederick Stokley, Superintendent; John Campion, Director

of Special Programs; Charles Abate, Principal; William

Ward, Principal; Lorraine Zak, Psychologist; Kathleen

McNally, Social Worker; Caroline Janover, LDT-C; George

Neville, Principal; Henry Hogue, Psychologist; June Ann

Dibb, Dr., Psychiatrist; Joan Christian, LDT-C; Susan

Lynaugh, Psychologist, Third-party Defendants,

N.E., as Guardian Ad Litem for M.E., an infant; Mary E.,

Individually and as Guardian Ad Litem for M.E., an

infant, Appellants.

No. 98-6276.

United States Court of Appeals Third Circuit.

Argued Nov. 4, 1998.

Decided March 30, 1999.

Rebecca K. Spar (Argued) Cole, Schotz, Meisel, Forman & Leonard, Hackensack, NJ, for Appellants.

Cherie L. Maxwell (Argued) Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, Newark, NJ, for Appellees.

Before: SCIRICA and ALITO, Circuit Judges, and GREEN, District Judge ^*.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

I.

The issue on appeal is whether Ridgewood Board of Education provided its student M.E. with a "free appropriate public education" as required by the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. (Supp.1998). The District Court found the board of education satisfied IDEA because it provided M.E. "more than a trivial educational benefit." Because we hold that IDEA imposes a higher standard, we will vacate and remand.

II.

A.

M.E. ¹ is a seventeen-year old high-school student whose learning disabilities qualify him as a "child[ ] with disabilities" under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. § 1400 et seq. (Supp.1998). M.E. has attended schools in Ridgewood Board of Education's school district since the fall of 1988, when he started second grade at the Orchard School. At the beginning of the second grade, his teacher noticed that his academic skills were far below those of his classmates and the school moved him to the first grade. At that time, the school told M.E.'s parents that he did not have a learning disability and was in fact very intelligent.

M.E.'s difficulties continued in the first grade. On the recommendation of his teacher, his parents enrolled him in summer school. Despite this extra instruction, M.E.'s second grade teacher commented that his skills remained very weak. Standardized tests conducted during the second grade confirmed his teacher's assessment: M.E.'s scores ranged between the fourth and ninth percentiles. M.E. again attended summer classes on the school's recommendation.

Hoping that a new school might help their son, M.E.'s parents asked Ridgewood to transfer M.E. to Ridge School, another elementary school in the Ridgewood district, for the third grade. But M.E.'s difficulties continued at Ridge. As a result, Ridgewood and M.E.'s parents agreed that M.E. should receive Basic Skills Instruction twice a week and work with his teacher after school twice a week. M.E.'s parents also had M.E. examined by independent learning disabilities teacher consultant Howard Glaser. Glaser's October 1990 evaluation found that there was a great discrepancy between M.E.'s intellectual abilities and his academic performance: although M.E.'s intelligence was at the ninety-fifth percentile, his reading skills were at the second percentile. Glaser also found that M.E. was learning disabled and recommended that M.E.'s parents ask Ridgewood to evaluate M.E.

Ridgewood's Child Study Team (CST) evaluated M.E. in March, 1991. The Ridgewood CST agreed with Glaser's assessment that there was a great discrepancy between M.E.'s abilities and his performance in school. It also noted that the discrepancy was growing and that M.E. was becoming very anxious about his academic performance. But it refused to classify him as learning disabled because it concluded that he was not "perceptually impaired" within the meaning of New Jersey law. ² The Ridgewood CST recommended that Ridgewood provide M.E. with "increased multi-sensory support" and that his parents obtain counseling for him.

M.E.'s academic difficulties continued throughout the remainder of elementary school. In fifth grade, M.E.'s teacher and his parents asked Ridgewood to evaluate him again. Ridgewood refused to do so. In sixth grade, Ridgewood agreed to re-evaluate M.E. only after a learning disabilities teacher consultant hired by M.E.'s parents recommended it do so. The Ridgewood CST's May-June 1994 evaluations consisted of an educational assessment, a psychological assessment, a health appraisal and a psychiatric evaluation. The CST concluded that M.E. remained far behind his classmates and recommended that he and his parents seek counseling to explore his feelings of inadequacy and depression. But the CST maintained that M.E showed no signs of perceptual deficits, again refused to classify him as perceptually impaired and determined that he was not eligible for special education.

M.E.'s in-class troubles worsened during the seventh grade, where he consistently failed English and received incompletes in other classes. Concerned that Ridgewood's CST had erred in failing to classify M.E. as perceptually impaired, M.E.'s parents asked Ridgewood to provide an evaluation by an independent child study team. After the parents filed for an administrative hearing, Ridgewood agreed to the request and contracted with Bergen Independent Child Study Teams for the evaluation. Ridgewood Director of Special Programs John Campion ordered Bergen not to recommend whether M.E. should be classified as perceptually impaired or how he should be educated. M.E.'s parents strongly disagreed with these limitations and asked the Parent Information Center of New Jersey to intervene. After the Parent Information Center determined that Bergen could make classification and placement recommendations, Bergen agreed to make these recommendations in the final team report it would provide to Ridgewood but not in the preliminary evaluation reports individual team members would prepare.

Bergen's team staffing report diagnosed M.E. with a learning disability in reading and writing and recommended that Ridgewood classify him as perceptually impaired. M.E.'s parents allege that Ridgewood intentionally withheld this report from them despite their repeated requests and that Ridgewood gave them the team staffing report only after the New Jersey Department of Education ordered it to do so.

On March 17, 1995, Ridgewood agreed to classify M.E. as perceptually impaired. It recommended that he continue in the Basic Skills Instruction he had been receiving for six years and developed an individualized education program (IEP) for the 1995-96 school year. The IEP called for thirty minutes of individual Orton Gillingham ³ instruction in reading and spelling, resource center instruction in English and supplementary instruction in science and social studies. M.E.'s parents maintain they objected to the IEP and allege that Ridgewood coerced them to agree to it by threatening to break off all discussions concerning M.E.'s educational program unless they approved the IEP. The IEP proved ineffective. M.E. made minimal improvements and Ridgewood changed his grades to pass-fail in order to minimize the impact on his self-esteem.

At the end of the eighth grade, Ridgewood decided that M.E. should no longer be placed in regular classes. For the 1996-97 school year, it proposed an IEP that provided for resource center instruction in all academic classes, two daily periods of supplementary instruction with a teacher trained in the Wilson reading program and speech/language therapy once a week. It also scheduled regular classroom instruction for physical education and electives. M.E.'s parents disagreed with the IEP, claiming it provided fewer services than his inadequate 1995-96 IEP and arguing it would stigmatize M.E., damaging his already-fragile self-esteem. On May 27, 1996, M.E.'s parents requested a due process hearing before the New Jersey Department of Education, contending that Ridgewood's proposed IEP for 1996-97 failed to provide a "free appropriate public education" within the meaning of IDEA and requesting that M.E. be placed in private school at Ridgewood's expense. Concerned that Ridgewood would not provide their son an adequate education, M.E.'s parents began to visit other schools and eventually asked Ridgewood to place M.E. at the Landmark School, a private school in Massachusetts that specializes in educating students with learning disabilities. After Ridgewood refused their request, M.E.'s parents then asked that Ridgewood pay for him to attend Landmark's summer program. After Ridgewood refused, M.E. attended Landmark's summer program at his parents' expense and, according to his instructors there, made steady and considerable progress.

B.

While M.E. was at Landmark, an Administrative Law Judge conducted seven days of hearings on his parents' complaint. In the fall of 1996, M.E. returned to Ridgewood to begin ninth grade. On November 27, 1996, the ALJ held that Ridgewood's 1996-97 IEP failed to provide M.E. with a free appropriate public education. In arriving at this conclusion, she considered the testimony of M.E.'s parents, Howard Glaser, Dr. Mae Balaban of Bergen, M.E.'s classroom teachers and the Ridgewood CST. She also considered a letter written by Dr. Balaban on November 4, 1996, over a month after the last hearing. In that letter, Dr. Balaban criticized the 1996-97 IEP, stating that she was "convinced that [it] will not result in ... an adequate education." She strongly recommended that M.E. be placed at Landmark, where he would "be given the chance to develop at least average reading and writing skills so as to become a functional adult."

The ALJ then ordered...