Wexler v. Westfield Bd. of Educ., 84-5886

• Decision Date: 18 March 1986
• Docket Number: No. 84-5886,84-5886
• Citation: 784 F.2d 176
• Parties: Seymour WEXLER and Daisy Wexler, individually and on Behalf of their child, Douglas Wexler, Appellants, v. WESTFIELD BOARD OF EDUCATION, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 176

784 F.2d 176

Seymour WEXLER and Daisy Wexler, individually and on Behalf of their child, Douglas Wexler, Appellants, v. WESTFIELD BOARD OF EDUCATION, Appellee.

No. 84-5886.

United States Court of Appeals Third Circuit.

Argued Nov. 4, 1985.

Assigned Jan. 6, 1986.

Decided Feb. 19, 1986.

Rehearing and Rehearing In Banc Denied March 18, 1986.

William D. Peek (argued), Nichols, Thomson, Peek & Meyers, Westfield, N.J., for appellee.

Ralph Neibart, (argued), West Orange, N.J., for appellants.

Before SEITZ, WEIS, and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

The Wexlers appeal the judgment of the district court dismissing their claim for reimbursement of expenses incurred in sending their son, Douglas, to a series of private schools while they contested the Westfield Board of Education's evaluation of their son's handicap and proposed educational placement. They also appeal the denial of attorney's fees incurred in the proceedings challenging those placements. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

Douglas Wexler was identified as a handicapped child in 1968 and placed at the Midland School by the Westfield New Jersey Board of Education. In 1972, further tests were conducted by outside experts and Westfield's Child Study Team, the body responsible in the first instance for evaluating handicapped students and recommending and making available "a free appropriate public education" as required by the Education of All Handicapped Children Act (EAHCA), 20 U.S.C. Sec. 1400 et seq. See N.J.Stat.Ann. Secs. 18A: 46-3, 46-5, 46-5.1 (West 1968 & Supp.1985); N.J.Admin.Code Sec. 6:28-1.3. As a result of the 1972 evaluation, Douglas was reclassified as mentally-retarded educable, and an Individualized Educational Program (IEP) was developed. The Child Study Team recommended placement in the Intermediate Educable Class at the Tamaques School.

The Wexlers objected to the change in classification and placement. They obtained further medical evaluations at Westfield's expense, and kept Douglas at Midland, paying the tuition themselves.

The ensuing dispute, which eventually resulted in this action, involved frequent retesting and reevaluations by the Child Study Team as well as frequent resort to outside experts by the Wexlers. In 1975, the plaintiffs filed a petition with the Commissioner of Education seeking administrative review of the 1972 reclassification decision. The Wexlers contended that Douglas was not mentally retarded but neurologically impaired and that the Child Study Team's classification and proposed placement were therefore erroneous. The Wexlers never investigated the Tamaques program, however, or compared it to the program at Midland. We will not detail the history of the state proceedings except to note that administrative decisions were several times vacated and the case remanded because the proceedings did not comport with the due process requirements of the EAHCA.

A proper due process hearing was finally held before an administrative law judge, who rendered his decision on June 9, 1983. In the period between the filing of the petition in 1975 and the hearing in 1983, several important events occurred. In 1976, on the basis of further evaluations, the Child Study Team modified its classification to "Multiply Handicapped: Primary--Mentally Retarded-Educable; Secondary--Neurologically Impaired," but did not change its recommended placement.

By 1980, the Wexlers had unilaterally transferred Douglas to the Maplebrook School. On the basis of tests and examinations conducted in late 1980, the Child Study Team reclassified Douglas in February 1981 as "Neurologically or Perceptually Impaired: Perceptually Impaired" and recommended placement at Maplebrook with costs to be assumed by Westfield. An IEP was developed and agreed upon on March 11, 1981, and revised in September, 1981. Pursuant to that IEP, Douglas was graduated from Maplebrook School in the spring of 1982 and received a diploma from the Westfield Public Schools, at which point Westfield contends that its responsibility for Douglas' education terminated. In September 1982, the plaintiffs unilaterally placed Douglas in the Summit Collegiate Studies Center in Jerusalem, Israel.

While the original petition filed with the Commissioner of Education encompassed only the 1972 decision, the Wexlers' claims for reimbursement for tuition, transportation, legal fees, and interest before the ALJ encompassed the entire period between 1972 and the 1981 reclassification, plus the period between Douglas' graduation and the hearing, during which time he was at the school in Jerusalem.

The ALJ upheld the pre-1981 actions of the school board, including its classifications and proposed placements, and found that the Wexlers were not entitled to reimbursement for that period because they had voluntarily chosen not to avail themselves of the "free, appropriate public education" properly made available to them by Westfield. He also found that since the Wexlers had unilaterally enrolled Douglas in the Summit School without objecting to the 1981 IEP, which called for graduating Douglas and issuing him a diploma, they were not entitled to reimbursement for Douglas' post-graduation education. Finally, he found that under New Jersey law, the Wexlers were not entitled to reimbursement of legal fees.

II.

Following the ALJ's decision, the Wexlers filed this action in the United States District Court seeking relief under the EAHCA, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and the New Jersey statutes relating to special education, N.J.Stat.Ann. Secs. 18A: 46-1 et seq. Section 1415(e)(2) of the EAHCA explicitly grants jurisdiction to the district court over civil actions contesting the findings and decisions made by state administrative agencies with respect to "complaints ... relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. Sec. 1415(b)(1)(E).

The district court conducted an independent review of the evidence amassed in the state proceedings, held oral arguments and received some new evidence. It accepted and agreed with the ALJ's findings and denied all relief sought by the Wexlers. Based on the record, the district court found that Westfield made available a free appropriate public education for the school years between 1973 and 1981 and that the parents voluntarily refused to avail themselves of the offer. In addition, it found that Douglas was properly graduated and given a diploma from the Westfield Board of Education and that Westfield's responsibility for Douglas' education terminated at that point. The court therefore denied plaintiffs reimbursement for tuition and expenses.

The district court rejected the Wexlers' argument that Douglas' "current placement" in 1972 was the Midland School and that they had a right under section 1415(e)(3) of the EAHCA to have him remain there until a final disposition of their challenge was made. It found that it was reasonable for Westfield to consider Douglas' then current placement to be the Tamaques School and to have viewed the Wexlers' decision not to investigate or enroll their son in the program offered their son at the Tamaques School as a withdrawal of their son from the Westfield Public School system. Thus, the court found that the plaintiffs were not entitled to reimbursement under the "stay put" provision, see DeLeon v. Susquehanna Community School District, 747 F.2d 149, 150 (3d Cir.1984), of the EAHCA. Finally, the court held that the plaintiffs were not entitled to attorney's fees, since the EAHCA does not provide for attorney's fees, and plaintiffs could in no way be considered prevailing parties under the Civil Rights Act or the Rehabilitation Act.

The Wexlers' appeal to this court may be best categorized as presenting the following grounds for reversal: first, the district court employed an improper standard in reviewing the state administrative proceedings and in making its own determinations. Second, a preponderance of the evidence supports their view that Douglas was improperly classified and placed by Westfield. Third, Douglas' "then current placement" should be considered the Midland School rather than the Tamaques School. Finally, they claim that under the EAHCA Westfield is responsible for Douglas' education until he reaches twenty-one years of age and that Westfield's responsibility therefore did not terminate with Douglas' graduation. The Wexlers claim that the above grounds support their claims for reimbursement; in addition, they challenge the denial of their claims for attorney's fees. ¹

III.

At the outset, we must address the question of our standard of review. The standard of review of the school board's decisions and the state administrative proceedings by the district court is now well settled. Section 1415(e)(2) of the EAHCA states that "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."

In Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), the Supreme Court interpreted that standard, stating:

[t]he provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that Sec. 1415(e) requires that...