Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-20-2004

Shore Regional High v. P.S. Precedential or Non-Precedential: Precedential

Docket No. 03-3438

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UNITED STATES COURT OF MICHAELENE LOUGHLIN (argued) APPEALS Loughlin and Latimer FOR THE THIRD CIRCUIT 131 Main Street, Suite 235 ____________ Hackensack, NJ 07601

No. 03-3438 Counsel for Appellant ____________ DAVID M. HAWKINS (argued) SHORE REGIONAL HIGH SCHOOL NATALIE S. SHAHINIAN BOARD OF EDUCATION CHRISTOPHER LAZAS Purcell, Ries, Shannon, Mulcahy & v. O’Neill One Pluckemin Way P. S., ON BEHALF OF P.S., P.O. Box 754 Bedminster, NJ 07921 Appellant Counsel for Appellee ____________________ ____________________

ON APPEAL FROM THE UNITED OPINION OF THE COURT STATES DISTRICT COURT _____________________ FOR THE DISTRICT OF NEW JERSEY

District Court Judge: Honorable Mary L. ALITO, Circuit Judge: Cooper (D.C. No. 01-cv-5758) This is an appeal from a District ____________________ Cou rt order overturning a state administrative law judge’s decision Argued: June 16, 2004 holding that a school district failed to provide a “free appropriate public Before: ALITO, SMITH, and DuBOIS,* education” within the meaning of the Circuit Judges Individuals with Disabilities Education Act (“IDEA”),

, for a student who had been subjected to severe and prolonged harassment by other * The Honorable Jan E. DuBois, District students. We hold that the District Court Judge of the United States District Court improperly failed to give “due weight” to for the Eastern District of Pennsylvania, the ALJ’s determination, and we therefore sitting by designation. reverse. I. appreciable improvement. After P.S.’s grades slipped badly, Maple Place P.S. was born in 1986 and attended evaluated him and classified him as public schools in the Oceanport (New eligible for special education and related Jersey) School District from kindergarten services based on perceptual impairment. through eighth grade. In elementary The Oceanport Child Study Team (“CST”) school, P.S. was teased by other children then developed an Individualized who viewed him as “girlish,” but when Education Program (“IEP”) that placed P.S. began to attend the Maple Place P.S. in the “resource room” for math and Middle School in fifth grade, the bullying gave him extra teacher attention to help intensified. In the words of the District with his organizational skills. The CST Court, P.S “was the victim of relentless manager believed that P.S.’s poor physical and verbal harassment as well as academic work was due to the bullying social isolation by his classmates.” App. rather than any cognitive deficiencies. 13. P.S.’s classification remained Most of the harassment of P.S. throughout sixth and seventh grade, and focused on his lack of athleticism, his his IEP was expanded to include a daily physique, and his perceived effeminacy. resource-center literature class and an Bullies constantly called P.S. names such alternative physical education class to help as “faggot,” “gay,” “homo,” “transvestite,” him with his physical skills and to avoid “transsexual,” “slut,” “queer,” “loser,” the locker room changing period, during “big tits,” and “fat ass.” Bullies told new which other children ridiculed his students not to socialize with P.S. physique. The school also permitted P.S. Children threw rocks at P.S., and one to change classes at special times so that student hit him with a padlock in gym he would not encounter other students in class. When P.S. sat down at a cafeteria the hallways and could thus avoid the table, the other students moved. Despite harassment that customarily occurred r e p e a te d c o m pl a i n ts , th e s c h ool there. In eighth grade, the harassment administration failed to remedy the became so intense that P.S. attempted situation. suicide. At the request of his psychiatrist, The constant harassment began to who told the CST manager that P.S.’s life cripple P.S. He became depressed, and his and health were at stake, P.S. received schoolwork suffered. When P.S. was in home schooling for six weeks. In fifth grade , his m oth er, on the February and March of that year, M aple r e c o m m e n d a t i o n o f t h e s c h o ol Place changed P.S.’s classification, finding psychologist, obtained private psychiatric him eligible for special education on the counseling for him. The psychiatrist basis of emotional disturbance. diagnosed P.S. with depression and The public high school serving prescribed medication, but there was no P.S.’s community is Shore Regional High

2 School (“Shore”), but P.S.’s parents had weekly counseling. Based on this begun to look for a different school for program, the Shore authorities concluded their son some years earlier, and they that their school would be the “least eventually became interested in Red Bank restrictive environment” for P.S. See 20 High School (“Red Bank”), the public high U.S.C. § 1412(a)(5) (school must school in a neighboring school district. provide education in least restrictive Red Bank was attractive both because it environment). did not enroll students from Maple Place P.S.’s parents strongly disagreed and because it had a drama program that with Shore’s decision and unilaterally appealed to P.S.’s interests. P.S. placed him in Red Bank for the ninth auditioned for the Red Bank drama grade. Initially, Red Bank did not create program and was accepted. P.S.’s parents an IEP for P.S., but did provide him with a then asked Shore to place him at Red special education class in algebra and Bank, and the Oceanport CST concurred. academic support. While Red Bank did The CST believed that if P.S. attended not schedule weekly counseling sessions, Shore Regional High School he would it made clear to P.S. that counseling was experience the same harassment that had available upon request. Red Bank’s plan occurred at Maple Place because the was to mainstream P.S. for all his classes. bullies who were responsible would also When P.S. was in ninth grade, Red Bank be there. created an IEP for him that maintained his Shore undertook its own evaluation, academic support center class, but relying mostly on the Maple Place IEP and mainstreamed him for all other classes. a surveillance of P.S. in his classes. Like Shore, Red Bank offered a program Despite the recommendation from the to combat bullying that included discipline CST, Shore rejected P.S.’s request to and diversity seminars. As the District attend Red Bank and concluded that he Court not ed, P .S. “thrived both should attend Shore for ninth grade. Shore academically and socially at Red Bank.” apparently believed that if it granted P.S.’s App. 23. request, it would have to grant the request After Shore rejected P.S.’s request of non-disabled students who wished to to attend Red Bank, P.S.’s father filed a attend Red Bank. Shore’s affirmative mediation request with the New Jersey action officer, Dr. Barbara Chas, Department of Education. Mediation contended that Shore could contain the proved unsuccessful, and the action was bullying by disciplining bullies and by transferred to the New Jersey Office of utilizing peer and social worker mediation. Administrative Law for a “due process Shore also proposed an IEP in which P.S. hearing.” Before the hearing, both sides would attend the resource room for math agreed to an independent evaluation by the and would have a supplemental course in Institute for Child Development at the learning skills, adaptive gym classes, and Hackensack University Medical Center

3 (“Hackensack”). Hackensack as the defendant, and P.S.’s father filed a recommended that P.S. attend a school counterclaim for attorneys’ fees. Relying such as Red Bank. on the administrative record, the District Court reversed the ALJ’s decision. At the due process hearing, the ALJ Crediting Dr. Chas’s testimony, the heard testimony from several witnesses, District Court found that Shore offered including P.S., his mother, Dr. Chas, Dr. P.S. a free appropriate public education. Mina Corbin-Fliger (a member of the The Court wrote: Oceanport CST), and Dr. Carol Friedman (a psychologist at Hackensack). All of the The inability of the Maple witnesses agreed that P.S. had been Place administration to subjected to unusual levels of harassment. successfully discipline its While Dr. Chas testified that she believed students does not make that Shore could control the bullying, P.S., Shore an inappropriate his mother, Dr. Corbin-Fliger, and Dr. placement. No school can Friedman all disagreed. The ALJ also ever guarantee that a student reviewed several documents relating to will not be harassed by other P.S.’s case, including his IEPs and students. . . . However, we recommendations regarding placement. find that, in light of the s t r u ct u r e d disciplin ary The ALJ concluded that Shore mechanism in place at Shore could not provide P.S. with a “free and Chas’s op inion appropriate public education,” as required regarding the supportive by the IDEA, see

(a)(1), nature of students involved because of the “legitimate and real fear in drama there, the risk that that the same harassers who had followed the harassment wou ld P.S. through elementary and middle school continue was not so great as would continue [to bully him.]” App. 41. to render Shore The ALJ was particularly concerned that inappropriate. the bullies from P.S.’s area would harass him during largely unsupervised school App. 31-32 (emphasis in original). bus rides to Shore and that Shore would be The District Court did not accept unable to provide for P.S.’s emotional the testimony of Dr. Corbin-Fliger and Dr. needs within its very large student body. Friedman, stating that they had “focused App. 42, 47. The ALJ ordered Shore to on the failure of the Maple Place reimburse P.S. for the out-of-district administration to discip line [th e] tuition and related costs, including P.S.’s tormenters; they did not address whether reasonable attorneys’ fees. the Shore administration would have been Shore then commenced this action able to address the problem.” App. 23. in the District Court, naming P.S.’s father The Court also implicitly faulted Dr.

4 Friedman on the ground that she had

(8). “never visited Shore to investigate their States provide a FAPE through an disciplinary measures or the type of individualized education program (“IEP”). environment supplied by its drama See 20 U.S.C. 1414(d). The IEP must be program.”

at 30 n. 21. In addition, the “reasonably calculated” to enable the child District Court concluded that “Shore was to receive “meaningful educational the least restrictive environment for P.S. benefits” in light of the student’s because it was his local public high school, “intellectual potential.” Polk v. Cent where he would have been educated with Susquehanna Interm. Unit 16, 853 F.2d other nondisabled children.”

. 171, 181 (3d Cir. 1988). II. Under

(5), All states receiving federal children must also be educated in the least education funding under the IDEA must restrictive environment. This means that, comply with federal requirements designed “[t]o the maximum extent appropriate, to provide a “free appropriate public children with disabilities . . . are [to be] education” (“FAPE”) for all disabled educated with children who are not children. See

(1). “The disabled” and that ch ildren w ith term ‘free appropriate public education’ disabilities are not to be placed in special means special education and related classes or otherwise removed from “the services that-- regular educational environment” except when “the nature or severity of the (A) have been provided at disability of a child is such that education public expense, under public in regular classes with the use of supervision and direction, supplementary aids and services cannot be and without charge; achieved satisfactorily.”

(B) meet the standards of As long as a state satisfies the t h e S t a t e ed u c ati o n al requirements of the IDEA, the state may agency; fashion its own procedures. Under New (C) include an appropriate Jersey law, a CST composed of a preschool, elementary, or psychologist, a learning disability teacher- secondary school education consultant, and a school social worker in the State involved; and conducts an evaluation of the student. See N.J.S.A. §18A:46-5.1. Using the CST’s (D) are provided in evaluation, the school district determines conform ity with the whether the student should be classified as individualized educa tion disabled. See N.J.A.C. §6A:14-3.1. If the program required under student is found to be disabled, the school section 1414(d) of this title.” assembles a team to create an IEP for the

5 child. See N.J.A.C. §6A:14-3.7. This “reasonably calculated” to enable the child program is reevaluated every year, and the to receive “meaningful educational child’s eligibility is redetermined every benefits” in light of the child’s three years. See N.J.A.C. §6A:14-3.8. “intellectual potential.” See Board of Educ. of Hendrick Hudson Central School Under

, Dist., Westchester County v. Rowley, 458 dissatisfied parents may challenge a school U.S. 176, 206-07 (1982); Ridgewood district’s determ ination s in an Bd.of Educ.v. N.E.,

(3d administrative proceeding. In New Jersey, Cir. 1999). If the IEP did not provide a the parents and the school board first FAPE, the District Court must then decide undergo mediation, and if mediation is whether the parents took appropriate unsuccessful, a “due process hearing” is actions. See Michael C. v. Radnor Twp. held before a state administrative law Sch. Dist.,

(3d Cir. judge. See

(e) and (f); 2000). N.J.A.C. § 6A:14-2.7(c) and (d). Parents who disagree with their child’s placement The burden of proof that a District may unilaterally enroll their child in a Court must apply when an IDEA decision different school and seek reimbursement. by a state agency is challenged is unusual. N.J.A.C. § 6A:14-2.10)d). However, no Although the District Court must make its reimbursement is required if the school own findings by a preponderance of the district offered the student a FAPE. evidence,

(1)(2)(B)(iii), N.J.A.C. § 6A14-2.1(a). the District Court must also afford “due weight” to the ALJ’s determination. Any party aggreived by a placement Rowley, 458 U.S. at 206; see also Holmes decision may bring suit in a state court of v. Millcreek Tp. School Dist., 205 F.3d competent jurisdiction or a federal district 583, 591 (3d Cir. 2000). Under this court.

(i)(2). In a case in standard, “[f]actual findings from the which parents seek reimbursement for a administrative proceedings are to be unilateral placement, the District Court considered prima facie correct,” and “[i]f must first determine whether the IEP a reviewing court fails to adhere to them, afforded the student a FAPE. School it is obliged to explain why.” S.H. v. Committee of Town of Burlington, Mass. State-Operated School Dist. of City of v. Department of Educ. of Mass., 471 U.S. Newark,

(3d Cir. 2003). 359, 370 (1985). The school has the In addition, if a state administrative agency burden of showing that a FAPE was has heard live testimony and has found the offered. See Oberti v. Board of Educ. of testimony of one witness to be more Borough of Clementon School Dist., 995 worthy of belief than the contradictory F.2d 1204, 1219 (3d Cir. 1993). To meet testimony of another witness, that this burden, the school must establish that determination is due special weight. Id.; it complied with the procedures set out in Carlisle Area School v. Scott P., 62 F.3d the IDEA and that the IEP was

6 520, 527-29 (3d Cir. 1995). Specifically, a FAPE. The ALJ who heard the this means that a District Court must witnesses during a hearing that extended accept the state agency’s credibility over four days credited the witnesses who determ inatio n s “ u n less the non - opined that placement at Shore would have testimonial, extrinsic evidence in the exposed P.S. to a continuation of the record would justify a contrary devastating bullying that had occurred in conclusion.” Carlisle, 62 F.3d at 529 Middle School. The District Court did not (emphasis added). In this context the word point to any “nontestimonial evidence” “justify” demands essentially the same that undermined the testimony of these standard of review given to a trial court’s witnesses. See S.H.,

. findings of fact by a federal appellate Instead, the Court simply chose to credit a court. See Anderson v. City of Bessemer witness who expressed a contrary opinion. City, N.C.,

(1985). In taking this approach, the District Court did not give the requisite deference to the When a District Court decision in a ALJ’s evaluation of the witnesses’ case such as this is appealed to us, we of credibility. course exercise plenary review with respect to the question whether the District As noted, Dr. Friedman, a Court applied the correct legal standards psychologist at the Institute for Child under the IDEA, see Polk, 853 F.2d at 181, De ve lopme nt a t the Ha c kensack but we review the District Court’s factual University Medical Center, and Dr. findings for clear error. T.R. v. Kingwood Corbin-Fliger, a member of the Oceanport Tp. Bd. of Educ.,

(3d CST, testified unequivocally that Cir. 2000)(citations omitted). “A finding placement at Shore would not have been of fact is clearly erroneous when, after appropriate due to the threat of reviewing the evidence, the court of harassment. Dr. Corbin-Fliger was fully appeals is left with a definite and firm informed about Shore’s program, but she conviction that a mistake has been testified “a high school situation is even committed.” Oberti, 995 F.2d at 1204 more unrestrictive than a middle school (internal quotation marks omitted). situation” and that “no matter what program” Shore implemented, she did not III. believe that P.S. would “be in a safe The District Court in this case did environment with the same kids” who had not properly apply the “due weight” previously harassed him. App. 134-5. standard. Both the ALJ and the District Dr. Friedman testified that bullying Court were confronted with conflicting does not go away on its own, particularly opinions by experts on the question when the victim is 12 years of age or older. whether placement at Shore offered P.S. App. 198. Indeed, she stated that one an education that was sufficiently free could “pretty much guarantee” that the from the threat of harassment to constitute bullies would continue to harass P.S. if

7 given the chance. Id. at 215. She stated Shade would be diluted by students who that, while “intensive interventions” with had attended other middle schools and that the bullies, the onlookers, and the victim P.S. would receive support from the “can be he lpful” under some students in the Shore drama club, who circumstances, this strategy “is most were “a tight-knit group that is accepting effective at the beginning” of a course of of newcomers.” Id. at 31. harassment, and she noted that the As previously noted, the District harassment of P.S. had been going on for Court was required under our cases to years. Id. at 202. As a result, she testified, provide an explanation for its decision to the “bullies are . . . used to looking at reject the ALJ’s decision to credit Dr. [P.S.] in this manner, and . . . he’s used to Friedman and Dr. Corbin-Fliger, but the dealing with them in this manner.” Id. at District Court’s chief explanation does not 205. She expressed particular concern accurately characterize these witnesses’ about the “ripe opportunity” that the testimony. The District Court faulted Dr. bullies from P.S.’s area would have to Corbin-Fliger and Dr. Friedman because, harass him on school bus rides to and from in the Court’s view, they “focused on the Shore, id. at 203, and she opined that failure of the Maple Place administration neither the presence at Shore of students to discipline these tormenters” and “did who had not attended Maple Shade nor n o t a ddr e ss whe ther the S h o re participation by P.S. in Shore’s drama administration would have been able to program would have been enough to address the problems.” App. 30. In fact, protect him. Id. at 210, 219. Finally, she however, while Drs. Corbin-Fliger and observed that simply seeing the bullies at Friedman certainly took into account Shore would have adversely affected P.S’s P.S.’s experiences at Maple Shade (as did self-esteem and his “ability to concentrate Dr. Chas), they focused upon and squarely and focus.” Id. at 205. addressed the question whether Shore Rejecting the AL J’s decision to would have been able to protect P.S. from credit these witnesses, the District Court devastating harassment. Fairly read, their was more impressed by the testimony of collective testimony was that Shore would Dr. Chas, the Shore affirmative action not have been able to remedy the problem officer, who opined that Shore would be because, among other things, the same able to control the bullying problem bullies would be present at Shore; bullies because it provides “peer mediation” and generally do not stop on their own; even “counseling and training for both victims “intensive interventions” are often not and perpetrators of harassment” and effective when they are not begun until employs “a structured disciplinary system” after a course of harassment has continued with “a hierarchy of punishments.” App. for some time; the presence at Shore of 30-31. Dr. Chas also maintained that the students who had not attended Maple influence of the students from Maple Shade would not have shielded P.S.; the

8 bullies would have had a ripe opportunity Shore could prevent the Maple Shade to harass P.S. on the bus; and, in short, no bullies from having any contact with P.S. matter what program Shore implemented, Nor did she claim that Shore had ever P.S. would not have been adequately dealt successfully with a harassment protected. Thus, the witnesses upon whom problem of this severity in the past. Nor the ALJ relied directly addressed the did she claim that she knew of cases in question whether Shore would have been which other high schools had successfully able to deal with the harassment problem cured problems of this nature by means of successfully. a program similar to the one that Shore proposed. In addition, although it appears In a footnote, the District Court also that Dr. Chas’s opinion rested heavily on implicitly criticized Dr. Friedman’s the view that Shore’s disciplinary system testimony on the ground that she “never would deter the bullies, she did not explain visited Shore to inv estigate their in concrete terms how that system could disciplinary measures or the type of have dealt satisfactorily with a campaign environment supplied by its drama of harassment involving a barrage of program.” App. 30 n. 21. On cross- abusive conduct of a sort that is difficult to examination, Dr. Friedman was asked why prove in a disciplinary proceeding – for she had not visited Shore, and she example, constant snickering, shunning, or responded that the Institute for Child mumbled epithets that no one other than Development had based its evaluation on P.S. claims to have heard. the information that Shore had released and that Shore had not suggested that a We do not suggest that Dr. Chas’s visit to the school was needed. See App. opinion was unworthy of belief or that the 206. Since the District Court did not testimony of Dr. Corbin-Fliger and Dr. identify any specific and material Friedman was beyond dispute. But the information that only an actual visit to task of evaluating their conflicting Shore would have revealed, the Court’s opinions lay in the first instance with the criticism of Dr. Friedman for not making ALJ in whose presence they testified. such a visit is largely beside the point. In When the ALJ’s determination in this case short, the District Court provided no is given its “due weight,” we see no basis substantial reason for refusing to credit the for overturning that determination. In witnesses upon whom the ALJ clearly doing so, the District Court did not heed relied. the “due weight” standard, and the District Court’s finding that Shore offered FAPE Moreover, the District Court failed was clearly erroneous. to acknowledge weaknesses in Dr. Chas’s testimony. Dr. Chas provided little IV. support for her belief that the Shore For the reasons set out above, we program could remedy the problem that reverse the order of the District Court and P.S. had faced. She did not claim that

9 remand for the entry of summary judgment in favor of the defendant on the issue of liability and for a determination of the amount of reimbursement, attorney’s fees, and any other costs that the school district owes.

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