On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-09-cv-02503) District Judge: Honorable Mitchell S. Goldberg
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: RENDELL, FISHER and CHAGARES, Circuit Judges.
M.R. and J.R., the parents of E.R., a minor, appeal from an order of the District Court, granting judgment on the administrative record in favor of Ridley School District. The District Court reversed a decision by a Pennsylvania Due Process Hearing Officer that Ridley School District violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1400, et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. For the reasons set forth below, we will affirm the order of the District Court.
E.R., who is now ten years old, attended kindergarten (2006-2007) and first grade (2007-2008) at Grace Park Elementary School ("Grace Park") in the Ridley School District ("Ridley"). E.R. has been identified as a child with numerous learning disabilities, as well as several health-related problems, including severe food and contact allergies. During the summer between E.R.'s first and second grade years, M.R. and J.R. (collectively, "Parents") determined that the programs being offered by Ridley were inadequate to address E.R.'s unique needs, and thus decided to remove her from Ridley and enroll her at the Benchmark School, a private school that specializes in instructing students with learning disabilities. Parents subsequently filed a complaint with the Pennsylvania Department of Education, seeking compensatory education for violations of the IDEA and § 504 of the Rehabilitation Act, and tuition reimbursement, including transportation expenses, for E.R.'s enrollment in the Benchmark School. A Due Process Hearing Officer awarded Parents compensatory education for the 2007-2008 school year, as well as reimbursement of tuition for the 2008-2009 school year, and reimbursement for transportation to and from the Benchmark School. The District Court reversed, finding that Parents were entitled to neither compensatory education nor reimbursement for tuition or transportation expenses.
Before E.R. began kindergarten, Parents were concerned about her ability to grasp pre-academic skills, such as letters and numbers, and took her to be evaluated at the Chester County Intermediate Unit ("CCIU"). Although the testing noted some academic difficulties, the evaluators concluded that E.R. did not qualify as a child with special needs. However, in September 2006, shortly after E.R. began kindergarten, she was identified as needing extra academic support, and was placed in extended-day kindergarten ("EDK"). Parents were notified of this placement, and were advised that it was intended to improve E.R.'s math skills and reinforce her kindergarten skills generally.
In November 2006, due to E.R.'s academic struggles and attention problems, Parents requested that Ridley perform an educational evaluation. Ridley agreed, and an Initial Evaluation Report was completed on January 31, 2007. Although the report indicated that math was difficult for E.R., consistent with CCIU's earlier determination, Ridley concluded that she did not qualify for special education services because her cognitive ability and academic achievement levels were both in the average range. Ridley also conducted an occupational therapy ("OT") evaluation, which was completed on January 24, 2007. The OT findings, which were based largely on the input of teachers, identified the following areas of concern: below grade level ability in math; lack of concentration; inconsistency in remembering numbers one through ten; problems with peer interaction; poor problem-solving skills and desk posture; and difficulty keeping her place when reading.
On February 7, 2007, Ridley convened a meeting to review the Initial Evaluation Report. In response to concerns raised by Parents at the meeting, Ridley agreed to conduct additional testing using The Children's Memory Scale, Test of Auditory Processing Skills, and The Behavior Rating Inventory of Executive Functioning. The additional testing resulted in two addendums to the Initial Evaluation Report, which stated that E.R.'s academic skills were generally in the average range, but that she demonstrated a relative weakness in retaining and manipulating numbers. Based on this information, the school psychologist concluded that E.R. did not have a specific learning disability. Also in February 2007, a § 504 Service Agreement ("the § 504 Agreement") was issued to provide OT services to E.R., and to address her severe allergies.*fn1 Under the § 504 Agreement, E.R. was to receive OT services once a week for thirty minutes and consultative services to the home and classroom on a regular basis. Despite her allergies, E.R. was to be included in as many activities as possible, and Parents were to be contacted before activities involving food so that appropriate alternatives could be provided for E.R.
Pursuant to a recommendation made by E.R.'s kindergarten teacher, Mary Moffatt ("Moffatt"), E.R. was enrolled in the Summer Steps program in the Summer of 2007 to reinforce her academic skills. The Summer Steps teacher reported that E.R. made some academic progress, but that she needed improvement in several areas and had difficulty recognizing numbers and counting.
The first six weeks of first grade were spent reviewing kindergarten materials. During this time, E.R. struggled academically and posted several failing grades. In late September 2007, J.R., E.R.'s mother, wrote to E.R.'s first grade teacher, Janet Cenname ("Cenname"), and requested a meeting to discuss E.R.'s poor grades. Cenname declined the request to meet at that time, telling J.R. that it would be premature to meet so early in the year, and that it would be more appropriate to give E.R. time to develop her skills. Cenname explained that she would be "happy to meet" a few weeks later, in early October, if Parents still had concerns. Parents did not re-contact Cenname, and instead requested a meeting with the school's principal. During that meeting, which was held on November 1, 2007, Parents were informed that E.R. had been placed on a "reading watch list" in mid-October. Following the meeting, E.R. was placed in a reading support group, but according to Parents, she had difficulty catching up with the other students because the program had started two months earlier.
On November 16, 2007, Parents requested a comprehensive reevaluation of E.R. Ridley issued a Permission to Evaluate on November 27, 2007, and the reevaluation was completed on February 26, 2008. The Reevaluation Report found that E.R. had learning disabilities in the areas of reading decoding and comprehension, math computation, reasoning skills, and written language. E.R. was also found to have fine motor delays and a language disability. As part of the Reevaluation Report, Ridley's school psychologist prepared recommendations to be considered by the Individual Education Planning Team ("IEP Team"). Based on those recommendations, Ridley offered two alternative placements for E.R.: (1) the learning support room at her current school, Grace Park, or (2) a self-contained classroom at a different elementary school. Parents observed both programs and determined that neither was appropriate for E.R.
An IEP Team meeting was convened on March 28, 2008 to review a draft Individualized Education Program ("IEP") that had been developed to address E.R.'s educational needs. At Parents' request, Ridley agreed to make revisions to the IEP and submit the revisions to Parents for approval. At the meeting, Ridley's Special Education Director, Kim Woods ("Woods"), suggested a program called Project Read as a possible reading aid for E.R. Woods told Parents that she would do some research on the program and follow up with Parents and the IEP Team in a few days. Woods also provided Parents with a printout from Project Read's website, and a review of the program conducted by the Florida Center for Reading Research.
A Notice of Recommended Educational Placement ("NOREP") was issued on April 2, 2008, but Parents refused to sign it until all of the agreed-upon revisions had been made. Another IEP Team meeting was held on April 30 to address Parents' continuing concerns regarding the IEP. On May 9, a revised NOREP was issued, and Parents signed it in agreement on May 12. However, Parents remained concerned about Ridley's proposed reading program, and requested that Ridley hire someone to provide instruction using The Wilson Reading System. Ridley did not do so.
On May 13, 2008, in accordance with the revised NOREP and addendums to the IEP, E.R. began going to Grace Park's "resource room" every day for one hour of reading assistance in the morning and one hour of math assistance in the afternoon. The resource room reading curriculum consisted of the following instructional programs: Read Naturally, Reading Workshop, Writing Workshop, and Patricia Cunningham's Systematic Phonics. The resource room employed a program called Everyday Math for math instruction. There were five other students in the resource room, none of whom were first graders. Aimee Hodges ("Hodges"), the resource room teacher, explained that although the students were all provided with the same reading programs, different parts of the programs were used for different students, such that assistance was geared toward each student's individual needs. Hodges also testified that everything done in the resource room was "multi-sensory," which meant that the lessons included visual, oral, and hands-on components. E.R.'s grades in the resource room improved dramatically in a short period of time, but Parents attributed the improvement to improper resource room assistance, and claimed that E.R. was not displaying similar progress at home. By the time E.R.'s first grade year ended, she had received eighteen days of resource room assistance.
On June 9, 2008, the IEP Team met to update the IEP for the 2008-2009 academic year (second grade). The NOREP from the June IEP Team meeting recommended that E.R. continue to receive one hour per day of math instruction and one hour per day of reading instruction in the resource room. The NOREP indicated that the reading instruction would include a direct reading program, as well as a direct phonemic-based program to address E.R.'s needs in decoding vocabulary, fluency, and comprehension skills. The NOREP provided that Ridley would train its learning support staff on Project Read during the summer, and that the program would be "up and running" before the end of September 2008. Ridley also agreed to pay for a summer learning program at the Benchmark School, as well as summer math tutoring three times per week.
Parents researched Project Read and determined that it was not appropriate for a student with E.R.'s needs. On August 14, 2008, Parents informed Ridley that E.R. would be enrolling at the Benchmark School for the 2008-2009 school year because it provided the "intensive multi-sensory approach to reading" that they determined E.R. required.
On December 4, 2008, Parents filed a due process complaint with the Pennsylvania Department of Education, alleging that Ridley violated the IDEA and § 504 of the Rehabilitation Act. Parents claimed that Ridley failed to timely identify E.R. as a child in need of special education services, failed to develop an appropriate IEP, and subjected E.R. to discrimination by failing to comply with the § 504 Agreement.
Hearings were held before a Due Process Hearing Officer on January 29, 2009, February 10, 2009, and March 10, 2009. At the hearings, the Hearing Officer reviewed documentary evidence provided by the parties and heard testimony from E.R.'s mother, Linda Heller, Parents' special education advocate, as well as several teachers and school officials. On April 21, 2009, the Hearing Officer issued a written report, finding that: (1) Ridley had not committed any violations during E.R.'s kindergarten year; (2) Ridley violated the IDEA and the Rehabilitation Act in E.R.'s first grade year; and (3) the IEPs proposed for E.R.'s first and second grade years were inadequate and therefore denied E.R. a "free appropriate public education" ("FAPE") because they "lacked appropriate specially designed instruction in the form of a research based, peer reviewed reading program." The Hearing Officer awarded Parents compensatory education for the 2007-2008 year (first grade), reimbursement of tuition at the Benchmark School for the 2008-2009 year (second grade), and reimbursement of transportation expenses to and from the Benchmark School.
Ridley filed a petition for review in the Pennsylvania Commonwealth Court, and the case was subsequently removed to the U.S. District Court for the Eastern District of Pennsylvania. Parents treated the petition as a complaint and filed an answer and counterclaims, in which they challenged the Hearing Officer's conclusion that no violation occurred during E.R.'s kindergarten year, and asserted additional claims against Ridley and Cenname, whom Parents added as a third party defendant. On October 9, 2009, Ridley filed a motion for judgment on the administrative record. On February 14, 2011, the District Court affirmed the Hearing Officer's finding as to E.R.'s kindergarten year, reversed the Hearing Officer's findings as to E.R.'s first and second grade years, and granted ...