Opinion
CIVIL ACTION NO. 05-4179.
April 16, 2007
MEMORANDUM
Presently before this Court are the parties' Cross-Motions for Summary Judgment, along with each sides' statement of material facts. For the reasons that follow, Plaintiffs' Motion is denied and Defendant's Motion is granted.
Procedural History
On August 4, 2005, the parents of Plaintiff Brendan K. (collectively "the K.'s") initiated this action by filing a Complaint against the Easton Area School District ("the District"), alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., § 504 of the Rehabilitation Act of 1973, ("Section 504"), 29 U.S.C. § 701, et seq., and 42 U.S.C. § 1983. On October 7, 2005, the District moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), arguing inter alia that the claims were time barred. By Order dated December 21, 2005, we rejected the District's claim of untimeliness, but held in abeyance all other arguments for later review after the filing of the administrative record.
Facts
The parties have each filed concise statements of material facts. We find the following facts are undisputed. Brendan was born on November 27, 1990. At all times pertinent to the litigation, he has resided within the District. He has attended District schools from Kindergarten to the present. The District is a public school district that receives federal funding and is, therefore, subject to the requirements of the IDEA. The District is also a Local Education Agency designated to provide educational services under the IDEA and § 504.
During the second grade, Brendan began experiencing behavioral problems. His parents agreed to an evaluation at the District's request. The evaluation concluded that Brendan was not eligible for special education services under IDEA, or for accommodations under § 504. His reading and math scores were determined to be close to grade level. Brendan was again evaluated during the third grade at the suggestion of his teacher. As a result, he was provided with an accommodations checklist, which remained in effect throughout Brendan's elementary school years. (Def. Ex. 4.)
At the start of the sixth grade, the accommodations were discontinued, although no further evaluation was conducted. Brendan began to exhibit increasing behavioral problems, resulting in a series of out-of-school suspensions. In April 2002, the K.'s informed the District that Brendan had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD"). He began taking medication prescribed by a psychiatrist.
Brendan was evaluated for special education services in August 2002, after the end of his sixth grade year. (Def. Ex. 10.) The evaluation noted that he could read at grade level, write well for his placement, but did not write well when not engaged, had no trouble with verbal expression, had an adequate vocabulary, was able to understand math concepts and perform calculations at grade level, and understood science and social studies concepts at grade level. (Id. at 1.) Mrs. K. reported that, after Brendan began taking medication for his ADHD, he was mastering his subjects with ease. (Id. at 4.) The evaluation noted a recurrence of difficulty with peer interaction and behavior, particularly in unstructured settings, as well as a drop in grades at the end of the sixth grade due to difficulty with remembering and completing assignments. (Id. at 1-2.) He was again found ineligible for special education services because the test results did not reflect a discrepancy between IQ and achievement. He was, however, found to be eligible for § 504 accommodations for the seventh grade because his ADHD qualified as a handicapping condition that substantially limited Brendan's ability to function within a regular educational environment. (Id. at 8.)
A § 504 plan was developed on September 16, 2002. (Def. Ex. 2, Att. 1.) The accommodations listed by the District were: (1) Brendan's teachers will communicate to his parents when organization becomes problematic for Brendan; (2) Brendan will be relocated to a "time out" area within the classroom when he displays any overtly inappropriate behaviors; and (3) teachers will e-mail parents when major projects become due. (Id.) Brendan's mother participated in the evaluation process and approved the District's Notice of Recommended Educational Placement. (Id. at 2.)
In the second half of his seventh grade year, Brendan again began to exhibit behavioral problems. On May 19, 2003, Brendan's § 504 plan was substantially revised with his parents' input and approval to include several additional accommodations:
• Permission to leave class and report to the guidance office when Brendan feels he is in danger of losing emotional control. • An option for his teachers of sending him to the guidance office if they feel he needs a cooling off period. • Discussion of discipline and redirection with Brendan in an unemotional manner using as few words as possible, avoiding long or emotionally charged conversations and refraining from physical contact with him unless necessary for safety, and ignoring any attempt by Brendan to argue. • An expectation, due to his ADHD, that Brendan will have fidgety behaviors, and he is not to be punished for them. Teachers are to decide in advance what behaviors are unacceptable and enforce only those behaviors. Examples of unacceptable behaviors are those that are harmful or threatening to self and others, destructive of school property, or are non-compliant with teacher requests. • Preferential seating. • Class notes taken by other students should be made available to Brendan to allow him to fill in missing information. • Monthly counseling with the school psychologist to learn relaxation methods. He will be encouraged to use these techniques as an alternative to leaving the classroom. • Positive reinforcement for one week with no incidents. • Teachers are encouraged to "catch him being good" and give him praise, while discussing behavior problems in private. • Parental notification of long term projects and missing work, with bi-weekly progress reports. • Time and one-half for tests, in-class assignments and projects, if necessary. (Def. Ex. 8.) Brendan's behavior caused ten days of out-of-school suspensions and three days of in-school suspensions in the latter half of seventh grade. According to the District, Brendan threatened to shoot a teacher and burn down the school. The K.'s dispute this contention. On June 3, 2003, the District's school psychologist recommended that Brendan be placed on home instruction for the remainder of the school year due to his increasingly dangerous behaviors. (Pl. Es. 10.) This recommendation was implemented, and Brendan was placed on home instruction until the end of the school year. A June 18, 2003, psychiatric report included diagnoses of ADHD and ODD and recommended that Brendan be placed in a school-based partial hospitalization program. (Def. Ex. 11.) Neither the District nor the K.'s agreed with this recommendation.At the beginning of Brendan's eighth grade school year, Mrs. K. filed a complaint with the Pennsylvania Department of Education to address the District's alleged failure to implement the § 504 plan. A new § 504 meeting was held, and a plan was devised on August 27, 2003. (Def. Ex. 2 Att. 2.) No new evaluations were performed at this time. The plan recognized, based upon diagnoses by Brendan's psychiatrist, that Brendan has ADHD, ODD and depression, which causes oppositional behavior affecting his learning. At the time, Brendan was prescribed Concerta, Wellbutrin and Risperdol. The resulting plan essentially repeated the prior accommodations the District granted to Brendan. Mrs. K. participated in the meeting and approved the plan. (Id. at 4.)
The revised plan called for Brendan to have access to extra pencils and papers if he destroyed or lost his supplies, but eliminated the monthly relaxation counseling sessions due to Brendan's non-receptivity. (Def. Ex. 2 Att. 2.)
During the first half of his eighth grade year, Brendan had no significant problems. However, just as in seventh grade, his behavior deteriorated as the school year progressed. He began experiencing disciplinary problems in November, and in March, he was suspended from his school bus for throwing a tape ball toward the driver. (Def. Ex. 12.) The school psychologist opined that the act was premeditated since Brendan was capable of controlling his behavior during the earlier quarters of each school year. She nonetheless conceded that Brendan was more susceptible than others to peer influence due to his ADHD and that his behavior began deteriorating earlier in the school year than in prior years. In May, he was suspended from school for disrupting the in-school suspension room.
Prior to the suspension from school, Mrs. K. participated in a "manifestation determination" for Brendan. (Pl. Ex. 14.) A manifestation determination prior to the implementation of school disciplinary actions is only required for students who have Individual Education Plans ("IEP") under IDEA. Although Brendan was found ineligible for special education services and thus had no IEP, the school provided a manifestation determination prior to the suspension. At the time, the District suggested that Brendan be re-evaluated, but Mrs. K. did not consent. (Id.) The District suggested that Brendan begin attending an alternative school because school officials told Mrs. K. that they could no longer accommodate Brendan's behaviors, but Mrs. K. instead requested, and the District agreed, that Brendan would be home instructed for the remainder of the eighth grade year. Brendan was promoted to ninth grade at the end of the school year.
Mrs. K. wrote on the permission form "I am not comfortable signing this today without my spouse."
According to Mrs. K., when she arrived at the school to pick up Brendan following the incident leading to Brendan's suspension and placement on home instruction, the Principal would not give her information as to why Brendan was being suspended, other than to give her a letter stating that Brendan was suspended for disrupting the in-school suspension room and to ask her to attend the manifestation determination hearing. She testified that she did not receive a detailed explanation of the incident. She asserts she agreed to home schooling because the District was suggesting placement in an alternative school. The manifestation determination form states that the hearing concluded that Brendan's disability did not impair his ability to understand the impact and consequences of his behavior because he had demonstrated an adequate degree of self-control and understanding of the consequences of his behavior in the past. (Id.) The hearing also concluded that Brendan's disability did not impair his ability to control his behavior. Accordingly, the hearing concluded that the incident was not a manifestation of Brendan's disability and normal disciplinary measures could apply. Mrs. K. disagreed with these conclusions. (Id.)
The K.'s requested and received a due process hearing following the final suspension, at which they asserted a denial of an appropriate education for Brendan for the seventh and eighth grades, the failure to appropriately evaluate Brendan for eligibility for special education services, and a violation of his right to a manifestation determination under IDEA. They also alleged disability discrimination under § 504 by reason of the imposition of the suspension for manifestations of his disability without the provision of reasonable accommodations. A hearing was convened before Hearing Officer Vicki McGinley, Ph.D. beginning on June 21, 2004, and occurring in four sessions through September 14, 2004. McGinley issued a decision on October 11, 2004, finding that Brendan failed to qualify as an "eligible student" under IDEA. (Pl. Ex. 1.) She found that, except for the psychiatrist evaluation performed in June 2003, which recommended "school-based partial hospitalization" and whose conclusions were disputed by both the District and the K.'s, no other documentary evidence or testimony presented to her demonstrated that Brendan was eligible for special education services. (Id. at 11.) She determined that, in statutory terms, a need for special education must arise from an adverse effect on educational performance. She found no evidence that Brendan suffered from limited alertness, irrespective of his ADHD. (Id. at 11-12.) She found that the accommodations offered Brendan adequately addressed his attention and organizational problems. (Id. at 12.)
She recognized that a serious emotional disturbance could also be a basis for eligibility. (Id.) However, she found that the category does not include children who are merely socially maladjusted, unless they also have a demonstrated emotional disturbance. (Id. at 13.) She found that Brendan did not meet the criteria for having a serious emotional disturbance since testing showed that he was an average student, his ability to learn was not impaired by his emotional problems, he was able to build and maintain relationships with friends, and there was no evidence that he developed physical symptoms or fears arising from his emotional problems. While, she noted, there was evidence of depression, she found this was insufficient to establish a serious emotional disturbance, given that the District had never noted any symptoms of depression in the school setting and the lack of evidence of the other criteria. (Id. at 13.) Accordingly, she concluded that Brendan was not eligible under IDEA for special education services.
Although the Hearing Officer cited as a factor to be determined "whether a child has inappropriate types of behavior or feeling [sic] under normal circumstances," (Pl. Ex. 1 at 12), she did not discuss this factor in her decision.
The Hearing Officer also found no procedural violations in the District's creating and implementing Brendan's § 504 plans for the seventh and eighth grades. (Id.) She found the District responded properly to Brendan's increasingly severe behavioral problems by revising the plan to include strong behavioral components. She found that Brendan's behaviors were not frequent, but very problematic when they occurred, that the plan worked for the first three quarters of school year, and that the District's actions in response to Brendan's end-of-year behaviors — placing him in more restrictive educational placements — did not mean a change in curriculum. (Id. at 14-15.) Accordingly, she concluded that Brendan's placement on home instruction was not a denial of a free appropriate public education ("FAPE").
Although the Hearing Officer found that the K.'s "seemed to dissent from the [§ 504] team['s findings] at the end of both years," the record demonstrates — and the parties do not dispute — that Mrs. K. consented to the § 504 plans.
The K.'s appealed the Hearing Officer's determination to the Special Education Due Process Appeals Review Panel, which issued a decision on November 16, 2004, affirming the Hearing Officer's conclusion that Brendan was not entitled to special education services, but disagreeing in part with her reasoning. (Pl. Ex. 2) The Panel determined that the District did not deny Brendan a FAPE for the seventh grade for two reasons. First, the applicable statute of limitations eliminated the seventh grade from consideration. (Id. at 7-8.) Second, the Panel concluded that the District did not have reason to suspect that Brendan was eligible under IDEA for special education services for that year. (Id. at 8.) The evaluation conducted at the beginning of the school year, to which the K.'s agreed, demonstrated that Brendan was ineligible. While the psychiatrist report in June, 2003 may have given the District reason to conduct another § 504/IDEA evaluation, that report was rejected by both the parents and the District, with the K's opting for private psychiatric treatment and a "beefed-up" § 504 plan. (Id. at 8.)
The K.'s appealed only the determination that Brendan was not entitled to special education services under IDEA. They did not appeal the § 504 plan.
The Panel also concluded that the District did not deny Brendan a FAPE for the eighth grade. (Id. at 8.) It found that his educational performance under the beefed-up plan for the first semester confirmed the District's determination, with the K.'s concurrence, that Brendan did not need special education services. The Panel found that, during the second semester when it became apparent that this determination warranted reconsideration due to Brendan's behaviors, the District had reason to initiate a new § 504/IDEA evaluation. (Id.) However, that "triggering conclusion," the Panel concluded, did not establish that Brendan was entitled to compensatory education relief under IDEA for several reasons. First, any reasonable period for the District to have rectified the problem would have extended beyond the school year. Second, the evaluation "defensibly determined" that Brendan did not meet the applicable eligibility standards. Third, according to the Panel, the K.'s had shown a consistent pattern of acceding to Brendan's non-receptivity for special services. Finally, the parties had at the time of the Panel's consideration, already initiated a new evaluation process. (Id. at 8-9.)
As part of that process, Brendan was evaluated by Elna Yadin, Ph.D. on January 14, 2005. Dr. Yadin has opined that Brendan has ADHD, ODD and is at risk for Conduct Disorder. She concludes that Brendan is eligible for special education services under the classification of "other health impaired" and recommended that an IEP be developed.
In making its determinations, the Panel made several additional points. It disagreed with the District's witnesses that Brendan's academic ability and passing grades necessarily negated his eligibility under § 504 and IDEA. It also took issue with the manner in which eligibility in terms of emotional disturbance and "other health impaired" were determined by the District, finding the District neglected the undisputed diagnosis of ODD and its behavioral correlates. It directed the District IEP team to consider, as part of its then on-going evaluation, a less restrictive placement than partial hospitalization, such as an emotional support resource room, related services such as individual and family counseling, and a behavior intervention plan. (Id. at 9-10.)
The IDEA's definition of "disability" includes children with "other health impairments." 20 U.S.C. § 1401(3)(A). According to the regulations, OHI means:
having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that —
(I) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.34 C.F.R. § 300.7(c)(9).
IDEA Review Standard
When reviewing the factual findings of a Hearing Examiner in IDEA cases, we are to give due weight to the underlying state administrative proceedings. S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d 260, 269 (3d Cir. 2003). Although we must consider administrative fact findings, we are not required to accept such findings. See D.R. v. East Brunswick Bd. Educ., 109 F.3d 896, 898 (3d Cir. 1997) ("The Third Circuit has interpreted the Supreme Court's instruction in [Board of Education v. Rowley, 458 U.S. 176, 200 (1982)] to require that a court consider — although not necessarily to accept — the administrative fact findings."); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995) ("[A]lthough the district courts must consider the administrative findings of fact, they are free to accept or reject them. . . . But if the district court chooses to depart from the agency's ruling, it should provide some explanation for its departure.").
The "due weight" requirement has been described as a "modified de novo review." S.H., 336 F.3d at 270 (citing Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)). Under modified de novo review, factual findings from the administrative proceedings are to be considered prima facie correct. Lauren W. ex rel. Jean W. v. Deflaminis, ___ F.3d ___, 2007 WL 851320 (3d Cir. March 22, 2007); MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 531 (4th Cir. 2002). "[I]f a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however, to substitute its own notions of sound educational policy for those of local school authorities." Id. (citations omitted). In discussing Pennsylvania's two-tier system of administrative review in IDEA cases, the United States Court of Appeals for the Third Circuit has stated that the appeals panel "should defer to the hearing officer's findings based on credibility judgments unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion. A federal district court reviewing the administrative fact finder in the first instance is similarly required to defer to the ALJs factual findings unless it can point to contrary nontestimonial extrinsic evidence on the record." S.H. at 270 (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995)).
In our discussion of the K.'s claim under 42 U.S.C. § 1983, we employ the normal summary judgment standard. We may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law.Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Technologies, Inc., 78 F. Supp. 2d 402, 407 (E.D. Pa. 2000). Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable of being admissible at trial. Callahan v. A.E.V., Inc., 182 F.3d 237, 252 n. 11 (3d Cir. 1999) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1234 n. 9 (3d Cir. 1993)). The Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
Discussion
The IDEA was designed to provide free appropriate educational services for "child[ren] with a disability," meaning children:
(I) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, need special education and related services.20 U.S.C. § 1401(3)(A); see also 20 U.S.C. § 1400. To receive federal funding under IDEA, a state must provide all children with disabilities a FAPE. 20 U.S.C. §§ 1400(c), 1412(a)(1). The FAPE must be "calculated to confer some educational benefit on a disabled child." MM ex rel. DM v. Sch. Dist. of Greenville Co., 303 F.3d 523, 526 (4th Cir. 2002); see Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 189 (1982) ("[W]hatever Congress meant by an `appropriate' education, it is clear that it did not mean a potential-maximizing education.");Hartmann v. Loudoun County Bd. of Ed., 118 F.3d 996, 1001 (4th Cir. 1997) ("States must . . . confer some educational benefit upon the handicapped child, but the Act does not require the furnishing of every special service necessary to maximize each handicapped child's potential.").
To assure that students with disabilities receive a FAPE, the IDEA requires that school districts provide an individualized education program ("IEP") for each disabled child. 20 U.S.C. § 1414(d). The IEP is to be formulated by an IEP Team consisting of the child's parents, one of the student's regular teachers, a special education teacher, a representative of the school board, an individual who can interpret evaluation results and, whenever appropriate, the disabled child. Id. § 1414(d)(1)(B). An IEP must detail the student's current educational status, set forth annual goals for the student's education and state the special educational services and other aids that will be provided to the child as well as the extent to which the child will be mainstreamed. Id. § 1414(d)(1)(A).
The IDEA also establishes a framework for review of the IEP, which is "designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to those decisions." MM, 303 F.3d at 527 (internal quotation marks and citation omitted); see also 20 U.S.C. § 1415. If the parents are not satisfied with the IEP, they may "present complaints with respect to any matter related to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such a child." Id. § 1415(b)(6). After such a complaint has been received, the parents also are entitled to request a due process hearing conducted by the state or local educational agency. Id. § 1415(f). Any party aggrieved by the findings and decision may then bring suit in state or federal court. See id.
In their Complaint, the K.'s allege that the Appeal Panel erred when it (1) determined that the District did not deny a FAPE to Brendan for the seventh and eighth grades; (2) applied an incorrect statute of limitations for the seventh grade school year; and (3) determined that the District did not have reasons to suspect that Brendan was eligible under IDEA for either year. The K.'s allege that the District failed to provide a FAPE by failing to properly evaluate and identify Brendan's needs, wrongfully excluded him from school, and implemented inadequate § 504 plans. Having independently reviewed the administrative record, we find that the Panel erred in determining that the claim involving the seventh grade school year was untimely. However we find no error in the Panel's determinations that the District properly evaluated Brendan under IDEA for both the seventh and eighth grade years. We also conclude that the § 504 Plans were adequate to accommodate Brendan's emotional disabilities. Accordingly, the Panels's timeliness error was harmless, and we grant the District's motion for summary judgment and deny the K.'s motion for summary judgment.
Timeliness of the Seventh Grade Claim
In Bemardsville Board of Education v. J.H., 42 F.3d 149, 157 (3d Cir. 1994), the Third Circuit held that a parents' initiation of the state IDEA administrative process is governed by an equitable standard, which requires that the parents invoke their administrative remedies within a reasonable time after the events complained of occur. The equitable limitations period described in Bernardsville has been held by the Pennsylvania state courts to require initiation of the request for a due process hearing "within one year, or two years at the outside (if the mitigating circumstances show that the equities in the case warrant such a delay), of the date upon which a parent accepts a proposed IEP."Montour School Dist. v. S.T., 805 A.2d 29, 40 (Pa. Commonwealth 2002). The Appeals Panel relied on the holding of Montour to determine that the seventh grade claim was untimely, since it was brought more than one year after the end of the seventh grade school year, and the K.'s demonstrated no mitigating circumstances. We find that this determination is legally incorrect.
Following Bemardsville, the Third Circuit has rejected the application of an equitable period of limitation to claims for compensatory education. In M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996), the Third Circuit held that a school district that "knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation." Id. at 397. The Third Circuit reasoned that "a child's entitlement to special education should not depend on the vigilance of the parents." Id. Further, the Third Circuit noted in its analysis that it had previously upheld an award of compensatory education of two and one-half years in the case ofLester H. v. Gilhool, 916 F.2d 865, 873 (3d Cir. 1990). Id. at 396. See also Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238 (3d Cir. 1999) (rejecting the school district's argument that all compensatory education claims more than two years old were barred).
The Third Circuit has distinguished between parents' procedural rights under IDEA and the child's right to compensatory education. See Collinsgru v. Palmyra Bd. of Ed., 161 F.3d 225, 227 (3d Cir. 1998) (holding that Congress' decision to endow parents with procedural rights under the IDEA should not be read, under the language of the IDEA, to imply that parents also possess the same underlying substantive rights that their children possess). While the right to reimbursement belongs to the parents, the right to compensatory education belongs to the disabled child and thus "it is appropriate that an equitable period of limitations apply to enforcement of the parents' rights, but not to enforcement of the child's rights." Penn Trafford Sch. Dist. v. C.F., 2006 WL 840334, *5-6 (W.D. Pa. 2006). Accord Amanda A. v. Coatesville Area Sch. Dist., 2005 WL 426090 (E.D. Pa. 2005) (noting that imposing an equitable limitation on compensatory education would effectively punish the disabled student for her parent's lack of vigilance and holding that "[t]here is no limitations period, whether equitable or legal, on a disabled child's claim for compensatory education pursuant to the IDEA."); Jonathan H. v. Elizabeth Forward Sch. Dist., No. 03-1996 (W.D. Pa. March 4, 2004) (applying Ridgewood over Bernardsville and refusing to apply time limit on requests for compensatory education); Jonathan T. v. Lackawanna Trail Sch. Dist., 2004 WL 384906 (M.D. Pa. 2004) (rejecting school district's argument that a two-year limitation period applied to compensatory education claim of disabled student under the IDEA); Kristi H. v. Tri-Valley Sch. Dist., 107 F. Supp. 2d 628 (M.D. Pa. 2000) (rejecting Bernardsville and applying the reasoning of Ridgewood).
A federal court is not bound to follow a state court's interpretation of federal law. United States v. Bedford, 519 F.2d 650, 653 n. 3 (3d Cir. 1975). Accordingly, we reject the Panel's holding that Montour controls whether an equitable limitation on compensatory education exists under the IDEA. Rather, in accordance with the decisions we have cited, we hold that there is no equitable limitation on compensatory education. Because the case sub judice implicates Brendan's right to compensatory education, and not just the parents' right to reimbursement, see Compl. ¶ 68(4), no equitable limitation applies.
The District's Evaluations and the IDEA's definition of "Serious Emotional Disturbance"
We conclude, however, that this error was harmless as the District did not improperly evaluate Brendan and did not deny him a FAPE for either the seventh or eighth grade years. We agree with the District that this is not a case where a school ignored a student's needs and failed to evaluate him for special education services. To the contrary, the District evaluated Brendan twice in the years prior to his seventh grade year. He was also evaluated by a psychiatrist during his seventh grade year when he began to exhibit behavioral difficulties. The District asked to evaluate him again in the eighth grade year when he exhibited behavioral difficulties, but the K.'s refused permission.
Each time Brendan was evaluated, his abilities were found to be sufficient to maintain him in a mainstream classroom setting. His IQ, as well as his reading, math, science and social studies skills were found to be at or near his grade and age levels. The K.'s, even though they approved the evaluations' conclusions, argue that the District's evaluations suffered from two fundamental shortcomings. First, they contend the District "overlooked" the possibility that Brendan's diagnosed ADHD could itself have been a basis for eligibility, and instead focused on the fact that the evaluation determined that he did not have learning disability. They also argue that the District "simply assumed that Brendan did not qualify for services under the label of Emotional Disturbance because he was presumed to have a `social maladjustment' and further failed to consider Brendan's long-standing history of behavior problems . . . focusing solely on the year in which each evaluation was performed." We find no support for either argument in the administrative record.
The District did not overlook Brendan's ADHD. The August 2002 evaluation noted the diagnosis, as well as the recurrence of Brendan's difficulty with peer interaction and behavior, particularly in unstructured settings, and the drop in his grades at the end of the sixth grade due to his difficulty with remembering and completing assignments. However, as part of the same evaluation, Mrs. K. reported that, after Brendan began taking medication for his ADHD, he was mastering his subjects with ease. He was found ineligible for special education services because the test results did not reflect a discrepancy between IQ and achievement. He was, however, found to be eligible for § 504 accommodations for the seventh grade because his ADHD qualified as a handicapping condition that substantially limited Brendan's ability to function within a regular educational environment. Rather than ignore Brendan's diagnosis, the District accommodated it under § 504.
The K.'s alternative assertions — that the District improperly rejected a finding that Brendan was eligible under IDEA's rubric of Serious Emotional Disturbance because he was presumed to merely suffer from a social maladjustment, and that it failed to appreciate the long-standing nature of his problem — are also unsupported. A student becomes eligible for special education services if he suffers from a "Serious Emotional Disturbance":
(I) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance —
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have a serious emotional disturbance.34 C.F.R. § 300.8(c)(4). The regulatory definition delineates no fewer than four specific conditions a student must satisfy in order to qualify for special education services for being seriously emotionally disturbed: the student must demonstrate that he has (1) exhibited one of the five listed symptoms, (2) "over a long period of time," and (3) "to a marked degree," and (4) that this condition adversely affects his educational performance. Finally, the definition pointedly excludes students whose behavior is attributable to social maladjustment, unless they also suffer an independent serious emotional disturbance.
Courts and special education authorities have routinely declined to equate conduct disorders or social maladjustment with serious emotional disturbance. See, e.g., Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 664 (4th Cir. 1998); A.E. v. Independent Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991); Doe v. Board of Educ., 753 F. Supp. 65, 71 n. 8 (D. Conn. 1990). The fact "[t]hat a child is socially maladjusted is not by itself conclusive evidence that he or she is seriously emotionally disturbed." A.E., 936 F.2d at 476.
Indeed, the regulatory framework under IDEA pointedly carves out "socially maladjusted" behavior from the definition of serious emotional disturbance. This exclusion makes perfect sense when one considers the population targeted by the statute. Teenagers, for instance, can be a wild and unruly bunch. Adolescence is, almost by definition, a time of social maladjustment for many people. Thus a "bad conduct" definition of serious emotional disturbance might include almost as many people in special education as it excluded. Any definition that equated simple bad behavior with serious emotional disturbance would exponentially enlarge the burden IDEA places on state and local education authorities. Among other things, such a definition would require the schools to dispense criminal justice rather than special education.Springer, 134 F.3d at 664.
Brendan at times clearly exhibited inappropriate behavior under normal circumstances. There is also evidence that he suffered from depression. There is no indication, however, that he suffered from an inability to learn that could not be explained by intellectual, sensory, or health factors, that he was unable to build or maintain satisfactory interpersonal relationships with peers and teachers, or that he tended to develop physical symptoms or fears associated with personal or school problems. His inappropriate behaviors and depression, while at times adversely affecting his educational performance, were not consistent and did not manifest themselves over extended periods of time. They arose only in the latter part of each school year under consideration. Under the regulations, even if we assume that Brendan was more than just socially maladjusted, his behavior did not rise to the level of a serious emotional disturbance.
We also reject the contention that the District failed to consider Brendan's long-standing history of behavior problems. The seventh grade evaluation included not only the K.'s checklist of Brendan's behaviors, but also input from his sixth grade teachers, leading to the determination that Brendan suffered from ADHD and was at high-risk in the areas of hyperactivity and anger control. This input, however, also led to a finding that he did not exhibit these behaviors across all settings. (Def. Ex. 10 at 6.) The District's failure to conduct a new evaluation at the start of the eighth grade year could not have been an IDEA violation since Brendan's educational performance during the first semester under the beefed-up § 504 plan only confirmed the District's determination, with the K.'s concurrence, that Brendan did not need special education services. Accordingly, we grant the District grant summary judgment on the IDEA claims for the seventh and eighth grade years.
The Section 504 Claim
The substantive requirements of the Rehabilitation Act in the education context are equivalent to the requirements set forth in the IDEA. See Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999) (citing W.B. v. Matula, 67 F.3d 484, 492-93 (3d Cir. 1995)) (explaining the Third Circuit's holding that "that there are few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition"). The regulations implementing the Rehabilitation Act track the language of IDEA and provide that districts subject to the IDEA's requirements "shall provide a free appropriate public education to each qualified handicapped person who is in the [district]'s jurisdiction." 34 C.F.R. § 104.33(a); see also W.B., 67 F.3d at 493 (discussing Rehabilitation Act implementing regulations).
IDEA and the Rehabilitation Act, however, differ in the scope of their coverage. "Although the two laws overlap significantly, it is well recognized that Section 504 covers more students than does IDEA. Students with disabilities who are eligible for services under IDEA are also covered by the prohibitions against discrimination on the basis of disability in Section 504 and its implementing regulation at 34 CFR Part 104, but students covered only by Section 504 are not entitled to the rights and protections enumerated by IDEA and its implementing regulations at 34 CFR Part 300." Grant v. St. James Parish Sch. Bd., No. Civ. A. 99-3757, 2000 WL 1693632 at *4 (E.D. La. Nov. 8, 2000) (citation omitted); see also Muller v. Comm. on Special Educ. of E. Islip Union Free Sch. Dist., 145 F.3d 95, 100 n. 2 (2d Cir. 1998) ("The purposes of the Rehabilitation Act are similar to that of the IDEA, but the Rehabilitation Act is broader in scope. . . . The definition of `individual with a disability' under § 504 of the Rehabilitation Act is broader in certain respects than the definition of a `child with [a] disabilit[y]' under the IDEA.").
To prevail on a Rehabilitation Act claim, the K.'s must prove that (1) Brendan is "disabled" as defined by IDEA; (2) he is "otherwise qualified" to participate in school activities; (3) the District is a "recipient" of federal financial assistance; and (4) Brendan was excluded from participation in, or denied the benefits of, education in the District. Ridgewood, 172 F.3d at 253. Plaintiffs need not prove that the District's allegedly discriminatory acts were intentional. Id. "While a federal funds recipient must offer `reasonable' accommodations to individuals with disabilities to ensure meaningful access to its federally funded program, § 504 does not mandate `substantial' changes to its program." J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000) (quoting Alexander v. Choate, 469 U.S. 287, 300 n. 20 (1985)). The Second Circuit has explained that courts evaluating whether a school district has provided an appropriate education "should be `mindful of the need to strike a balance between the rights of the student and his parents and the legitimate financial and administrative concerns of the School District.'"Id. at 70-71 (citing Rothschild v. Grottenthaler, 907 F.2d 286, 293 (2d Cir. 1990)). As other courts have held in the Rehabilitation Act context, "an appropriate education is one that is `reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.'" Molly L. v. Lower Merion Sch. Dist., 194 F. Supp. 2d 422, 428 (E.D. Pa. 2002) (quotingBenik v. Lisle Cmty. Unit Sch. Dist. # 202, No. 95-C-6392, 1999 WL 342501 at *4 (N.D. Ill. May 17, 1999) (quoting Rowley, 458 U.S. at 204)).
Under the Rehabilitation Act, an "appropriate" education is one that reasonably accommodates the needs of a handicapped child. "Although the Third Circuit has not specifically addressed what constitutes a reasonable accommodation in relation to the Rehabilitation Act's requirement of an `appropriate' education, other courts have concluded that a reasonable accommodation analysis must comport with the Third Circuit's explanation that an `appropriate' education must `provide significant learning and confer meaningful benefit, . . . but that it need not maximize the potential of a disabled student.'" Molly L. at 428 (quotingRidgewood, 172 F.3d at 247) (internal citations omitted). The District bears the burden of proving that it provided Brendan with an appropriate education in line with these principles. See Carlisle, 62 F.3d at 533 (citing Oberti v. Bd. of Educ., 995 F.2d 1204, 1219 (3d Cir. 1993); Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1035 (3d Cir. 1993)).
We find that the District reasonably accommodated Brendan's needs. The District provided numerous accommodations to Brendan's behavioral disability, including time out of class when he felt in danger of losing emotional control, specific instructions to teachers on how to attempt to discipline and redirect him and deal with his ADHD behaviors (including instruction that he was not to be punished because of them), preferential seating, counseling, positive reinforcement, parental notification, and extra time for tests, in-class assignments and projects if necessary. At the end of seventh grade, when Brendan's behaviors grew to the point where they compromised safety, the District, with the K.'s input and approval, placed him in the least restrictive alternative placement, home instruction, rather than follow the recommendation that Brendan be placed in a school-based partial hospitalization program. The District then implemented the "beefed-up" plan when classes reconvened the following September. Under the eighth grade plan, Brendan's educational performance was satisfactory for the first semester. While the Appeals Panel concluded that, during the second semester, the District had reason to initiate a new § 504/IDEA evaluation, it also concluded that the K.'s had shown a consistent pattern of acceding to Brendan's non-receptivity for the special services the District had previously offered him. Accordingly, we conclude that the § 504 plans were appropriate and that the District did not deny Brendan a FAPE for either the seventh or eighth grades. Thus, we grant the District summary judgment on the § 504 claims for the seventh and eighth grades.
The manifestation determination
The K.'s next argue that the District violated § 504 and IDEA by violating Brendan's right to a manifestation determination and punishing Brendan for behavior that was a manifestation of his disability. One protection afforded by the IDEA is that a student with a disability may not be punished without receiving the benefit of a "manifestation determination." 20 U.S.C. § 1415(k)(1)(E). At the manifestation determination, the parent and relevant educators review the student's file and behavior to evaluate whether the conduct at issue "was caused by, or had a direct and substantial relationship to, the child's disability" or "was the direct result of the local educational agency's failure to implement" an individual education plan for the student. 20 U.S.C. § 1415(k)(1)(E)(I). If the student's behavior is deemed to have been a manifestation of his disability, the student will be restored to his regular educational program. 20 U.S.C. § 1415(k)(1)(F)(iii).
Having determined that Brendan did not suffer from a serious emotional disturbance, he cannot be considered a child with a disability under 20 U.S.C. § 1401(3)(A), nor can the District have failed to implement an IEP for him. Thus, his suspensions from school at the end of the seventh and eighth grades cannot be considered a "decision to change the placement of a child with a disability" under 20 U.S.C. § 1415(k)(1)(E), and at no time was he entitled to the procedural protection afforded by the statute to determine "whether his conduct was caused by, or had a direct and substantial relationship to," a disability under Subsection 1415(k)(1)(E)(i)(I). Nonetheless, the District actually did provide Brendan with a manifestation determination before the final eighth grade suspension. Accordingly, we find no merit to the K.'s argument that the District violated his right to a manifestation determination or punished Brendan as a result of behavior that was a manifestation of a disability. Thus, we grant the District summary judgment on the manifestation determination claim.
The Section 1983 Claim
The Third Circuit, unlike some other courts of appeals, has held that a claim for a violation of the IDEA may be brought under § 1983. See W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995); but see Sellers v. School Board, 141 F.3d 524, 529 (4th Cir. 1998) (holding that a plaintiff may not sue under 42 U.S.C. § 1983 for IDEA violations because "IDEA provides a comprehensive remedial scheme for violations of its own requirements"); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991); Miener v. State of Missouri, 800 F.2d 749, 753-755 (8th Cir. 1986). Section 1983 does not create substantive rights; it merely provides the vehicle for those rights to be vindicated via a suit for money damages. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Having found no substantive violation of the K.'s rights under IDEA or § 504, we grant the District summary judgment on the § 1983 claim.
Conclusion
For the reasons stated, summary judgment is entered in favor of the District and against the K.'s on all claims. An appropriate order follows.
ORDER
AND NOW, this 16th day of April, 2007, upon consideration of the motion for summary judgment of Brendan K., a minor, by and through his parents, Lisa and Michael K., and Lisa K. and Michael K., adults, individually, and on their own behalf (Docket Entry # 32), and Defendant's response thereto, IT IS HEREBY ORDERED that said motion is DENIED. IT IS FURTHER ORDERED that, upon consideration of the motion for summary judgment of Defendant Easton Area School District (Docket Entry # 30), and Plaintiffs' response thereto, that said motion is GRANTED. JUDGMENT IS ENTERED in favor of Defendant Easton Area School District, and against Plaintiffs Brendan K., a minor, by and through his parents, Lisa and Michael K., and Lisa K. and Michael K., adults, individually, and on their own behalf.The Clerk of Courts is ORDERED to mark this case CLOSED.