C. v. OXFORD AREA SCHOOL DISTRICT

Filing 22

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 8/14/17. 8/15/17 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SEAN C., through his Parent HELEN C.,
Plaintiff,
v.
OXFORD AREA SCHOOL DISTRICT,
Defendant.

:
:
:
:
:
:
:

CIVIL ACTION

No. 16-5286

MEMORANDUM
PRATTER, J.

AUGUST 14, 2017

Plaintiffs—Helen C., along with her son, Sean C.—bring this action against the
Defendant Oxford Area School District (the “School District”) alleging that the School District
failed to provide Sean with a Free Appropriate Public Education (“FAPE”), in violation of the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”). Plaintiffs
maintain that the School District failed to fulfill its educational obligation to address Sean’s
needs arising from academic, social, emotional, and executive functioning difficulties.
Following a special education due process hearing, a Hearing Officer concluded that the
District did not deny a FAPE to Sean and denied Plaintiffs’ request for compensatory education
for the school years 2012–13 through 2014–15. Plaintiffs seek review of that decision pursuant
to the IDEA. Plaintiffs and the School District have filed cross-motions for judgment on the
administrative record. For the following reasons, the Court will grant the School District’s
motion, deny Plaintiffs’ motion, and affirm the Hearing Officer’s decision.

I.

BACKGROUND 1
A.

Factual Background 2
1.

Sean’s Initial Individualized Education Programs

The School District initially identified Sean with specific learning disabilities in reading
and written language at the beginning of Sean’s 3rd grade year in August 2006, and found him
eligible for services under the IDEA. (HOD ¶ 1; P-1 at 20). 3 Sean’s earliest Individualized
Education Program (“IEP”) was created by the School District in 2006. (S-2). Sean was
reevaluated in June 2009, at the end of his 5th grade year. (HOD ¶ 1). Neither the conclusions
in the August 2006 Evaluation Report nor the June 2009 Reevaluation Report 4 indicated that
Sean had difficulty with attention, focus, or attendance. (HOD ¶ 2).
Sean was reevaluated at the end of Sean’s 8th grade year, in May 2012. The reevaluation
report indicated he had a 107 full scale IQ and a specific learning disability in reading
comprehension, written language, and mathematics problem solving. (S-20 at 10–13). The May

1

The Administrative Record submitted to the Court contains documents with different labeling schemes.
The Court will reference documents in the following manner: “HOD” refers to the Hearing Officer’s Decision; “P-”
refers to the Parent’s Exhibits in the Due Process Hearing; “S-” refers to the School District’s Exhibits in the Due
Process Hearing; and “N.T.” refers to the Notes of Testimony from the underlying Due Process Hearing.
2

When a district court reviews an agency decision under the IDEA, “[f]actual findings from the
administrative proceedings are to be considered prima facie correct.” S.H. v. State–Operated Sch. Dist. of Newark,
336 F.3d 260, 270 (3d Cir.2003). The court must defer to the Hearing Officer’s credibility judgments and factual
findings unless it can point to contrary nontestimonial, extrinsic evidence in the record that justifies a contrary
conclusion. Id. Accordingly, the Court’s account of the facts here is largely based upon the HOD. To the extent
that the Court supplements this account with additional facts, it cites the document upon which it relies.
3

As a 3rd grade student, Sean’s parent and/or teacher rating scales indicated clinically significant or at-risk
scores in, among other things, inattention, perfectionism, oppositional behavior, hyperactivity, and social problems.
(P-1 at 4–5). The August 2006 evaluation report did not include supports recommendations explicitly focused on
emotional support; they were largely focused on instructions that would facilitate Sean remaining on-task. (P-1 at
10). Sean has never been diagnosed with Attention-Deficit/Hyperactivity Disorder. (N.T. 201:5–6).
4

On June 8, 2009, the School District completed a Reevaluation Report and found Sean was still IDEA
eligible with a Specific Learning Disability in reading comprehension and written expression. (P-2 at 5). During
Sean’s middle school years, Sean had some attendance issues. He missed 12 or 13 core academic classes. (P-27 at
11). In 8th grade, Sean missed 12 to 18 days from each of his core academic classes. (P-27 at 12). In 7th and 8th
grade, Sean received final grades ranging from A’s to C’s. (P-27 at 11–12).

2

2012 reevaluation report also showed that Sean’s teachers report that he occasionally needed
prompting to remain on task, was inattentive, and was sometimes tired and disorganized. HOD ¶
4.
Prior to Sean’s transition to high school, an IEP team meeting 5 was held on May 29, 2012
to develop a plan for Sean’s 9th grade year. (S-21 at 8). In line with his identified learning
disability, the IEP listed four academic goals: a writing goal, a math application goal, a math
computational goal, and a reading comprehension goal. (HOD ¶ 5; S-21 at 26-29). The IEP did
not include annual goals related to executive functioning, learning-related behaviors, social
skills, or anxiety-related coping skills; those were addressed through Specially Designed
Instructions (“SDIs”). 6 (N.T. 260:6-23).
The IEP team created six SDIs, for Sean’s 9th grade year. Two SDIs implemented
through Sean’s IEP included, for example, “[v]erbal prompts to keep Sean on task because he is
often off task during teacher instruction,” and “clear concise directions and additional repetition
or rewording of written directions and chunk directions.” (S-21 at 31). The only concern Sean’s
mother raised at the meeting regarded Sean “being successful at the high school.” (S-21 at 17).
The IEP does not specify whether Sean’s mother was referring to academic, behavioral, or social
success. Before the May 29, 2012 IEP was implemented, Sean’s mother approved of the

5

At different times throughout Sean’s education, team meeting members included Sean, Sean’s mother
Helen, a special education teacher, a regular education teacher, a school psychologist/guidance counselor, or a local
agency representative. (See, e.g., S-21 at 10; S-27 at 11; S-32 at 9).
6

See Pa. Dept. of Edu., Individualized Education Program (IEP) - (Annotated) - School Age (May 2017),
http://pattan.net-website.s3.amazonaws.com/images/2017/05/23/Ann_IEP_Revised052417.pdf. (“Specially designed
instruction means adapting, as appropriate, the content, methodology, or delivery of instruction to address the unique
needs of the student that result from the student’s disability and to ensure access of the student to the general
education curriculum so that he or she can meet the educational standards.”).

3

provision of special education and related services by signing a Notice of Recommended
Educational Placement (“NOREP”). 7 (S-21 at 38–41).
2.

2012–13 School Year (9th Grade)

The IEP goals set in May 2012 were in place for most of Sean’s 9th grade year. (HOD ¶
5). Some of Sean’s 9th grade teachers reported he was consistently unfocused and easily
distracted. (HOD ¶ 7). Teachers stated that Sean was only “sometimes” organized and prepared
for class, displayed trouble focusing, was easily distracted, rarely followed directions, rarely
completed assignments, rarely participated in class, rarely showed effort, and displayed a lack of
self-discipline. (P-9 at 19). However, some teachers reported a conflicted account of Sean’s
behaviors and stated that Sean was often prepared and organized and had not shown any
evidence of needing more time with assignments. (P-9 at 19).
His attendance and grades during 9th grade were poor. Over the course of his 9th grade
year, Sean was absent 24 times from Homeroom and missed 16 History classes, 23 English
classes, 17 Earth Science classes, 18 Spanish classes, and 20 Algebra I classes, which were yearlong courses. (HOD ¶ 8; P-27 at 13). Sean also missed 9, 12, 12, and 12 classes in each of four
semester-long courses. (HOD ¶ 8; P-27 at 13).
Sean did not receive strong grades. He his cumulative grade point average at the end of
9th grade was 0.9688. (HOD ¶ 9; P-27 at 13). He failed mathematics (Algebra I), 8 as well as

7

See Pa. Dept. of Edu., Notice of Recommended Educational Placement/Prior Written Notice
(NOREP/PWN) (Annotated) – School Age (Oct. 2014), http://pattan.net-website.s3.amazonaws.com/images/
2015/01/27/NOREP_ANN_rev_PTI102814.pdf. (“The purpose of this notice is to summarize for the parents the
recommendations of the Local Education Agency (LEA) for the child’s educational program and other actions taken
by the LEA.”).
8

In 9th grade, Sean was placed in a co-taught Algebra I class, where the general education teacher gave
direct instruction and the special education teacher supported students one-on-one. (N.T. 252:15-20; N.T. 276:624). On December 5, 2012, Sean’s Algebra I teacher emailed Sean’s mother because was argumentative in class and
reported that Sean was engaging in unacceptable behavior, was “easily distracted,” and was missing some
assignments. (S-25 at 1). Throughout spring 2013, Sean’s mother and the teacher emailed about makeup work in an

4

half-year or quarter classes in graphic design, printing tech, and freshman seminar. (HOD ¶ 9; P27 at 13). While his grades were poor, Sean made progress on each of the academic goals
outlined in his IEP. (HOD ¶ 6).
To develop a plan for the next school year, the IEP team met on April 24, 2013. (S-27 at
9). At the meeting, Sean’s mother raised concerns about his reading and writing. (S-27 at 21).
The IEP team addressed academic subjects and modified Sean’s goals for written expression,
mathematics and reading comprehension. (HOD ¶ 11; S-27 at 29-31). The number of SDIs for
the upcoming school year were reduced from six to five. (Compare P-8 at 24 with P-9 at 32). The
SDIs included, for example, “[c]lear and concise verbal directions and additional repetition or
rewording of written directions and chunk directions;” “[p]referential seating near the point of
instruction because Sean is very easily distracted by others;” and “[v]erbal [p]rompts to keep
Sean on task because he is often off task during instruction.” (HOD ¶ 12; S-27 at 32). The team
added academic lab to Sean’s 10th grade schedule, where Sean would receive support from a
special education teacher in a small group classroom. (S-27 at 23; N.T. 368:19–369:5).
3.

2013-14 School Year (10th Grade)

Sean began his 10th grade year at Technical College High School in the carpentry
program, but eventually switched to the computer program. (S-43 at 2-3; N.T. 195:6-24). Sean’s
grades improved significantly, but some teachers reported he was often distracted in class,
needed prompting to complete assignments, could be argumentative, and failed to follow
direction. (HOD ¶ 14; P-11 at 7; N.T. 330:16–331:1). Sean attended academic lab, which did not
have its own curriculum and instead was aimed at assisting students with organization,
completion of work, display of effort, and focus. (N.T. 369:23–370:23). Students are graded on

attempt to keep Sean from failing Algebra I. (See S-25 at 2–10). Although Sean met his IEP math application goal,
he failed Algebra I. (S-22 at 2; S-43 at 1).

5

their behavior in academic lab, and Sean did very well. (N.T. 370:2–12). His academic lab
teacher testified that, with respect to Sean’s behavior and social interactions, she “did not see any
issues . . . during the year that [they] were together.” (N.T. 370:9–13).
Sean’s absences decreased in number in 10th grade, but remained imperfect. (HOD ¶ 15)
Sean missed as many as 22 days from a single class. (P-11 at 8; P-27 at 14). Sean’s academic
performance, however, improved. Sean did not fail any classes in 10th grade and earned final
grades of one A, four Bs, and one C, and finished 10th grade with a cumulative grade point
average of 2.0441. (HOD ¶ 16).
Sean made marginal progress on his IEP goals, but his progress was erratic. (HOD ¶ 13).
Sean was stagnant in reading comprehension initially, but eventually exceeded his goal-level IEP
score in the final marking period. (HOD ¶ 13; P-28 at 5-8). Written expression also declined
initially, but rose in the final marking period. (HOD ¶ 13). Sean exceeded his mathematics
target score (9.0) by attaining an 11.9 during the first marking period, but failed to achieve
similar scores during the final three marking periods (returning a 5.8, 5.8, and 8.0). (HOD ¶ 13;
S-30 at 3).
On April 22, 2014, an IEP meeting was held to prepare for the following year. The team
kept similar goals and SDIs from 10th to 11th grade. The IEP contained one goal each in written
expression, mathematics, and reading comprehension. (HOD ¶ 18). The April 2014 IEP
retained SDI aimed at keeping Sean on task. (HOD ¶ 19).
4.

2014-15 School Year (11th Grade)

After Sean’s 11th grade school year had begun, the School District held another IEP
meeting on October 30, 2014, and additional SDIs were added to Sean’s IEP as a result. The new
SDIs granted access to the testing center for assessments and modified tests and quizzes to

6

reduce choice options, shorten questions, and alter formatting in order to “support legibility and
focus.” (HOD ¶ 20; S-34 at 22). Two additional SDIs, implemented daily across all classes,
instructed teachers to provide “[p]ositive feedback when Sean is on task and/or advocating for
himself” and “[v]erbal and/or non-verbal prompts to support on-task behavior.” (HOD ¶ 20; S34 at 22). Throughout the year, a special education teacher worked with Sean in the academic
lab to complete English assignments. (N.T. 442:12–18), but Sean’s relationship with his 11th
grade English teacher was strained. (HOD ¶ 21).
The record shows that there was a growing concern about Sean’s mental health in late
2014 and early 2015. The record shows that Sean was skipping afternoon classes and reported
experiencing anxiety and depression related to school. (N.T. 450:3-12; N.T. 422:18-25; N.T.
165:4–166:6; P-13). In December 2014, Sean’s treating physician gave Sean’s mother Helen a
letter expressing that stress related to school had adversely affected Sean’s mental health “to the
point where [the physician] had to intervene with medication and a referral to counseling” and
the physician was seriously concerned about Sean’s mental health. (HOD ¶ 22). Helen showed
the letter to the District, but did not provide a copy. (HOD ¶ 23). Sean’s mother shared another
letter with the District in February 2015 from a counselor treating Sean “for feelings associated
with anxiety and depression.” (HOD ¶ 24). On February 27, 2015, Sean’s mother spoke to the
school guidance counselor because Sean’s therapist recommended cyber school through
Brandywine Virtual Academy due to “continuing concerns and anxiety.” (S-50 at 59). Following
Sean’s mother’s request for cyber school, the School District held an IEP meeting on March 3,
2015, where the IEP team created a plan while waiting for Sean’s transition to cyber school.
(HOD ¶ 26; S-36 at 9).

7

Sean’s IEP was revised in March 2015. The March 2015 IEP included information from
Sean’s treating physician and counselor. (HOD ¶ 27). SDI modifications included access to an
emotional support classroom as needed and an explicit schedule change that allowed Sean to
complete English classwork in the emotional support classroom at his request. (HOD ¶ 27).
Sean rarely requested moving to the emotional support room. 9 (N.T. 503:16–505:5).
In April 2015, Sean’s IEP was revised again. (HOD ¶ 28). At the time of the revision,
Sean had excessive absences: 25 in mathematics, 24 in science, 29 in academic support, and 30
in English. (HOD ¶ 31). While the April 2015 IEP noted that Sean had achieved the academic
goals in mathematics and reading comprehension, two additional behavior-related annual goals
for (1) anxiety recognition/social-response and (2) self-advocacy were added. (HOD ¶ 29–30; S38 at 35–38). SDIs relating to coping skills and anxiety management—including one where
Sean would receive daily instruction in coping skills and anxiety management—were also added
to the IEP. (HOD ¶ 32; S-38 at 39).
While Sean’s attendance problems persisted throughout the year, Sean did not fail any
classes in 11th grade, earned final grades of five Bs, one C, and one D (in English), and ended
the year with a cumulative grade point average of 2.1863. (HOD ¶ 33).
At the end of 11th grade, the School District completed a Reevaluation. (S-40). The May
29, 2015 Reevaluation Report revealed Sean was still eligible for special education as a student
with a specific learning disability. (S-40 at 13). Sean’s social, emotional, and behavioral needs
were assessed through student, parent, and teacher completion of the Conners Behavior Rating
Scales, which measures a student’s perception of behaviors and aids in identifying disorders and

9

The IEP explained that “[b]ecause of documented need in coping skills and stress management the [Local
Educaiton Agency] is proposing Sean be scheduled into a direct instruction emotional support class to receive
training in these areas.” (S-38 at 46).

8

problem behaviors. (S-40 at 10-11). While Sean’s self-reported information fell within ranges
indicating a clinical diagnosis, reports from teachers of the extent to which Sean’s emotional
issues affected his schoolwork were mixed and at the time of the Reevaluation and the parent
form had not been returned. Accordingly, there was insufficient information to make a
determination about Sean’s emotional or behavioral needs. (S-40 at 13). Explaining that
additional information was needed, the School District then issued a new Permission to
Reevaluate, seeking consent for a psychiatric evaluation and evaluation through the school
refusal program. (S-41 at 1-6).
5.

2015-16 School Year (12th Grade)

Per the parties FAPE waiver agreement, 10 Sean attended half a day of cyber school for
the 2015-16 school year. At the start of the Due Process hearing, Sean was a high school senior
on track to graduate at the end of the school year. (N.T. 135:10-23; N.T. 223:1-8). During his
12th grade year, Sean performed well at Technical College High School. (N.T. 196:19-20).
B.

Procedural History
The current dispute began on December 22, 2015, when Sean’s mother initiated a

complaint and requested a special education due process hearing under the IDEA and
corresponding state regulations. Seans’s mother alleged the School District consistently failed to
identify and meet his academic, social, emotional, educational, and behavioral needs. (Due
Process Compl. 3). More specifically, Plaintiff alleged Sean’s IEPs contained inadequate
education levels and inappropriate goals that failed to address all of his needs or provide a
sufficient, objective means of monitoring progress. (Due Process Compl. 4). The complaint
10

Before Sean could attend cyber school, the School District required a FAPE waiver agreement. N.T.
(568:18-22). The agreement would allow Sean to attend half-day instruction at Technical College High School and
half-day instruction at Brandywine Virtual Academy in satisfaction of the School District’s obligation to provide
him with a FAPE. (See S-51). After receiving the necessary documents for the FAPE waiver, Sean’s mother hired
counsel. (N.T. 581:9-11; N.T. 210:16-21).

9

sought full days of compensatory education for the 2012–13, 11 2013–14, and 2014–15 school
years. (Due Process Compl. 1–2).
The Hearing Officer conducted a 3-day evidentiary hearing over March 15, 2016, May
18, 2016, and June 1, 2016. Both parties to presented evidence and testimony. After the
submission of the parties’ written closing arguments and review of the documents and testimony,
the Hearing Officer issued a decision on July 8, 2016 denying all requested relief to the family.
The Hearing Officer’s decision recognized that the evidence in Sean’s case was not
“clear cut.” (HOD at 8). The Officer concluded that all witnesses were found to have testified
credibly and accorded heavy weight to testimony by Helen (Sean’s mother) and the School
District’s emotional support teacher. (HOD ¶ 34). All other witnesses were accorded a medium
degree of weight. (HOD ¶ 34). The Officer observed that Sean’s academic performance, goalprogress, and behavioral progress proceeded in fits and starts:
In the 9th grade, the student made the most consistent goal-progress; yet the
student’s absences were numerous, and the student’s academic work was
abysmal. In 10th grade, the student’s goal-progress was minimal; yet the student’s
attendance and academic with both dramatically improved. In 11th grade, there is
evidence of goal-progress and the student’s academic with was strong—the sole
exception being English where the student and teacher had a personality conflict;
yet the student’s outsized number of absences returned. Taken as a whole, as the
evidence unfolds school year by school year, it does not amount to a denial of a
FAPE.
(HOD at 8). The Hearing Officer concluded, with respect to 9th grade, that Sean’s poor grades
were due in large part to absenteeism, and that Sean did not, on balance, exhibit behaviors that
11

As part of the School District’s due process proceedings, the Hearing Officer considered evidentiary
material from May 2012, when plans were made for Sean’s 2012–13 school year, through material from the end of
the 2014–15 school year. See Know or Should Have Known (“KOSHK”) Ruling 1. The first day of the Hearing
addressed the statute of limitations for Plaintiffs’ claims and the date Sean’s mother knew or should have known of
the alleged educational injury. Pls.’ Proof of KOSHK 1. After the first day, the Hearing Officer decided to allow
claims for the 2012–13 school year because the earliest indication of the potential denial of FAPE was in December
2014 or January 2015, when Sean’s mother requested specific changes to his education. KOSHK Ruling 5.
The District maintains that the Hearing Officer erred in considering a claim for the 2012–13 on the merits
because the IDEA’s statute of limitations bars relief prior to December 22, 2013. The Hearing Officer’s allowance
of the 2012–13 claim is irrelevant here, however, because the Court affirms the Hearing Officer and denies relief.

10

caused educators to view him as having anxiety. (HOD at 8). Instead, the Hearing Officer
concluded that where Sean’s affect in class was inattentive or distracted, the record demonstrated
that such behavior was rooted in tiredness or sociability. (HOD at 8).
The Hearing Officer noted that even if it were to assume that it was prejudicial to not
address Sean’s absenteeism, the District did not deny a FAPE because Sean’s absences and
grades improved dramatically in 10th grade. (HOD at 9). While those elements of Sean’s
education improved, the IEP goal achievement, which the Hearing Officer recognized as the
“main driver of IEP instruction”—was only marginally present. He ultimately concluded that
Sean made meaningful progress, “but not by much.” (HOD at 9).
Finally, with respect to Sean’s 11th grade year, the Hearing Officer determined that “the
record supports a conclusion that the student may have felt anxiety and a result of issues at
school, and the District revised the IEP to reflect that, but educators were not seeing anxietyrelated behaviors in the school environment.” (HOD at 9). The Hearing Officer focused on
Sean’s overall academic success and noted that a personality conflict between Sean and his
English teacher drove his lack of achievement in that subject. (HOD at 9).
Taken together, the Hearing Officer concluded that Sean was not denied a FAPE for the
school years 2012–13 through 2014–15. (HOD at 10). Following the Hearing Officer’s decision,
Plaintiffs filed a Complaint with this Court. 12 Plaintiff and Defendant filed cross-motions for
judgment on the administrative record, seeking a judgment in their favor based on the Court’s
review of the administrative record pursuant to 20 U.S.C. § 1415(i)(2).

12

The Complaint alleged violations of the IDEA’s federal and state implementing regulations; Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its federal and state implementing regulations; the
Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and its federal and state implementing
regulations; and Chapters 14 and 15 of the Pennsylvania Code. Plaintiffs clarified their motion for judgment on the
administrative record that they seek relief solely under the IDEA and its federal and state implementing regulations.
See Pls’. Br. at 1 n.1.

11

II.

LEGAL STANDARD
A district court has jurisdiction to review the findings and decision of the state

educational agency under 20 U.S.C. § 1415(i)(2)(A). The party seeking relief (here, the
Plaintiffs) bears the burden of persuasion before the district court. Ridley Sch. Dist. v. M.R., 680
F.3d 260, 270 (3rd Cir. 2012); E.D. by & through T.D. v. Colonial Sch. Dist., No. CV 09-4837,
2017 WL 1207919, at *11 (E.D. Pa. Mar. 31, 2017) (“The burden lies with Plaintiffs to show
that [the student] was denied a FAPE since they are the ones that are challenging the
administrative decision.”).
A court reviews the IDEA decision of a Due Process Hearing Officer under a
nontraditional standard of review known as “modified de novo.” D.S. v. Bayonne Bd. of Educ.,
602 F.3d 553, 564 (3d Cir. 2010). Under a “modified de novo” standard, a court must give “due
weight and deference” to the findings in the underlying administrative proceedings. Id. The
purpose of the “due weight” obligation is to “prevent[] district courts from imposing their own
view of preferable educational methods on the states.” Id.; see also State-Operated Sch. Dist. of
City of Newark, 336 F.3d at 270 (“The court is not . . . to substitute its own notions of sound
educational policy for those of local school authorities.”).
When applying the modified de novo standard, district courts consider the factual
findings from the administrative proceedings prima facie correct. Bayonne, 602 F.3d at 564.
This posture does not preclude the court from considering the evidence to make additional or
differing factual findings based upon a preponderance of the evidence. See 20 U.S.C. §
1415(i)(2)(C). After review of the administrative record, a court may choose to accept or reject
the factual findings of the Hearing Officer. Colonial Sch. Dist., 2017 WL 1207919, at *5.
Courts should defer to the hearing officer’s factual findings unless it can point to contrary non-

12

testimonial evidence in the record to support its conclusions. Tyler W. ex rel. Daniel W. v. Upper
Perkiomen Sch. Dist., 963 F. Supp. 2d 427, 432 (E.D. Pa. 2013). If, based upon the record, the
reviewing court does not adhere to the hearing officer’s factual findings, “it is obliged to explain
why.” Bayonne, 602 F.3d at 564 (internal quotation marks omitted).
Where, as here, the hearing officer “heard live testimony and determined that one witness
is more credible than another witness, [that] determination is due special weight.” Id.
Accordingly, a district court “must accept the state agency’s credibility determinations ‘unless
the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.’”
Id. (quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir.
2004)) (clarifying that the word “justify” essentially requires the same standard applied by a
federal appellate court to a trial court’s findings of fact).
III.

DISCUSSION
After reviewing the applicable statutory framework, the Court will evaluate the Plaintiffs’

challenges to the Hearing Officer’s decision. The Hearing Officer proceeded chronologically
through each of the three school years at issue. Plaintiffs’ challenges to the adequacy of the
School District’s educational plans for Sean and the School District’s response to Sean’s needs
raise similar issues and themes across the three school years, however. Specifically, Plaintiffs
mount a broad challenge as to each year regarding the IEP’s alleged insufficiencies with respect
to Sean’s behavioral, executive functioning, and emotional difficulties. Additionally, they take
issue with the amount of academic progress made by Sean. The Court addresses each of
Plaintiffs’ concerns in turn, and as related to each school year in question.
While the Court recognizes that Sean’s educational experience may not have been ideal,
it concludes that the School District adequately fulfilled its obligation to provide Sean with a

13

FAPE. Therefore, it will deny Plaintiffs’ motion, grant the School District’s motion, and affirm
the Hearing Officer’s decision.
A.

Statutory Framework

The Individuals with Disabilities Education Act reflects an “ambitious federal
effort . . . passed in response to Congress’ perception that a majority of handicapped children in
the United States were either totally excluded from schools or [were] sitting idly in regular
classrooms awaiting the time when they were old enough to drop out.” Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist, Westchester Cty. v. Rowley, 458 U.S. 176, 179 (1982) (internal
quotation marks omitted). Under the IDEA, states receiving federal educational assistance must
establish “policies and procedures” to ensure a “free appropriate public education” for all
children with disabilities. 20 U.S.C. § 1412(a)(1)(A); D.K. v. Abington Sch. Dist., 696 F.3d 233,
244 (3d Cir. 2012). In the context of the IDEA, “‘education’ extends beyond discrete academic
skills and includes the social, emotional, and physical progress necessary to move the child
toward meaningful independence and self-sufficiency consistent with the child’s cognitive
potential.” M. v. Penn Manor Sch. Dist., No. 12-3646, 2015 WL 221086, at *4 (E.D. Pa. Jan. 14,
2015). A FAPE “consists of educational instruction specially designed to meet the unique needs
of the handicapped child, supported by such services as are necessary to permit the child ‘to
benefit’ from the instruction.” Rowley, 458 U.S. at 188–89.
Once a child is identified, the school district is required to provide a FAPE by developing
an IEP for the child “that is uniquely tailored to his or her individual needs.” Penn Manor Sch.
Dist., WL 221086, at *4; see also 20 U.S.C. § 1414(d) (defining IEP as a “written statement for
each child with a disability that is developed, reviewed, and revised” in accordance with Section
1414). The IEP includes, inter alia, a statement of the child’s present levels of academic

14

achievement and functional performance; a statement of measureable, annual goals, including
academic and functional goals; and a statement of how the child’s progress toward the annual
goals will be measured. See 20 U.S.C. § 1414(d)(1)(A)(i). The purpose of the IEP is to establish
a plan for the academic and functional advancement of the child in light of that child’s particular
circumstances. See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
999 (2017).
The IEP must provide a “meaningful educational benefit” to the child. Bayonne, 602
F.3d at 556–57. It is insufficient under the IDEA for a school district to provide merely more
than a trivial educational benefit to students, but a school district is not required to maximize a
child’s potential. See Bayonne, 602 F.3d at 556; State-Operated Sch. Dist. of City of Newark, 336
F.3d at 271 (“The IDEA does not require the School District to provide [a student] with the best
possible education.”).
The United States Supreme Court recently revisited the standard for determining when
children receive sufficient educational benefits to satisfy the IDEA. See Endrew F., 137 S. Ct. at
999–1002. 13 The Court in Endrew F. rejected the notion that compliance with the IDEA requires
that an educational program provide merely more than di minimis progress, and concluded that
the IDEA demands more. Id. at 1001. It concluded that “[t]o meet its substantive obligation
under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Id. at 999. The Court emphasized,
however, that “reasonably calculated” progress is highly individualized:
13

The Tenth Circuit’s “de minimis” test differs from the standard employed by the Third Circuit Court of
Appeals prior to the Endrew F. decision, see M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 396 (3rd Cir. 1996), and
was not applied by the Hearing Officer in this case. The standard employed by the Hearing Officer required that the
IEP be “reasonably calculated to yield meaningful educational benefit to the student.” (HOD at 7). This standard
does not “differ substantively from the standards adopted by the Supreme Court in Endrew F.” Colonial Sch. Dist.,
2017 WL 1207919 at *11 (noting that a special education due process hearing officer who applied the Third Circuit
Court of Appeals’ standard in was in accord with the Endrew F. standard). To the extent that Plaintiffs may imply
that the incorrect standard was applied here, the Court rejects that argument.

15

The ‘reasonably calculated’ qualification reflects a recognition that crafting an
appropriate program of education requires a prospective judgment by school
officials. The Act contemplates that this fact-intensive exercise will be informed
not only by the expertise of school officials, but also by the input of the child's
parents or guardians. Any review of an IEP must appreciate that the question is
whether the IEP is reasonable, not whether the court regards it as ideal.
Id. (internal citations omitted). In adopting a reasonableness approach tailored to each student,
the Court declined to create a bright-line rule. It clarified that the “absence of a bright-line rule,
however, should not be mistaken for an invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities which they review.” Id. at 1001. The
Supreme Court’s instruction that a district court should refrain from retrospectively substituting a
program it deems preferable is in line with the Third Circuit Court of Appeals’ approach. The
Court of Appeals has held that “the measure and adequacy of an IEP can only be determined as
of the time it is offered to the student, and not at some later date.” Fuhrmann ex rel. Fuhrmann
v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3rd Cir. 1993). Accordingly, a court should
avoid any “Monday Morning Quarterbacking” in evaluating the appropriateness of a child’s
educational program. Id.
In the absence of a bright-line rule, courts analyze whether a child has received a
“meaningful educational benefit,” by “look[ing] to regular examinations, grades, and advancing
from grade to grade as important factors.” Colonial Sch. Dist., 2017 WL 1207919 at *11.
Accordingly, the Court here is obliged to determine, whether Sean’s IEPs, given the facts at the
time and in light of his progress during the years at issue, conferred meaningful educational
benefit.
B.

Sean’s Behavioral Needs

The crux of Plaintiffs’ challenge is that the School District failed to provide Sean a FAPE
because Sean’s IEPs did not adequately address concerns about his attendance, executive

16

functioning, social/emotional function, and behavior. In other words, the IEPs failed to confer
meaningful benefit as to those issues. This inadequacy, in turn, affected Sean’s academic
performance. Plaintiffs ultimately recognize, however, that the School District altered Sean’s
IEPs once confronted with opinions from medical professionals supporting Sean’s anxiety
related to school.
The Hearing Officer found that Sean’s IEPs contained goals in written expression,
reading comprehension, and mathematics. 14 Although the IEP contained no goals explicitly
related to behavior or executive functioning, such as anxiety-recognition or self-advocacy, until
April 2015, (HOD ¶ 30), the earlier IEPs included SDIs and program modifications to address
problematic or disruptive behaviors in, such as verbal prompting. (HOD ¶ 12). While Hearing
Officer noted that the record supported the conclusion that Sean was inattentive or distracted in
school, he determined, based upon testimony at the hearing and other evidence, that Sean’s
behavior did not cause educators to view him as having anxiety. (HOD at 8). Because Sean
appeared engaged and social with peers, he concluded that Sean’s problematic behaviors, to the
extent they were present, were rooted in tiredness or sociability. (HOD at 8).
Hearing Officer concluded that Sean’s IEP was revised at annual intervals or more
frequently upon new information. (HOD ¶¶ 10, 17, 20, 26, 28). The Hearing Officer found that
program modifications and SDIs were added and sometimes repeated in each IEP. For example,
the April 2014 IEP repeated a previous program modification for prompting, but the October
2014 revision added SDIs for positive feedback in response to desired behaviors. (HOD ¶¶ 19–
20). Upon receiving information provided to the School District, it revised Sean’s IEPs in March

14

The IEP created in May 2012 contained on goal each in written expression and reading comprehension,
and two goals in mathematics. HOD ¶ 5. The April 2013 IEP contained one goal each in written expression,
mathematics, and reading comprehension. HOD ¶ 11. The April 2014 IEP contained one goal each in written
expression, mathematics, and reading comprehension. HOD ¶ 18.

17

and April 2015. (HOD at 9). The Hearing Officer found that the record supporting a conclusion
that Sean suffered from anxiety as a result of issues at school at that time, but noted that
educators were not seeing any anxiety-related behaviors in school that would have notified them
of a problem, even if Sean was indeed suffering from anxiety. (HOD at 9). The Hearing Officer
determined that the School District nevertheless revised Sean’s IEPs to reflect growing concerns
over Sean’s anxiety. (HOD at 9).
Plaintiffs argue that “[d]espite overwhelming evidence of [Sean’s] executive functioning,
social/emotional, and behavioral needs, the [School] District utterly failed to address [Sean’s]
needs in these areas.” Pl. Br. at 20. They highlight that Sean’s IEP goals related only to
academic areas and characterizes the SDIs included in Sean’s IEPs throughout the years as
accommodations and not actual instruction. Plaintiffs believe Sean was denied a FAPE because
the School District provided no goals in critical areas of need that they contend the School
District was well aware of, such as anxiety-related coping skills, attention and focus,
organizational skills, study skills, and assignment completion.
Contesting the Hearing Officer’s decision, Plaintiffs note that Sean’s issues with attention
and anxiety began before high school according to clinical rating scales included in his early
evaluations. Therefore, Plaintiffs argue that Sean’s behavioral and executive functioning needs
should have been addressed by his 9th grade IEP. Because the 9th grade IEP was insufficient,
Plaintiffs contend that the subsequent IEPs were similarly problematic because they remained
largely unchanged from year to year. Likewise, Plaintiff suggests the School District’s
reevaluations of Sean were inappropriately late in response to his behavioral issues. The
additions that were eventually made to Sean’s IEP to address his anxiety, behaviors, and
emotional functioning were, accordingly to Plaintiffs, emblematic of “too little too late.”

18

The School District takes the position that they addressed any known potential behavioral
issues with executive functioning supports, such as verbal prompts, clear and concise directions,
and weekly support for organization. Additionally, the School District points out that a child’s
needs and weaknesses can be appropriately met with accommodations or modifications because
not every concern requires an IEP goal. Moreover, the School District argues the IEP team
responded to each of Sean’s needs as the behaviors rose in severity and was not required to take
further action when a modification accommodated a behavioral concern.
The School District also highlights the changes made to Sean’s IEPs at yearly intervals
and as behavioral concerns arose. With respect to Sean’s 9th grade year, the School District
argues that nothing more than verbal prompting was required to address the Reevaluation Report
note that Sean needed prompting to remain on task. These prompts were continually included in
the IEP because inattention remained a concern. After 10th grade, the School District argues
there was not a substantial need for changes to Sean’s support because of his successful school
year. Finally, the School District points out that it responded appropriately to Sean’s anxiety by
adding coping and self-advocacy goals coupled with daily direct instruction in anxiety
management once it was presented with concerns from Sean’s mother, supported by medical
opinion.
Plaintiffs argue the School District should have used measurable goals or conducted an
FBA to address Sean’s behavioral and executive functioning needs, but the Court declines to
overturn the Hearing Officer’s decision on this basis. School districts are indeed required to
provide behavioral support when a student can no longer make meaningful educational progress
otherwise. See, e.g., M.C., 81 F.3d at 394 (affirming the district court’s order requiring
residential placement for a student where efforts to improve a student’s toileting, eating, and

19

communication skills—required for meaningful educational progress—would only occur in the
context of residential care). The argument Plaintiffs put forth is essentially a version of the
“Child Find” requirement of the IDEA, 15 which requires school districts to evaluate students who
are reasonably suspected of having a disability under the statutes. D.K. v. Abington Sch. Dist.,
696 F.3d 233, 249 (3d Cir. 2012). The IDEA does not, however, “demand that schools conduct a
formal evaluation of every struggling student.” Id. “[S]chools need not rush to judgment or
immediately evaluate every student exhibiting below-average capabilities . . . . Moreover, neither
the failure to employ a functional behavioral assessment nor a subsequent disability finding is
per se indicative of an inappropriate evaluation.” Id. at 252 (concluding that a student was not
denied a FAPE where, despite not identifying him as IDEA-eligible, the district took measures to
address behavioral and concerns). Furthermore, “the sufficiency of chosen strategies for dealing
with problematic behavior is precisely the type of issue upon which the IDEA requires deference
to the expertise of the administrative officers.” Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d
543, 565 (E.D. Pa. 2013), aff’d in part, 581 F. App’x 141 (3d Cir. 2014) (internal alterations and
quotations omitted).
The case is similar to Coleman v. Pottstown Sch. Dist. where the court found that a
school district provided a FAPE by taking proactive steps to address the student’s behaviors
without explicit behavioral goals. 983 F. Supp. 2d at 570-71. The school district recognized the

15

For example, the Plaintiffs take issue with the School District’s failure to conduct a Functional Behavior
Assessment (“FBA”) to better determine the cause of Sean’s problematic behaviors. According to Plaintiffs, FBAs
are designed to identify “triggers” and antecedents to problematic behaviors so that a Positive Behavioral Support
Plan (“PSBP”) can be designed and implemented for the student. Plaintiffs cite two cases in support. See G.D. ex
rel. G.D. v. Wissahickon Sch. Dist., 832 F. Supp. 2d 455 (E.D. Pa. 2011); Lauren P. ex rel. David P. v. Wissahickon
Sch. Dist., No. CIV.A.05-5196, 2007 WL 1810671, at *1 (E.D. Pa. June 20, 2007), aff’d in part, rev’d in part sub
nom. Lauren P. ex rel. David & Annmarie P. v. Wissahickon Sch. Dist., 310 F. App’x 552 (3d Cir. 2009).
In both of these cases, the District Court was affirming underlying administrative decisions concluding that
the student had been denied a FAPE. Further, the students in both cases had been identified as having attention
deficit hyperactivity disorder and other behavioral issues at an early stage. See Lauren P., 2007 WL 1810671, at *1;
G.D. ex rel. G.D., 832 F. Supp. 2d at 457. That is not the procedural or factual context in which this case arises.

20

student’s behavioral issues, but did not believe the behavior was severe enough to warrant more
than weekly counseling because the student was producing passing work and the school district
believed the behavior was rooted in the student missing his family. Id. at 558. The school
district decided not to conduct an FBA. Id. The student’s IEPs included multiple SDIs, such as
cueing to remain on task, repeated directions, and a small classroom setting. Id. at 556–57.
Plaintiffs argued that the student was denied a FAPE due to the school district’s failure to set
“quantifiable or measure goals,” to provide “more intensive counseling,” or conduct an FBA. Id.
at 570–71. In reaching the conclusion that the student received a FAPE, the district court noted
that a school district must take problematic behaviors into account when developing an IEP. Id.
at 571. However, the school district met this requirement by taking proactive and consistent steps
to address the student’s behaviors. Id.
Here, Plaintiffs’ argument does not support a reversal of the Hearing Officer’s decision
that, based upon the testimony and evidence, Sean’s behavioral issues were not out of the
ordinary initially, and when they became more concerning, the School District responded
proportionately. The Court recognizes that Sean had some reported behavioral concerns prior to
the 2012–13 school year, but there is not sufficient evidence to justify concluding—in
contravention to the Hearing Officer—that Sean’s inattentiveness and behavioral issues rose to
the level that commanded different treatment by the IEP. Although the IEP team created no
specific goals addressing Sean’s behavior or executive functioning issues until the end of 11th
grade, the School District put SDIs in place to address behavioral issues. As the Hearing Officer
recognized, the School District included prompting in the May 2012 IEP. In 10th grade, Sean
received verbal prompting in the classroom to help him remain on task and attended an academic
lab, which was designed to address his difficulties with completion of work and focus.

21

When, in 11th grade, the School District was presented with evidence of growing concern
over Sean’s behavioral issues and mental health, including communications from treating
medical providers, it responded with a more aggressive plan, elevating the behavior modification
instructions memorialized in Sean’s IEP’s previously to concrete goals included in his IEP. The
biggest concern during 11th grade was Sean’s struggle with anxiety. The Hearing Officer
concluded, based upon mixed testimony at the hearing, that Sean did not exhibit behaviors that
caused educators to view him as having anxiety. Responding to Sean’s problems in his 11th
grade English class—where Sean had a strained relationship with his teacher—Sean’s IEP team
met in October. The October changes included three SDIs, addressing modified tests/quizzes,
access to the testing center, and positive feedback in response to on-task behavior, that sought to
improve Sean’s focus and complete his class assignments.
Two additional revisions took place in 2015, in response to additional information
provided to the School District. Based upon information provided to the School District, the
Hearing Officer determined that the record supported a conclusion that Sean may have felt
anxiety as the result of school, despite the fact that some educators were not witnessing anxietyrelated behaviors.
Although the record supports, and the Hearing Officer concluded, that Sean exhibited
some problematic behaviors at the outset, and throughout the school years at issue, the School
District took steps reasonably calculated to address his needs, given the information it had at the
time each IEP was created or revised. Pursuant to Endrew F., to comply with the IDEA, a
School District must create a reasonable—which may admittedly not be ideal—IEP
incorporating the information available at the time. Given the Hearing Officer’s determination,
and respectful of the instruction not to substitute the Court’s own notions of sound educational

22

policy for those of the School District’s administrators, the Court concludes that School District
did not deny Sean a FAPE for the years at issue.
C.

Sean’s Academic Progress

While Plaintiffs’ argument as to Sean’s academic progress is somewhat enmeshed in their
argument about his behavioral needs. For each of the school years at issue, the Hearing Officer
found that Sean made goal progress. Specifically, the Hearing Officer concluded that Sean made
progress throughout 9th grade on all four goals and his goal progress was the most consistent of
all the years at issue. (HOD ¶ 6; HOD at 8). As to 10th grade, the Hearing Officer found that
Sean’s goal progress was minimal, but still meaningful. (HOD at 9). The Hearing Officer also
concluded that Sean made goal progress for the first half of his 11th grade year, before the
School District began revising his IEP. (HOD at 9).
In response to the Hearing Officer’s conclusions, Plaintiffs argue that Sean made, at best,
minimal progress. Plaintiffs take the position that the Hearing Officer took a myopic view, and
erroneously focused on very limited, single pieces of Sean’s progress without appreciating his
overall lack of progress. Plaintiffs characterize Sean’s progress as the type of de minimis
progress that is insufficient for an appropriate education and claim that his overall educational
functioning actually regressed.
In response, the School District points out that Sean’s IEP scores showed a trend of
progress, not a trend of regression. The School District argues that Sean advanced in his overall
executive functioning rather than regressed and asserts that Sean did well in school when he
completed his work and attended classes.
The Court declines to reverse the Hearing Officer’s decision that Sean made meaningful
progress. The Court is unpersuaded that the Hearing Officer applied a narrow focus aimed at

23

some evidence to the exclusion of the rest. Indeed, the Hearing Officer contemplated that Sean’s
case was not clear cut. He specifically concluded out that, while Sean did not always make
strong goal progress, the progress was not so minimal that Sean was denied a FAPE. During 9th
grade, Sean reached all goals listed in his May 2012 IEP. For the April 2013 IEP, Sean did make
less clear progress on his academic goals. However, Sean met his written expression goal score
for the year and eventually reached his reading comprehension goal. On his April 2014 IEP,
Sean consistently met his math and reading goals and it was noted that his “writing ability ha[d]
improved considerably.” P-16 at 21–26. These patterns of goal achievement support the Hearing
Officer’s finding that Sean’s progress for the school years at issue was more than the de minimis
progress rejected by the Supreme Court in Endrew F.
The Court concludes that Sean made progress, although he may not have advanced in all
areas of need. In Colonial Sch. Dist., 2017 WL 1207919 at *13, the court found that a student
was provided a FAPE although she did not progress in all demonstrated categories of need. The
student’s report card showed that she made little to no improvement in some language-based
skills and reading, but improved in some language-based skills and math-based skills. Id.
Regardless of the school district’s failure to consider the student’s deficits in all academic areas,
the Hearing Officer decided that the student showed progress. Id. The court affirmed the decision
of the Hearing Officer, noting his conclusion that the student received a FAPE was reasonable in
records. Id.
As noted in Colonial Sch. Dist., progress does not require that Sean advance in all
categories of his education. Although the IEP goals did not address all of Sean’s potential areas
of need, the IEP was reasonably calculated to allow Sean to make appropriate progress based on
the prospective judgment of the school officials. With the knowledge that Sean had a Specific

24

Learning Disability in areas of reading, writing, and mathematics, the School District focused on
Sean’s known deficiencies to allow him to make progress. For a child such as Sean, who was
“fully integrated in the regular classroom, an IEP should . . . be ‘reasonably calculated to enable
the child to achieve passing marks and advance from grade to grade.’” Endrew F., 137 S.Ct. at
999 (quoting Rowley, 458 U.S. at 203-04). Like the student in Colonial Sch. Dist., Sean made
progress through academic goals and program modifications that focused on his known needs.
Additionally, the School District updated IEP goals as Sean’s needs evolved. The School
District kept a similar plan for Sean’s transition to high school because he successfully
completed his 8th grade classes. As Sean entered 10th grade, the School District changed Sean’s
IEP goals to more accurately reflect the actual instruction given in high school. The School
District also added an academic lab class to assist Sean in a smaller group setting in response to
his poor 9th grade academic performance. Based on Sean’s improved grades and attendance in
10th grade, there was no indication the School District needed to address Sean’s needs with any
mid-year modifications. As Sean entered 11th grade, there was no compelling reason for the
School District to drastically modify an IEP that allowed Sean to excel throughout 10th grade.
These updates to Sean’s academic goals were prospectively and reasonably calculated to allow
him to advance from grade to grade and make progress.
Although Sean was delayed in immediately advancing to 10th grade, he did make
progress on his IEP goals and advanced to 10th grade by completing a summer class. Under the
IDEA, actual progress is not required as long as an IEP is reasonably calculated to allow the
student to make progress. There is no reason for the Court to conclude that each IEP goal was
not reasonably calculated after each school year to allow Sean to make “progress appropriate” in
light of his past academic performance and past progress toward IEP goals.

25

IV.

CONCLUSION
After giving due weight to the decisions of the Due Process Hearing Officer, the Court is

unpersuaded that the evidence on the record demands rejecting its conclusions and considers the
Hearing Officer’s decision reliable. Accordingly, Plaintiffs’ motion for judgment on the
administrative record will be denied, and the School District’s motion will be granted.
An appropriate order follows.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge

26