Swope v. Central York School District
MEMORANDUM AND ORDER RE: 28 MOTION for Judgment on the Admin Record filed by Kirk Swope. IT IS ORDERED that the plaintiffs motion (doc. 28) for judgment on the administrative record is DENIED and that judgment in favor of the defendant shall be entered. The Clerk of Court is directed to enter judgment against the plaintiff and in favor of the defendant. Signed by Magistrate Judge J. Andrew Smyser on 1/3/12. (pw, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CENTRAL YORK SCHOOL DISTRICT,
CASE NO. 1:10-CV-2541
(Magistrate Judge Smyser)
MEMORANDUM AND ORDER
The plaintiff, who has a learning disability, contends
that the defendant denied him a free and appropriate public
education while he was a student in the defendant’s school
He left the school district and enrolled in a
private school after Eleventh Grade.
from the private school.
He has since graduated
He is now seeking compensatory
education from the school district to compensate for his
purportedly inappropriate education in the school district from
his Seventh Grade year through his Eleventh Grade year.
conclude that the claims regarding any years other than the
plaintiff’s Eleventh Grade year are barred by the statute of
We also conclude that the school district
provided him with a free and appropriate public education
during his Eleventh Grade year.
Thus, we will enter judgment
against the plaintiff and in favor of the defendant.
I. Procedural History.
The plaintiff commenced this action by filing a
complaint on December 15, 2010.
The complaint contains claims
under the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1400 et seq., under Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, and under the Americans
with Disabilities Act, 42 U.S.C. § 12131 et seq.
under the Rehabilitation Act and the Americans with
Disabilities Act were dismissed.
Thus, only the IDEA claim
The parties consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c), and the case was referred
to the undersigned.
The defendant filed an answer to the complaint.
case management conference, the parties agreed that the case
would be decided on the administrative record.
then filed a motion for judgment on the administrative record,
and that motion has been briefed.
II. IDEA Legal Standards.
Congress enacted the IDEA inter alia “to ensure that
all children with disabilities have available to them a free
appropriate public education that emphasizes special education
and related services designed to meet their unique needs and
prepare them for employment and independent living.” 20 U.S.C.
The Act defines free appropriate public
education (FAPE) as:
special education and related services that-(A) have been provided at public expense, under
public supervision and direction, and without
charge; (B) meet the standards of the State
educational agency; (C) include an appropriate
preschool, elementary, or secondary school
education in the State involved; and (D) are
provided in conformity with the individualized
education program required under section 614(d)
[20 U.S.C. § 1414(d)].
20 U.S.C. § 1401(9).
In addition to the FAPE requirement, the
IDEA provides that states must establish procedures that assure
that, to the maximum extent appropriate, children with
disabilities are educated with children who are not disabled.
20 U.S.C. § 1412(a)(5).
An individualized education program (IEP) is the
primary vehicle for providing students with the required FAPE.
S.H. v. State-Operated School of Dist. of the City of Newark,
336 F.3d 260, 264 (3d Cir. 2003).
“The IEP consists of a
detailed written statement arrived at by a multi-disciplinary
team summarizing the child’s abilities, outlining the goals for
the child’s education and specifying the services the child
will receive.” Polk v. Central Susquehanna Intermediate Unit
16, 853 F.2d 171, 173 (3d Cir. 1988).
“The Supreme Court has construed the statute’s FAPE
mandate to require ‘education 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.’” T.R. v. Kingwood Township Bd. of Educ., 205
F.3d 572, 577 (3d Cir. 2000)(quoting Bd. of Educ. of Hendrick
Hudson Central School Dist. v. Rowley, 458 U.S. 176, 188-89
An IEP must offer more than a trivial or de minimis
educational benefit. Id. at 577.
Although the state is not
required to maximize the potential of a handicapped child, the
education provided must be sufficient to confer an education
providing “significant learning” and “meaningful benefit” to
the child. D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 556 (3d
The educational benefit of the IEP must be gauged
in relation to the child’s potential. Ridgewood Bd. of Educ. v.
N.E., 172 F.3d 238, 247 (3d Cir. 1999).
“To fulfill this
mandate a district court must ‘analyze the type and amount of
learning’ of which the student is capable.” Kingwood Twp.,
supra, 205 F.3d at 578.
“The issue of whether an IEP is appropriate is a
question of fact.” S.H., supra, 336 F.3d at 271.
The Act imposes numerous procedural safeguards to
ensure proper development of the IEP and to protect the rights
of parents to challenge the IEP. See Rowley, supra, 458 U.S. at
A parent may seek an administrative due process
hearing. D.S., supra, 602 F.3d at 557.
School districts may
also seek an administrative due process hearing. Schaffer v.
Weast, 546 U.S. 49, 53 (2005).
“A party to the due process
hearing aggrieved by its outcome has the right to bring a civil
action challenging the decision in any state court of competent
jurisdiction or in a federal district court, without regard to
the amount in controversy.” D.S., supra, 602 F.3d at 558
(citing 20 U.S.C. § 1415(i)(2)).
The burden of proof is on the
party seeking relief. L.E. v. Ramsey Bd. of Educ., 435 F.3d
384, 391-92 (3d Cir. 2006).
In actions brought under the IDEA, “the court -- (i)
shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
20 U.S.C. § 1415(i)(2)(C).
The court is to apply a modified de novo standard of
review. S.H., supra, 336 F.3d at 270.
In reviewing the
decision of a state agency under the IDEA, the district court
must make its own findings by a preponderance of the evidence.
Shore Regional High School Bd. of Educ. V. P.S., 381 F.3d 194,
199 (3d Cir. 2004).
But, in order to prevent district courts
from imposing their own views of preferable educational methods
on the states, the court must give “due weight” to the
administrative proceedings. Rowley, supra, 458 U.S. at 205-06.
“Under this standard, ‘[f]actual findings from the
administrative proceedings are to be considered prima facie
correct,’ and ‘[i]f a reviewing court fails to adhere to them,
it is obliged to explain why.’” Shore Regional, supra, 381 F.3d
at 199 (quoting S.H., supra, 336 F.3d at 271).
The court must
accept credibility determinations made by the state agency
unless the non-testimonial, extrinsic evidence in the record
would justify a contrary conclusion. Id.
“In this context the
word “justify” demands essentially the same standard of review
given to a trial court’s findings of fact by a federal
appellate court.” Id.
An appellate court reviews the district
court’s factual findings for clear error. Id.
A finding of
fact is clearly erroneous when, after reviewing the evidence,
the court is left with a definite and firm conviction that a
mistake has been committed. Id.
The Hearing Officer held a hearing in six sessions
between March and July of 2010.
During the hearing, she ruled
that claims that arose before January of 2008 are barred by the
statute of limitations.
After the hearing, she issued a
written decision concluding that the district provided the
plaintiff with a FAPE during the 2007/2008 school year
(Eleventh Grade) and that, therefore, the plaintiff is not
entitled to either tuition reimbursement or compensatory
A. Statute of Limitations.
The plaintiff claims that the Hearing Officer erred in
ruling that the statute of limitations barred claims based on
events prior to the Eleventh Grade.
The IDEA contains a two-year statute of limitations,
which requires a parent to request a due process hearing within
two years of the date the parent “knew or should have known
about the alleged action that forms the basis of the
complaint.” 20 U.S.C. § 1415(f)(3)(C).
The statute of
limitations does not apply if the parent was prevented from
requesting a due process hearing because of
(i) specific misrepresentations by the local
educational agency that it had resolved the
problem forming the basis of the complaint; or
(ii) the local educational agency’s withholding
of information from the parent that was
required under . . . [20 USCS §§ 1411 et seq.]
to be provided by the parent.
The plaintiff quotes 20 U.S.C. § 1415(f)(3)(C)(ii) and
contends that the two-year statute of limitations does not
apply because the defendant convinced the plaintiff’s mother
that there was no need for a reevaluation of the plaintiff and
so prevented her from requesting a due process hearing.
the plaintiff has not presented any evidence that the defendant
withheld any information that was required to be provided to
And there is evidence in the record that the
defendant offered the plaintiff’s mother notice of the
procedural safeguards applicable under the IDEA.
U.S.C. § 1415(f)(3)(C)(ii) is not applicable.
Although not specifically argued by the plaintiff, it
appears that the plaintiff may implicitly be arguing that 20
U.S.C. § 1415(f)(3)(C)(i) is applicable.
But the plaintiff has
not pointed to a specific misrepresentation on the part of the
defendant that it had resolved the problem forming the basis of
Thus, 20 U.S.C. § 1415(f)(3)(C)(i) is not
The plaintiff has not specifically argued, but may be
implicitly arguing, that because the district had told the
plaintiff’s mother that there was no need to reevaluate him and
that he was making progress, the plaintiff’s mother did not
know and did not have a basis to know that the plaintiff was
not receiving a FAPE.
But the record belies that contention.
There is evidence of the mother’s dissatisfaction with the
defendant’s actions regarding the plaintiff’s education going
Also, the mother had received the plaintiff’s
standardized test scores showing significant problems.
contention that the mother did not know and did not have a
basis to know of the actions now forming the basis of the
plaintiff’s complaint would not be sustainable.
We agree with the Hearing Officer that the statute of
limitations barred claims based on events prior to January of
The plaintiff contends that he never requested tuition
reimbursement and that the Hearing Officer erred in making a
decision regarding tuition reimbursement.
He further contends
that the Hearing Officer erred in failing to award him
In fact, he contends that the Hearing
Officer became confused with the tuition reimbursement issue
and completely failed to address the compensatory education
We agree with the plaintiff that because he was not
requesting tuition reimbursement, the Hearing Officer erred in
addressing the issue of tuition reimbursement.
But that error
We can simply disregard the Hearing Officer’s
finding regarding tuition reimbursement.
We disagree with the
plaintiff’s contention that the Hearing Officer failed to
address the issue of compensatory education.
that the plaintiff was seeking compensatory education, and
concluded that his claim for compensatory education should be
If a student has been denied a FAPE, the court may
award compensatory education to account for the period that the
student was denied a FAPE. Mary T. v. School Dist. of
Philadelphia, 575 F.3d 235, 249 (3d Cir. 2009).
education is designed to require school districts to pay
expenses that they should have paid all along. Id.
Some of the Hearing Officer’s discussion dealt with the
similarities between the plaintiff’s public and private school
placements, and she concluded that the plaintiff received
similar services in both the public and private schools.
Because of the similarities between the two placements, she
reasoned, if the private school provided a FAPE to the
plaintiff then so had the defendant and if the defendant failed
to provide the plaintiff with a FAPE then so had the private
That reasoning, or course, does not answer the
question whether the defendant in fact had provided the
plaintiff with a FAPE.
But the Hearing Officer also reasoned:
There is substantially more evidence in the
record establishing that the District provided
Student with appropriate services that resulted
in meaningful progress in light of Student’s
cognitive potential, including the private
school’s evaluation during the 2008/2009 school
year. (FF 31) The foregoing discussion,
however, is sufficient to determine that
Parent’s claims for both tuition reimbursement
and compensatory education must be denied.
Hearing Examiner Decision at 17.
The Hearing Officer found
that the school provided appropriate services given the
plaintiff’s cognitive potential; accordingly, we have no doubt
that the Hearing Officer found that the defendant had provided
a FAPE to the plaintiff during his Eleventh Grade year.
must determine whether that finding is correct.
The Hearing Officer made the following findings of fact
about the plaintiff’s Eleventh Grade year in the district.
The IEP, as developed in May of 2007, included goals
for writing and self-advocacy. Hearing Officer Finding of Fact
Special education services were to be delivered in both
regular education classes and in the resource room for a
combined total of 7.6 hour/weeks, with three hours provided in
the regular education setting and 4.6 hours provided in a
segregated setting. Id.
Specially designed instruction
included test taking accommodations, such as a separate room,
extended time, and no deductions for spelling errors. Id. at
Specially designed instruction also included assistance
with editing of writing assignments, study guides to prepare
for tests, intermittent deadlines on long-term projects, copies
of notes upon request, preferential seating, and assistance
with reading above the 7/8th grade level. Id.
Further, the IEP
provided that if the plaintiff’s grades were to drop below a 2
(c) level in any class or if the plaintiff were to have more
than two missing assignments contact would be made with the
plaintiff’s case manager and/or parent.
Also the IEP team
was to reconvene within the first four weeks after the
beginning of the school year if the plaintiff was failing in
his math/science class. Id.
The plaintiff followed a modified Eleventh Grade
curriculum in English. Id. at 13.
He was enrolled in regular
education classes for all of his other courses, but he had the
additional support of an instructional aide in the regular
The plaintiff’s combined math/science class was a
regular education course designed for students who had
difficulty in those subjects. Id. at 14.
The class was taught
by both a math teacher and a science teacher and was taught at
a slower pace. Id.
The plaintiff’s IEP team believed that he
might do better in a class that provided hands-on experiences
characteristic of that class. Id.
The plaintiff, however, did not relate well on a
personal level to the math/science class teachers. Id. at 16.
He did not like accepting help from teachers he believed did
not personally care about him. Id.
individualized in-class support, the plaintiff began to
struggle in the math/science class early in the school year.
Id. at 15.
His performance did improve after the teachers
adjusted the extended-time policy to permit more time to
complete missed work. Id.
The IEP team met in early October of 2007 to revise the
plaintiff’s IEP. Id. at 17.
The specially designed instruction
section of the IEP was amended to added that the plaintiff was
to receive clarification of instructions, prompts to remain on
task, and more support for organization to be provided during
the academic prep period. Id.
The plaintiff’s teachers generally reported that he
lacked motivation and that his lack of motivation was shown
through missed assignments, lack of engagement in academic
classes, and refusal to attend academic prep classes to take
advantage of the assistance available there. Id. at 18.
The plaintiff completed transition surveys in 10th and
11th grades indicating that he was interested in attending
college and specifying graphic design as a career interest. Id.
The transition section of the plaintiff’s Eleventh
Grade IEP listed attending technical/trade school to prepare
for a career in sign-making as the plaintiff’s immediate postsecondary outcome. Id. at 24.
Activities to prepare for that
outcome included courses in graphic design, architectural
design, and architectural and mechanical drafting. Id.
At the end of the 2007/2008 school year, the
plaintiff’s cumulative grade point average was 2.11. Id. at 41.
The plaintiff’s scores for the Eleventh Grade Pennsylvania
System of School Assessment, taken before leaving the district
in the spring of 2008 and reported in the fall of 2008, were
below basic for math, were basic for reading and science, and
were proficient for writing. Id. at 40.
The above findings of fact of the Hearing Officer are
supported by the record, and we adopt those findings.
to the plaintiff’s contentions, we do not find that the
district was just warehousing the plaintiff, that it did not
provide individualized instruction for the plaintiff, or that
it failed to provide transitional planning for the plaintiff.
Based on the findings of the Hearing Officer combined with the
credible testimony that the IEP was implemented and that the
plaintiff made progress as reflected in his grades (but not in
his standardized test scores), we conclude that the plaintiff
received a FAPE during his Eleventh Grade year in the district.
Thus, he is not entitled to compensatory education.1
1. “[C]ompensatory education is not an available remedy when a
student has been unilaterally enrolled in private school.” P.P. v.
West Chester Area School Dist., 585 F.3d 727, 739 (3d Cir. 2009).
After his Eleventh Grade year in the district, the plaintiff was
unilaterally enrolled in a private school. Thus, compensatory
education is not available after the 2007/2008 school year.
IT IS ORDERED that the plaintiff’s motion (doc. 28) for
judgment on the administrative record is DENIED and that
judgment in favor of the defendant shall be entered.
of Court is directed to enter judgment against the plaintiff
and in favor of the defendant.
/s/ J. Andrew Smyser
J. Andrew Smyser
January 3, 2012.
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