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In a decision that cuts across nearly all cases filed under the Individuals with Disabilities in Education Act, the 3rd U.S. Circuit Court of Appeals has ruled that federal courts must apply a “modified de novo review” of any state administrative proceedings. In S.H. v. State-Operated School District of the City of Newark, a unanimous, three-judge panel reversed a decision in which a New Jersey federal magistrate judge found that a state administrative law judge “simply got it wrong” when he ordered Newark to continue to pay for an out-of-district placement for a profoundly deaf pre-school student. In doing so, the 3rd Circuit followed the leads of the 4th, 6th and 10th Circuits in holding that a modified de novo review is the proper way to satisfy the IDEA’s requirement that courts give “due weight” to the factual findings that emerge from any administrative hearings. Under such a standard, the panel said, a federal court must not “substitute its own notions of sound educational policy.” In cases where the federal court hears additional evidence, the 3rd Circuit said, it is “free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of IDEA.” But where the federal court hears no additional evidence, the panel said, “it must find support for any factual conclusions contrary to the ALJ’s in the record before it.” Writing for the court, Circuit Judge Richard L. Nygaard said the federal court must also “explain why it does not accept the ALJ’s findings of fact to avoid the impression that it is substituting its own notions of sound educational policy for those of the agency it reviews.” Nygaard, in an opinion joined by judges Dolores K. Sloviter and Maryanne Trump Barry, found that the magistrate judge did not explain why he reached the conclusion that the ALJ “simply got it wrong.” The magistrate judge erred, Nygaard found, because he “did not address any of the extensive factual findings” in the ALJ’s decision about deficiencies in the education plan proposed by Newark. “Under the modified de novo standard of review, this does not accord sufficient deference to the factual conclusions of the ALJ,” Nygaard wrote. The student, who is identified in court papers only as “I.H.,” is a profoundly deaf girl who was 2 years old when the Newark Public School District identified her as eligible for its pre-school handicapped program. At first, Newark school officials decided there was no suitable program in I.H.’s home school district, so they placed her at the Lake Drive School for Deaf and Hard of Hearing Children. At the time, Newark officials said they recognized that I.H. required a small, specialized and highly structured education program tailored to her functioning levels, hearing impairment and specific sensory deficit. But just one year later, Newark said it had developed a new IEP, or individualized education plan, for the girl that called for her to attend the Bruce Street School for the Deaf in Newark beginning in September 1998. The Bruce Street School is a self-contained school for the deaf placed within a larger school, the George Washington Carver School, the neighborhood school that I.H. would have attended had she not been hearing impaired. The girl’s mother challenged the new placement, and, after mediation, I.H. was allowed to remain at the Lake Drive School for another year. But when Newark officials insisted that the Bruce Street School was the proper placement, the girl’s mother requested a due process hearing before an ALJ. After three days of hearings, the ALJ said he was most impressed by the testimony of Dr. Laura McKirdy, a speech language pathologist and developmental psychologist who has served as the principal at the Lake Drive School since 1978. The ALJ wrote: “It was abundantly clear to me, after listening to her on both direct and cross-examination and comparing her responses to those of the other witnesses, that no one connected with the hearing knew more about deaf education than [Dr. McKirdy]. Furthermore, her knowledge of I.H., while admittedly not as personal as others who may have testified, was sufficiently informed to lead me to conclude that her opinions took into account I.H.’s unique needs.” The ALJ also rejected Newark’s argument that the Bruce Street School was the “least restrictive environment” because it was close to the child’s home and would promote “mainstreaming” by placing her in a school with non-disabled children. Instead, the ALJ found the “mainstreaming” provided at Bruce Street to be “de minimis at best” because the students are segregated for classes, and although they attend assemblies and recess with hearing children, they are further segregated by the uniforms the Bruce Street children wear, which differentiate them from the rest of the Carver schoolchildren. The Lake Drive School also called for I.H. to participate in an extended school year, with summer school classes — an element the ALJ found “particularly important in her language acquisition.” By contrast, Newark’s IEP did not call for any summer school. Overall, the ALJ found that Newark’s IEP “lacked many specifics necessary to find that it would confer a meaningful education benefit on I.H.” After winning at the administrative level, the girl’s mother filed suit in U.S. District Court, seeking an award of attorney fees. But Newark responded with a counterclaim that challenged the ALJ’s decision. The case was referred to a magistrate judge, who took no new testimony but decided in favor of the school district, saying he rejected the testimony of McKirdy. The magistrate judge wrote: “I recognize that ‘due weight’ must be afforded to the ALJ’s determination. But even granting that weight, I believe the court’s independent judgment based on a preponderance of the evidence requires a determination that the ALJ in this case simply ‘got it wrong.’ It is entirely clear to me that a free and appropriate public education will be provided at the Bruce Street School while affording the least restrictive environment for I.H., as mandated by the applicable law.” Now the 3rd Circuit has ruled that the magistrate judge erred by failing to apply a modified de novo standard of review that would give deference to the ALJ’s factual findings. Instead of sending the case back, the appellate court applied the proper standard and concluded that the ALJ’s decision must be upheld. “Even considering the mainstreaming opportunities the school district points to, we agree with the ALJ that they are de minimis,” Nygaard wrote. “Taking each deficiency noted by the ALJ in turn, the evidence on the record does not overcome the ALJ’s factual conclusions. For several deficiencies, the school district does not present any rebuttal and none can be found in the record.”

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