Shore Regional High School Board of Education v. P. S., on Behalf of P.s

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3438
____________
SHORE REGIONAL HIGH SCHOOL
BOARD OF EDUCATION
v.
P. S., ON BEHALF OF P.S.,
Appellant
____________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF NEW
JERSEY
District Court Judge: Honorable Mary L.
Cooper
(D.C. No. 01-cv-5758)
____________________
Argued: June 16, 2004
Before: ALITO, SMITH, and DuBOIS,*
Circuit Judges
(Opinion Filed: August 20, 2004 )
MICHAELENE LOUGHLIN (argued)
Loughlin and Latimer
131 Main Street, Suite 235
Hackensack, NJ 07601
Counsel for Appellant
DAVID M. HAWKINS (argued)
NATALIE S. SHAHINIAN
CHRISTOPHER LAZAS
Purcell, Ries, Shannon, Mulcahy &
O’Neill
One Pluckemin Way
P.O. Box 754
Bedminster, NJ 07921
Counsel for Appellee
____________________
OPINION OF THE COURT
_____________________
ALITO, Circuit Judge:
This is an appeal from a District
Cou rt order overturning a state
administrative law judge’s decision
holding that a school district failed to
provide a “free appropriate public
education” within the meaning of the
Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400-1487,
for a student who had been subjected to
severe and prolonged harassment by other
students. We hold that the District Court
improperly failed to give “due weight” to
the ALJ’s determination, and we therefore
reverse.
*The Honorable Jan E. DuBois, District
Judge of the United States District Court
for the Eastern District of Pennsylvania,
sitting by designation.

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I.
P.S. was born in 1986 and attended
public schools in the Oceanport (New
Jersey) School District from kindergarten
through eighth grade. In elementary
school, P.S. was teased by other children
who viewed him as “girlish,” but when
P.S. began to attend the Maple Place
Middle School in fifth grade, the bullying
intensified. In the words of the District
Court, P.S “was the victim of relentless
physical and verbal harassment as well as
social isolation by his classmates.” App.
13.
Most of the harassment of P.S.
focused on his lack of athleticism, his
physique, and his perceived effeminacy.
Bullies constantly called P.S. names such
as “faggot,” “gay,” “homo,” “transvestite,”
“transsexual,” “slut,” “queer,” “loser,”
“big tits,” and “fat ass.” Bullies told new
students not to socialize with P.S.
Children threw rocks at P.S., and one
student hit him with a padlock in gym
class. When P.S. sat down at a cafeteria
table, the other students moved. Despite
repeated c o m pl a i n ts , th e s c h ool
administration failed to remedy the
situation.
The constant harassment began to
cripple P.S. He became depressed, and his
schoolwork suffered. When P.S. was in
fifth grade , his m other, on the
r e c o m m e n d a t i o n o f t h e s c h o ol
psychologist, obtained private psychiatric
counseling for him. The psychiatrist
diagnosed P.S. with depression and
prescribed medication, but there was no
appreciable improvement. After P.S.’s
grades slipped badly, Maple Place
evaluated him and classified him as
eligible for special education and related
services based on perceptual impairment.
The Oceanport Child Study Team (“CST”)
then developed an Individualized
Education Program (“IEP”) that placed
P.S. in the “resource room” for math and
gave him extra teacher attention to help
with his organizational skills. The CST
manager believed that P.S.’s poor
academic work was due to the bullying
rather than any cognitive deficiencies.
P.S.’s classification remained
throughout sixth and seventh grade, and
his IEP was expanded to include a daily
resource-center literature class and an
alternative physical education class to help
him with his physical skills and to avoid
the locker room changing period, during
which other children ridiculed his
physique. The school also permitted P.S.
to change classes at special times so that
he would not encounter other students in
the hallways and could thus avoid the
harassment that customarily occurred
there. In eighth grade, the harassment
became so intense that P.S. attempted
suicide. At the request of his psychiatrist,
who told the CST manager that P.S.’s life
and health were at stake, P.S. received
home schooling for six weeks. In
February and March of that year, M aple
Place changed P.S.’s classification, finding
him eligible for special education on the
basis of emotional disturbance.
The public high school serving
P.S.’s community is Shore Regional High

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School (“Shore”), but P.S.’s parents had
begun to look for a different school for
their son some years earlier, and they
eventually became interested in Red Bank
High School (“Red Bank”), the public high
school in a neighboring school district.
Red Bank was attractive both because it
did not enroll students from Maple Place
and because it had a drama program that
appealed to P.S.’s interests. P.S.
auditioned for the Red Bank drama
program and was accepted. P.S.’s parents
then asked Shore to place him at Red
Bank, and the Oceanport CST concurred.
The CST believed that if P.S. attended
Shore Regional High School he would
experience the same harassment that had
occurred at Maple Place because the
bullies who were responsible would also
be there.
Shore undertook its own evaluation,
relying mostly on the Maple Place IEP and
a surveillance of P.S. in his classes.
Despite the recommendation from the
CST, Shore rejected P.S.’s request to
attend Red Bank and concluded that he
should attend Shore for ninth grade. Shore
apparently believed that if it granted P.S.’s
request, it would have to grant the request
of non-disabled students who wished to
attend Red Bank. Shore’s affirmative
action officer, Dr. Barbara Chas,
contended that Shore could contain the
bullying by disciplining bullies and by
utilizing peer and social worker mediation.
Shore also proposed an IEP in which P.S.
would attend the resource room for math
and would have a supplemental course in
learning skills, adaptive gym classes, and
weekly counseling. Based on this
program, the Shore authorities concluded
that their school would be the “least
restrictive environment” for P.S. See 20
U.S.C. § 1412(a)(5) (school must
provide education in least restrictive
environment).
P.S.’s parents strongly disagreed
with Shore’s decision and unilaterally
placed him in Red Bank for the ninth
grade. Initially, Red Bank did not create
an IEP for P.S., but did provide him with a
special education class in algebra and
academic support. While Red Bank did
not schedule weekly counseling sessions,
it made clear to P.S. that counseling was
available upon request. Red Bank’s plan
was to mainstream P.S. for all his classes.
When P.S. was in ninth grade, Red Bank
created an IEP for him that maintained his
academic support center class, but
mainstreamed him for all other classes.
Like Shore, Red Bank offered a program
to combat bullying that included discipline
and diversity seminars. As the District
Court not ed, P .S. “thrived both
academically and socially at Red Bank.”
App. 23.
After Shore rejected P.S.’s request
to attend Red Bank, P.S.’s father filed a
mediation request with the New Jersey
Department of Education. Mediation
proved unsuccessful, and the action was
transferred to the New Jersey Office of
Administrative Law for a “due process
hearing.” Before the hearing, both sides
agreed to an independent evaluation by the
Institute for Child Development at the
Hackensack University Medical Center

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( “ H a c k e n s a c k ” ) . H a c k e n s a c k
recommended that P.S. attend a school
such as Red Bank.
At the due process hearing, the ALJ
heard testimony from several witnesses,
including P.S., his mother, Dr. Chas, Dr.
Mina Corbin-Fliger (a member of the
Oceanport CST), and Dr. Carol Friedman
(a psychologist at Hackensack). All of the
witnesses agreed that P.S. had been
subjected to unusual levels of harassment.
While Dr. Chas testified that she believed
that Shore could control the bullying, P.S.,
his mother, Dr. Corbin-Fliger, and Dr.
Friedman all disagreed. The ALJ also
reviewed several documents relating to
P.S.’s case, including his IEPs and
recommendations regarding placement.
The ALJ concluded that Shore
could not provide P.S. with a “free
appropriate public education,” as required
by the IDEA, see 20 U.S.C. § 1412(a)(1),
because of the “legitimate and real fear
that the same harassers who had followed
P.S. through elementary and middle school
would continue [to bully him.]” App. 41.
The ALJ was particularly concerned that
the bullies from P.S.’s area would harass
him during largely unsupervised school
bus rides to Shore and that Shore would be
unable to provide for P.S.’s emotional
needs within its very large student body.
App. 42, 47. The ALJ ordered Shore to
reimburse P.S. for the out-of-district
tuition and related costs, including P.S.’s
reasonable attorneys’ fees.
Shore then commenced this action
in the District Court, naming P.S.’s father
as the defendant, and P.S.’s father filed a
counterclaim for attorneys’ fees. Relying
on the administrative record, the District
Court reversed the ALJ’s decision.
Crediting Dr. Chas’s testimony, the
District Court found that Shore offered
P.S. a free appropriate public education.
The Court wrote:
The inability of the Maple
Place administration to
successfully discipline its
students does not make
Shore an inappropriate
placement. No school can
ever guarantee that a student
will not be harassed by other
students. . . . However, we
find that, in light of the
s t r u ct u r e d disciplin ary
mechanism in place at Shore
a n d C h a s ’ s o p i n i o n
regarding the supportive
nature of students involved
in drama there, the risk that
the harassment wou ld
continue was not so great as
t o r e n d e r S h o r e
inappropriate.
App. 31-32 (emphasis in original).
The District Court did not accept
the testimony of Dr. Corbin-Fliger and Dr.
Friedman, stating that they had “focused
on the failure of the Maple Place
administration to discip line [th e]
tormenters; they did not address whether
the Shore administration would have been
able to address the problem.” App. 23.
The Court also implicitly faulted Dr.

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Friedman on the ground that she had
“never visited Shore to investigate their
disciplinary measures or the type of
environment supplied by its drama
program.” Id. at 30 n. 21. In addition, the
District Court concluded that “Shore was
the least restrictive environment for P.S.
because it was his local public high school,
where he would have been educated with
other nondisabled children.” Id. at 33.
II.
All states receiving federal
education funding under the IDEA must
comply with federal requirements designed
to provide a “free appropriate public
education” (“FAPE”) for all disabled
children. See 20 U.S.C. §1412(1). “The
term ‘free appropriate public education’
means 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
t h e S t a t e ed u c ati o n al
agency;
(C) include an appropriate
preschool, elementary, or
secondary school education
in the State involved; and
(D) are provided in
c o n f o r m i t y w i t h t h e
individualized educa tion
program required under
section 1414(d) of this title.”
20 U.S.C. §1401(8).
States provide a FAPE through an
individualized education program (“IEP”).
See 20 U.S.C. 1414(d). The IEP must be
“reasonably calculated” to enable the child
to receive “meaningful educational
benefits” in light of the student’s
“intellectual potential.” Polk v. Cent
Susquehanna Interm. Unit 16, 853 F.2d
171, 181 (3d Cir. 1988).
Under 20 U.S.C. § 1412(5),
children must also be educated in the least
restrictive environment. This means that,
“[t]o the maximum extent appropriate,
children with disabilities . . . are [to be]
educated with children who are not
disabled” and that children w ith
disabilities are not to be placed in special
classes or otherwise removed from “the
regular educational environment” except
when “the nature or severity of the
disability of a child is such that education
in regular classes with the use of
supplementary aids and services cannot be
achieved satisfactorily.” Id.
As long as a state satisfies the
requirements of the IDEA, the state may
fashion its own procedures. Under New
Jersey law, a CST composed of a
psychologist, a learning disability teacher-
consultant, and a school social worker
conducts an evaluation of the student. See
N.J.S.A. §18A:46-5.1. Using the CST’s
evaluation, the school district determines
whether the student should be classified as
disabled. See N.J.A.C. §6A:14-3.1. If the
student is found to be disabled, the school
assembles a team to create an IEP for the

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child. See N.J.A.C. §6A:14-3.7. This
program is reevaluated every year, and the
child’s eligibility is redetermined every
three years. See N.J.A.C. §6A:14-3.8.
Under 20 U.S.C. § 1415,
dissatisfied parents may challenge a school
d i s t r i c t ’ s d e t e r m i n a t i o n s i n a n
administrative proceeding. In New Jersey,
the parents and the school board first
undergo mediation, and if mediation is
unsuccessful, a “due process hearing” is
held before a state administrative law
judge. See 20 U.S.C. § 1415(e) and (f);
N.J.A.C. § 6A:14-2.7(c) and (d). Parents
who disagree with their child’s placement
may unilaterally enroll their child in a
different school and seek reimbursement.
N.J.A.C. § 6A:14-2.10)d). However, no
reimbursement is required if the school
district offered the student a FAPE.
N.J.A.C. § 6A14-2.1(a).
Any party aggreived by a placement
decision may bring suit in a state court of
competent jurisdiction or a federal district
court. 20 U.S.C. § 1415(i)(2). In a case in
which parents seek reimbursement for a
unilateral placement, the District Court
must first determine whether the IEP
afforded the student a FAPE. School
Committee of Town of Burlington, Mass.
v. Department of Educ. of Mass., 471 U.S.
359, 370 (1985). The school has the
burden of showing that a FAPE was
offered. See Oberti v. Board of Educ. of
Borough of Clementon School Dist., 995
F.2d 1204, 1219 (3d Cir. 1993). To meet
this burden, the school must establish that
it complied with the procedures set out in
the IDEA and that the IEP was
“reasonably calculated” to enable the child
to receive “meaningful educational
benefits” in light of the child’s
“intellectual potential.” See Board of
Educ. of Hendrick Hudson Central School
Dist., Westchester County v. Rowley, 458
U.S. 176, 206-07 (1982); Ridgewood
Bd.of Educ.v. N.E., 172 F.3d 238, 247 (3d
Cir. 1999). If the IEP did not provide a
FAPE, the District Court must then decide
whether the parents took appropriate
actions. See Michael C. v. Radnor Twp.
Sch. Dist., 202 F.3d 642, 651 (3d Cir.
2000).
The burden of proof that a District
Court must apply when an IDEA decision
by a state agency is challenged is unusual.
Although the District Court must make its
own findings by a preponderance of the
evidence, 20 U.S.C. § 1415 (1)(2)(B)(iii),
the District Court must also afford “due
weight” to the ALJ’s determination.
Rowley, 458 U.S. at 206; see also Holmes
v. Millcreek Tp. School Dist., 205 F.3d
583, 591 (3d Cir. 2000). 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.” S.H. v.
State-Operated School Dist. of City of
Newark, 336 F.3d 260, 271 (3d Cir. 2003).
In addition, if a state administrative agency
has heard live testimony and has found the
testimony of one witness to be more
worthy of belief than the contradictory
testimony of another witness, that
determination is due special weight. Id.;
Carlisle Area School v. Scott P., 62 F.3d

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520, 527-29 (3d Cir. 1995). Specifically,
this means that a District Court must
accept the state agency’s credibility
determ inatio n s “ u n less the non-
testimonial, extrinsic evidence in the
record would justify a contrary
conclusion.” Carlisle, 62 F.3d at 529
(emphasis added). 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. See Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 574 (1985).
When a District Court decision in a
case such as this is appealed to us, we of
course exercise plenary review with
respect to the question whether the District
Court applied the correct legal standards
under the IDEA, see Polk, 853 F.2d at 181,
but we review the District Court’s factual
findings for clear error. T.R. v. Kingwood
Tp. Bd. of Educ., 205 F.3d 572, 576 (3d
Cir. 2000)(citations omitted). “A finding
of fact is clearly erroneous when, after
reviewing the evidence, the court of
appeals is left with a definite and firm
conviction that a mistake has been
committed.” Oberti, 995 F.2d at 1204
(internal quotation marks omitted).
III.
The District Court in this case did
not properly apply the “due weight”
standard. Both the ALJ and the District
Court were confronted with conflicting
opinions by experts on the question
whether placement at Shore offered P.S.
an education that was sufficiently free
from the threat of harassment to constitute
a FAPE. The ALJ who heard the
witnesses during a hearing that extended
over four days credited the witnesses who
opined that placement at Shore would have
exposed P.S. to a continuation of the
devastating bullying that had occurred in
Middle School. The District Court did not
point to any “nontestimonial evidence”
that undermined the testimony of these
witnesses. See S.H., 336 F.3d at 271.
Instead, the Court simply chose to credit a
witness who expressed a contrary opinion.
In taking this approach, the District Court
did not give the requisite deference to the
ALJ’s evaluation of the witnesses’
credibility.
As noted, Dr. Friedman, a
psychologist at the Institute for Child
Development at the Hac kensack
University Medical Center, and Dr.
Corbin-Fliger, a member of the Oceanport
CST, testified unequivocally that
placement at Shore would not have been
appropriate due to the threat of
harassment. Dr. Corbin-Fliger was fully
informed about Shore’s program, but she
testified “a high school situation is even
more unrestrictive than a middle school
situation” and that “no matter what
program” Shore implemented, she did not
believe that P.S. would “be in a safe
environment with the same kids” who had
previously harassed him. App. 134-5.
Dr. Friedman testified that bullying
does not go away on its own, particularly
when the victim is 12 years of age or older.
App. 198. Indeed, she stated that one
could “pretty much guarantee” that the
bullies would continue to harass P.S. if

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given the chance. Id. at 215. She stated
that, while “intensive interventions” with
the bullies, the onlookers, and the victim
“ c a n b e h e l p f u l ” u n d e r s o m e
circumstances, this strategy “is most
effective at the beginning” of a course of
harassment, and she noted that the
harassment of P.S. had been going on for
years. Id. at 202. As a result, she testified,
the “bullies are . . . used to looking at
[P.S.] in this manner, and . . . he’s used to
dealing with them in this manner.” Id. at
205. She expressed particular concern
about the “ripe opportunity” that the
bullies from P.S.’s area would have to
harass him on school bus rides to and from
Shore, id. at 203, and she opined that
neither the presence at Shore of students
who had not attended Maple Shade nor
participation by P.S. in Shore’s drama
program would have been enough to
protect him. Id. at 210, 219. Finally, she
observed that simply seeing the bullies at
Shore would have adversely affected P.S’s
self-esteem and his “ability to concentrate
and focus.” Id. at 205.
Rejecting the AL J’s decision to
credit these witnesses, the District Court
was more impressed by the testimony of
Dr. Chas, the Shore affirmative action
officer, who opined that Shore would be
able to control the bullying problem
because it provides “peer mediation” and
“counseling and training for both victims
and perpetrators of harassment” and
employs “a structured disciplinary system”
with “a hierarchy of punishments.” App.
30-31. Dr. Chas also maintained that the
influence of the students from Maple
Shade would be diluted by students who
had attended other middle schools and that
P.S. would receive support from the
students in the Shore drama club, who
were “a tight-knit group that is accepting
of newcomers.” Id. at 31.
As previously noted, the District
Court was required under our cases to
provide an explanation for its decision to
reject the ALJ’s decision to credit Dr.
Friedman and Dr. Corbin-Fliger, but the
District Court’s chief explanation does not
accurately characterize these witnesses’
testimony. The District Court faulted Dr.
Corbin-Fliger and Dr. Friedman because,
in the Court’s view, they “focused on the
failure of the Maple Place administration
to discipline these tormenters” and “did
n o t a ddress whether the Shore
administration would have been able to
address the problems.” App. 30. In fact,
however, while Drs. Corbin-Fliger and
Friedman certainly took into account
P.S.’s experiences at Maple Shade (as did
Dr. Chas), they focused upon and squarely
addressed the question whether Shore
would have been able to protect P.S. from
devastating harassment. Fairly read, their
collective testimony was that Shore would
not have been able to remedy the problem
because, among other things, the same
bullies would be present at Shore; bullies
generally do not stop on their own; even
“intensive interventions” are often not
effective when they are not begun until
after a course of harassment has continued
for some time; the presence at Shore of
students who had not attended Maple
Shade would not have shielded P.S.; the

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bullies would have had a ripe opportunity
to harass P.S. on the bus; and, in short, no
matter what program Shore implemented,
P.S. would not have been adequately
protected. Thus, the witnesses upon whom
the ALJ relied directly addressed the
question whether Shore would have been
able to deal with the harassment problem
successfully.
In a footnote, the District Court also
implicitly criticized Dr. Friedman’s
testimony on the ground that she “never
visited Shore to inv estigate their
disciplinary measures or the type of
environment supplied by its drama
program.” App. 30 n. 21. On cross-
examination, Dr. Friedman was asked why
she had not visited Shore, and she
responded that the Institute for Child
Development had based its evaluation on
the information that Shore had released
and that Shore had not suggested that a
visit to the school was needed. See App.
206. Since the District Court did not
identify any specific and material
information that only an actual visit to
Shore would have revealed, the Court’s
criticism of Dr. Friedman for not making
such a visit is largely beside the point. In
short, the District Court provided no
substantial reason for refusing to credit the
witnesses upon whom the ALJ clearly
relied.
Moreover, the District Court failed
to acknowledge weaknesses in Dr. Chas’s
testimony. Dr. Chas provided little
support for her belief that the Shore
program could remedy the problem that
P.S. had faced. She did not claim that
Shore could prevent the Maple Shade
bullies from having any contact with P.S.
Nor did she claim that Shore had ever
dealt successfully with a harassment
problem of this severity in the past. Nor
did she claim that she knew of cases in
which other high schools had successfully
cured problems of this nature by means of
a program similar to the one that Shore
proposed. In addition, although it appears
that Dr. Chas’s opinion rested heavily on
the view that Shore’s disciplinary system
would deter the bullies, she did not explain
in concrete terms how that system could
have dealt satisfactorily with a campaign
of harassment involving a barrage of
abusive conduct of a sort that is difficult to
prove in a disciplinary proceeding – for
example, constant snickering, shunning, or
mumbled epithets that no one other than
P.S. claims to have heard.
We do not suggest that Dr. Chas’s
opinion was unworthy of belief or that the
testimony of Dr. Corbin-Fliger and Dr.
Friedman was beyond dispute. But the
task of evaluating their conflicting
opinions lay in the first instance with the
ALJ in whose presence they testified.
When the ALJ’s determination in this case
is given its “due weight,” we see no basis
for overturning that determination. In
doing so, the District Court did not heed
the “due weight” standard, and the District
Court’s finding that Shore offered FAPE
was clearly erroneous.
IV.
For the reasons set out above, we
reverse the order of the District Court and

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remand for the entry of summary judgment
in favor of the defendant on the issue of
liability and for a determination of the
amount of reimbursement, attorney’s fees,
and any other costs that the school district
owes.

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