J.M. v. Summit City Bd. of Educ.

39 F.4th 126

J.M., individually and o/b/o C.M.; E.M., individually and o/b/o C.M., Appellants

v.SUMMIT CITY BOARD OF EDUCATION

No. 20-3391

United States Court of Appeals, Third Circuit.

Argued: October 26, 2021

Filed: July 1, 2022

Thomas J. O'Leary [ARGUED], Walsh Pizzi O'Reilly & Falanga, Three Gateway Center, 100 Mulberry Street, 15th Floor, Newark, NJ 07102, Counsel for Appellants

Jennifer N. Rosen Valverde [ARGUED], Rutgers University School of Law, Special Education Clinic, 123 Washington Street, Newark, NJ 07102, Counsel for Amici/Appellants

John B. Comegno II [ARGUED], Anne R. Myers, Comegno Law Group, 521 Pleasant Valley Avenue, Moorestown, NJ 08057, Counsel for Appellee

Before: GREENAWAY, JR., PHIPPS, and COWEN,^* Circuit Judges.

PHIPPS, Circuit Judge.

This is a dispute about the timing of a school district's provision of special education and related services to a child with autism. Although the school district provided those services to the child after he was diagnosed with autism in April 2017, it had denied the child those services fourteen months earlier. At that time, in February 2016, the child was six years old and in first grade, and the school district determined that he was ineligible for those services because he was not disabled and did not need them.

The child's parents disagreed with that ineligibility determination and sought redress under the Individuals with Disabilities Education Act (the ‘IDEA’) and § 504 of the Rehabilitation Act. In the administrative grievance that they filed against the school district, they asserted that the school district violated its statutory obligation to identify, locate, and evaluate children with disabilities. On the premise that the school district did not fulfill that duty, the parents claimed that the school district denied their child his statutory right to a free appropriate public education (a ‘FAPE’).

The parents' claims did not succeed at the administrative level or in the District Court. After holding an evidentiary hearing, a hearing officer denied the parents' administrative grievance. To dispute that outcome along with the hearing officer's evidentiary rulings, the parents filed a complaint in federal court. But the District Court upheld the hearing officer's determination and entered summary judgment in the school district's favor.

The parents have now appealed the District Court's ruling. Reviewing the District Court's legal conclusions de novo , its factual findings for clear error, and its evidentiary rulings for abuse of discretion, see Munir v. Pottsville Area Sch. Dist. , 723 F.3d 423, 430 (3d Cir. 2013) ; Susan N. v. Wilson Sch. Dist. , 70 F.3d 751, 760 (3d Cir. 1995), we will affirm the judgment for the reasons below.

I. FACTUAL BACKGROUND

A. The Four Months Before C.M. Enrolled in First Grade in the Summit Public School District

From his infancy through kindergarten, C.M. attended day care full-time. He met his developmental milestones, and the day care described his participation and adjustment to kindergarten as good and his behavior as fairly typical. But toward the end of kindergarten, in May 2015, he began to have meltdowns at day care. The day care staff could not manage C.M.'s behavior, and they asked his parents to remove him from the day care, which his parents did.

Prompted by concerns over his behavior (but not his academic performance), C.M.'s parents retained Dr. Carolyn McGuffog, a clinical psychologist and school neuropsychologist, to evaluate C.M. In July and August of 2015, Dr. McGuffog administered sixteen neuropsychological tests to C.M. over the course of four days.

B. C.M.'s First Month of First Grade in the Summit Public School District

In September 2015, C.M. started first grade in the Summit Public School District. Despite Dr. McGuffog's admonition that it was "very, very important to notify the school up front," C.M.'s parents did not alert the school district or his teacher to his meltdowns in kindergarten. Hr'g Tr. at 51:1–2 (June 8, 2018) (testimony of Dr. Carolyn McGuffog) (JA1241). Similarly, before the start of school, C.M.'s parents did not inform anyone at Summit that they had retained Dr. McGuffog to evaluate C.M.

But even without that upfront notice, by the middle of September, Summit's staff recognized that C.M. was displaying behavioral problems in class. He got angry quickly, and in frustration he would shout, push desks and staff, throw materials, leave the room, hide under his desk, or refuse to talk. He was removed from the classroom twice for disruptive behavior, but after speaking with the school psychologist, he calmed down and was able to return to the classroom and participate. After one of those incidents, Summit's staff contacted C.M.'s parents and learned for the first time about his behavioral issues at the end of kindergarten.

By the end of C.M.'s first month of first grade, Summit had assembled a multidisciplinary team to examine potential interventions in the classroom. That team consisted of the school principal, the school psychologist, a special-education teacher, a basic-skills teacher (who provides general-education supplemental instruction), and C.M.'s general-education teacher. They met in late September to identify and implement the least restrictive classroom interventions that would stabilize C.M.'s behavior.

After developing an intervention plan, the team implemented several interventions. Those included having places in the classroom for C.M. to go when he became upset, having C.M. participate in a lunch-time social-skills group once a week, and placing a card on C.M.'s desk to remind him of certain rules, such as to use kind words and to avoid hurting his friends. The intervention plan also called for rewarding C.M. with Pokémon cards for following those rules. In addition to those behavioral interventions, the team implemented interventions to assist C.M. academically. The team realized that C.M. had begun to experience academic difficulties, and it arranged for him to receive extra reading lessons four days a week and participate in an after-school basic-skills program twice a week.

Finally, the intervention team established a plan for monitoring the effects of these interventions, and it scheduled a second meeting for November 18 to assess the effects of the interventions.

C. The Results of the McGuffog Report and the Broadening Evaluation of C.M.

In early October, Dr. McGuffog completed a forty-eight-page report on her evaluations and shared it with C.M.'s parents. That report provided a detailed analysis of C.M.'s test results, and they were quite mixed. In several areas, C.M. demonstrated cognitive strength and normal development, such as a very high nonverbal intelligence, advanced mathematical skills, an average working memory, and average reading scores. But the test results also revealed areas of concern. C.M. had a notable weakness in inhibitory control, and although he barely met the minimum age requirement for one of the tests, it showed that he had significant problems with attentional regulation and impulsivity. The variation in the test results led Dr. McGuffog to observe that C.M. "presents with a complex array of neurocognitive strengths and weaknesses that poses a challenging diagnostic challenge, particularly given his young age." McGuffog Neuropsychological Evaluation Report at 36 (Oct. 8, 2015) (JA1720).

Despite the challenges, Dr. McGuffog made certain diagnoses. She determined that C.M. had three disorders: a language disorder, a social (pragmatic) communication disorder, and a specific learning disorder. She further recognized that C.M.'s test results were suggestive of autism and ADHD, but due to the combination of C.M.'s strengths, weaknesses, and young age, Dr. McGuffog declined to diagnose him with autism or ADHD. Instead, she issued ‘rule-out diagnoses’ for autism and ADHD, meaning that while she did not diagnose those conditions, she could not rule them out either.

Dr. McGuffog also made several recommendations for Summit with respect to C.M.'s schooling. She suggested that C.M. receive instruction in social skills, especially by means of a social-skills group. She encouraged Summit to implement behavioral supports and to provide academic support in language arts. She also recommended that C.M. undergo two more evaluations – one for speech and language, the other for occupational therapy.

Even before it received those recommendations, Summit's intervention team had begun – on its own – to implement many of those interventions, such as the use of a social-skills group and a number of behavioral supports. And by early February 2016, Summit had implemented all of Dr. McGuffog's recommendations for C.M.'s schooling.

Dr. McGuffog also made recommendations for C.M.'s parents. Based on those recommendations, they retained an occupational therapist and a psychologist to evaluate C.M. and prepare reports on their findings. Also, on Dr. McGuffog's advice, the parents scheduled weekly appointments for C.M. with an occupational therapist and a psychologist.

D. C.M.'s Parents Request that Summit Evaluate C.M. for Special Education

Although not recommended in the McGuffog Report, C.M.'s parents requested, on October 26, 2015, that Summit evaluate C.M. for special education and related services. In response, Summit assembled a multidisciplinary group of nine staff members and other professionals to formulate a plan for evaluating C.M.¹ And in a meeting with C.M.'s parents and Dr. McGuffog on November 11, that group offered to use every procedure at its disposal to evaluate C.M.

After that meeting, Summit formulated a proposal that included five evaluations of C.M. in different areas. Summit proposed a speech-and-language evaluation, a physical therapy assessment, a social assessment, a psychological evaluation, and an occupational therapy functional assessment. Summit further proposed that each of those evaluations be conducted by an appropriately qualified person: a...