William Anello; Maureen Anello v. Indian River School District; Susan S. Bunting

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1650
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WILLIAM ANELLO;
MAUREEN ANELLO,
Appellants,
v.
INDIAN RIVER SCHOOL DISTRICT;
SUSAN S. BUNTING
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-07-cv-00668)
Magistrate Judge: Honorable Leonard P. Stark
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Submitted Under Third Circuit LAR 34.1(a)
December 1, 2009
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
(Filed: December 14, 2009)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
William and Maureen Anello appeal the District Court’s summary judgment in
favor of the Indian River School District and Susan S. Bunting on the Anellos’ claims
under the Individuals with Disabilities Education Act (IDEA). We will affirm, largely for
the reasons explained in the District Court’s thorough opinion. Anello v. Indian River
Sch. Dist., 2009 U.S. Dist. LEXIS 8896 (D. Del. 2009).
I.
Because we write for the parties, who are familiar with the facts and procedural
history, we recount only the aspects of the case that are essential to our decision. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
A.
The Anellos moved to the Indian River School District when their daughter G.A.
was to begin third grade. Prior to her arrival, G.A. had been deemed eligible by the State
of New York for instruction under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, but
ineligible for instruction under the IDEA. At the beginning of the 2003-2004 school year,
Indian River and the Anellos determined that G.A. would remain on her § 504 plan and
established classroom accommodations. In June 2004, Indian River determined that G.A
had an IDEA-eligible learning disability in reading comprehension. Accordingly, the
School District drafted an individualized education plan (IEP) to address G.A.’s disability

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and convened a meeting with the Anellos. Unsatisfied with the steps taken by Indian
River, the Anellos placed G.A. in Lighthouse Christian School in August 2004.
In support of their IDEA claim, the Anellos assert Indian River: (1) failed to
follow Delaware’s “child find” regulations; and (2) was on notice that G.A. needed an
initial evaluation upon her arrival in the Fall of 2003.
School districts have a “child find” obligation to ensure all children with
disabilities are “identified, located, and evaluated” for eligibility for special education and
related services. 20 U.S.C. § 1412(a)(3)(A). Each state must establish regulations and
procedures to discharge this duty. 34 C.F.R. § 300.111. In Delaware, the Department of
Education created the Administrative Manual for Special Education Services (AMSES),
which includes and is broader than the IDEA. Under AMSES, each school is required to
create an instructional support team (IST) to evaluate potentially eligible children.
AMSES § 2.3. Significantly for purposes of this appeal, AMSES leaves the definition of
IST up to each school district. Id. § 2.3.1.
The Anellos claim Indian River would have found G.A.’s disability earlier had it
convened the required IST in September 2003. Indeed, the Anellos question whether
Indian River ever convened an IST because it did not submit any documentation
demonstrating the IST’s existence or listing the team members. Additionally, much of the
testimony about the IST’s actions came from a special education teacher who was,
admittedly, not a member of the IST.

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The Anellos raise the IST issue for the first time on appeal, which renders it
waived under our precedents. See Gleason v. Norwest Mortgage, Inc., 243 F.3d 130,142
(3d Cir. 2001) (“Generally, barring exceptional circumstances, like an intervening change
in the law or the lack of representation by an attorney, this Court does not review issues
raised for the first time at the appellate level.”). And, “[a]lthough we have discretion to
review an argument not raised in the trial Court, we ordinarily refuse to do so.” Id.
The Anellos claim the issue is not waived because the District Court opinion is the
first finding that G.A. had an IST, so there was no need to challenge it earlier. In our
view, this is insufficient to avoid the waiver rule. Appellate review is especially
inappropriate here because the Anellos essentially ask us to find, on an undeveloped
record, that the IST either was inadequate or did not exist at all. See Norfolk Southern Ry.
Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir. 2008) (“A district court’s failure to
consider an issue below does not necessarily preclude us from addressing it on appeal.
However, it is only appropriate for us to do so ‘when the factual record is developed and
the issues provide purely legal questions, upon which an appellate court exercises plenary
review.’ In situations ‘where the resolution of an issue requires the exercise of discretion
or fact finding . . . , it is inappropriate and unwise for an appellate court to step in.’”
(quoting Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir.
1998))); see also Gass v. Virgin Islands Tele. Corp., 311 F.3d 237, 246 (3d Cir. 2002)
(the waiver rule “applies with added force where the timely raising of the issue would

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have permitted the parties to develop a factual record.” (quoting In re American
Biomaterials Corp., 954 F.2d 919, 927-28 (3d Cir. 1992))).
Finally, it is not entirely clear that the District Court assumed there was an IST; it
only mentioned such a team when summarizing the Anellos’ argument. Anello, 2009
U.S. Dist. LEXIS 8896, at *29. The absence of any meaningful discussion of an IST in
the District Court’s analysis is unsurprising because the legal significance of the IST’s
existence was not raised below, which is the essence of waiver. Ross v. Hotel Employees
& Restaurant Employees Int’l Union, 266 F.3d 236, 242-43 (3d Cir. 2001) (waiver “seeks
to insure that litigants have every opportunity to present their evidence in the forum
designed to resolve factual disputes” (quoting Patterson v. Cuyler, 729 F.2d 925, 929 (3d
Cir. 1984))); see also In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.
2009) (“[T]he crucial question regarding waiver is whether defendants presented the
argument with sufficient specificity to alert the district court.” (quoting Keenan v. City of
Phila., 983 F.2d 459, 471 (3d Cir. 1992))).
The Anellos also argue Indian River was on notice that G.A. should have been
evaluated under the IDEA sooner because her § 504 plan was failing all year long, as
shown by her failure on the standardized Delaware Student Testing Program (DSTP), her
failing grades, and the school’s failure to modify the plan to adapt to those grades. The
Anellos have already prevailed upon their claim that G.A. was entitled to an evaluation
after they requested one on February 3, 2004. Anello, U.S. Dist. LEXIS 8896, at * 34-35.

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Therefore, their § 504 argument is only relevant if it can establish that Indian River
should have known before February 3, 2004 that G.A. needed an evaluation.
The evidence available as of February 3, 2004 does not establish that the § 504
plan had failed, let alone that Indian River violated the IDEA. As of that date, G.A.’s
grades were improving in all subjects, including math, and the School District could not
know she would later fail both the third grade and the DSTP. Furthermore, even taking
G.A.’s ultimate failures into account, the District Court specifically found, as a matter of
fact, that the § 504 plan did not fail. Our independent review of the record indicates that
this was not clearly erroneous.
We also note the record establishes that the curriculum was heavily tailored to
meet G.A.’s needs, even though some of those programs were also available to others.
G.A.’s teacher provided extra support at every turn and talked with the Anellos whenever
they had a concern, even giving them her home phone number. Indeed, the Anellos were
so satisfied with this teacher that they pulled G.A. out of specialized programs tailored to
her needs because they preferred her regular teacher.
For the foregoing reasons, we are unpersuaded by the Anellos’ “child find” claims.

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The Anellos correctly argue that the District Court erred when it assigned the1
burden to them. Anello, 2009 U.S. Dist. LEXIS 8896, at *23-24. We still affirm,
however, because we reach the same conclusion with the burden properly placed. See
S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 271 (3d Cir. 2003).
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B.
The Anellos next claim Indian River did not propose an adequate IEP for G.A. In
Delaware, the School District has the burden of establishing that its IEP was adequate. 14
Del. C. § 3140.1
As a substantive matter, the IEP must be tailored to the student’s unique needs and
“reasonably calculated to enable the child to receive [meaningful] educational benefits.”
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07
(1982); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). Procedurally,
the IEP also must contain a statement of the child’s current level of performance and how
her disability affects her performance. 20 U.S.C. § 1414(d)(1)(A). Finally, it must set
measurable annual goals relating both to progress in the general curriculum and additional
educational needs arising from her disability. Id. A procedural violation is actionable,
however, only if it: (1) “impeded the child’s right to a free appropriate public education”
(FAPE); (2) “significantly impeded the parents’ opportunity to participate in the
decisionmaking process”; or (3) “caused a deprivation of educational benefits.” 20
U.S.C. § 1415(f)(3)(E).

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The school psychologist conducted extra testing in math and found G.A.’s scores2
within the average range.
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The Anellos claim G.A.’s IEP was substantively deficient because it treats her as
disabled only in reading comprehension, even though she failed third grade in math and
was eligible for instruction in writing under § 504 of the Rehabilitation Act. Giving due
deference to the administrative panel’s findings, P.P. v. West Chester Area Sch. Dist., __
F.3d __, 2009 WL 3526372, at *6 (3d Cir. 2009), the District Court properly found that
G.A. only had an IDEA disability in reading comprehension, not math or writing. The
test for eligibility is a severe discrepancy between ability and achievement, AMSES
§ 4.8.3, and the school psychologist found a severe discrepancy only in reading
comprehension. Furthermore, as the District Court noted, the IEP is adequate because in2
addition to addressing G.A.’s reading comprehension needs, it contains “significant
provisions devoted to addressing G.A.’s non-qualifying areas of concern[,] including
math reasoning.” Anello, 2009 U.S. Dist. LEXIS 8896, at *39.
The Anellos also make several procedural arguments. Their strongest argument is
that the IEP does not adequately state G.A.’s present level of performance. Both the
IDEA and the relevant federal regulations require that statement to include “how the
child’s disability affects the child’s involvement and progress in the general education
curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320. The IEP in this case
did not contain such a statement; it merely said that G.A.’s present performance level is

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“1.8 grade level.” Although this constitutes a procedural violation, the Anellos do not
explain how it: (1) impeded G.A.’s right to a FAPE; (2) significantly impeded their
opportunity to participate in the decisionmaking process; or (3) caused a deprivation of
educational benefits. 20 U.S.C. § 1415(f)(3)(E). Because our own review of the record
finds these circumstances lacking, we hold that it is not actionable.
The Anellos make additional claims of procedural error, but we find them
unpersuasive. For example, they argue the IEP’s goal fails because it is not adequately
explained. The only goal in the proposed IEP is for G.A to “read a third grade passage at
a rate of 50-70 wpm with 0-5 errors and correctly answer 80-100% of comprehension
questions.” Though one reading test placed G.A.’s reading level at grade 1.8, other tests
placed it at 3.1 or higher. The Anellos claim the IEP should have explained the
differences between the tests and why the 1.8 score was appropriate. But they do not cite
any authority for requiring such an explanation and the fact that it would be preferable
does not transform it into a requirement under the IDEA.
In sum, because the IEP was adequately drafted to provide G.A. with a FAPE, the
Anellos are not entitled to reimbursement for tuition costs incurred when they sent her to
a private school for the 2004-2005 school year. Lauren W. ex rel. Jean W. v. DeFlaminis,
480 F.3d 259, 276 (3d Cir. 2007) (citing Florence County Sch. Dist. Four v. Carter ex rel.
Carter, 510 U.S. 7, 15 (1993)).

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III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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