the Souderton Area School District v. J.h., by

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1759
THE SOUDERTON AREA SCHOOL DISTRICT
v.
J.H., by and through his parents, J.H.
and S.H., and J.H. and S.H.
on their own right
Jonathan H., a minor, by his parents, John H.
and Suzanne H., and John H. and Suzanne H.,
on their own behalf, the Defendants below,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cv-02477)
District Judge: Honorable Lawrence F. Stengel
Submitted Under Third Circuit LAR 34.1(a)
November 5, 2009
Before: SCIRICA, Chief Judge, JORDAN and COWEN, Circuit Judges,
(Filed: November 6, 2009)
OPINION OF THE COURT
JORDAN, Circuit Judge.

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Appellants J.H., a minor child, and his parents appeal from an order of the United
States District Court for the Eastern District of Pennsylvania granting the Souderton Area
School District (the “School District”) summary judgment on the administrative record,
after finding that the School District had provided J.H. with a free appropriate public
education for the 2007-08 school year. For the reasons that follow, we will affirm.
I. Background
A. The IDEA
The claims at issue arise under the Individuals with Disabilities in Education Act
(“IDEA”), which ensures that children with disabilities have access to a free appropriate
public education (“FAPE”). 20 U.S.C. § 1412(a)(1). As part of the obligation to provide
a FAPE, school districts receiving federal funding must design and implement an
Individualized Education Plan (“IEP”) for each student with a disability. 20 U.S.C. §
1414(d)(2)(A). The IEP “consists of, inter alia, a specific statement of a student’s present
abilities, goals for improvement, services designed to meet those goals, and a timetable
for reaching the goals via the services.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 755
(3d Cir. 1995). The IEP “must be reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s intellectual potential.” Mary T.
v. Sch. Dist. of Phila., 575 F.3d 235, 240 (3d Cir. 2009) (quoting Shore Reg’l High Sch.
Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)) (internal quotations omitted).
The IDEA provides that parents such as J.H.’s may present a complaint to a local
educational agency “with respect to any matter relating to the identification, evaluation,

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or educational placement of the child, or the provision of a free appropriate public
education to such child ... .” 20 U.S.C. § 1415(b)(6). The parents may then request a due
process hearing, id. at § 1415(f), the results of which generally may be appealed to a state
educational agency, id. at § 1415(g). Parties to such an appeal who are aggrieved by the
final decision “shall have the right to bring a civil action with respect to the complaint ...
which action may be brought in any State court of competent jurisdiction or in a district
court of the United States, without regard to the amount in controversy.” Id. at §
1415(i)(2)(A). The district court is empowered to “grant such relief as [it] determines is
appropriate.” Id. at § 1415(i)(2)(C)(iii).
B. Facts
We need not add anything to the thorough factual rendition provided by the
District Court in its memorandum opinion, and we note here only the specific facts
essential to the disposition of this appeal.
J.H. is a minor child who suffers from learning disabilities. He has received
special education services in reading, math, and writing. Up through his fifth grade year,
corresponding to the 2005-06 school year, J.H. was enrolled in the Souderton Area
School District. His parents then unilaterally removed him from the School District and
placed him in The Crossroads School (“Crossroads”), a private school for children with
learning disabilities. The School District nevertheless continued to draft IEPs for him, in
keeping with the IDEA, 20 U.S.C. § 1414(d)(2)(A).

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1 On August 31, 2007, J.H. and his parents filed a complaint in the United States
District Court for the Eastern District of Pennsylvania challenging the June 2, 2007
Appeals Panel decision. On March, 20, 2008 the District Court affirmed the Appeals
Panel decision in its entirety. See J.H. v. Souderton Area Sch. Dist., Civ. A., No. 07-
3658, 2008 WL 746823 (E.D. Pa. Mar. 20, 2008). That decision is not the subject of this
appeal.
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In August 2006, J.H. and his parents filed an administrative complaint against the
School District and asked for a due process hearing, seeking tuition reimbursement for
J.H.’s enrollment in Crossroads, as well as compensatory education for the 2004-05 and
2005-06 school years. On April 20, 2007, the officer who conducted that due process
hearing concluded that, while J.H. was entitled to some compensatory education for the
2004-05 and 2005-06 school years, the School District had satisfied its obligation to offer
J.H. a FAPE for the 2006-07 year. The hearing officer thus declined to address in detail
the tuition reimbursement request. That decision was upheld on June 2, 2007 by the
Pennsylvania Special Education Appeals Panel (“Appeals Panel”).1
Shortly thereafter, the School District issued a new IEP for J.H. for the 2007-08
school year. On September 10, 2007, J.H. and his parents rejected the 2007-08 IEP
because, in their view, it failed to address certain needs. They requested a second
administrative hearing, seeking tuition reimbursement for J.H.’s Crossroads tuition for the
2007-08 year. On February 6, 2008, the hearing officer ruled in favor of the School
District, finding that, since the last hearing officer’s decision, “nothing has changed
except that the school district has strengthened its proposed IEP.” (App. at 74.) J.H. and
his parents once again appealed. On March 28, 2008, the Appeals Panel reversed the

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hearing officer’s ruling, finding that “[t]here were a number of deficiencies in the
proposed IEP.” (App. at 64.) In a five-page opinion, the Appeals Panel held that, given
J.H.’s “severe difficulty with processing, ... the proposed IEP does not address [his]
needs in a sufficiently focused, systemic and intensive manner [and] ... is not calculated to
provide meaningful education benefit.” (App. at 65.) The Panel thus awarded private
school tuition reimbursement for the 2007-08 school year.
The School District then filed the case that is before us now. The School District’s
federal complaint asserts that the Appeals Panel erred on multiple grounds and that,
because the strengthened IEP is “based on, and is very similar to, the previous IEP,” the
Panel has effectively “acted to reverse all the prior administrative decisions ... .” (App. at
9.) The parties filed cross-motions for summary judgment on the administrative record.
On February 11, 2009, in a well-reasoned and painstakingly detailed opinion, the
District Court overturned the Appeals Panel’s decision and granted summary judgment in
favor of the School District. Souderton Area Sch. Dist. v. J.H., Civ. A. No. 08-2477,
2009 WL 349733 (E.D. Pa. Feb. 11, 2009). The Court began by noting that “the Appeals
Panel report is sparse [and] provides little explanation as to why it found certain items
objectionable. It failed to cite to items in the record in a meaningful manner. In short, its
conclusions are clear; its reasoning, less so.” Souderton, 2009 WL 349733, at *5 n.15.
Then, the Court comprehensively reviewed several reports drafted by specialists, prior
IEPs, and testing materials to conclude that, despite the Appeals Panel’s findings, (1) the
IEP’s statement of present levels of J.H.’s education performance is not impermissibly

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2We recognize that appellants include not only J.H.’s parents but J.H. himself.
However, for ease of reference, we will refer to the appellants simply as the “parents”
throughout the discussion herein.
3The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and
pursuant to a grant of jurisdiction contained in the IDEA, 20 U.S.C. § 1415(i)(3)(A). We
have jurisdiction under 28 U.S.C. § 1291.
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vague; (2) the IEP’s annual goals are measurable; (3) the IEP contains numerous
specifically designed instructions to address J.H.’s weaknesses; (4) the IEP includes an
objective measure of achievement regarding J.H.’s writing skills; (5) the IEP adequately
provides the services necessary to address J.H.’s alleged speech and language needs; and
(6) the absence of occupational therapy (“OT”) services does not make the IEP
inadequate. Id. at *6-*14.
J.H. and his parents timely appealed.2
II. Discussion3
In an IDEA lawsuit, a district court exercises modified de novo review over state
administrative proceedings. S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d
260, 270 (3d Cir. 2003). The reviewing court is obliged to give “due weight” to the
underlying administrative record, id. (citation omitted), which requires the district court
“to consider the ‘factual findings from the administrative proceedings [to be] ... prima
facie correct’ and, if the court fails to adopt those findings, it must explain its reasons for
departing from them.” Mary T., 575 F.3d at 241 (citing S.H., 381 F.3d at 199). As in the
administrative proceedings, J.H. and his parents bore the burden of proving that the
School District failed to offer a FAPE for J.H. See L.E. v. Ramsey Bd. of Educ., 435 F.3d

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384, 392 (3d Cir. 2006) (“[A]ppellants bear the burden of proof when challenging the
appropriateness of the relevant IEPs.”). We review the district court’s factual findings for
clear error, but give plenary review to the district court’s legal conclusions. Id.
J.H.’s parents assert that the District Court erred in four ways: first, in concluding
that the proposed IEP provided a FAPE with regard to J.H.’s writing needs; second, in
concluding that the proposed IEP provided a FAPE with regard to J.H.’s OT needs; third,
in finding that J.H.’s need for speech and language therapy was adequately addressed in
the initial due process hearing and Appeals Panel decision; and fourth, in reversing the
second Appeals Panel’s tuition reimbursement award. (Appellant’s Op. Br. at 14, 20, &
24.) We address each of those contentions in turn.
A. The IEP and J.H.’s Writing Needs
The parents argue that the District Court “overlook[ed] the clear failure [of the
IEP] to appropriately assess J.H.’s writing ... .” (Appellant’s Op. Br. at 14.) Specifically,
they challenge the ways in which the School District, through the IEP, calculated J.H.’s
present level of writing. The School District obtained information about J.H.’s present
writing level from three different sources: his progress reports during his time at
Crossroads, the results of his 2007 Woodcock Johnson Third Edition Test (“WJ III”), and
a Pennsylvania System of School Assessment (“PSSA”) rubric-based writing sample.
Souderton, 2009 WL 349733, at *6.
The parents’ first complaint about the School District’s evaluation is that “the WJ
III is not designed to provide the kind of information needed to draft IEP goals ... and

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does not identify a student’s specific strengths and weaknesses.” (Appellant’s Op. Br. at
17.) However, in administering the WJ III, the School District was simply complying
with a prior recommendation of the first hearing officer, who wrote:
The IEP would be enhanced by the addition of ‘annual administration of a
standardized achievement assessment instrument such as the WJ III’ under
the progress monitoring section of each goal ... . It is also appropriate, and
the District is highly advised, to use the WJ III or some other similar
instrument with a nationally normed well-researched sample to assess
writing.
(App. at 269.) Thus, the hearing officer specifically encouraged the use of the WJ III,
indicating that it is a “nationally normed” means to assess writing. (Id.) Moreover, while
the Appeals Panel found error with other sources used to obtain present levels, it found no
error with the School District’s use of the WJ III.
Second, the parents contend that the PSSA rubric-based writing assessment has
“repeatedly been found to be inappropriate.” (Appellant’s Op. Br. at 19.) Before the
District Court, they cited reports describing the PSSA as “subjective and not measurable.”
Souderton, 2009 WL 349733, at *9, n.25. The PSSA, however, was not the only test
administered to J.H. Rather, it was given along with the WJ III. As the District Court
noted, while the PSSA writing rubric may be insufficient when given alone, “when
considered in conjunction with an unquestionably objective measure of achievement [like
the WJ III], the rubric may prove to be more effective.” Id. at *9 n. 25.
Finally, the parents contend that J.H. required a research-based writing program to
address his weaknesses in writing, instead of the rubric-based program found in the

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PSSA. That argument, though, ignores that a rubric-based writing assessment is
approved for use in public schools throughout the state and, contrary to the parents’
contention, is not entirely subjective. Its use has been identified as a “best practice” by
the School District’s language arts coordinator, and, indeed, it is used to assess all student
populations, including disabled students. In light of that record, the District Court did not
err in holding that the School District’s “proposed use of the [rubric-based] writing
process is sufficient to provide J.H. with a FAPE.” Souderton, 2009 WL 349733, at *10.
B. The IEP and J.H.’s OT Needs
The parents also argue that the District Court was wrong to hold that the proposed
IEP provided J.H. a FAPE, given his unmet OT needs. As the District Court noted,
however, the parents did not provide the School District with an OT evaluation of J.H.
until well after the school year had begun and the School District had already formulated
the IEP. The order of events surrounding OT services is as follows.
On April 20, 2007, the first hearing officer found that the School District had
satisfied it obligation to offer a FAPE for the 2006-07 school year, even though there
were no provisions in the IEP for OT services for J.H. That finding was confirmed by the
Appeals Panel the following June. Thereafter, during an IEP team meeting held on
August 28, 2007, J.H.’s parents mentioned that J.H. had undergone a private OT
evaluation over the summer and that they were now waiting for a formal written report
from that evaluation. The 2007-08 IEP was sent to J.H. and his parents the following day.

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4It is not clear from the record whether J.H.’s parents ever granted the school
permission to conduct its own OT evaluation.
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It specifically noted that the private OT report was pending, and it represented that the OT
report would be presented to the IEP team when it was provided to the School District.
On September 10, 2007, after rejecting the School District’s 2007-08 IEP, J.H.’s
parents sought a second administrative hearing. In their filing, they did not identify the
lack of OT services as a reason for rejecting the IEP. The next day, they received the
private OT report, but they did not provide it to the School District until October 14,
2007, well after the IEP had been formulated. Upon receipt of the OT report, the School
District immediately issued a revised IEP, which noted that the School District had
received the private OT evaluation. The School District also inserted into the IEP a
clause providing for J.H. to be reevaluated for potential OT needs within thirty days after
his return to the school. On October 19, 2007, the School District requested consent from
J.H.’s parents to conduct its own OT evaluation of the child.4
In February of the following year, at the second administrative hearing, the hearing
officer found that the private OT report was “equivocal” and that the School District was
“justified in requesting permission to perform its own OT evaluation.” (App. at 76.) The
hearing officer thus held that the lack of OT services did not mean that the IEP was
inadequate. “It is possible,” the officer said, “that, after further evaluation, it will become
clear that J.H. requires OT services. The privately-secured OT report alone is not enough,
however, to demonstrate ... that the School District’s IEP is inappropriate.” (Id.) We

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5 We also agree with the District Court that there is insufficient evidence to support the
idea that J.H.’s handwriting issues were of such a nature that the School District can be
presumed to have been aware of the need for OT services. Souderton I, 2009 WL 349733,
at *13. The parents do not appear to challenge the District Court’s factual findings
regarding this matter and so we need not repeat those findings here.
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agree. Appellants’ contention that the IEP should have provided for OT services assumes
a recognition of OT needs that did not exist when the IEP was created. When the issue of
OT needs surfaced, the School District reasonably offered to re-evaluate J.H. for those
needs within thirty days upon his return to public school, which has not yet occurred.5
We cannot say that the District Court erred in determining that, under the circumstances,
the IEP was adequate.
C. J.H.’s Speech and Language Needs
The parents next argue that the proffered IEP failed to appropriately address J.H.’s
speech and language needs. First, they say that the initial due process hearing never
actually addressed whether J.H. requires speech and language services, and thus, that the
District Court was mistaken in considering the impact that hearing had on the
development of the IEP. That assertion, however, is simply not supported by the record.
The first hearing officer’s decision included a finding of fact that J.H. did not appear to
have a speech or language disability and was thus not eligible for speech and language
services. Similarly, the Appeals Panel, after noting that “the parents [had] requested a
speech/language evaluation which the [School] District commissioned,” held that “the
speech/language specialist stated that [J.H.] did not present a speech/language disability

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and thus was not eligible for services in this area.” (App. at 273.) Accordingly, the
District Court correctly observed that the initial hearing officer and Appeals Panel were
“presented with all of these testing results, and both found that J.H. was ineligible for
additional speech and language services.” Souderton, 2009 WL 349733, at *12. As noted
by the District Court, the first round of administrative proceedings resulted in the
conclusion that – despite the absence of speech and language services – the IEP was
sufficient. That conclusion “understandably led [the School District] to believe these
services were not necessary.” Id. The School District thus “reasonably relied on the
decisions [from the first round of administrative proceedings] when drafting the IEP.” Id.
The parents next argue that the District Court erred because, even if the School
District could reasonably rely on the decisions from the first round of administrative
proceedings, evidence has come to light since those proceedings that shows that the IEP
cannot be adequate without speech and language services. (Appellant’s Op. Br. at 21.)
Specifically, the parents point to evidence that J.H. was provided with speech and
language therapy during his 2005-06 year at Crossroads. However, the foundations for
the parents’ argument did not arise after the initial administrative proceeding, and, in any
event, the District Court considered the very evidence to which the parents now allude.
The evidence of J.H.’s speech and language services at Crossroads is
acknowledged in the IEP for the 2007-08 school year and was discussed at length by the
District Court. But the fact that J.H. received speech and language services at Crossroads
did not convince the District Court that he required those services, and we too are

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6 We also agree with the District Court that the IEP does, in fact, contain some speech
and language services. Specifically, under the IEP, J.H.’s special education teacher must
consult with a speech therapist on a monthly basis. As the District Court held, the offer
of a monthly consultation with the speech therapist was “sufficient to meet the needs J.H.
was believed [to] have at the time.” Souderton, 2009 WL 349733, at *12.
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unpersuaded. The record makes clear that Crossroads provides large-group speech and
language therapy to all of its students. Thus, J.H.’s participation in group speech and
language therapy at Crossroads does not reveal anything about his individual needs. And,
although J.H. was also enrolled in small group therapy at Crossroads, receiving services
does not, in itself, prove the need for services. Even if accepted as some evidence of
need, the enrollment does not require the conclusion that the parents demand. J.H.’s
enrollment in small group therapy was based on his Crossroads admissions screening as
well as a December 2005 evaluation which revealed that he had a low working memory
score. The admission screening information and the December 2005 evaluation existed
when the initial hearing officer and Appeals Panel determined that J.H. did not need
speech and language services. We cannot say, any more than the District Court could,
that the assessment of J.H.’s needs made during those initial proceedings was erroneous.
In short, there does not appear to be new evidence that went unconsidered. 6
D. The Tuition Reimbursement Award
The IDEA provides that parents of children with disabilities who place those
children in private school may seek reimbursement from their public school district when
it is shown that the school district failed to offer a FAPE and that the choice of placement

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was appropriate. 20 U.S.C. §1412(a)(10)(C)(ii). J.H.’s parents contend that the District
Court’s overturning of the second Appeals Panel’s award of tuition reimbursement is
reversible error because they had made the necessary showing to receive reimbursement.
That argument, of course, depends upon a holding that the School District failed to offer a
FAPE to J.H. through the 2007-08 IEP. Given the District Court’s and our conclusion to
the contrary, no reimbursement was required.
III. Conclusion
The District Court’s description of the facts reflects a fair and accurate review of
the administrative record with respect to J.H.’s education. There is no error, let alone
clear error, in the Court’s factual determinations. The conclusion that the School District
offered J.H. a FAPE through its 2007-08 IEP is legally sound. Accordingly, though we
can certainly appreciate the intense interest the parents have in J.H.’s welfare and their
desire that he receive the best possible education, we must affirm the judgment of the
District Court.

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