Fuhrmann v. East Hanover Bd. of Education

OPINION OF THE COURT GARTH, Circuit Judge: This appeal presents us with the question of whether the appellant, G.F., a handicapped child, received proper educational placement in accordance with the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.A. § 1401 et seq. (West Supp.1992). After reviewing the record developed by the Administrative Law Judge pursuant to 20 U.S.CA. § 1415(e)(2) (West Supp.1992), the Honorable Maryanne Trump Barry of the New Jersey District Court determined that compliance had been had with both the procedural and substantive requirements of the IDEA as well as with the federal and state regulations promulgated thereunder. Judge Barry found that G.F.’s placements for the school years 1989-90 and 1990-91 were appropriate within the meaning and terms of the Act in that they were reasonably calculated to enable G.F. to receive educational benefits and meet his individual needs. See Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982). In so finding, Judge Barry reviewed the entire record and addressed all of the arguments advanced by G.F. and by the East Hanover Board of Education. [1033] Our review of Judge Barry’s decision is plenary with regard to its legal analysis, however, “our review must be conducted within the general framework of deference to state decision-makers dictated by the [IDEA and the Supreme Court’s opinion in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).]” Wexler v. Westfield Board of Education, 784 F.2d 176, 181 (3d Cir.1986). Therefore, like Judge Barry, who gave “due weight” to the record before her, we too must afford “due weight” to the underlying administrative proceedings. Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. Judge Barry’s thoughtful and well reasoned opinion in this case not only satisfies our review under the relevant standard, but convinces us that her analysis is not one upon which we can improve. By writing separately we would be adding nothing of substance to Judge Barry’s review of the record and hence we would be doing no more than paraphrasing what has already been written by a perceptive and distinguished judge. Accordingly, because Judge Barry’s opinion was not published, we take this occasion to reprint it in full. We adopt its analysis, reasoning and holding as our own. I. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY G.F., a minor child by his parents, M.F. and P.F. Plaintiff, VS. EAST HANOVER BOARD OF EDUCATION Defendant. Civil Action No. 89-4858(MTB) OPINION I. Introduction Presently before the court is an application by G.F., an eight year old boy classified as preschool handicapped, for an independent review of two New Jersey Office of Administrative Law decision's regarding his education in the 1989 and 1990 school years. Specifically, G.F. seeks a determination that respondent East Hanover Board of Education (“East Hanover” or “the Board”) violated the procedural and substantive requirements of the Individuals with Disabilities Education Act (“IDEA” or the “Act”), 20 U.S.C. § 1401 et seq. The Board contends that its actions complied with the Act and maintains that its placement was proper according to law. II. Background Mr. and Mrs. Fuhrmann, G.F.’s parents, began to notice developmental problems with G.F. when he was approximately one year old. 89T2:5.1 He would tap his ear with a shoelace for long periods of time and make whistling sounds. As he got older, he also began hitting and pinching others and being destructive. 89T2:4-9. In September, 1988, G.F. became eligible for and was enrolled in the East Hanover Preschool Education Program for the 1988-89 school year. Pretrial Stipulation at 2. The program lasted two and one half hours per day, four days a week, with occupational therapy two times a week. In , addition, the Fuhrmanns provided supplemental speech and occupational therapy on their own. . Although characterized differently by the parties, G.F.’s progress over the course of the 1988-89 school year was, by all accounts, slow. Mrs. Fuhrmann testified that she noticed some progress in the language area, where G.F.’s spoken vocabulary increased and he was able to point to objects on picture cards. She also noticed slight social progress in that G.F. recognized children and would touch their hair. 89T2:39-41. G.F.’s speech therapist at East Hanover, Theresa Gallagher, testified that he began to recognize common objects and that his in-school [1034] vocabulary increased from 0 to approximately 25 words. 89T4:194-96. Joanne Petriello, G.F.’s occupational therapist, noted that his improvement with building blocks, jumping on a trampoline, and catching a ball indicated improvement in his fíne and gross motor skills. 89T4:243-45. Similarly, G.F.’s teacher, Delores DelPlato, testified that his fine motor skills increased somewhat over the course of the year. 89T4:99-102. Nevertheless, of the 41 goals and objectives set out for G.F. for the 1988-89 school year, only one was fully accomplished, while the other 40 were carried over as goals for 1989-90. 89T4:150-62; 89E9, 23, & 26. Certainly, serious behavioral problems remained. In the spring of 1989, the Fuhrmanns retained a behavioral therapist for G.F. at their own expense. G.F. responded very quickly to the methods used by the behavioral therapist, and Mrs. Fuhrmann began using the techniques at home. 89T2:50-58. Within weeks, G.F. was toilet trained. Id. Indeed, G.F.’s occupational therapist at school asked if Mrs. Fuhrmann would demonstrate her methods to the other teachers. 89T2:56-57. Based on G.F.’s progress, the Fuhrmanns requested that East Hanover place him in a full day behavioral oriented program beginning in the summer of 1989. East Hanover denied this request, indicating that G.F.’s current program was appropriate and that, in any event, summer preschool handicapped programs would be offered only to children who would suffer irrevocable regression during the summer. See 89E11 at 2. The Fuhrmanns subsequently enrolled G.F. at the State Street School (“State Street”) at their own expense. Pretrial Stipulation at 3. G.F. remained at State Street for the summer of 1989 and throughout the 1989-90 school year. His progress was considerably more dramatic than the previous year. Carolyn Gallagher,2 the director of State Street, testified that over the course of the 1989-90 school year, G.F. showed significant gains in many areas of development, accomplishing approximately 42 or 43 of 50 goals set for that period. 90T3:61. At the end of the year he was more willing to learn, more social, more aware, and more verbal. 90T3:63. Mrs. Fuhrmann also testified as to G.F.’s improvement in the areas of self-help and play skills. 90T4:197-98. For the 1990-91 school year, East Hanover recommended that G.F. be placed in the Morris Union Jointure School. Again, the Fuhrmanns continued him at State Street. III. Legal Standard G.F., through his parents, seeks relief for East Hanover’s alleged violations of the Individuals with Disabilities Education Act (“IDEA” or “Act”), 20 U.S.C. § 1401 et seq. The action is brought in federal court pursuant to 20 U.S.C. § 1415(e)(2), which provides that an IDEA decision of a state educational agency can be appealed to federal district court.3 In determining the scope of the district court’s review under the IDEA, the Supreme Court has opined that the court must make a twofold inquiry: first, whether the state has complied with the procedures set forth in the Act, and second, whether the individualized educational program (“IEP”) developed pursuant to these procedures is “reasonably calculated to enable the child to receive educational benefits.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). The Court further stated that the statute’s language instructing that the district court, “basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate,” does not mean that courts are free to substitute their own notions of sound education policy for those of the educational agencies they review, but rather that “due weight” should be given to administrative proceedings. Id. at 205-06, 102 S.Ct. at 3050-51. Finally, it is quite clear that when a change in a child’s IEP is sought, regard [1035] less of whether the party seeking the change is the school district or the parents, the burden of showing that the placement is “appropriate” rests with the school district. Lascari v. Board of Education of the Ramapo Indian Hills Regional High School District, 116 N.J. 30, 44, 560 A.2d 1180 (1989). In reviewing the record as to plaintiffs challenges to East Hanover’s education plan for G.F. for the years 1989 and 1990, each year must be examined independently to determine if the IDEA’S procedural and substantive requirements were met. The procedural requirements of the IDEA are set forth in 20 U.S.C. § 1414 and state and federal regulations promulgated thereunder. See 34 C.F.R. § 300.340-300.349; N.J.A.C. 6.28-2.1-3.9. Generally, the regulations require that a child study team (“CST”), consisting of a school psychologist, a learning disabilities teacher-consultant, and a school social worker evaluate the child. N.J.A.C. § 6:2.8-3.4. The agency must hold a meeting at which the parents, at least one teacher with knowledge of the student’s performance, the CST, the pupil (if appropriate), and other school personnel or other appropriate individuals classify the child. N.J.A.C. 6:2.8-3.5. Next, the CST, parents, school principal, and other staff members collaborate to formulate, review, or revise an IEP for the child. 34 C.F.R. § 300.344-300.345; N.J.A.C. §§ 6:28-2.3, 6.28-3.1. An IEP must include a statement of current educational status, annual goals, short term objectives, a description of the type of program and reasons for its selection, projected dates for initiation and duration, and some objective criteria by which instructional objectives can be evaluated. 34 C.F.R. § 300.346; N.J.A.C. § 6:28-3.6. Where a child.has already been privately placed, the agency must ensure that a representative of the private facility attends the meeting to develop an IEP. 34 C.F.R. § 300.347. Substantively, the IDEA requires states wishing to qualify for federal funds to assure all children with disabilities the right to a free “appropriate public education.” 20 U.S.C. § 1412(1). Rowley established that, at a minimum, the Act requires that the program offered must be “sufficient to confer some educational benefit.” Rowley, 458 U.S. at 200, 102 S.Ct. at 3048. Although this has been interpreted as a floor beyond which the states may regulate, New Jersey has clearly adopted the federal standard. See Lascari, 116 N.J. at 47, 560 A.2d 1180 (discussing New Jersey Department of Education comment to 1989 regulations disavowing the view that N.J.A.C. 6:28 was intended to create a standard higher than the federal standard). Thus, substantive review of G.F.’s program must revolve around whether it was sufficient to confer some educational benefit on him. IV. Procedural Claims A 1989-90 Petitioner’s procedural arguments related to the 1989-90 school year are twofold. First, petitioner complains that the CST did not meet until June 13, 1989, two months after Dr. Hamway had told the Fuhrmanns that. East Hanover intended to continue the same placement for the next year. Respondent has shown that this complaint is belied by the record, and petitioner does not take issue with this showing in his reply brief. In addition, plaintiff claims that during the course of trial below, Dr. Hamway unilaterally offered modifications to the plan. This argument, too, is without merit. Some history is in order. The testimony of Dr. Servello, the school psychologist, indicates that he, the teacher, the teacher’s aide, the speech therapist, and the occupational therapist met on June 13,1989 and formulated a plan for G.F. for the 1989-90 school year. 89T3B:25-28. Although the Fuhr-manns were invited to participate in this process, they apparently declined. 89T3B:25. There is no question that the initial IEP for G.F. for the 1989-90 school year was developed by a properly constituted CST as required under N.J.A.C. § 6:28-3.1(b). See 89,T5:158-59 (G.F.’s CST consisted of Servello, Grace Suwinski, a learning disabilities teacher-consultant, Cindy Beltri, a social worker, and Theresa Gallagher, a speech pathologist). The Fuhrmanns contend that East Hanover violated the procedural requirements of [1036] the IDEA by modifying G.F.’s IEP in the summer of 1989, after the June meeting, without consulting the CST. The modifications at issue consisted of providing for G.F. to attend the afternoon session of the East Hanover program as well as the morning, as originally proposed, assigning an aide to be with G.F. during the lunch period, and adding the services of a behavioral consultant for two hours per day for ten weeks. The IEP containing these recommendations was first revealed at the trial below by Dr. Hamway on August 22, 1989. 89T4:299. Petitioner’s concern is that this recommendation was made without proceeding through the proper channels. 89T4:300-04. As the ALJ made clear, the modifications at issue were not made, according to the normal IEP development process, but were made after discussions between the court, counsel, and the parties, with the agreement of all present. 89T4:301. While it is true that petitioner did not clearly waive his right to raise a procedural challenge as to the 1989 plan, he was aware that the recommendations were being made in an extraordinary situation. Moreover, petitioner’s claim that the modifications were made without the professional judgment of the CST is not supported by the record. As Dr. Servello testified, the full day program was discussed by the CST in June, 1989, but not recommended because the team felt that it was not essential. 89T4:303-04. Similarly, the behavioral consultant was recommended by Dr. Savage. 89T3B:72. Thus, the modifications were offered as “something more than the minimum requirement” offered to the Fuhrmanns in the spirit of compromise. Id They were not made without professional judgment and were merely proposals when they were unveiled by Dr. Hamway in August, 1989. B. 1990-91 Petitioner claims that Dr. Hamway and the East Hanover staff violated the procedural requirements of the IDEA by not consulting Mr. and Mrs. Fuhrmann before making a placement decision for G.F. for the 1990-91 school year. In effect, the Fuhr-manns contend that they were presented with a “done deal” at the classification meeting on June 26, 1990, almost two months before the meeting to formulate an IEP for G.F. for the upcoming school year. In addition, petitioner contends that the failure of the Board to include or seek input from State Street, the Allegro School (“Allegro”), or the Morris Union Jointure School (“Jointure”) also violated the procedural requirements of the IDEA. If the Fuhrmanns were, in fact, excluded from the development of G.F.’s 1990-91 IEP or the placement process, then East Hanover violated the procedural requirements of the IDEA and related regulations. See N.J.A.C. § 6:28-2.3(h) (requiring parental participation in development of IEP). Petitioner analogizes to Spielberg v. Henrico County Public Schools, 853 F.2d 256 (4th Cir.1988) in support of this position. However, the record simply does not support a finding of mere “after the fact involvement” as the court in Spielberg found. Spielberg, 853 F.2d at 259. The Fuhrmanns were presented with a draft IEP at a meeting on August 16, 1990.4 The CST’s draft IEP was discussed, and the Fuhrmanns made several suggestions as to how the plan might be changed. 90T2:13-18. The CST considered the Fuhrmanns’ suggestions and incorporated some into the IEP. Id Although the Fuhrmanns ultimately did not sign the revised IEP, there was clearly more than after the fact involvement here. The record indicates that the Fuhrmanns had an opportunity to participate in the IEP formulation process in a meaningful way. Petitioner also claims that Dr. Hamway unilaterally rejected State Street as a potential placement for the 1990-91 school year at the June 26, 1990 classification meeting. This contention is belied by the record below. [1037] While it is true that Dr. Hamway indicated at the classification meeting that State Street was not being considered as an appropriate placement, this determination was neither unsupported nor unilateral. See 90T2:69-70. At the June, 1990 classification meeting, recommendations as to possible appropriate placement options for G.F. were presented to the Fuhrmanns. These recommendations were made by the CST after examining State Street’s program and considering G.F.’s performance there during the previous year. 90T1:34. Dr. Servello, who endorsed, the recommendation of Jointure, visited State Street twice and discussed G.F.’s progress in that program. 90Tl:34-37, 48. Moreover, there was no final placement decision presented at the classification meeting. Dr. Hamway and the CST simply indicated that Jointure was one program option for the Fuhrmanns to consider and that,-in the opinion of the CST, State Street would not be an appropriate option. 90T1:32. When the Fuhrmanns raised the question of State Street again at the IEP meeting in August, 1990, the CST members present explained why they felt that State Street was not an appropriate placement option. 90T2:70; 90T4:219-20. Petitioner’s argument that the absence of representatives from Jointure or Allegro at the IEP meeting violated the Act is also ■without merit. As petitioner recognizes in his brief, 34 C.F.R. § 300.347(a)(2) requires that before a public agency places a child in a private school, it must ensure that a representative of the private school is present at the IEP meeting. In the instant ease, East Hanover recommended placement at Join-ture, which is a public school. Therefore, § 300.347(a)(2) is inapplicable.5 V. Substantive Claims A 1989-90 Petitioner bases his substantive arguments as to the 1989-90 school year on the premise that G.F. required a full-time behavioral program. As evidence qf this, petitioner draws a comparison between G.F.’s progress over the course of the 1988-89 school year in the East Hanover program and his progress in the 1989-90 school year, which he spent at State Street. Of course, the standard which East Hanover must meet, as set forth in Rowley, is that of an “appropriate” education. Thus, this court’s inquiry is not whether State Street was better for G.F., as it appears to have been, but whether the placement of G.F. in East Hanover’s Preschool Handicapped program during 1989-90 was appropriate. The weight of the evidence supports a conclusion that the placement of G.F. for the 1989-90 year was appropriate. Clearly, the program was sufficient to confer some educational benefit upon G.F. Although petitioner’s expert, Dr. Handleman, testified that G.F. should be placed in a full-time behavioral oriented program, see 89Tl:68-72, this opinion was not universally held. For instance, Dr. Savage testified that, in his opinion, East Hanover’s Preschool Handicapped program was appropriate. 89T3B:71, 75, 77, [1038] 90. While he made some recommendations to East Hanover as to how to “enhance” the program for G.F., overall he felt that the placement of G.F. was appropriate. 89T3B:71. In addition, Dr. Kateher, a medical doctor who examined G.F. in June, 1989, indicated that he did not believe that G.F. was autistic and opined that while “behavioral techniques may very well be helpful for him,” social communication and language function were “the major issues.” 89E24 at 6-6. In short, East Hanover’s recommended placement in its Preschool Handicapped program for 1989-90 was appropriate.6 B. 1990-91 Petitioner bases his substantive claims relating to the 1990-91 school year on his contention that the recommended placement in the Jointure program was inappropriate. In support of this position, petitioner argues primarily that because Jointure was new and, therefore, could not be observed in operation prior to East Hanover’s recommendation of the program for G.F., it was not reasonably calculated to meet G.F.’s individual needs. The Fuhrmanns also argue that moving G.F. from State Street, where they enrolled him for the 1989-90 school year, to Jointure would cause him to regress.7 Contrary to petitioner’s assertions, East Hanover’s recommended placement in the Jointure program for 1990-91 was appropriate. The school offered one-on-one programming in a longer school day than alternative programs, a full time behavioral consultant, occupational therapy, speech therapy, and transitional programming. 90Tl:20-22. In addition, the CST clearly considered Jointure to be the least restrictive environment as defined in N.J.A.C. § 6:28-2.10. In particular, Jointure is a public school and is closer to G.F.’s home than any of the alternative placement options, including State Street. 90T1:22. Jointure also offered a gymnasium, cafeteria, and school nurse on site. 90T1:79, 82.8 [1039] The fact that the Jointure program was in its inception when East Hanover recommended placement there does not make that placement inappropriate. G.F.’s acceptance at Jointure was unconditional. 90T1:112. At the time of the administrative hearing, Join-ture had already accepted four students for the 1990-91 school year, ranging in age from five to eight and exhibiting approximately the same level of autistic-like behavior as G.F. Even Dr. Handleman, an expert witness for petitioner, testified that his only reservation about Jointure was that it was new and, therefore, had no track record.9 90T4:61, 108. Moreover, the risk of regression resulting from a change in programs for G.F. was not so great as to render Jointure inappropriate. Although Dr. Handleman expressed reservations due to potential regression, see 90T4:68-70, he recognized that G.F. did not suffer any substantial regression when he transferred from East Hanover to State Street. 90T4:113. Dr. Servello indicated that, in his opinion, the risk of regression for G.F. in moving to Jointure was no greater than any other change in program. 90T1.-25-26. Furthermore, Dr. Parmelee noted that while there would be a period of adjustment for G.F. in switching programs, she expected that there would be no academic regression for G.F. 90T1:92. In other words, there is no reason to conclude that G.F. would suffer anything other than “normal” regression associated with any change of program. This did not render East Hanover’s recommended placement in Jointure inappropriate. VI. Conclusion In summary, I find that East Hanover complied with the procedural requirements of the IDEA and the federal and state regulations promulgated thereunder. In addition, I find that the placement recommended by East Hanover for the school years 1989-90 and 1990-91 were “appropriate” in that they were sufficient to confer some educational benefit on G.F. and meet his individual needs. An appropriate order shall issue. /s/ MARYANNE TRUMP BARRY U.S.D.J. Dated: March 27, 1992 II. Ordinarily, we would conclude our adoption of Judge Barry’s opinion simply by reiterating our agreement with its thorough treatment of the issues, its reasoning and its conclusions. However, Judge Hutchinson’s thoughtful opinion, in which he concurs with our conclusion as to the 1990-91 placement, but dissents from our conclusion as to the 1989-90 placement, requires that a few more observations be added to our opinion in order that the dissent’s • concerns may be more specifically addressed. While the dissent argues that evidence of G.F.’s progress at State Street should have been afforded greater weight by the district court,10 as recognized by Judge Barry, Row-ley requires, at the time the initial evaluation is undertaken, an IEP need only be “reason [1040] ably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051 (emphasis added). Our understanding of Rowley comports with that of the- district court: that the measure and adequacy of an IEP can only be determined as of the time it is offered to the student,, and not at some later date. Judge Mansmann’s concurring opinion underscores and emphasizes the importance of this threshold determination. Neither the statute nor reason countenance “Monday Morning Quarterbacking” in evaluating the appropriateness of a child’s placement. Thus, Judge Mansmann and I are in complete agreement as to the time when we must look at the “reasonable calculation” made pursuant to Rowley. The district court concluded, and we cannot say erroneously, that, on the record before it, appropriate placement decisions for G.F. had been proposed both as to the 1989-90 and 1990-91 school years. Events occurring months and years after the placement decisions had been promulgated, although arguably relevant to the court’s inquiry, cannot be substituted for Rowley’s threshold determination of a “reasonable calculation” of educational benefit. Therefore, evidence of a student’s later educational progress may only be considered in determining whether the original IEP was reasonably calculated to afford some educational benefit. In this case, even in light of the dramatic progress made by G.F. at State Street, we cannot say, as the district court could not, that G.F.’s 1989-90 and 1990-91 IEPs, formulated by qualified experts in the field, were not “reasonably calculated” to provide some educational benefit. Indeed, to come to a different result as urged by the dissent, we would be obliged to replace the administrative law judge’s determination of adequate educational benefit with our own de novo findings. This we are proscribed from doing. See Ingersoll-Rand Financial Corp. v. Anderson, 921 F.2d 497, 504 (3d Cir.1990) (“This court is not a factfinding tribunal.”). We will therefore affirm the judgment of the district court. Footnotes [1] References to the six transcript volumes from the 1989 hearing before the Administrative Law Judge will be cited as 89T1:_through 89T6:_ References to the seven 1990 transcript volumes will be cited as 90T1:_through 90T7:_Exhib-its from the 1989 hearing will be cited as 89E1 through 89E28, while exhibits from the 1990 hearing will be cited as 90E1 through 90E37. [2] Carolyn Gallagher, the director of State Street, is not related to Theresa Gallagher, G.F.'s speech therapist at East Hanover. [3] 20 U.S.C. § 1415(e)(2) provides that the district court shall, upon the request of a party, receive any additional evidence relevant to the determination. The parties have not requested that the court consider additional evidence, so the court's determination will be based on the record of the administrative proceedings. [4] Petitioner argues that Dr. Servello's absence from the August 16, 1990 meeting with the Fuhrmanns constitutes a procedural violation of the IDEA. This argument is legally insupportable. NJ.A.C. § 6:28-2.3(h)(l)(iv) dictates that the IEP meetings must include, among other participants, at least one member of the CST. The record indicates that Cindy Veltri and Grace Sowinski, a special education teacher employed by East Hanover, along with non-CST participants Dr. Hamway and the Fuhrmanns, were present at the August 16, 1990 meeting. 90T2:14. Clearly this satisfies the requirements of the New Jersey regulations. [5] To the extent that petitioner argues that the procedures set forth in 34 C.F.R. §§ 300.-347(a)(2) & 300.348 were violated with respect to the 1990-91 school year, that argument must be rejected. Petitioner suggests that the hearing officer's finding that G.F. was in a private school as the result of a unilateral decision of the Fuhrmanns was incorrect and that, therefore, his dismissal of the procedural challenges under these two code sections was erroneous. See Petitioner’s Br. at 43 n. 20, 44 n. 21. Petitioner's arguments fail, quite simply, because neither of these two code sections apply to this case. Both of these regulations are aimed at ensuring that a public agency that would otherwise be responsible for the education of a handicapped child does not abdicate that responsibility merely because a child is or will be enrolled at a private institution. Section 300.347(a)(2) dictates that before a public agency places a child in a private facility, the agency must initiate a meeting to develop an IEP, and must include in that meeting a representative of the private facility. Because East Hanover did not seek to place G.F. at a private facility for 1990-91, it had no duty to include any private school representative in the IEP development process. Section 300.348 sets forth guidelines for the public agency to follow when a handicapped child is enrolled in a private school and receives special education or related services from the public agency. Here, however, there is no indication that, while enrolled at State Street, G.F. received any services from a public agency. Rather, he was enrolled at State Street in lieu of the services offered by the public agency. Clearly, neither section applies to this case. [6] Petitioner argues in his brief that judicial estop-pel should operate to prevent East Hanover from arguing its position for'the 1989-90 school year. The absurdity of this position is manifest. East Hanover cannot be estopped from making different placement recommendations from year to year based on what it has recommended in the past. The two school years at issue are distinct, and the circumstances, as well as G.F.’s needs, are also distinct. There is no inherent and, certainly, no unfair, inconsistency in the positions asserted by East Hanover. [7] Petitioner argues that the "stay-put" provision of 20 U.S’.C. § 1415(e)(3) operates to create a rebuttable presumption in favor of a handicapped child’s current placement. This characterization of § 1415(e)(3) is inaccurate. The statute provides: During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. 20 U.S.C. § 1415(e)(3). As the Supreme Court noted in Honig v. Doe, 484 U.S. 305, 324, 108 S.Ct. 592, 604, 98 L.Ed.2d 686 (1988), Congress included this provision to prevent state and local education agencies from unilaterally excluding disabled children from public school classes pen-dente lite. In other words, a child could not be indefinitely suspended from public school while he or she appealed the agency’s suspension or expulsion decision through the administrative and federal channels. In this case, G.F. has remained in his current placement, State Street, for the duration of the litigation. The explicit language of the stay-put provision makes clear that it does not, as petitioner suggests, create a substantive presumption in favor of a child's placement after litigation. [8] Although this court’s charge is to determine if the placement at Jointure was appropriate, rather than ruling on whether Jointure was "better” than State Street or the "best” option, a comparison to State Street’s program is revealing. State Street was clearly not the least restrictive environment for G.F. It is a private school in a converted professional office building located on the main street in Hackensack, New Jersey. 90T3:95-96. The building does not have its own gym, cafeteria, or playground, but the students use the cafeteria and playground across the street. 90T4:120. The doors of the facility lock upon closing and can only be opened by using a combination key pad. 90T4:101. There would be 10 children in G.F.’s class with one certified teacher and four teaching assistants, two of whom were college graduates and the other two of whom were full-time employees going to college at night; data collection to monitor students' progress was performed by all staff members. 90T4:105-11. With its inception in March, 1988, State Street’s track record was, at most, two years at the time of G.F.’s placement [1039] for the 1990-91 school year. 90X4:115. The program offers no occupational therapist on staff, so that the Fuhrmanns would have to pay for the two sessions per week as recommended in the IEP. 90T4:118-19. Clearly as to all these characteristics, the Jointure program was able to offer more for G.F. than State Street. [9] It should be noted that although petitioner complains that placement in the Jointure program was inappropriate because it had no established performance record by which it could be judged, State Street had been in operation for only two years in the spring of 1990, and only one year when G.F. was first placed there by his parents in 1989. 90T4:115. In addition, counsel for respondents indicated at oral argument that although the Jointure school in Chatham, New Jersey did not have a "track record” in the summer of 1990, there were other Jointure programs that were more firmly established which could have served as a useful source of information about the Chatham Jointure school. [10] In fact, the dissent argues that the district court refused to consider evidence of G.F.’s progress at State Street at all. Dissent typescript at 1040-1041. However, Judge Barry’s opinion is replete with comparisons between G.F.'s experience at East Hanover and his subsequent work at State Street. Indeed, contrary to the dissent’s characterization of the district court's opinion, nowhere does Judge Barry suggest that G.F.’s progress at State Street was not considered in her determination that G.F.’s 1989-90 IEP was appropriate.