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Is there a tacit revocation of the will?
ArticlesIs there a tacit revocation of the will?
A husband comes home and finds his wife cheating on a lover. In a fit of jealousy he takes a firearm and shoots both of them, then shoots himself. In the wake of fate, however, he first rested from his wounds, and his wife remained alive or died only after her husband. If the husband has left a will in favor of his wife, what will be the situation with this will? From the inheritance point of view, it is logical to assume that after his death the wife will receive the legacy by will, and after her death - the heirs of the law or the will of the latter. What if she left a will in favor of her lover? Logically - the legacy of the spouse will be obtained from the lover! Is this fair, however? Is it fair for a wife to inherit a will? Is not there reason to make the testamentary order caved? And in all cases where the lawyer himself attempts to murder or kills the heir of the will or the covenant, is there no ground for the annulment of the will?
Why not assume that attempted murder or murder by the testator in respect of the heir by law or the covenant (the untrue wife in the case) does not lead to a silent annulment of the testament? The actual text is missing. But there is also a lack of text that the deliberate destruction of the testament by the testator means the will to revoke the legal act. Once this action is deemed to be a will to annul the act of will as a one-sided transaction, without any text in the law in that sense, why not presume other actions of the testator who silently cancel the will?
Art. 20. The testamentary order does not produce any action if the person in favor of which is made dies before the testator.
Art. 41. (1) The alienation, in whole or in part, of a testamentary estate shall invalidate the covenant regarding the expropriated property, even if the property is again acquired by the testator or when the alienation is destroyed for other reasons and not for a defect in the consent.
(2) The same shall apply when the testator redrafts or alters the property in question in such a way that it loses its former form and purpose.
The HH states that only the living person at the time of inheritance is able to obtain by law or will, by adding to the circle of possible heirs and those who have not yet been born unincorporated at that time. Art. 20 MG explicitly confirms this in the matter of inheritance by will. At the same time, in our narrative by definition the heir of the will or the covenant is alive to the discovery of the inheritance. But the heir itself attempted to kill the heir by will or the covenant. Here the ground for the annulment of the will, its edification stems from the testamentary will of the testator to liquidate the heir of the will or the covenant, from which an alleged will to revoke the legal act may be derived. Indeed, the dead can not inherit. Here the will is no less clearly manifested than the manifested will to annul the act upon the break of the will. In fact, the testator aims to induce the occurrence of the consequences under Art. 20 HH through its legal action - murder or attempted murder. The bequest itself as a special act of gratuitous property disposition for death in favor of one person is incompatible with the act of attempted murder or murder with respect to the heir or the covenant - an act of reproach and utterance as grossly as possible disrespect for the human person. At the same time, every legal act, any legal transaction, is carried out under a certain "vital prerequisite"; there is a definite life ground. With the hypothesis of our hunch, every life-ground of the will as a legal act should be considered to have fallen.
At the same time, there is reason to apply by analogy the law of Art. 41, para. 1 and para. 2 HN. Just as alienation as a legal act of the wills, an expressed will for separation from her, is presumed by the law of will to annul the will. Just as the processing of the thing by the testator is presumed by the law of will to annul the will. Similarly, in the attempt to murder or kill the heir by will or the covenant, the testator performs an act demonstrating the will to remove the "principal addressee" of the act - the benefactor.
Hrumata leads to a fall in the case-law and, in essence, to the extension of instances of inability to inherit under Art. 3 HM, by adding the law, which has no legal basis and leads to legal uncertainty. There is no gap in law at all to be applied by analogy to Art. 41H.
Is there a tacit revocation of the will? Is there a tacit revocation of the will?

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1. In exchange for shares in "hot" IPOs, CSFB wrongfully extracted from certain customers a large portion of the profits those customers made by flipping their IPO stock. From at least April 1999 through June 2000, CSFB employees allocated shares of IPOs to over 100 customers who were willing to funnel between 33 and 65 percent of their profits to CSFB. The profits were channeled to CSFB in the form of excessive brokerage commissions generated by the customers in unrelated securities trades that the customers generally effected solely to satisfy CSFB's demands for a share of the IPO profits.
2. The more than 100 customers involved in the conduct alleged in this Complaint were primarily small "hedge funds," private equity funds, and wealthy individuals (the "Customers"). The profit-sharing activity was pervasive in such Customer accounts serviced by CSFB's Institutional Sales Trading Desk, Private Client Services (PCS) Group and Technology PCS Group ("Tech PCS"). The Customers were a small segment of the more than 2400 accounts to which CSFB allocated IPO stock as lead managing underwriter during the relevant time; in no IPO were such Customers allocated more than 10 percent of the IPO stock. Nonetheless, IPO trading was so profitable during this period that the Customers funneled tens of millions of dollars in profits to CSFB through improper commission payments.
3. The Commission brings this action pursuant to authority conferred upon it by Sections 21(d) and 21(f) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§ 78u(e) and 78u(f), to enjoin CSFB from violating provisions of the federal securities laws and the Conduct Rules of the National Association of Securities Dealers, Inc. ("NASD"). In addition, the Commission seeks other relief, including, but not limited to, disgorgement and civil penalties, and certain ancillary and further relief as is necessary and appropriate.
4. This Court has jurisdiction over this action pursuant to Sections 21(e) and 27 of the Exchange Act, 15 U.S.C. §§ 78u(e) and 78aa.
5. Venue lies in this Court pursuant to Section 27 of the Exchange Act, 15 U.S.C. § 78aa.
6. CSFB has engaged in, and unless enjoined, will continue to engage, directly or indirectly, in transactions, acts, practices, and courses of business that constitute violations of Rules 2110 and 2330 of the NASD Rules of Conduct, and Section 17(a) of the Exchange Act, 15 U.S.C. § 78q(a), and Rule 17a-3(a)(6) thereunder, 17 C.F.R. § 240.17a-3(a)(6).
7. Credit Suisse First Boston Corporation is a broker-dealer registered with the Commission pursuant to Section 15 of the Exchange Act, 15 U.S.C. § 78o. CSFB's principal offices are located at 11 Madison Avenue, New York, New York 10010. CSFB provides the full range of services offered by a multi-purpose investment bank, including securities underwriting, sales and trading, and investment banking. CSFB has 15 branch offices in the United States. The majority of the conduct described herein occurred in the New York, Boston, and San Francisco offices.
8. An IPO is the first public issuance of stock from a company that has not previously been publicly traded. A "hot" IPO is one in which the stock immediately trades at a premium in the aftermarket.
9. During the period of 1999 through 2000, three business units within CSFB had primary responsibility for IPOs: the Global Investment Banking Division ("IBD"), the Equities Division, and the Global Equity Capital Markets Department ("ECM").
10. IBD typically assumed overall responsibility for an IPO from the initial engagement through the registration, marketing and pricing of the securities offered.
11. ECM was responsible for executing the distribution of an issuer's securities, including overseeing the allocation of an issuer's shares. ECM included the Syndicate Desk, which made allocation decisions for institutional accounts.
12. The Equity Sales Department provided brokerage services to CSFB's customers, including access to CSFB-led offerings. CSFB's equity sales force included research sales people who provided CSFB's research to institutional accounts and marketed IPOs to them; institutional sales traders, who serviced institutional accounts; PCS representatives, who serviced middle market accounts; and Tech PCS representatives, who serviced middle market clients of CSFB's technology group, among other clients.
13. During the relevant time period, apart from the conduct alleged in this Complaint, CSFB regularly relied on the following criteria, among others, to make allocation decisions in IPOs: the level of business an account had done with the firm, the long or short term interest of an account in an issuer, the size of an account's anticipated long term investment, an account's track record of investment in similar issues, an account's apparent interest in the issuer as evidenced by attendance at roadshows, the account's assets under management, and the existing or potential business relationship between an account and CSFB.
14. CSFB accounts that received IPO allocations fell into two categories: institutional accounts and retail accounts. Institutional accounts ran the gamut from large mutual funds to small hedge funds and private equity funds. During the relevant time period, middle market accounts serviced by the PCS and Tech PCS group were considered retail accounts. These accounts were comprised primarily of small institutions, private equity funds, and high net worth individuals.
15. In CSFB lead-managed IPOs, more than 70% of the shares offered were typically allocated to institutional accounts from the so-called "institutional pot." During the relevant time period, the Syndicate Desk was responsible for allocating shares to institutional accounts. Institutional sales traders and research sales persons relayed information regarding their accounts' indications of interest in a particular IPO to the Syndicate Desk.
16. The PCS and Tech PCS groups were allotted specific percentages of offerings to distribute to covered accounts pursuant to understandings reached between and among ECM, PCS and Tech PCS. In PCS, managers then gave account representatives blocks of stock to allocate among their clients. Tech PCS employees allocated their shares to individual trading accounts and discretionary accounts managed by the Tech PCS group. PCS typically received 5% or less of the offering to allocate and distribute; Tech PCS typically received 3% or less to allocate and distribute.
17. Among the reasons that investors sought to obtain IPO stock during the relevant period was the large profit to be earned by "flipping" the shares if the IPO was successful. That is, some investors hoped to realize quick profits by selling the shares in the immediate aftermarket if the IPO traded at a premium to its offering price.
18. During 1999 and 2000, CSFB capitalized on the unprecedented growth in the new issue market and in the demand for shares in IPOs by using the IPO product to gain additional profits from certain of its smaller, less powerful Customers.
19. Employees of CSFB's ECM, PCS, and Tech PCS divisions informed Customers, both implicitly and explicitly, that they were expected to pay a portion of profits earned on their IPO flipping to CSFB in order to continue to receive allocations in "hot" IPOs.
20. Customers that refused to funnel a portion of their profits to CSFB received smaller allocations, and in some instances were denied allocations altogether. Most Customers, however, paid CSFB willingly, because of the huge profits to be made by flipping their allocations.
21. To maximize commission payments to CSFB, the Customers paid excessive commissions on off-setting trades in large capitalization, highly liquid, exchange-listed securities otherwise unrelated to the IPOs. CSFB employees sometimes assisted certain of the Customers in effecting these off-setting trades.
22. The sole purpose of this trading activity was to generate commissions for CSFB. Customers frequently executed one side of the trade with CSFB (e.g., a purchase at a commission as high as $3.15 per share) and then virtually simultaneously executed the off-setting side of the trade through another broker-dealer (e.g., a sale of the same quantity of the same stock) at the standard commission of $.06 per share.
23. On a number of occasions, both sides of the off-setting trades were executed at CSFB.
24. Although the off-setting purchases and sales were executed at similar prices, payment of significant commissions frequently resulted in net losses to the Customers. Because the trades were executed close in time, however, the transactions were not subject to significant market risk.
25. In order to eliminate any market risks associated with a change in price, some of the Customers often executed off-setting trades utilizing market-on-open or market-on-close trades. In some instances, CSFB employees suggested securities in which the Customers could execute such market-on-open or market-on-close orders.
26. CSFB generated documents designed to keep track of the profits such Customers would have earned by selling their allocations at specific times. For example, CSFB generated a document entitled the New Issue Performance Report, which measured the hypothetical profits a Customer would have generated on all CSFB products at various intervals after their purchase, as well as the commissions the Customer had paid to CSFB.
27. Certain institutional sales traders and research sales persons used information contained in the New Issue Performance Report to urge Customers to increase their payments to CSFB in exchange for IPO allocations. In some instances, CSFB personnel told Customers that they should maintain a 3:1 ratio of IPO profit to secondary business.
28. The Tech PCS group generated numerous spreadsheets showing the assumed profits Customers would have earned by selling their IPO allocations on the first day of trading, and comparing the assumed profits to secondary commissions paid to CSFB. The spreadsheets also calculated the percentage of profits earned versus secondary commissions paid to CSFB on a year-to-date basis.
29. Each of the CSFB business units that participated in the IPO allocation process engaged in explicit and implicit policies and practices to obtain improper payments from Customers in exchange for allocations in hot IPOs. Participation in this conduct extended to senior levels of these business units and was widespread within the relevant business units.
in some instances, personally engaged in some of the practices described in this Complaint.
31. The practices described in this Complaint were not isolated occurrences. Rather, these practices were a fundamental part of the manner in which CSFB dealt with a small but significant portion of its customer base. The prevalence of these practices is reflected in numerous e-mail messages and other communications, such as those set forth below.
32. On November 10, 1999 the head of one business unit told the head of another business unit "we should feed [Customers] they are paying us 35% on deal day."
33. One of these business unit heads characterized allocations as "free money" for the Customers. Employees in this business unit were given information from the New Issue Performance Report and advised when ratios of IPO profit to secondary business for certain Customers were too high. Employees were directed to tell Customers with high ratios that they needed to increase their business to bring the ratio down.
34. This business unit head told one of his employees that market-on-open orders were used by certain Customers to generate commissions to obtain IPO allocations. He said that market-on-open orders allow Customers to minimize risk while increasing the commissions paid to CSFB.
35. A senior manager described one Customer as being on "the 4 to 1 plan which is generous. This should be really easy and painless. . . . [Customer] simply needs to be told what we have made him vs. what he has paid us. . . . ." In a subsequent e-mail, another senior manager asked "what did he pay us in Jan secondary and how much did he make."
36. CSFB sales traders told Customers that they were expected to pay for IPO stock. For example, one sales trader told a Customer "okay we got another screaming deal and I weasled you guys some stock we've yet to see any leverage out of your guys for the free dough-re-me does it make sense for me . . . to continue to feed your guys with deal stock or should I take the stock to someone who will pay us direct for the allocation."
37. In at least one instance, a CSFB employee directed the flipping activity in a Customer's account in order to ensure that the Customer paid an appropriate amount of its profits to CSFB. The Customer had complained to the employee that he was receiving small IPO allocations. The employee told the Customer that the Customer was not paying back a sufficient amount of profits to CSFB. The employee stated that CSFB expected Customers to pay one-third of their profits back in commissions in return for allocations. Because the Customer believed CSFB was overestimating his profits, he directed the employee to sell the IPO shares for him and retain one-third of the profits in commissions. The employee agreed. Thereafter, the employee sold the Customer's IPO shares. The employee and Customer engaged in telephone conversations at the end of the trading day to finalize the commissions to be placed on trades to reach the one-third level.
38. The Customer subsequently stopped receiving IPO allocations. Upon asking the employee the reason, the Customer was told that he was required to return fifty percent of his trading profits to receive allocations. The Customer refused and did not receive any further allocations.
39. In another business unit, a senior manager asked customers to place $.50 per share commissions or "put 2%" on trades when Customers had done well in an IPO. The same senior manager regularly called his best Customer to suggest large capitalization, liquid securities for the Customer to trade in order to generate commissions to pay to CSFB.
40. In another instance, an employee in this business unit told a Customer to return from vacation to generate sufficient profits to pay to CSFB in order to receive allocations in upcoming IPOs. The same employee often called the same customer in advance of hot IPOs and said he wanted 50% of the Customer's profit in order to receive IPO allocations in those particular deals.
41. In another business unit, Customers were specifically told that they were expected to pay back fifty percent of their profits to CSFB in order to receive IPO allocations.
42. Employees in this business unit called their Customers on at least a monthly basis and told them that CSFB expected them to pay fifty percent of their IPO profits to CSFB. This business unit aggressively enforced the fifty percent requirement, which was later increased to sixty-five percent. Customers that refused to increase their payments to CSFB were cut off from IPO allocations.
43. For example, on February 10, 2000 a CSFB sales trader in this business unit informed a senior salesman in the unit that the sales trader had spoken to a Customer and "told him that he was very far behind on his commissions and that we expect a 65% return on all money that we make him. I said that he still owes us for the LNUX deal not to mention the deals that have come since then. I then stated that he can do trades to increase his commissions but he will be further cut off from any syndicate in the future." The senior salesman responded "out." The sales trader responded "done."
44. Because of the profits to be made by flipping IPO shares, certain Customers created false corporate identities and often misrepresented the amount of their assets under management and the source of their wealth in order to appear to be larger, institutional accounts, worthy of receiving IPO allocations. CSFB failed to conduct due diligence regarding these Customers to verify that the information supplied on Customers' account opening forms, such as the Customer's identity and amount of assets under management, was accurate.
45. Some CSFB employees were aware of practices described in paragraph 44. For example, an employee in the PCS group told one of his Customers to open a second account using a new corporate identity. The Customer already received allocations through the Institutional Sales Group but opened a second account in order to receive allocations from the PCS group.
46. Customers generally paid commissions of five to six cents per share for transactions executed at CSFB. In order to funnel IPO profits to CSFB, the Customers placed a wide range of excessive commissions on certain trades, frequently paying 10, 20 or even 30 times a normal commission rate. The Customers also paid excessive markups and markdowns on transactions in over-the-counter securities.
47. For example, in July 1999, CSFB served as the lead underwriter for several "hot" IPOs including Gadzoox Networks ("Gadzoox") and MP3.com ("MP3").
48. Gadzoox opened on July 20, 1999 and closed at a price of $74.8125, over 256 percent above its IPO price of $21. CSFB, as lead managing underwriter, distributed approximately 3.4 million shares of the 4.025 million Gadzoox shares offered. Of the 3.4 million Gadzoox shares distributed by CSFB, at least 261,025 shares were allocated to Customers that were willing to funnel a portion of their IPO profits to CSFB.
49. MP3 opened on July 21, 1999 and closed at a price of $63.3125, over 126 percent above its IPO price of $28. CSFB distributed 7.2 million of the 10.35 million MP3 shares offered through underwriters. Of the 7.2 million MP3 shares distributed by CSFB, at least 520,170 shares were allocated to Customers that were willing to funnel a portion of their IPO trading profits to CSFB.
54. Some of the most dramatic instances of improper profit-sharing occurred in connection with the VA Linux Systems, Inc. ("Linux") IPO. CSFB, as lead underwriter, distributed approximately 4.1 million shares of the 5.060 million shares offered through underwriters. The Linux IPO was priced at $30 per share. The IPO opened on December 9, 1999 and closed at a price of $239.25 per share, an unprecedented increase of over 697 percent. In order to funnel IPO profits to CSFB, Customers that received at least 405,398 shares engaged in large transactions in highly liquid large capitalization securities at excessive commission rates.
55. The El Sitio IPO also opened on December 9, 1999 and closed at a price of 33.125, 108 percent above its offering price. As lead underwriter, CSFB distributed 7.5 million shares of the 9.43 million shares distributed by underwriters. CSFB distributed at least 627,378 shares to Customers willing to funnel a portion of their profits to CSFB.
56. For example, on December 9, 1999, an Institutional Customer that had received a 13,500 share allocation of Linux and a 20,000 share allocation of El Sitio from CSFB paid CSFB $1 million by placing a commission of $.50 per share on 2 million shares of Compaq.
59. Another Institutional Customer that had received an 8,500 share allocation of Linux from CSFB paid CSFB at least $402,650 by engaging in the following transactions.
60. Another Institutional Customer that received a 12,500 share allocation of Linux and a 10,000 share allocation of El Sitio from CSFB paid CSFB $438,960 on December 9, 1999 and $295,600 on December 10. This Customer paid commissions as high as $3 per share and executed its off-setting trades at CSFB. On December 9, the Customer bought 38,000 shares of IBM at a price of 113 and paid a commission of $2.85 per share. On the same day, the Customers sold 36,000 shares of IBM at a price of 119.54 and paid a commission of $3 per share. On December 10, the Customer bought 25,000 shares of Time Warner at a price of 67.5 and paid a commission of $1.68 per share. On the same day, the Customer sold 25,000 shares of Time Warner at a price of $68 per share and paid a commission of $1.68 per share.
61. CSFB also shared in the profits of its Customers in connection with the two IPOs that opened on March 9, 2000, Selectica and OTG Software ("OTG").
62. The Selectica IPO closed at a price of $141.23, over 370 percent above its offering price of $30. CSFB, as lead managing underwriter, distributed approximately 3.9 million shares of the 4.6 million Selectica shares offered. Customers who were willing to pay a portion of their profits to CSFB received at least 324,903 shares in the Selectica IPO.
63. The OTG IPO closed at $56.18, over 195 percent above its offering price of $19. As lead underwriter, CSFB distributed approximately 4.9 million of the 5.75 million OTG shares offered. Customers who were willing to pay a portion of their profits to CSFB received at least 471,312 shares in the OTG IPO.
67. The payments described in paragraphs 46 through 66 are representative examples of CSFB's practices during the relevant period.
68. CSFB recorded the payments described in paragraphs 46 through 66 as commissions when, in fact, the payments were made as profit-sharing in exchange for IPO allocations.
69. The Commission understands that, simultaneously with the filing of this Complaint, CSFB is entering into a Letter of Acceptance, Waiver and Consent ("AWC") with NASD Regulation, Inc. ("NASD Regulation") arising from the same matters alleged herein. In addition to the remedies imposed in the AWC, the relief sought by the Commission pursuant to this Complaint is necessary and appropriate in the public interest and for the protection of investors, within the meaning of Section 21(f)(2) of the Exchange Act.
70. Paragraphs 1 through 69 are realleged and incorporated herein by reference.
71. NASD Conduct Rule 2110 requires members to observe high standards of commercial honor and just and equitable principles of trade.
72. CSFB violated Rule 2110 by engaging in the conduct described in paragraphs 1 through 69 above.
73. Paragraphs 1 through 69 are realleged and incorporated herein by reference.
74. NASD Conduct Rule 2330(f) prohibits a member or any person associated with a member from sharing directly or indirectly in the profits or losses of a customer, unless certain conditions not applicable here are met.
75. As described in paragraphs 1 through 69, from at least April 1999 through June 2000, CSFB shared directly or indirectly in the profits or losses in accounts of customers carried by CSFB, in violation of Rule 2330(f).
76. Paragraphs 1 through 69 are realleged and incorporated herein by reference.
77. As alleged above, commencing in or about April 1999, CSFB, while it was, among other things, a broker and dealer transacting a business in securities through the medium of members of national securities exchanges and a broker and dealer registered with the Commission pursuant to Section 15 of the Exchange Act, 15 U.S.C. § 78o, failed to accurately make and keep for prescribed periods such records, furnish such copies thereof and make, disseminate and file such reports as the Commission by rule, has prescribed as necessary and appropriate in the public interest and for the protection of investors.
78. Rule 17a-3, 17 C.F.R § 240.17a-3(a)(6), requires a broker-dealer to maintain a record of each order received for the purchase and sale of a security that includes the terms and conditions, including, but not limited to, the commission, mark-up, or mark-down associated with such order.
79. As described above, CSFB failed to reflect accurately the terms and conditions of its orders because it failed to record that the commissions, markups and markdowns paid by certain Customers were profit-sharing in exchange for IPO allocations.
enjoined will again violate, Section 17(a) of the Exchange Act, 15 U.S.C. § 78q(a), and Rule 17a-3(a)(6) thereunder, 17 C.F.R. § 240.17a-3(a)(6).
6. retaining jurisdiction of this action in order to implement and carry out the terms of any Orders which may be entered herein.
All attorneys listed are covered by LCvR 83.2(e) as attorneys employed by an agency of the United States.


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Apologetics Press - How Important is the Bible to America’s Survival?
How Important is the Bible to America’s Survival?
There was a time in American civilization when the Bible was integral to every aspect of life. It was reverenced in the home. It was taught and used in the schools. It was incorporated into our laws and integrated into our courts of justice. It was quoted by politicians, judges, educators, and even entertainers. It permeated the great literature of Western Civilization. But with the multitude of attacks on the integrity, inspiration, and inerrancy of the Bible over the last century, respect for the Bible has waned significantly. Particularly after World War II, confidence in the Bible as the divine Word of God has been seriously undermined in America. Amazingly, a recent poll still shows the Bible to be the all-time favorite book for American adults: “Researchers said it’s rare to find such consensus among Americans, regardless of gender, education level, geographic location, race/ethnicity or age” (Hamm, 2008).
Surely I have taught you statutes and judgments, just as the Lord my God commanded me, that you should act according to them in the land which you go to possess. Therefore be careful to observe them; for this is your wisdom and your understanding in the sight of the peoples who will hear all these statutes, and say, “Surely this great nation is a wise and understanding people.” For what great nation is there that has God so near to it, as the Lord our God is to us, for whatever reason we may call upon Him? And what great nation is there that has such statutes and righteous judgments as are in all this law which I set before you this day?... You shall therefore keep His statutes and His commandments which I command you today, that it may go well with you and with your children after you, and that you may prolong your days in the land (Deuteronomy 4:5-8,40, emp. added; cf. 5:33; 6:2-3,18).
Set your hearts on all the words which I testify among you today, which you shall command your children to be careful to observe—all the words of this law. For it is not a futile thing for you, because it is your life, and by this word you shall prolong your days in the land (Deuteronomy 32:46-47, emp. added).
The instant I speak concerning a nation and concerning a kingdom, to pluck up, to pull down, and to destroy it, if that nation against whom I have spoken turns from its evil, I will relent of the disaster that I thought to bring upon it. And the instant I speak concerning a nation and concerning a kingdom, to build and to plant it, if it does evil in My sight so that it does not obey My voice, then I will relent concerning the good with which I said I would benefit it (Jeremiah 18:7-10, emp. added).
I will never forget Your precepts, for by them You have given me life. Oh, how I love Your law! It is my meditation all the day. You, through Your commandments, make me wiser than my enemies; for they are ever with me. I understand more than the ancients, because I keep Your precepts. How sweet are Your words to my taste, sweeter than honey to my mouth! Through Your precepts I get understanding; therefore I hate every false way. Your word is a lamp to my feet and a light to my path (Psalm 119:93,97-98,100,103-105, emp. added).
For the word of God is living and powerful, and sharper than any two-edged sword, piercing even to the division of soul and spirit, and of joints and marrow, and is a discerner of the thoughts and intents of the heart (Hebrews 4:12, emp. added).
If you abide in My word, you are My disciples indeed. And you shall know the truth, and the truth shall make you free.... He who rejects Me, and does not receive My words, has that which judges him—the word that I have spoken will judge him in the last day.... Sanctify them by Your truth. Your word is truth (John 8:31-32; 12:48; 17:17, emp. added).
This means that the Bible is the most important book on the planet, in a class by itself, surpassing all others. Indeed, whereas all other books are the word of men, the Bible is the Word of God.
How important was the Bible in the minds of the architects of American civilization? History is decisive on this point as well: the Founders viewed the Bible as absolutely indispensable and integral to the survival of the Republic. It is no wonder that, after a decade-long study in an effort to identify where the Founders acquired their ideas for the formation of the nation and the writing of its constitutions of government, political scientists conducting the study concluded that the Founders cited the Bible in their political utterances far more often than any other source (see Lutz, 1988, pp. 140-141).
Article III. [As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of...teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily (Constitution of the...,” emp. added).
The Framers of the Massachusetts constitution believed that “public instructions in piety, religion and morality” could come only from the Bible.
The Continental Congress considered the Bible so important to national life that they actually passed resolutions to make certain that Bibles were in abundance in the country. The Continental Congress directed a committee to investigate ways by which Bibles could be secured. The committee made its report on September 11, 1777, stating “that the use of the Bible is so universal, and its importance so great...your Committee recommend [sic] that Congress will order the Committee of Commerce to import 20,000 Bibles from Holland, Scotland, or elsewhere, into the different ports of the states in the Union.” Congress promptly ordered the importation (Journals of..., 1907, 8:734-745, emp. added). Four years later, as the colonies suffered from the effects of the British embargo, and as the shortage of Bibles continued, importation became sufficiently impractical that Congress was again petitioned for approval, this time to print Bibles in America, rather than to import them from outside the country. The request was approved and upon completion of the printing, on Thursday, September 12, 1782, the full Congress not only approved the edition, but gave permission for their endorsement to be placed in the front of the Bible! It read: “Whereupon, Resolved, That the United States in Congress assembled...recommend this edition of the Bible to the inhabitants of the United States” (Journals of..., 1914, 23:574). Who today would believe that the members of the original Congress of the United States considered the Bible so important to national existence that they would expend effort—even in wartime—to make certain that Bibles were available to the American population? The present widespread loss of respect for and interest in the Bible, is disgraceful, and if continued, will spell our national doom.
The Holy Scriptures...can alone secure to society, order and peace, and to our courts of justice and constitutions of government, purity, stability, and usefulness. In vain, without the Bible, we increase penal laws and draw entrenchments around our institutions. Bibles are strong entrenchments. Where they abound, men cannot pursue wicked courses (as quoted in Steiner, 1921, p. 14, emp. added).
[W]ere you to ask me to recommend the most valuable book in the world, I should fix on the Bible as the most instructive, both to the wise and the ignorant. Were you to ask me for one, affording the most rational and pleasing entertainment to the inquiring mind, I should repeat, it is the Bible: and should you renew the inquiry, for the best philosophy, or the most interesting history, I should still urge you to look into your Bible. I would make it, in short, the Alpha and Omega of knowledge; And be assured, that it is for want of understanding the scriptures, both of the Old and New Testament, that so little value is set upon them by the world at large (1801, p. xv, emp. added).
Noah Webster asserted: “[C]itizens should early understand that the genuine source of correct republican principles is the Bible, particularly the New Testament, or the Christian religion” (1832, p. 6). Webster also insisted that “[t]he Bible is the chief moral cause of all that is good and the best corrector of all that is evil in human society; the best book for regulating the temporal concerns of men” (1833, p. v). He further claimed: “All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery and war, proceed from their despising or neglecting the precepts contained in the Bible” (1832, p. 339). Who today believes these statements? According to this prominent Founding Father, the Bible is responsible for our Republic, our civil liberty, our constitutions of government, and for correcting and regulating human behavior. Yet, we have banned the Bible from public schools, we allow college professors to impugn its inspiration and integrity, and we disallow its use in jury deliberation rooms (People v. Harlan, 2005).
Constitution signer, Gouverneur Morris, observed: “The reflection and experience of many years have led me to consider the holy writings not only as the most authentic and instructive in themselves, but as the clue to all other history. They tell us what man is, and they alone tell us why he is what he is” (1821, p. 30). Declaration of Independence signer, Dr. Benjamin Rush, declared that the Bible “should be read in our schools in preference to all other books from its containing the greatest portion of that kind of knowledge which is calculated to produce private and public temporal happiness” (1798, p. 100, emp. added). Signer of the Declaration and second President of the United States, John Adams, wrote in his diary on February 22, 1756: “Suppose a nation in some distant region should take the Bible for their only law book and every member should regulate his conduct by the precepts there exhibited.... What a Eutopia, what a Paradise would this region be” (1854, 2:6-7, emp. added). In a letter to Thomas Jefferson on December 25, 1813, John Adams stated that “the Bible is the best Book in the world” (1856, 10:85). Robert Winthrop, who was Speaker of the House in the 1840s, explained: “Men, in a word, must necessarily be controlled either by a power within them or by a power without them; either by the Word of God or by the strong arm of man; either by the Bible or by the bayonet” (1852, p. 172, emp. added).
Such indications of the importance of the Bible to national health were typical of the mass of American Founders. Some Founders served as Christian chaplains in the Continental Army, including Abraham Baldwin, who signed the federal Constitution and served in both the U.S. House and Senate; Joel Barlow, who filled various foreign diplomatic roles; and Robert Treat Paine, a preacher who signed the Declaration of Independence and served as a Massachusetts Supreme Court judge.
Still another indication of the central place of the Bible among America’s Founders is seen in the fact that U.S. Presidents still follow the tradition, set at the very beginning of the Republic by the “Father of our country,” by placing their hand on a copy of the Bible while being sworn in as President (“Bibles and Scripture...”). History even records that immediately after taking the oath of office, George Washington leaned down and kissed the Bible (“Inaugurals of Presidents...”). The Bible has been so thoroughly part and parcel of American culture that a Bible is still included in most motel and hotel rooms across America.
Indeed, the judiciary of America has been a primary perpetrator in the war on the Bible, as the U.S. Supreme Court banned the practice of requiring students in public schools to read Bible verses every morning (Abington School District v. Schempp, 1963), banned postings of the Ten Commandments in public school classrooms, since worship of God is included in them (Stone v. Graham, 1980), and banned teachers from sitting at their desks and silently reading the Bible in front of students during a classroom silent reading period (Roberts v. Madigan, 1990). And what of the incessant, ongoing assault in universities across America for the last 50 years, as professors have paraded before their students, steadily chipping away at the integrity of Bible. Such instances are legion. Founder and physician Benjamin Rush’s words, written in 1789, could not be more relevant to our predicament: “The great enemy of the salvation of man, in my opinion, never invented a more effectual means of extirpating Christianity from the world than by persuading mankind that it was improper to read the Bible at schools” (1951, 1:521). This systematic cleansing of American culture in an effort to jettison the Bible from public life is absurd, demented, and utterly foolish.
If the Bible is correct (and the Founders of American civilization believed it to be), the future of the Republic is inextricably linked with and inherently dependent on the extent to which Americans are willing to return to an intimate acquaintance with the Bible. In a speech delivered in Denver, Colorado in 1911, President Woodrow Wilson referred to the Bible as “the great charter of the human soul, as the ‘Magna Charta’ of the human soul” (Wilson and DiNunzio, 2006, p. 54). He insisted that “America was born a Christian nation. America was born to exemplify that devotion to the elements of righteousness which are derived from the revelations of Holy Scripture” and that Americans must “realize that part of the destiny of America lies in their daily perusal of this great book of revelations, that if they would see America free and pure they will make their own spirits free and pure by this baptism of the Holy Scripture” (p. 59, emp. added). The 30th President of the United States, Calvin Coolidge, warned: “The foundations of our society and our government rest so much on the teachings of the Bible that it would be difficult to support them if faith in these teachings would cease to be practically universal in our country” (as quoted in Thomas, 1996). Time will tell.
My people are destroyed for lack of knowledge. Because you have rejected knowledge, I also will reject you...; because you have forgotten the law of your God, I also will forget your children. The more they increased, the more they sinned against Me; I will change their glory into shame (Hosea 4:6-7, emp. added).
Awake to righteousness, and do not sin; for some do not have the knowledge of God. I speak this to your shame (1 Corinthians 15:34, emp. added).
We remove the Bible from public life to our shame—and at dire peril. May God bless us with a sufficient number of citizens, educators, preachers, and political leaders who will recall America from her shame. May God bless Americans with the will to return to the Bible in order to bask in the marvelous light of His glorious Word (1 Peter 2:9).
Abington School District v. Schempp (1963), 374 U.S. 203 (1963), The Oyez Project, [On-line], URL: http://www.oyez.org/cases/1960-1969/1962/1962_142/.
Adams, John (1850-1856), The Works of John Adams, Second President of the United States, ed. Charles Adams (Boston, MA: Little, Brown, and Company).
American Bible Society (1816), Constitution of the American Bible Society: Formed by a Convention of Delegates, Held in the City of New York, May, 1816: Together with Their Address to the People of the United States: a Notice of Their Proceedings: and a List of Their Officers (New York: G.F. Hopkins), [On-line], URL: http://books.google.com/books?id=uXsXAAAAYAAJ&pg=PA9&lpg=PA9&dq=”Constitution+of+the+American+Bible+Society”&source=web&ots=U3Nhsz-BxA& sig=psatMhvNw81TY5k7tiMTo-3NQV8&hl=en&sa=X&oi=book_result&resnum=6&ct=result#PPT1,M1.
Barton, David (2000), Original Intent (Aledo, TX: Wallbuilders).
“Bibles and Scripture Passages Used by Presidents in Taking the Oath of Office,” Library of Congress, [On-line], URL: http://memory.loc.gov/ammem/pihtml/pibible.html.
Boudinot, Elias (1801), The Age of Revelation (Philadelphia, PA: Asbury Dickens), [On-line], URL: http://www.google.com/books?id=XpcPAAAAIAAJ&q=baptized.
Constitution of the Commonwealth of Massachusetts, [On-line], URL: http://www.mass.gov/legis/const.htm.
“Fact Sheet: Who We Are” (2008), American Bible Society, [On-line], URL: http://www.americanbible.org/pages/about-more-facts.
Hamm, Brittani (2008), “Poll: Bible is America’s Favorite Book,” USA Today, April 22, [On-line], URL: http://www.usatoday.com/news/religion/2008-04-22-bible-favorite-book_N.htm.
Holmes, Abiel (1808), Discourse, Delivered Before the Society for Propagating the Gospel Among the Indians and Others in North America (Boston, MA: Farrand, Mallory, & Co.), [On-line], URL: http://books.google.com/books?hl=en&id=ChATAAAAYAAJ&dq=%22Society+for+Propagating+the+Gospel+Among&printsec=frontcover&source=web&ots=CGHJcDhcpY&sig=l2TPzRA6q069U63GfH65dYp-KiI&sa=X&oi=book_result&resnum=3&ct=result#PPA64,M1.
“Inaugurals of Presidents of the United States: Some Precedents and Notable Events,” Library of Congress, [On-line], URL: http://memory.loc.gov/ammem/pihtml/pinotable.html.
Jay, John (1980), John Jay: The Winning of the Peace. Unpublished Papers 1780-1784, ed. Richard Morris (New York: Harper & Row).
Johnson, Kirk (2005), “Colorado Court Bars Execution Because Jurors Consulted Bible,” The New York Times, March 29, [On-line], URL: http://www.nytimes.com/2005/03/29/national/29bible.html.
Journals of the Continental Congress (1904-1937), (Washington, DC: Government Printing Office), [On-line], URL: http://memory.loc.gov/ammem/amlaw/lwjc.html.
Lutz, Donald (1988), The Origins of American Constitutionalism (Baton Rouge, LA: Louisiana State University Press).
Morris, Gouverneur (1821), “An Inaugural Discourse Delivered Before the New York Historical Society by the Honorable Gouverneur Morris on September 4, 1816,” in Collections of the New York Historical Society for the Year 1821 (New York: E. Bliss & E. White).
“Our Story” (no date), National Association of State and Regional Bible Societies, [On-line], URL: http://www.nasrbs.org/.
People v. Harlan (2005), Colorado Supreme Court, Case No. 03SA173, [On-line], URL: http://www.courts.state.co.us/supct/opinions/2003/03SA173.pdf.
“Remove Bible from Courthouse Display, Judge Says” (2004), The Associated Press, August 11, [On-line], URL: http://www.firstamendmentcenter.org/news.aspx?id=13849.
Roberts v. Madigan (1990), 921 F. 2d. 1047 (10th Cir. 1990).
Rush, Benjamin (1798), Essays, Literary, Moral and Philosophical (Philadelphia, PA: Thomas & Samuel Bradford).
Rush, Benjamin (1951), Letters of Benjamin Rush, ed. L.H. Butterfield (Princeton, NJ: Princeton University Press).
“Scripture Yanked From Grand Canyon” (2003), World Net Daily, July 14, [On-line], URL: http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=33564.
Steiner, Bernard (1921), One Hundred and Ten Years of Bible Society Work in Maryland: 1810-1920 (Baltimore, MD: Maryland Bible Society).
Stone v. Graham (1980), 449 U.S. 39 (1980), The Oyez Project, [On-line], URL: http://www.oyez.org/cases/1980-1989/1980/1980_80_321/.
Story, Joseph (1854), A Familiar Exposition of the Constitution of the United States (New York: Harper).
“Ten Commandments Judge Removed from Office” (2003), CNN News, November 14, [On-line], URL:font http://www.cnn.com/2003/LAW/11/13/moore.tencommandments/.
Thomas, Cal (1996), “Silent Cal Speaks: Why Calvin Coolidge is the Model for Conservative Leadership Today,” The Heritage Foundation, [On-line], URL: http://www.heritage.org/Research/PoliticalPhilosophy/HL576.cfm.
Webster, Noah (1832), History of the United States (New Haven, CT: Durrie & Peck).
Webster, Noah (1833), The Holy Bible Containing the Old and New Testaments, in the Common Version. With Amendments of the Language (New Haven, CT: Durrie & Peck).
Wilson, Woodrow and Mario R. DiNunzio (2006), Woodrow Wilson: Essential Writings and Speeches of the Scholar-President (New York: NYU Press).
Winthrop, Robert (1852), Addresses and Speeches on Various Occasions (Boston, MA: Little, Brown, & Co.).
Wirt, William (1818), Sketches of the Life and Character of Patrick Henry (Philadelphia, PA: James Webster).
Copyright © 2009 Apologetics Press, Inc. All rights reserved.

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Purpose. The purpose of article is to develop the measures of hardness indices improvement of the supporting structures of motor cars of the electric trains ED9M. Methodology. In order to achieve the above stated aims the following measures had to be done: to develop a finite element model of the supporting structures of the motor bogie of the electric train ED9M, determine parameters of the developed model; perform the calculations to determine the stress-strain state during loads corresponding to different operating conditions with the search of geometric parameters reducing the highest stress levels. Findings. The obtained results of calculations (fields of stress distribution and strains in the elements of the motor bogie frame) from the viewpoint of the strength and stiffness discovered the best geometric parameters of the bearings in the central suspension beams of the electric trains ED9M in the places of load transmission from the car body to the bogie frame. Originality. Based on the developed finite element models and the theoretical and experimental researches the scientifically grounded modernization measures of the construction elements of the central suspension beams for motor bogies of the electric trains ED9M were developed. Practical value. It was developed an engineering solution concerning the measures to improve the strength and stiffness characteristics of the central suspension beams for the motor cars of the electric trains ED9M. It was given to the Ukrzaliznytsya’s professionals to implement them during repairs.
Bondarev O.M., Horobets V.L., Hrushchak I.M. Vyznachennia stroku sluzhby nesuchykh konstruktsii motorvahonnoho rukhomoho skladu iz zastosuvanniam metodyky porivniannia yikh dynamichnoi zavantazhenosti [Age-dating bearings constructions of rolling stock by dynamic loading comparison method]. Visnyk Dnipropetrovskoho natsionalnoho universytetu zaliznychnoho transportu imeni akademika V. Lazariana [Bulletin of Dniproperovsk National University named after Academician V. Lazaryan], 2008, issue 24, pp. 18-24.
Bondarev O.M., Yagoda D.O., Skoblenko V.M. Eksperymentalno-teoretychna otsinka pokaznykiv mitsnosti balok tsentralnoho pidvishuvannia dyzel-poizdiv DR1A [Experimental and theoretical assessment of indicators of durability of central suspension beams of the diesel trains DR1A series]. Visnyk Dnipropetrovskoho natsionalnoho universytetu zaliznychnoho transportu imeni akademika V. Lazariana [Bulletin of Dniproperovsk National University named after Academician V. Lazaryan], 2011, issue 37, pp. 7-19.
Bondarev O.M., Horobets V.L., Ostapiuk B.Ya. Metodyky otsinky zalyshkovoho resursu pasazhyrskoho rukhomoho skladu [Methods of estimation of remaining resource of passenger rolling stock]. Zaliznychnyi transport Ukrainy – Railway transport of Ukraine, 2002, issue 5, pp. 28–30.
Horobets V.L., Bondarev O.M., Skoblenko V.M. Analiz ekspluatatsiinoi narobky nesuchykh konstruktsii rukhomoho skladu v zadachakh prodovzhennia terminu yoho ekspluatatsii [An analysis of operating work of bearings constructions of rolling stock in the tasks of extending its exploitation]. Visnyk Dnipropetrovskoho natsionalnoho universytetu zaliznychnoho transportu imeni akademika V. Lazariana [Bulletin of Dniproperovsk National University named after Academician V. Lazaryan], 2010, issue 35, pp. 10-16.
Zenkevich O.M. Metod konechnykh elementov v tekhnike [The finite elements method in technique]. Moscow, Mir Publ., 1975. 542 p.
Kontseptsiia Derzhavnoi prohramy reformuvannia zaliznychnoho transportu (Concept of the State railway reform). Available at: http://zakon1.rada.gov.ua/laws/show/651-2006-%D1%80 (Accessed 18 June 2013).
Kuleshov V.P., Gorobets V.L., Palamarenko A.Y. Otsenka ostatochnogo resursa ram telezhek elektropoyezdov ER1, ER2 putem ikh stendovykh vibratsionnykh ispytaniy [Residual life assessment of bogie frames electric trains ER1, ER2 by their vibration test bench]. Transport. Nagruzhennost i prochnost podvizhnogo sostava [Transport. Loading and strength of rolling stock]. Dnipropetrovsk, 1998, pp. 56-62.
Normy rashcheta i otsenki prochnosti nesushchikh elementov i dinamicheskikh kachestv ekipazhnoy chasti motorvagonnogo podvizhnogo sostava zheleznykh dorog MPS RF kolei 1520 mm [Rules for calculating and assessing the strength of load-bearing elements and dynamic qualities of the vehicle-railcar rolling stock Railway Ministry 1520 mm]. Moscow, VNIIZhT RF Publ., 1997. 148 p.
Potemkin A. Tverdotelnoye modelirovaniye v sisteme KOMPAS–3D (+CD-ROM) [Solid modeling in KOMPAS-3D]. Saint Petersburg, BKhV-Peterburg Publ., 2004, 512 p.
Rukovodstvo po ustroystvu elektropoyezdov seriy ED9M, ED9T, ER9P [Guidance on the arrangement of electric trains ED9M, ED9T, ER9P series]. Moscow, Tsentr Kommercheskikh Razrabotok Publ., 2005. 128 p.
Sheremet D.M., Ponomarenko S.A., Kubyshkin Yu.I. Elektropoyezda seriy ED9M, ED9T i ER9P. Rukovodstvo po ekspluatatsii [Electric trains ED9M, ED9T and ER9P series. Instruction manual]. Saint Petersburg, Tsentr Kommercheskikh Razrabotok Publ., 2005. 116 p.
Hilberry B.M. Fatigue life of 2024 T3 aluminum alloy under narrow- and broad band random loading. Effects of environment and complex load history on fatigue life. Atlanta, ASTM STP 462 Publ., 1970, pp. 167-183.
Luo R.K., Gabbitas B.L., Brickle B.V. Dynamic stress analysis of an open-shaped railway bogie frame. Engineering Failure Analysis, 1996, vol. 3, issue 1, pp. 53-64.
Bitiutsky A.A., Sveshnikov L.A., Sapozhnikov A.N., Savushkin R.A. The improvement of underground vehicles bogie construction. Proc. of the 7th Mini Conf. on Vehicle System Dynamics «Identification and Anomalies», Budapest 2000, pp. 241-247.
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7. Кулешов, В. П. Оценка остаточного ресурса рам тележек электропоездов ЭР1, ЭР2 путем их стендовых вибрационных испытаний / В. П. Кулешов, В. Л. Горобец, А. И. Паламаренко // Трансп. нагруженность и прочность подвижного состава : сб. науч. тр. – Д., 1998. – C. 56−62.
8. Нормы расчета и оценки прочности несущих элементов и динамических качеств экипажной части моторвагонного подвижного состава железных дорог МПС РФ колеи 1520 мм. – М. : ВНИИЖТ РФ, 1997. – 148 с.
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14. The improvement of underground vehicles bogie construction / A. A. Bitiutsky, L. A. Sveshnikov, A. N. Sapozhnikov, R. A. Savushkin // Proc. of the 7th Mini Conf. on Vehicle System Dynamics, Identification and Anomalies (06.11–08.11.2000).– Budapest, 2000. − Р. 241–247.

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The passage of the Education for All Handicapped Children Act of 1975 (“EHA”), later re-enacted as the Individuals with Disabilities Education Act (“IDEA”), was initially adapted to ensure that children with disabilities have access to a free appropriate public education (“FAPE”). At that time, approximately 1,000,000 children were excluded entirely from public schools. However, Congress later found that the implementation of the IDEA was impeded by low expectations, and an insufficient focus on applying research-based methods of teaching and learning for children with disabilities. Thirty (30) years of research and experience demonstrated to Congress that the education of children with disabilities can be made more effective by focusing on actual education benefits, and requiring research-based programs and services for children with disabilities. 20 U.S.C.A. Section 1400, amended in 2004.
In 1982, the Supreme Court in Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley held that the Education for All Handicapped Children Act’s (“EHA”) requirement of a “free appropriate public education” (“FAPE”) is satisfied only when the state provides personalized instruction with sufficient support services to adequately confer “some educational benefit” upon a child with disabilities. 458 U.S. 176, 200 (1982) (emphasis added). The Supreme Court found that “[i]t would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education.” Id. After noting EHA’s standard, the Court recognized the difficulty in determining whether a child is receiving sufficient educational benefits. Id. at 202. The Court noted that grading and advancement systems constitute important factors in determining educational benefit, but it also specifically recognized that mere advancement from grade to grade is not dispositive that a child with disabilities is receiving sufficient educational benefits to satisfy the requirements of FAPE. Id. at 202.
The Rowley Court declared that in order to meet the statutory requirements of FAPE under the IDEA, school districts must: 1) conform to the procedural requirements of the Act; and 2) ensure that the eligible student’s IEP is reasonably calculated to yield educational benefit. Rowley, 458 U.S. at 206-207. The Supreme Court stated that “the IEP . . . should be formulated in accordance with the requirements of the Act and . . . should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade .” Id. at 203.
The Third Circuit Court of Appeals has clarified that under the IDEA, “[t]he IEP must be reasonably calculated to afford the child the opportunity to receive "meaningful educational benefit." Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004); Accord, Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999); Oberti v Bd. of Educ. Of the Borough of Clementon Sch. Dist., 995 F.2d 1204, 1213 (3d Cir. 1993); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 184 (3d Cir. 1988).
In Breanne C. v. Southern York County Sch. Dist., the district court recently held that to confer meaningful educational benefit, an IEP must be designed to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social, and emotional domains. 732 F.Supp.2d 474, 483 (M.D.Pa. 2010) (referencing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996)). To provide meaningful benefit, a child’s IEP must be tailored to the unique, individual needs of the child consistent with the child’s potential. Ridgewood, 172 F.3d at 247; 34 C.F.R. Section 300.320(a). Finally, passing grades do not themselves establish that a child with disabilities is receiving sufficient educational benefits to satisfy the requirements of FAPE. Rowley, 458 U.S. at 202; D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 567 (3d Cir. 2010); Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474, 486 (M.D.Pa. 2010); Williamson County Board of Education v. C.K., 2009 U.S. Dist. LEXIS 15907, at *56 (M.D. Tenn. Feb. 27, 2009); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028-1029 (8th Cir. 2003); Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476, 490-491 (N.D. Ohio 2003); Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247, at *33 (N.D. Tex. April 11, 2002).
Battle v. Commonwealth of PA, 629 F.2d 269 (3d Cir. 1980).
The Third Circuit held that the procedural safeguards of the Education of the Handicapped Act (“EHA”) requires that every state which elects to receive federal assistance under EHA must provide all handicapped children with the right to a “free appropriate education” which requires individual attention to the needs of each handicapped child. Battle v. Commonwealth of PA, 629 F.2d 269, 280-281 (3d Cir. 1980). Consequently, the Third Circuit found that the application of the Commonwealth of Pennsylvania’s administrative policy which set a limit of 180 days of instruction per year for all children, handicapped or not, was incompatible with the emphasis on the individual of EHA. Id. at 281 (emphasis added). The Court noted that its decision did not tackle the substantive content of the educational programs at issue even though the statute provides for federal and state judicial review of individual educational programs which have been appealed through the statutory procedure. Id.
Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3d Cir. 1988).
Through its analysis of the EHA, 20 U.S.C. §§ 1401-1461 (1982), EHA’s legislative history, and its interpretation of Bd. of Educ. v. Rowley, 458 U.S. 176 (1982), the Third Circuit in Polk v. Central Susquehanna Intermediate Unit held that Congress intended to afford children with special needs an education that would confer “meaningful benefit,” and not an education that afforded merely trivial educational benefits. 853 F.2d 171, 180 (3d Cir. 1988). The Third Circuit further explained that an appropriate Individualized Education Program (“IEP”) should provide “significant learning” to confer “meaningful benefit” upon a student. Id. at 180-184.
In Polk, the Third Circuit derived its interpretation of “meaningful benefit” from the text of the EHA and from the legislative history concerning the passage of EHA’s 1975 amendments. Id. at 181. The self-defined purpose of the EHA is to provide “full educational opportunity to all handicapped children.” Id. (referencing 20 U.S.C. Section 1412(2)(A) (emphasis added)). Similarly, the Senate Report on the 1975 Act defined “related services” as “transportation, developmental, corrective, and supportive services (specifically including at least speech pathology and audiology, psychological services, counseling services, physical and occupational therapy, and recreation) necessary for a handicapped child to fully benefit from special education.” Id. (referencing Sen.R.No. 168, 94th Cong., 1st Sess. At 42 (emphasis added)). The House Report echoed this language, citing the EHA’s “goal of providing each handicapped child with a free, full, public education.” Id. (referencing H.Rep.No. 332, 94th Cong. at 11 (1975) (emphasis added)); See also 121 Cong.Rec. 19482 (remarks of Senator Randolph, W. Virginia, Chair, Senate Subcommittee on the Handicapped) (discussing the goals of the EHA as “[a]chieving a goal of full educational opportunities”). While the Supreme Court instructed in Rowley that Congress did not intend to provide “optimal” benefit, EHA’s use of the phrase “full educational opportunity” and the EHA’s legislative history, indicated to the Third Circuit a Congressional intent to afford more than a trivial amount of educational benefit. Id.
M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996).
The Third Circuit held that when an IEP fails to confer meaningful educational benefit to a student, that student has been deprived of the appropriate education guaranteed by IDEA. M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389, 396 (3d Cir. 1996). In order to comply with the IDEA an IEP must be designed to allow a student to make “meaningful educational progress.” Id. at 394. Here, the Third Circuit found that the school district failed to provide an appropriate program (including parent training) and placement that would allow the Student to reduce his severe self-stimulatory behavior or improve his toileting, eating, and communication skills. Therefore, the Third Circuit awarded the Student compensatory education. Id. at 392.
Ridgewood v. N.E., 172 F.3d 238 (3d Cir. 1999).
The Third Circuit held that a minimal amount of benefit or “more than a trivial educational benefit” does not equate with “meaningful progress,” and noted that IDEA “requires a satisfactory IEP to provide ‘significant learning.’ ” Ridgewood v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). Furthermore, the Third Circuit reinforced that there is no bright line rule on the amount of benefit required for an appropriate IEP, but rather a benefit is determined by carefully considering each special education student’s individual abilities and potential, and then determining the benefit on an individualized basis. Id. at 248.
T.R. v. Kingwood, 205 F.3d 572 (3d Cir. 2000).
The Third Circuit again held that “more than a trivial educational benefit” does not meet the “meaningful benefit” standard which is necessary to provide a child FAPE. T.R. v. Kingwood, 205 F.3d 572, 577 (3d Cir. 2000). Furthermore, educational benefit of an IEP “must be gauged in relation to a child’s potential.” Id. at 578 (quoting Ridgewood v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). Here, the district court failed to explicitly apply the meaningful benefit requirement, yet the Third Circuit found that enough evidence was presented to meet the meaningful benefit standard, a “somewhat more stringent” standard than a “more than trivial benefit” standard. Id. at 577. The Third Circuit found testimony from the student’s teacher and two expert witnesses credible and sufficient to establish that the student received meaningful benefit from his IEP. Id.
de Mora v. Dept. of Public Welfare, 768 A.2d 904 (Pa. Cmwlth. 2001).
The Commonwealth Court of Pennsylvania found that for a county to meet its responsibility in an infants and toddler program, an Individual Family Service Plan (“IFSP”) must provide services that are “likely to produce progress, not regression or trivial … advancement.” deMora v. Dept. of Public Welfare, 768 A.2d 904, 907 (Pa. Cmwlth. Ct. 2001) (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 183 (3d Cir. 1988) (quoting Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986)). If an IFSP provides for multiple types of developmental service, i.e., speech therapy, occupational therapy, physical therapy, and special instruction, then each of the services must be likely to produce meaningful progress. Id. Meaningful progress can be tracked by clear progress reports; however, evidence of progress does not prove that a student made meaningful progress if a student is also privately receiving services. Id. at 907-908. Here, the Commonwealth Court found that the Student did not make meaningful progress in her occupational therapy, speech therapy, and special instruction goals because 1) the county did not provide any progress reports for occupational therapy; 2) the county provided progress reports for speech, but the Student was also receiving private services; and 3) the country provided one progress summary for special instruction, but it was impossible to determine from that document whether any progress reported related to the Student’s special instruction. Id. at 908.
West Chester Area Sch. Dist. v. Bruce C., 194 F.Supp.2d 417 (E.D. Pa. 2002).
The district court held that, as a matter of law, meaningful progress cannot be solely measured by a student’s grades while simultaneously disregarding the student’s potential. West Chester Area Sch. Dist. v. Bruce C., 194 F.Supp.2d 417, 421 (E.D. Pa. 2002). The Supreme Court clearly “repudiated the notion that grades can serve as IDEA’s litmus test: ‘We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a [FAPE].’ ” Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)). Where a student’s parent spends extensive time outside of the classroom with a student and provides such student with remedial and supplemental assistance, then the school district cannot claim the student made meaningful progress as a direct result of the student’s IEP. Id. The court further noted that, the Third Circuit has mandated that IDEA services “must be gauged in relation to the child’s potential.” Id. (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 185 (3d Cir. 1988)). Here, the district court found that the school district could not rely on the successful grades of the Student to assert the Student was making meaningful academic progress as a consequence of the Student’s IEP, in large part because the Student’s parent spent extensive time outside of the classroom with the Student and provided the Student with remedial and supplemental assistance. Id. Furthermore, the district court found that the school district failed to provide FAPE to the Student where it disregarded the significant discrepancies between the Student’s high verbal IQ and lower performance IQ, as well as between his verbal IQ and lower basic reading skills, spelling, and math reasoning. Id.
Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247 (N.D. Tex. April 11, 2002).
The district court held that a special needs student was eligible under IDEA despite “well above average” grades because a “true measure of a child’s educational performance is not strictly limited to an evaluation of his performance in academics . . . but also includes behavioral progress and the acquisition of appropriate social skills.” Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247, at *33 (N.D. Tex. April 11, 2002).
S.H. v. State Operated Sch. Dist. of the City of Newark, 336 F.3d 260 (3d Cir. 2003).
The Third Circuit held that meaningful educational benefit is an individual determination personal to each student. S.H. v. State Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 271 (3d Cir. 2003) (referencing Ridgewood v. N.E., 172 F.3d 238, 248 (3d Cir. 1999)). Here, the Third Circuit noted that the District’s proposed IEP did not provide meaningful benefit to the Student, who suffered from severe, profound sensorineural hearing loss, because the IEP proposed to change the child’s placement, yet the IEP 1) did not include an extended school year (“ESY”) even though it noted in its IEP that the Student needed ESY to progress; 2) did not address the Student’s residual hearing; 3) used inappropriate testing to determine the Student’s performance levels; and 4) implemented a curriculum in a way that might prove detrimental to the student, as the school district’s proposed curriculum adhered to a “total communication” philosophy which differed from the communication modality at the school the Student then attended. Id. at 272-273. The court found that the school district’s execution may be detrimental to the Student as she was at an important stage in her language acquisition. Id.
Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003).
The Eighth Circuit found an IEP inappropriate for lack of a behavior management plan even though the student had passing grade and there was testimony of some educational progress. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028-1029 (8th Cir. 2003).
Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476 (N.D. Ohio 2003).
The district court held that a student with leukemia continued to be eligible for special education under other health impairment (“OHI”). Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476, 492 (N.D. Ohio 2003). Here, the district court deferred to the hearing officer’s decision which relied on the parents’ expert who testified, unrebutted, that the student’s leukemia “will adversely affect her educational performance” even though the student’s current achievement was consistent with the child’s IQ, and the student’s grades were good. Id. at 490-491.
Leighty v. Laurel Sch. Dist., 457 F.Supp.2d 546 (W.D. Pa. 2006).
The district court found that while an IEP must be reasonably calculated to enable a student to receive meaningful educational benefit in light of the student’s intellectual potential, the IDEA does not require a school district to eliminate a discrepancy that renders a student disabled in the first place. Leighty v. Laurel Sch. Dist., 457 F.Supp.2d 546, 557-558 (W.D. Pa. 2006) (referencing Mather v. Hartford Sch. Dist., 928 F.Supp. 437, 446-447 (D.Vt. 1996)). Here, the parents contended that the IEP was not reasonably calculated to close or narrow the gap between their child’s level of achievement and their child’s level of ability. Id. at 557. As a result, the parents asserted that their child did not receive meaningful educational benefit. Id. The district court found that a learning disability, by its very nature, renders it difficult for a child to learn on a level consistent with his or her intellectual potential. Id. at 558. Since the child advanced from one grade to the next, in spite of the child’s severe learning disability, the district court found that the child’s IEP was calculated to allow her to make progress. Id.
L.E. v. Ramsey, 435 F.3d 384 (3d Cir. 2006).
The Third Circuit found that a segregated placement was appropriate, despite parental concern, because the student received meaningful benefit in the segregated setting and could not have received such meaningful benefit in an integrated setting. L.E. v. Ramsey, 435 F.3d 384, 394 (3d Cir. 2006). Furthermore, the Circuit Court found that providing services by unnamed professionals can provide FAPE if evidence exists to show that the services will confer a meaningful educational benefit. Id. at 395. Here, consideration of the actual services to be provided, the adequacy of such services, and the certifications and experiences of the providers were all considered when determining if the related services would confer a meaningful educational benefit. Id. at 395.
Trafford v. C.F., 2006 WL 840334 (W.D. Pa. March 28, 2006).
The district court held that in order to provide FAPE, the student’s IEP must be “reasonably calculated to enable the child to receive educational benefits.” Trafford v. C.F., 2066 WL 840334, at *7 (W.D. Pa. March 28, 2006) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). Furthermore, the IDEA “calls for more than a trivial educational benefit,” and an appropriate IEP should provide “significant learning” and confer “meaningful benefit” upon a student. Id. (referencing Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 180-184 (3d Cir. 1988)). Here, the District Court found that the student’s IEP did not provide “significant learning” to confer “meaningful benefit” upon a student because 1) the IEP’s short-term instructional objectives were vague (for example, “[Student] will write a correct sentence.”); 2) the IEP’s annual goals were not measurable (for example, the goals were measured in terms of grade equivalencies); 3) the IEP failed to include a behavior management plan even though the record reflected that the student had behavioral issues; and 4) the percentage accuracies of many of the expected levels of achievement were reduced from their earlier levels rendering “implicit evidence that the [IEP] did not confer [the Student] with a meaningful educational benefit as the IDEA requires.” Id. at *8.
Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671 (E.D. Pa. June 20, 2007) (abrogated on other grounds) Lauren P. v. Wissahickon Sch. Dist., 310 Fed. Appx. 553, 243 Ed. Law Rep. 660 (3d Cir. 2009).
The district court found that in “examining the parameters of a [FAPE], the Court of Appeals has held that the IDEA ‘calls for more than a trivial educational benefit’ and requires a satisfactory IEP to provide ‘significant learning’ and confer ‘meaningful benefit.’ ” Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671, at *3 (E.D. Pa. June 20, 2007) (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 182, 184 (3d Cir. 1988)). Here, the school district failed to confer any meaningful educational benefit to the Student because 1) it failed to respond to known deficiencies in the Student’s IEP as indicated by an Evaluation Report, and 2) it failed to provide a consistent policy for handling the Student’s behavioral problems. 2007 WL 1810671, at *7.
Marple Newtown Sch. Dist. v. Rafael, 2007 WL 2458076 (E.D. Pa. Aug. 23, 2007).
The district court held that a student with disabilities is denied FAPE where the student’s IEP is not reasonably calculated to confer meaningful educational benefit upon the student. Marple Newtown Sch. Dist. v. Rafael, 2077 WL 2458076, at *5 (E.D. Pa. Aug. 23, 2007) (referencing Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006)). Here, the school district’s IEP did not confer sufficient educational benefit upon the Spanish speaking Student because 1) it lacked a description of the “push-in” English as a Second Language (“ESL”) program and how the ESL program would be adapted to meet the Student’s unique needs; 2) the regular education teacher was not certified in ESL; 3) the IEP’s goals failed to have a particular purpose or scope; 4) the IEP goals remained static all year; 5) the Student was never evaluated in his native tongue; and 6) the Student qualified for ESY because of regression during the year. Id. at *6-8.
W.H. by B.H. and K.H. v. Clovis Unified Sch. Dist., 52 IDELR 258 (E.D. Cal. 2009).
The district court found that neither the good grades on a second-grader’s report card nor his above-average performance on a statewide examination disqualified the student who was diagnosed with attention deficit hyperactivity disorder (“ADHD”) from receiving services under the IDEA. W.H. by B.H. and K.H. v. Clovis Unified Sch. Dist., 52 IDELR 258 (E.D. Cal. 2009). Here, the student was unable to complete written assignments due to his ADHD, and the district failed to assess the student in the area of written expression.
D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010).
The Third Circuit held that at a minimum an “IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (quoting Chambers v. Philadelphia Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009) (quoting Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)). The Third Circuit noted that it has consistently “declined to adopt bright line rules to determine whether a student is receiving a meaningful educational benefit under IDEA. Id. (referencing Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999) (what benefit is “appropriate” under the IDEA is gauged in relation to a child’s potential); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 184 (3d Cir. 1988) (“The educational progress of a handicapped child . . . can be understood as a continuum where the point of regression versus progress is less relevant than the conferral of benefit.”); Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 534 (3d Cir. 2010) (“. . . the [IDEA] requires that school districts prepare the IEP’s based on the student’s needs; so long as the IEP responds to the needs, its ultimate success or failure cannot retroactively render it inappropriate.”).
Nevertheless, the Third Circuit found that evidence of successful grades are less indicative of meaningful progress if the child is educated in a special education classroom as opposed to being educated in a regular education classroom. Id. at 567 (referencing Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982) (emphasis added)). Here, while the student received successful grades in special education classrooms, the Student’s IEP did not incorporate the “specific remedial techniques and provisions for accommodations that the teachers and evaluators who worked with [the student] had proposed…” D.S., 602 F.3d at 566. Consequently, the Third Circuit found that the IEP did not allow the student to make meaningful educational benefit. Id.
Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474 (M.D.Pa. 2010).
The district court held that an IEP confers a meaningful educational benefit when it provides more than a trivial attempt at meeting the educational needs of the student, and it is desigend to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social, and emotional. Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474, 483 (M.D.Pa. 2010) (referencing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996)). In analyzing this case, the district court examined two separate time periods. First, it looked at the Student’s sixth grade and found that the Student’s good grades did not indicate that the Student’s IEP conferred meaningful educational benefit. Id. at 485. Rather, the district court found that the Student made progress due to the intensive “work with [Student’s] family at home” and an outside reading tutor. Id. The second time period analyzed occurred during the Student’s seventh and eighth grade school years. Resulting from an evaluation report indicating progress at the end of the sixth grade and the Student’s good grades, the school district exited the Student from special education. Id. at 485-486. The court found that the school district inappropriately exited the Student because the evaluation it used to track the Student’s progress was based on outdated assessments and any positive grades the Student earned could not fully be attributed to the Student’s IEP because the Student received considerable outside help from her parents and a private tutor. Id. at 486.
Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712 (3d Cir. 2010).
The Third Circuit held that even though the text of the IDEA statutorily limits a school district’s obligation to provide FAPE only to students under the age of 21, an individual over the age is still eligible for compensatory education if a school district fails to provide such student FAPE prior to the student turning 21. Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 717-718 (3d Cir. 2010). Under the IDEA, a court in that situation may grant compensatory education through its equitable power. Id. at 718.
In line with prior decisions, the Third Court held that FAPE is provided where an IEP, at a minimum, is reasonably calculated to enable the student to receive meaningful educational benefits in light of the student’s intellectual potential. Id. at 717 (referencing Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.2d 171, 181 (3d Cir. 2004); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 181 (3d Cir. 1988)); see also 20 U.S.C. Section 1414(d)(1)(A); Bd. of Educ. v. Rowley, 458 U.S. 176, 189 (1982).
Here, the school district refused to provide the Student with an IEP once the Student turned 21 even though the school district agreed to fund the Student’s compensatory education past her twenty-first birthday. Id. at 715-716. The Third Circuit held that it may grant compensatory education through its equitable power past the Student’s twenty-first birthday and include in such equitable relief the directive that the District must annually reevaluate the Student, provide her with annual IEPs, and serve as her local educational agency for the duration of the Student’s three years of compensatory education. Id. at 716, 720.
It is abundantly well-settled that “education” extends beyond discrete academic skills, and includes the social, emotional, and physical progress necessary to move the child toward meaningful independence and self-sufficiency consistent with the child’s cognitive potential. M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 392-394 (3rd Cir. 1996); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 181-182 (3d Cir. 1988); Kreulle v. New Castle County School District, 642 F.2d 687, 693 (3rd Cir. 1981); Armstrong v. Kline, 629 F.2d 269 (3rd Cir. 1980); Bucks County Public Schs. v. Dept. of Ed., 529 A.2d 1201 (Pa. Cmwlth. 1987); Big Beaver Falls Area Sch. Dist. v. Jackson, 615 A.2d 910, 914 (Pa. Cmwlth. 1993). Therefore, for an IEP to be appropriate, it must offer a child the opportunity to make progress which is “meaningful” in all relevant domains under IDEA, including behavioral, social, and emotional. M.C., 81 F.3d at 394; Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999).
Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3d Cir. 1981).
The Third Circuit held that a six-hour school day was inappropriate for a student who suffered from cerebral palsy and who required continuous medical supervision. Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981). Furthermore, the Third Circuit noted that medical, social, and emotional services at a full-time residential placement were essential prerequisites to meet the standard of a free appropriate education for this particular student. Id. at 694.
The Third Circuit held that a rigid rule under which a school district refused to consider providing physical therapy to a student who suffered severe mental and physical impairments conflicted with the student’s procedural right to an individualized program, and that for some children, academic progress is secondary to physical, social, and emotional progress. Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 177-178 (3d Cir. 1988). Moreover, the Third Circuit held that while the student’s disabilities impeded the student’s ability to learn in a traditional classroom, the student must be provided a program emphasizing therapeutic interventions to address the child’s global needs.
M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389 (3d Cir. 1996).
The Third Circuit held that when an IEP fails to confer meaningful educational benefit to a student, that student has been deprived of the appropriate education guaranteed by IDEA. M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389, 396 (3d Cir. 1996). In order to comply with the IDEA an IEP must be designed to allow a student to make “meaningful educational progress.” Id. at 394. Here, the Third Circuit found that the school district failed to provide an appropriate program (including parent training) and placement that would allow the Student to reduce his severe self-stimulatory behavior or improve his toileting, eating, and communication skills; therefore, the Third Circuit awarded the Student compensatory education. Id. at 392.
Stroudsburg Area Sch. Dist. v. Jared M., 712 A.2d 807, 810 (Pa. Comwlth. 1998).
The court held that education includes social and emotional growth. Stroudsburg Area Sch. Dist. v. Jared M., 712 A.2d 807, 810 (Pa. Comwlth. 1998). The court found that the school district denied the student FAPE because the school district failed to include the student’s emotional and social needs in its IEPs and thus were not calculated to benefit the student’s academics. Id.
Independence Sch. Dist. No. 284 v. A.C., 258 F.3d 769 (8th Cir. 2001).
The Eighth Circuit reversed a district court decision which limited “education” solely to academics. Independence Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir. 2001). The court ordered residential placement for a chronically truant, drug using, promiscuous, and oppositional student. Id.
A district court found that a student, despite above average grades and a high IQ, was eligible for special education because education includes “behavioral progress and the acquisition of appropriate social skills.” Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247 (N.D. Tex. April 11, 2002).
The Eighth Circuit found an IEP inappropriate for its lack of a behavior management plan even though the student had passing grades and there was some testimony that the student progressed academically. Neosho R-V Sch. Dist. v. Kathy Clark, 315 F.3d 1022, 1029-1030 (8th Cir. 2003).
Lamoine Sch. Committee v. Ms. Z., 353 F.Supp.2d 18 (D. Me. 2005).
The district court held that an IEP “must target all of a child’s special needs, whether they be academic, physical, social or emotional.” Lamoine Sch. Committee v. Ms. Z., 353 F.Supp.2d 18 (D. Me. 2005).
Mr. & Mrs. I. v. Maine Sch. Administrative District 55, 416 F.Supp. 2d 147 (D. Me. 2006).
The district court held that a student with Asperger’s Syndrome was eligible for special education due to the student’s social, emotional, and behavioral needs despite the student’s strong academics. Mr. & Mrs. I. v. Maine Sch. Administrative District 55, 416 F.Supp. 2d 147, 159-160 (D. Me. 2006).
The court found that the school district denied a student FAPE in part due to the school district’s failure to include a Behavior Management Plan (“BMP”), a “serious omission.” Trafford v. C.F., 2006 WL 840334, at *8 (W.D. Pa. March 28, 2006).
Bend-Lapine School District v. K.H., 2007 U.S. App. LEXIS 13954 (9th Cir. June 11, 2007).
The court found the student’s IEP inappropriate because it lacked present educational levels which should have provided an accurate baseline regarding the students behavior among other things. Bend-Lapine School District v. K.H., 2007 U.S. App. LEXIS 13954, at *2 (9th Cir. June 11, 2007).
The district court awarded compensatory education where a school district denied a student FAPE by failing to address the student’s behavioral issues through a Behavior Modification Plan (“BMP”). Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671 (E.D. Pa. June 20, 2007) (abrogated on other grounds).
Richardson Independent Sch. Dist. v. Michael Z., 2008 US Dist. Lexis 32928 (N.D. Tex., 2008).
The district court noted that the therapeutic interventions to address the child’s emotional needs were inextricably intertwined with the child’s ability to learn. Richardson Independent Sch. Dist. v. Michael Z., 2008 US Dist. Lexis 32928 (N.D. Tex., 2008).
Springfield Sch. Committee v. Doe, 623 F. Supp. 2d 150 (D. Mass. 2009).
The district court held that the school district denied the student FAPE when it failed to reevaluate the student and recommend an IEP in light of the student’s significant cognitive, attention, and behavioral difficulties, truancy issues during a two-month period, and a history of tardiness to class and leaving class abruptly. Springfield Sch. Committee v. Doe, 623 F. Supp. 2d 150, 161-162 (D. Mass. 2009).
Eschenasy v. New York City Dept. of Educ., 604 F.Supp 2d 639 (S.D.N.Y. 2009).
The district court found that a school district could not avoid paying for a student’s placement merely by attributing the student’s failing grades to truancy and drug use. Eschenasy ex rel. Eschenasy v. New York City Dept. of Educ., 604 F.Supp. 2d 639, 650 (S.D.N.Y. 2009). The court found that the fact that the student cut classes at her private academic boarding school, took drugs, and stole classmates’ property as a result of a conduct disorder did not make her ineligible for special education services under the IDEA. Id.
Dumont Bd. of Educ. v. J.T., 2010 US Dist. LEXIS 2781 (D.N.J. Jan. 13, 2010).
The district court awarded tuition for a private program because the IEP failed to include a sensory diet and a behavior plan. Dumont Bd. of Educ. v. J.T., 2010 US Dist. LEXIS 45413, at *17-19 (D.N.J. May 10, 2010).
Matanuska-Susitna Borough Sch. Dist. v. D.Y, 2010 U.S. Dist. LEXIS 17174 (D. Alaska Feb. 24, 2010).
The district court awarded $50,000 in compensatory education because the school district failed to provide FAPE in part as a result of not providing an adequate behavioral intervention plan and not addressing the student’s social needs. Matanuska-Susitna Borough Sch. Dist. v. D.Y, 2010 U.S. Dist. LEXIS 17174 (D. Alaska Feb. 24, 2010).
The district court held that an IEP confers a meaningful educational benefit when it provides more than a trivial attempt at meeting the educational needs of the student, and it is designed to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social, and emotional domains. Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474, 483 (M.D.Pa. 2010) (referencing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996)).
D.S., et al. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010).
The Third Circuit ordered tuition reimbursement because the IEP did not provide goals or address the student’s need for reading and language remediation, speech therapy, auditory/memory deficits, and socialization issues, and further failed to incorporate recommendations regarding these issues from private evaluators and teachers. D.S., et al. v. Bayonne Bd. of Educ., 602 F.3d 553, 563 (3d Cir. 2010) (emphasis added).
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