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SIGNIFICANT CASES IN
SPECIAL EDUCATION LAW
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TABLE OF CONTENTS
Special Education Law Institute Cases
Biddeford Sch. Dept (HO ruling 2005), 44 IDELR 87 (SEA Me. 2005)
st

1
10

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1 Cir. 2006)


st

M.S.A.D. No. 35 v. Mr. and Mrs. R., 321 F.3d 9 (1 Cir. 2003)

22

C.G. v. Five Town Comm. Sch. Dist., 53 F.3d 279 (1st Cir. 2008)

28

Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004)

36

st

Timothy W. v. Rochester (NH) Sch. Dist., 875 F.2d 954 (1 Cir. 1989)
st

48

Mr. and Mrs. I v. M.S.A.D. No. 55,480 F.3d 1 (1 Cir. 2007)

67

R.C. and EP v. York School Dept, 2008 WL 4427194 (D. Me. 2008)

90

Springer v. Fairfax County Sch. Board, 134 F.3d 659 (4th Cir. 1998)

115

Me. Sch. Admin. Dist. No. 49, 35 IDELR 174 (SEA Me. 2001)

122

Board of Educ. v. Rowley, 1012 S. Ct. 3034 (1982)

136

Lenn v. Portland Public Schools, 998 F.2d 1083 (1st Cir. 1993)

154

D.B. v. Esposito, the Sutton Sch. Dist., et. al., 675 F.3d 26 (1st Cir. 2012)

163

Portland Public Schools, 26 IDELR 96 (SEA Me. 1997)

177

Caribou Sch. Department, 35 IDELR 118 (SEA Me. 2001)

189

Greenbush Sch. Comm. v. Mr. and Mrs. K., 949 F. Supp. 934 (D. Me. 1996)

200

M.S.A.D. No. 29 (arbitration ruling)

208
rd

Oberti v. Clementon School District, 995 F.2d 1204 (3 Cir. 1993)

223

Mrs. S. v. Scarborough Sch. Comm., 336 F. Supp. 2d 98 (D. Me. 2005)

241

Regional School Unit No. 21 (HO ruling), 111 LRP 8384 (SEA Me. 2010)

247

Maine Sch. Admin. Dist. No. 37, 43 IDELR 133 (SEA Me. 2004)

268

Honig v. Doe, 484 US 305 (1988)

283

Light v. Parkway

291

Me. Sch. Admin. Dist. No. 34,102 LRP 4394 (SEA Me. 1998)

299

Farrin v. M.S.A.D. No. 59, 165 F. Supp. 2d 37 (D. Me. 2001)

307

Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426 (2002)

317

Southeastern Commun. College v. Davis, 442 U.S. 397 (1979)

323

P.G.A. Tours Inc. v. Martin, 532 U.S. 661 (2001)

332

Falmouth School Department (HO Ruling 2014)

348

S.D. v. Portland Public Schools, 2:13-cv-00152-JDL

382

Parent v. RSU 73

407

Ms. S. v. RSU 72

414

SD v. Portland Public Schools

437

Parent v. Falmouth

461

Bell v. Unorganized Territories

501

Cedar Rapids v. Garrett F.

514

Lamoine School Department

528

Parents v. Yarmouth

572

Dear Colleague Letters (harassment and extracurriculars),

619

60 IDELR 167 (OCR 2013), 55 IDELR 174 (OCR 2010)


How to Read a Legal Decision

638

STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
April 20. 2005
Case # 05.019H, Parent v. Biddeford School Department.
REPRESENTING THE FATHER:

The father appeared pro se.

REPRESENTING THE SCHOOL:

Eric R. Herlan, Esq.

HEARING OFFICER:

Peter H. Stewart, Esq.


INTRODUCTION

This special education due process hearing has been conducted pursuant to state and federal
special education law, 20-A MRSA 7207 et seq., and 20 USC 1415 et seq., and the regulations
accompanying each.
The father filed a request for this special education due process hearing on February 8, 2005,
on behalf of his son, an xx-year-old student in the xx grade of the Biddeford Elementary School. The
father lives in New Hampshire and is divorced from the students mother, who lives in Massachusetts.
Pursuant to an order of the New Hampshire family court that is adjudicating post-divorce custodial
matters, the student has lived in Biddeford with his paternal aunt since mid-October of 2004.
Upon the students arrival in Biddeford, his aunt enrolled him in the Biddeford Elementary
School. Shortly thereafter, the school and the students aunt decided that it was appropriate to
evaluate the student to determine his eligibility for special education services. The students aunt
consented to a series of evaluations proposed by the school and those evaluations were completed in
the fall of 2004. In early December, the school gave notice of a pupil evaluation team (PET)
meeting to be held on January 11, 2005 to discuss the evaluations. Later in December, upon learning
of the addresses of the students biological parents, the school sent out notice of the PET meting [sic]
to them. The PET was rescheduled to February 1, 2005. Both of his [sic] students parents attended
the meeting.
At the PET meeting, school staff discussed their conclusion, based upon the recent
evaluations, that the student was eligible for special education services as a learning disabled student
and recommended that he be placed in a diagnostic placement to see which interventions were most
effective. The students mother agreed both to his identification as eligible for special education
services and to the diagnostic placement recommended by the school. The students father did not
sign the identification form, nor did he sign the consent form for the diagnostic placement. He
requested that more testing be done, and also requested that outside evaluators do that testing. The

students aunt agreed with the schools identification of the student as eligible for special education
and consented to the schools recommendation that he be placed, initially, in a diagnostic placement.
On February 8, 2005, the students father filed a request with the Maine Department of
Education seeking a due process hearing. That filing triggered the stay-put provisions of the IDEA
and Maine special education law. Consequently, the student remains unidentified as eligible for
special education services and has not yet received any such services.
While there are other issues to be resolved in this hearing, the students father[sic] primary
argument is that the school cannot evaluate, identify or provide special education to the student
without first obtaining his consent, as the students biological father. The school contends that it can
proceed to identify and serve the student without the fathers consent under the circumstances present
here, where both the students mother and the students aunt have given consent to his identification
and placement.1
A pre-hearing conference was held on March 8, 2005. The hearing was held on March 21,
2005. The father testified on his own behalf, and presented no other witnesses. The school presented
one witness. Documents identified at School Exhibits pages 1-65 and Hearing Officer Exhibit 1 were
entered into evidence at the hearing. The parties elected to make written closing arguments. The
hearing officer closed the record in this case on April 9, upon receipt of the last the written closing
argument from the parties.

ISSUES
The issues to be resolved at this hearing are:
1)

Whether the school was correct when it determined the students aunt to be a
person acting as a parent of the student within the meaning of state and
federal special education law;

2)

Whether state or federal special education law requires the school to obtain
the consent of both of the students biological parents prior to determining the
eligibility or initial placement of the student, under the circumstances
presented here2; and.

3)

Can the school determine the eligibility or initial placement of the student
prior to receiving the results of an independent educational evaluation
currently being arranged by the students father?

The school also asserts argument that the consent of either the students aunt or the students mother
is sufficient consent to permit the school to evaluate, identify, or provide special education to the
student.
2
When parties agreed to this statement of the issue at the pre-hearing conference held on March 8, the
hearing officer was not aware that the students father was challenging the schools right to evaluate
the student without his consent, as well. Since he advanced that argument in his written closing
statement, the hearing officer will include the question of the schools right to evaluate the student
without the fathers consent when deciding this issue.

FINDINGS OF FACT
1. The student (DOB: xx/xx/xxxx) lives with his paternal aunt in Biddeford, Maine pursuant
to an order from a New Hampshire Family Court that gave the aunt joint legal custody, shared
with the biological parents, of the student. The student moved to [sic] into the aunts home in
Biddeford in mid-October, 2005. The aunt performs the full range of responsibilities
associated with being the parent of a xx grader, from the time he gets up until he goes to sleep
at night. The father has not visited the student since he moved to Maine. The aunt enrolled
the student in the xx grade of the Biddeford Elementary School. Shortly thereafter, the aunt
consented to the schools recommendation that the student be tested and evaluated to
determine if he was eligible to receive special education services. The school did not obtain
consent from either of the students biological parents before evaluating the student. (Hearing
Officer Exhibit 1; Testimony of father; School Exhibit 31-33: and Testimony of Marecaux)
2. In early December, the school gave notice of a pupil evaluation team (PET) meeting
to be held on January 11, 2005 to discuss the results of the students evaluations. Later in
December, the school learned the addresses of the students biological parents and sent notice
of the PET meeting to them. The PET was rescheduled and held on February 1, 2005. Both
of the students biological parents attended the meeting. At the meeting, school staff
members discussed their conclusion that, based upon the recent evaluations, the student was
eligible to receive special education services as a learning disabled student and recommended
that he be placed in a diagnostic placement to see which interventions were most effective.
Both the students biological mother and the students aunt agreed with the school. Each
gave her consent to the identification of the student as eligible for special education services,
as well as to the schools recommendation for an initial placement. The students biological
father did not consent to either the identification or placement recommended for the student.
He requested that more testing be done prior to resolving the identification or initial
placement issues. (Testimony of father and Marecaux; SE 52-59)
3.

During the hearing process, the school agreed to reimburse the father for certain costs

associated with the independent educational evaluation the father sought for the student. The
father was still in the process of arranging that evaluation when the hearing ended. If the
evaluation occurred as planned, the results would not be available for the PET to review for
approximately five to six months. (Testimony of father and Marecaux.)
4.

On February 8, 2005, the father filed a Dispute Resolution Request Form with the

Maine Department of Education, initiating the process that has lead to this hearing. That
filing triggered the stay-put provisions of state and federal special education law.
Consequently, the school did not act on its determination that the student was eligible for

special education. The student remains unidentified and unserved, pending the results of this
due process hearing. (HOE-1; Testimony of father and Marecaux.)
DISCUSSION
I.
Whether the school was correct when it determined the students aunt to be a person
acting as a parent of the student within the meaning of state and federal special
education law? [sic]
The central issue in this case involves the question of which individuals are empowered by
state and federal special education law to give consent to the evaluation, identification or initial
placement of a student. Both state and federal special education schemes require the school to obtain
parental consent prior to taking any of those steps toward the provision of special education
services. The Maine Special Education Regulations (MSER), Ch 101, Section 2.14, define parent,
in part, as a natural or adoptive parent, a guardian, a person acting as a parent of a child (such as a
grandparent or step-parent with whom the child lives, or a person who is legally responsible for the
childs welfare).3 The specific question here is whether the students aunt fits within Maines
definition of parent as set forth in the MSER.
For the reasons that follow, the hearing officer concludes that, given her current role in the life
of this child, the students aunt fits comfortably within the regulatory definition of a person acting as
a parent of a child as set forth in Maines Special Education Regulations. The student is living with
his aunt pursuant to an order of a New Hampshire Court, Family Division that issued an Ex-Parte
Order on October 13, 2004 stating, in part, that the student4 would be placed into the custody of the
[students aunt], pending further order. (SE 33) On October 15, 2004, the New Hampshire Court
affirmed that conclusion in a two page Decision stating, in part, that the student shall be placed with
the students aunt. The parents shall have no unsupervised visitation. (SE 32) As recently as March
15, 2005, the same Court expanded upon its decision placing the student with the students aunt in
another Order that stated, in part, those orders (regarding the placement of the children) are hereby
reaffirmedthe parties (father and mother) and the paternal aunt [students aunt()] appear to have
joint legal custodythere have arisen disputes between (father and mother).. and aunt about
counseling and medical careGiven the legal status of the children, this Court finds that major health
related decisions must be made in consultation with one another (SE, 65-66)

Maines regulatory scheme is consistent with the federal regulations on this point. See, 34 CFR
300.20. For the purposes of this decision, the hearing will hereinafter refer only to Maines special
education law and regulations.
4
The student has a sibling who also was placed with the students aunt.

It is clear that the New Hampshire Family Court established, re-examined and expressly reiterated its conclusion that (1) at the present time it was in the students best interest to live with his
aunt in her home in Biddeford and (2) the students aunt shares joint legal custody of the student with
his biological parents. The aunt is the one who cares for the student on a daily basis, gets him to
school and back, feeds him, puts him to bed at night, and takes care of him in all the ways parents take
care [sic] children of the students age. These considerations make it clear to the hearing officer that
the aunt is a person legally responsible for the (students) welfare.5 Given this, the hearing officer
concludes that the school correctly determined that the students aunt was a person acting as a parent
of a child and therefore properly considered her to be a parent as defined in Maines Special
Education Regulations.6
II.
Whether state or federal special education law requires the school to obtain the
consent of both of the students biological parents prior to evaluating the
student, determining his eligibility or making his initial placement, under the
circumstances presented here? [sic]
The parties do not dispute the facts surrounding this issue. Shortly after the student was
enrolled in the xx grade at last fall, the school and the students aunt decided it was appropriate to test
and evaluate the student in order to determine his eligibility for special education services. His aunt
gave her consent to the testing and evaluation suggested by the school; the school did not have, nor did
it seek, the consent of either of the students biological parents. On 12/3/04, the school sent notice of a
PET meeting to be held on 1/11/05 to discuss the evaluations. Later in December, upon learning the
addresses of the students biological parents from the students aunt, the school immediately sent
notice of the PET to both biological parents. The PET meeting was rescheduled.
On February 1, 2005, the PET convened to review the results of the completed evaluations,
determine if the student was eligible for special education and discuss an initial placement for the
student, if necessary. The aunt, both of the students biological parents, school staff and consultants
attended the meeting. The school staff and consultants discussed their conclusion that the evaluations
5

The hearing officer notes that the aunt is carrying out her court-imposed responsibilities to care for
the student and his sibling in a competent and caring manner. All witnesses who testified to this issue,
including the students father, agreed that the student was in good hands with his aunt and was doing
well in her home. The hearing officer also notes that the current custodial relationships were created
by the family courts of New Hampshire; the current situation is subject to change upon the order of the
New Hampshire courts or any other court of competent jurisdiction.
6
Nothing in this conclusion detracts from the parental status of the students biological parents. As a
parent within the meaning of the MSER, the students aunt simply shares parental status with the
students biological parents. At least in the context of being able to give consent for the student to be
evaluated, identified as eligible for special education services or put into an initial placement to
receive special education services, the students aunt has the same set of rights that belong to anyone
else who fits the definition of parent set forth in the MSER.

of the student demonstrated that he was eligible for special education services under the category of
learning disabled and recommended that he be placed in a diagnostic placement in the school to
determine which interventions were most effective. The students aunt and the students mother
agreed with the schools recommendations about the students eligibility and initial placement, and
each gave her consent for the school to proceed. The students father did not accept the schools
conclusions or recommendations. He did not give his consent but requested that more testing be done
before the student was either identified or provided any special education services. Shortly after the
PET meeting, the father filed a request for this due process hearing, thus triggering the stay-put
provisions of the IDEA and Maine special education law. To date, the student remains unidentified
and unserved.
The father asserts that, without his consent, the school can neither evaluate the student to
determine if any learning disability exists, nor identify him as eligible for special education nor make
an initial placement into a situation where he would receive special education services. The father
argues that his refusal to consent to these actions regarding his son prevents the school from
proceeding with any of the actions described above, notwithstanding the fact that both the students
biological mother and his aunt have consented to the schools plan. The school disagrees with the
fathers argument and submits two theories in response. First, the school asserts that, under the facts
present here, when both the students biological mother and his aunt have expressly consented to the
schools proposals regarding the student, the fathers consent is not required for the school to evaluate,
identify or serve the student. Second, the school argues that the students aunt, because she is a
parent of the student as defined by the MSER, can give full consent on her own to the same extent
that any other parent is authorized to give consent under the law and regulations. For either or both of
these reasons, the school asserts that it may proceed with the evaluation, identification and initial
placement of the student without the fathers consent.
The fathers argument on this issue is without merit. The Maine Special Education
Regulations speak directly to the issue of what happens when one parent with joint custody gives
consent, while the parent with joint custody refuses to consent. MSER section 12.11(C) states, in part:
Generally, either parent may grant consent. In the case of divorced parents with
joint custody either parent may grant consent. However, in the event that one
parent grants consent and the other parent refuses, then the school is obligated to
initiate the action for which consent has been granted.
The meaning of the regulation as applied to this case is clear: because the students mother, a divorced
parent with joint custody, has given her consent, the school is not only allowed to proceed with the
evaluation, identification and initial placement of the student, it is obligated to do so. The hearing

officer concludes that the school not only may but also, in fact, must proceed with the evaluation,
identification and initial placement of the student.7
III.
The third issue to be resolved is:
Whether the school can determine the eligibility or initial placement of the
student prior to receiving the results of an independent educational evaluation
currently being arranged by the students father? [sic]
The father requested an independent evaluation at public expense; the school, during the
course of the hearing process, agreed to that request. The father is in the process of arranging the
evaluation, and the school has agreed to reimburse him for certain costs associated with the evaluation.
Under normal circumstances, the evaluation being arranged by the father should take approximately
six months to obtain, though cancellations at the testing center might shorten the time period. The
fathers position appears to be that, since the state and federal regulations require that an
independent educational evaluation (IEE) shall be considered by the Pupil Evaluation Team in
developing an Individualized Education Program (IEP) for the student MSER, section 12.5(F), the
student cannot receive services until after the results of his independent educational evaluation have
been considered by the PET. The consequence of this argument, if accepted, is that the student could
not begin to get the services the PET has already concluded he needs until (1) the IEE arrives in six
months or so, and (2) the PET convenes, considers that evaluation and designs an IEP based on the
new IEE.
The hearing officer finds no support for this argument in the authorities referred to by the
father. While the father is correct in asserting that the PET has to consider the results of the
evaluation he is currently in the process of scheduling when those results become available, nothing in
state or federal regulations requires the PET to await the results of this evaluation before developing
and implementing an IEP for the student. To the contrary, as the school points out, the MSER impose
timelines on the PET, directing it for example to develop an IEP and make an offer of services in
accordance with that IEP within 45[sic] days of receipt of parental consent for an initial evaluation.
MSER, section 9.17. Further, the school properly refers to the federal regulation that requires the PET
to make its initial identification decision based on a consideration of existing evaluation data. 34
CFR 300.533(a). The regulations simply cannot be read to require the PET to wait for the
7

While it is not strictly necessary to reach the schools second argument that the students aunt, as a
parent within the meaning of the MSER, is authorized by the regulations to give the consent
discussed above on her own, without either biological parent giving consent in order to decide this
case, the hearing officer concludes that the schools position on this point is supported by and
consistent with the MSER. Here, the students aunt is a parent with joint custody of the student.
The hearing officer sees no statutory or regulatory reason to interpret her ability to consent in [sic] way
that differs from any other parent with joint custody of a student.

development of new data before acting, particularly when as here the delay would be
approximately six months. Six months is a very significant period of time in the academic life of a xx
grader, especially one who has already been described as struggling with a learning disability.
The hearing officer concludes that the school may determine whether the student is eligible for
special education services, based upon a consideration of the existing evaluation data, and does not
need to delay the process until the results of the pending IEE are available. Further, if the PET
determines that the student is eligible for special education, the PET may proceed to develop an
appropriate IEP, make an initial placement for the student and begin to provide the student with the
special education services that are appropriate for him.8 When the results of the IEE the father is
currently arranging become available, those results should be provided to the school. The school
should then convene a PET meeting to consider those results and take action consistent with state and
federal special education law and regulations.

On page 10 of the faxed copy of his written closing argument, the father appears to have consented to
the initial placement recommended by the PET. Even if he withdraws this consent, the PET may
proceed to make the initial placement because, as discussed above, both the students mother and his
aunt have already consented to the evaluation, identification and initial placement for the student.

ORDER
For the reasons discussed above, the hearing officer finds that none of the schools actions at
issue in this matter violate [sic] either state or federal special education law. As discussed above, the
school may proceed to evaluate, identify, make an initial placement, and provide special education
instruction and services to the student, as appropriate under state and federal special education law and
regulations.

_____________________________
Peter H. Stewart
Hearing Officer

Date

LIST OF WITNESSES
FOR THE FATHER:
Father of the student

FOR THE SCHOOL:


Dorothy Marecaux, Director of Special Education, Biddeford School Department

LIST OF DOCUMENTS
School Exhibits 1-66
Hearing Officer Exhibit 1 Dispute Resolution Request Form, 2/8/05

education ("FAPE") under the Individuals with


Disabilities Education Act (IDEA), 20 U.S.C.
1400 et seq. ; section 504 of the
Rehabilitation Act, 29 U.S.C. 794; Title II of
the Americans with Disabilities Act (ADA), 42
U.S.C. 12131-12134; and Puerto Rico law.
The underlying dispute concerns whether
the public schools are required to provide
Lyssette, a child whom the parties agree is
disabled within the meaning of the IDEA, with
adaptive physical education in the form of
swim classes under an Individualized
Education Program (IEP), see 20 U.S.C.
1414(d). The dispute led to a jury verdict and
an award of compensatory damages in the
amount of $45,000 to Diaz and $3000 to
Lyssette against all of the defendants. The jury
also assessed a total of $100,000 in punitive
damages against the two individual defendants,
Csar Rey-Hernndez and Nitza Ros-Malav,
in their personal capacities. Those two
individuals respectively hold the offices of
Secretary of Education of the Commonwealth
and Supervisor of the Special Education
Program of Cidra School District. The district
court also entered broad declaratory and
injunctive relief in favor of plaintiffs.
We vacate most of the relief granted,
leaving intact only the award of reimbursement
for the sum of private school tuition and costs
for transportation and psychological services
incurred by plaintiffs during the 2003-2004,
2004-2005, and 2005-2006 school years.
This case demonstrates significant
confusion about the governing law in cases
alleging denial of FAPE, including confusion
over the limitations on monetary relief
available, the limitations on suits against
school administrators in their personal
capacities, and the scope of immunity available
to the Commonwealth in federal court.
Unfortunately, as a result of counsel for
plaintiffs' lack of candor about the law to the
district court and defense counsel's failures to
comply with court orders and to make
appropriate objections on defendants' behalf,
the case comes to us in a posture in which a
jury has awarded damages not available in
IDEA and Rehabilitation Act actions.
In order to clarify, we outline the core
holdings of this case:
1. Where the essence of the claim is one stated
under the IDEA for denial of FAPE, no greater
remedies than those authorized under the
IDEA are made available by recasting the

Page 13
451 F.3d 13 (1st Cir. 2006)
Marta DIAZ-FONSECA, on her own behalf
and on behalf of her minor daughter;
Lyssette Cardona-Daz, Minor, Plaintiffs,
Appellees,
v.
Commonwealth of PUERTO RICO;
Department
of
Education
of
the
Commonwealth of Puerto Rico; Csar ReyHernndez, in his personal capacity and as
Secretary
of
Education
of
the
Commonwealth of Puerto Rico; Nitza RosMalav, in her personal capacity and as
Supervisor of the Special Education
Program of Cidra School District,
Defendants, Appellants.
Nos. 05-1301, 05-1472.
United States Court of Appeals, First
Circuit.
June 16, 2006
Heard March 10, 2006.
APPEALS FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO, Hon. Jos
Antonio Fust, U.S. District Judge.
Page 14
[Copyrighted Material Omitted]
Page 15
[Copyrighted Material Omitted]
Page 16
[Copyrighted Material Omitted]
Page 17
[Copyrighted Material Omitted]
Page 18
Doraliz E. Ortiz-de-Len, Assistant
Solicitor General, Commonwealth of Puerto
Rico, with whom Salvador Antonetti-Stutts,
Solicitor General of Puerto Rico, and Mariana
D. Negm-Vargas and Maite D. OronozRodrguez, Deputy Solicitors General, were on
brief, for appellants.
Kevin G. Little on brief for appellees.
Before Torruella, Circuit Judge, Hansen,
[*] Senior Circuit Judge, and Lynch, Circuit
Judge.
Page 19
LYNCH, Circuit Judge.
A parent, Marta Daz-Fonseca, brought
suit in 2002 against the Commonwealth of
Puerto Rico, its Department of Education, and
two individual defendants, alleging that her
child, Lyssette Cardona-Daz, had been
deprived of a free and appropriate public

10

claim as one brought under 42 U.S.C. 1983,


Title II of the ADA, or section 504 of the
Rehabilitation Act.
2. No punitive damages may be awarded in
such a suit, regardless of which of the causes
of action listed above is invoked.
3. No general compensatory damages may be
awarded in such a suit, regardless of which of
the causes of action listed above is invoked.
4.Monetary recovery in such suits is limited to
compensatory education and equitable
remedies that involve the payment of money,
such as reimbursements for educational
expenses that would have been borne by
defendants in the first instance had they
properly developed and implemented an IEP.
Under the category of "reimbursement,"
parents may recover only actual, not
anticipated, expenditures for private tuition
and related services.
Page 20
5. No claim for monetary relief is stated in
such cases against individual school
administrators who are sued in their personal
capacities.
6. A state, here the Commonwealth of Puerto
Rico, may waive Eleventh Amendment
immunity from monetary liability as to IDEA
and Rehabilitation Act claims in federal court
by accepting federal funds. This does not mean
that the state has waived its immunity as to
pendent state law claims being heard in federal
court. Here, although the Commonwealth
waived its immunity from suit in federal court
on the federal claims, it did not waive its
immunity from suit in federal court on the
pendent state law claims under Law 51, see
P.R. Laws Ann. tit. 18, 1351-1359, and
Puerto Rico's general negligence statute, see
P.R. Laws Ann. tit. 31, 5141-5142.
Applying these principles, we conclude
that the harm to the public interest requires that
we reverse and vacate the entirety of the
punitive damages award and all compensatory
damages against Rey and Ros in their personal
capacities. We also vacate those portions of the
compensatory damages award against the
Commonwealth that are not available as
monetary relief.
Frustrated with the defendants' many
defalcations in this case, the district court also
granted in full plaintiffs' belated request for
injunctive and declaratory relief. We reverse
and vacate the entirety of the declaratory and
injunctive relief awarded.

I.
There is no reason to detail the many facts
and procedural events in this case and every
reason to avoid a focus on the irrelevant. The
crux of the dispute is that while the parties
agreed that Lyssette could not engage in
ordinary physical education and thus needed
adaptive physical education, they could not
agree over what type of adaptive physical
education was appropriate. The public schools
lacked swimming pools and declined to pay for
swim lessons. Daz insisted that her daughter
needed such lessons and that the schools
should have to pay for them, as well as for
transportation to and from school and for the
psychiatric treatment Lyssette required after
she became depressed because she could not
engage in physical education with her
classmates. Feeling frustrated that Lyssette
was not receiving any adaptive physical
education and that the defendants had engaged
in a classic bureaucratic runaround, Daz
unilaterally removed Lyssette from public
school in 2003 and placed her in a private
school.
At the time the litigation began in
September 2002, Lyssette was an eleven-yearold public school student. She had been
diagnosed in February 2001 with spina bifida
and Klippel-Feil Syndrome, as a result of
which she suffers from certain physical
limitations, such as a circumscribed range of
motion in the neck and cervical spine. In
August 2001, after a physician recommended
that Lyssette refrain from further participation
in traditional physical education classes, Daz
registered Lyssette in the special education
program administered by the DOE[1] and
requested that Lyssette be provided with
specially designed physical education services.
See 34 C.F.R. 300.307(a) ("Physical
Page 21
education services, specially designed if
necessary, must be made available to every
child with a disability receiving FAPE.").
On September 4, 2001, the DOE
convened a meeting with Diaz and other
members of Lyssette's IEP team, see id.
300.16 (defining "IEP team" as "a group of
individuals . . . that is responsible for
developing, reviewing, or revising an IEP for a
child with a disability"); see also id. 300.344
(specifying the composition of IEP teams), to
produce an IEP for Lyssette. Their
deliberations resulted in an IEP for the 2001-

11

2002 school year; this IEP did not provide for


special physical education services -specifically, swim classes, which, plaintiffs
have maintained, was the only sport Lyssette
could safely practice.[2] The DOE told Diaz
that it could not provide swim instruction
because it did not have any schools equipped
with a pool, and that Diaz would have to pay
out-of-pocket for private swim lessons
elsewhere.
Diaz filed an administrative complaint
with the Commonwealth's DOE on November
27, 2001, requesting that it provide Lyssette
with publicly funded swim classes. An
administrative law judge (ALJ) eventually
found that the DOE did not have the obligation
to offer Lyssette swim lessons, because it was
not clear from the IEP that swimming was the
most appropriate physical education alternative
for Lyssette. The ALJ did, however, order that
Lyssette receive physical education at the same
frequency as her non-disabled classmates, and
further directed the parties to meet again to
determine, with the help of a specialist,
whether swimming was the most appropriate
physical education alternative for Lyssette.
That order was not handed down until June 14,
2002, far beyond the forty-five days provided
by the regulations for resolution of an
administrative complaint. See 34 C.F.R.
300.511(a)(1) ("The public agency shall ensure
that not later than 45 days after the receipt of a
request for a hearing . . . [a] final decision is
reached in the hearing ....").
Several unsuccessful attempts to convene
an IEP meeting followed; each meeting was
cancelled by someone from the school or the
DOE. In the end, Lyssette did not receive a
revised IEP for her sixth-grade year, which
was the 2002-2003 school year; rather, with
Daz's permission, Lyssette spent time with her
Spanish teacher while her classmates were in
physical education class.
In May 2003, the IEP team convened to
create a revised IEP for the 2003-2004 school
year. At that meeting, co-defendant Ros told
Daz that she had been instructed to inform
Daz that they were not going to develop a new
IEP for Lyssette. Daz testified that Ros
refused to take minutes of the meeting and that
Ros and the other school personnel present
abruptly ended the meeting when Daz
attempted to record the proceedings. No
revised IEP was produced and agreed upon by
the IEP team for the 2003-2004 school year.

Lyssette graduated from sixth grade in


June 2003, which meant that she had to
transfer to a middle school. In July of that year,
Daz met with DOE and school officials to
discuss Lyssette's placement options for the
following year. Daz requested that her
daughter be enrolled in the Dejas School,
because of that school's proximity to Lyssette's
grandmother's house and the Puerto Rican
Medical Center,
Page 22
where Lyssette's neurosurgeon and orthopedic
surgeon practiced. The DOE, however,
notified Daz that the school of her choice was
not available; that the normal placement
procedures for regular-education students
applied to Lyssette; and that under those
procedures, Lyssette could not enroll in the
Dejas School, but instead must choose from
two schools closer in proximity to her home.
The topic of physical education was not raised
during this meeting and was not mentioned as
a criterion for Daz's choice of schools.
Diaz then informed the DOE that its
proffered options were not acceptable and that
she would be withdrawing Lyssette from
public school and placing her in private school
during the 2003-2004 school year at public
cost. Lyssette was eventually enrolled in a
private school close to her grandmother's
home; that school was equipped with a
swimming pool, but, according to Daz,
Lyssette did not take swim lessons there
because physical education was not a part of
the regular curriculum and extracurricular
lessons were prohibitively expensive.
The
DOE
initiated
a
second
administrative proceeding in July 2003,
challenging Lyssette's placement in the private
school. That proceeding was resolved in the
DOE's favor on December 10, 2003, which
was apparently also in excess of the forty-fiveday deadline imposed by the regulations.
In the interim, Diaz filed this suit on
September 4, 2002 in federal court on behalf of
herself and her daughter, alleging that
Lyssette's "IEP was administered inadequately,
untimely[,] and contrary to law," and that Daz
was deprived of her rights to parental
involvement and to a timely, fair, and impartial
due process hearing. Plaintiffs named as
defendants the Commonwealth and the DOE
("the Commonwealth defendants"), as well as
Rey and Ros ("the individual defendants"),
who were sued both in their personal capacities

12

and in their official capacities as Secretary of


Education of the Commonwealth and
Supervisor of the Special Education Program
of the Cidra School District, respectively.[3] In
their initial complaint, plaintiffs asserted
against all defendants claims under the IDEA,
section 504 of the Rehabilitation Act, Title II
of the ADA, and Puerto Rico law.
Defendants answered with a number of
affirmative defenses, including that "[f]ederal
policy precludes money damages for IDEA
claims" and that "[t]he Eleventh Amendment
bars [plaintiffs'] claims." They also filed a
motion to dismiss, arguing that the
Commonwealth defendants had Eleventh
Amendment immunity against the federal law
claims, that the federal statutes did not provide
for individual liability, and that the district
court should decline to exercise supplemental
jurisdiction over the state law claims. The
district court partially granted the motion on
December 16, 2003, dismissing the ADA
claim for money damages against all
defendants and the Rehabilitation Act claim
against Rey (then the only individual
defendant) in his personal capacity. Plaintiffs
did not appeal these rulings.
Plaintiffs subsequently amended their
complaint. They dropped their ADA claim,
kept their claims under the IDEA and Puerto
Rico law against all defendants, and reasserted
a Rehabilitation Act claim against the
Commonwealth defendants only. They sought
declaratory relief under 28 U.S.C. 2201 and
2202;
Page 23
economic and non-economic damages;
compensatory and special damages, including
damages for "pain and suffering, emotional
distress, humiliation, and the cost of
appropriate remedial services, including
educational services"; punitive damages;
litigation costs and fees; and "other and further
relief at law or in equity" as the court deemed
proper.
As the suit progressed, defendants took a
lackadaisical approach to responding to their
discovery obligations and various court orders.
In particular, the DOE repeatedly failed to
comply with the court's orders to produce the
full record from the prior administrative
proceedings. Plaintiffs moved to sanction
defendants. In due course, the court did
sanction defendants by striking their pleadings
and entering a default order against them, and

it did not relent when defendants sought to


remove the default.
It is important to be clear about the nature
of the default order. The court said that "[t]his
case is going to be tried on default, but it is not
the typical default." Indeed, unlike other
defaults, the court's default order did not result
in entry of a liability judgment with only
damages to be determined. Rather, the court
allowed the case to go to the jury on liability
and damages, and permitted plaintiffs to
present evidence of both.[4] Furthermore, the
court precluded defendants from introducing
any evidence, but did give them some leeway
to cross-examine plaintiffs' witnesses and did
allow them to make opening and closing
statements.
The case was tried to a jury over the
course of three days beginning October 28,
2004.[5] Testifying on plaintiffs' behalf were
Daz and Lyssette, as well as Marlene Aponte
Cabrera, a former DOE ALJ, and Maria del
Carmen Warren-Gonzalez, the head of a
committee of parents involved in an unrelated
class-action suit against the DOE. Defendants
made opening and closing statements and
cross-examined plaintiffs' witnesses.
At the close of plaintiffs' case, defendants
moved for judgment as a matter of law,
pursuant to Fed.R.Civ.P. 50(a). They made a
number of arguments, including that the
default was incorrectly entered against them,
that there was insufficient evidence that the
IEP was inadequate, and that the individual
defendants were entitled to qualified
immunity. The motion was denied.
At defendants' request, before closing
statements, the court talked to the jury about
the default order. It explained to the jury that it
had entered a "default" against defendants as a
sanction against them for failing to produce
evidence as ordered, which meant that
defendants were "preclu[ded] from presenting
any evidence in the case." This sanction, the
court said, had "nothing to do with the merits
of the case" and should not be taken against
defendants; rather, the case should be decided
"solely upon the evidence received here in
Court and upon the instructions that I give you,
not upon the default that was previously
entered."
After closing statements, defendants did
not object that as a matter of law punitive
damages were not available under the IDEA
and the Rehabilitation Act, that compensatory

13

relief did not include many of the categories of


damages plaintiffs sought, and that no federal
cause of action was available in a personal
capacity
Page 24
against the individual defendants. The court
relied on plaintiffs' representations to the
contrary and instructed the jury that punitive
and compensatory damages were available
against all defendants. The court explained to
the jury that compensatory damages "are
damages designed . . . to put [a person] in the
position [he] would have been [in] had no
harm . . . taken place," and it gave the example
of damages for repairs, lost wages, and
medical expenses that would be available in a
suit based on injuries from a car accident. It
then contrasted compensatory damages with
punitive damages, which "are designed to . . .
punish an actor when [he has] acted with
deliberate indifference toward[] the rights of
another." The court also instructed the jury on
the elements of causes of action under the
IDEA, the Rehabilitation Act, 1983, Title II
of the ADA, and the Commonwealth law of
negligence.
Defendants objected to these instructions
only on three grounds:[6] (1) that an
instruction regarding expert testimony was
improper; (2) that compensatory damages were
not available under the state law claim,
because Puerto Rico's Law 51, P.R. Laws Ann.
tit. 18, 1351-1359, did not explicitly allow
for damages; and (3) that because the amended
complaint requested damages "in an amount to
be proved at trial," and this was a default trial,
the only damages available were the $44,000
of economic damages testified to by Daz.
Defendants also made one objection to the
verdict form: that it was unclear from the form
and the court's instructions that the jury need
not award punitive damages against both of the
individual defendants. The court rejected all of
these arguments.
The jury returned a verdict in favor of
plaintiffs. It assessed compensatory damages
against all of the defendants in the amount of
$45,000 to Daz and $3000 to Lyssette. The
jury also assessed a $100,000 punitive
damages award in favor of Lyssette, which
was understood to be against the individual
defendants in their personal capacities.[7]
Judgment was entered on November 9,
2004. On November 24, defendants filed a
timely motion renewing their request for

judgment as a matter of law, see Fed.R.Civ.P.


50(b), and requesting, in the alternative, a new
trial or remittitur, see Fed.R.Civ.P. 59. In
support of their motion, defendants raised a
panoply of arguments, some of which had not
been articulated after their initial pleadings
were struck by the district court and before the
jury verdict. In addition to challenging the
sufficiency of the evidence supporting the jury
verdict, defendants argued that as a matter of
law, none of the statutes pleaded by plaintiffs
provided for punitive damages or for the type
of compensatory relief plaintiffs sought and
were awarded. Defendants also argued that
these statutes did not allow the individual
defendants to be sued in their personal
capacities, and reiterated their argument,
presented in their
Page 25
Rule 50(a) motion, that Rey and Ros were
protected by qualified immunity. The district
court denied defendants' motion, without
explanation of reasons, on January 3, 2005.
Meanwhile, on November 23, 2004,
plaintiffs filed a motion for declaratory relief,
which defendants duly opposed. The court
summarily granted plaintiffs' motion in its
entirety on January 3, 2005 and summarily
rejected on February 7, 2005 defendants'
subsequent motion to amend the declaratory
judgment order.
II.
Challenge to Entry of Default
[Court upholds an order of sanctions]
III.
Challenge to the Award of Monetary
Relief
At trial, the jury found defendants liable
and assessed compensatory damages against
all defendants and punitive damages against
the individual defendants in their personal
capacities. Defendants initially challenged the
availability of these damages in their post-trial
motion for judgment as a matter of law, new
trial, or remittitur, which the district court
summarily denied. We would usually review
the denial of a Rule 50(b) motion de novo and
the denial of a Rule 59 motion for abuse of
discretion. In this case, however, defendants
failed to raise many of the arguments raised in
their post-trial motions after their pleadings
had been struck and before the jury verdict.
We thus review their unpreserved arguments
for plain error.[10] See Fed.R.Civ.P. 51(d)(2)
Page 27

14

("A court may consider a plain error in the


[jury] instructions affecting substantial rights
that has not been preserved as required by Rule
51(d)(1)(A) or (B).").[11]
A. Punitive Damages
Although the claims under the
Rehabilitation Act against the individual
defendants and the claims under Title II of the
ADA against all the defendants had been
dismissed from the case before trial and no
claim under 42 U.S.C. 1983 had ever been
pleaded, purported claims under these statutes
were somehow used as a basis for a punitive
damages instruction.[12]
On the final day of trial, before
instructing the jury, the district court engaged
in a colloquy with the parties regarding the
jury instructions and verdict form. When the
court raised the question of whether punitive
damages were available under the causes of
action
pleaded,
plaintiffs'
counsel
misrepresented to the court that punitive
damages could be awarded against the
individual defendants under the Rehabilitation
Act, and so were available through the vehicle
of 1983.[13] Plaintiffs' counsel did not tell
the court that the Supreme Court had held that
punitive damages were unavailable under the
Rehabilitation Act. See Barnes v. Gorman, 536
U.S. 181, 189, 122 S.Ct. 2097, 153 L.Ed.2d
230 (2002). Defense counsel failed to object
that punitive damages were unavailable as a
matter of law; failed to remind the court that
not only had the Rehabilitation Act claim in
the original complaint against Rey in his
personal capacity already been dismissed, but
also that the amended complaint did not allege
a Rehabilitation Act claim against the
individual defendants; and failed to alert the
court that the 1983 and Title II claims were
never pleaded in the amended complaint.[14]
Page 28
In due course, the district court instructed
the jury on both Title II and 1983, and
further advised the jury that punitive damages
were available under federal law, [15] so long
as defendants' actions involved deliberate
indifference toward the rights of another.
Defendants did not make any relevant
objections to these instructions or to the verdict
form. The jury proceeded to award a total of
$100,000 in punitive damages to Lyssette
against Rey and Rios in their personal
capacities.

Not until their post-verdict motion did


defendants argue that punitive damages were
unavailable under the pleaded causes of action
as a matter of law. The district court issued an
order summarily denying their motion, from
which they now appeal.
It is black letter law that punitive damages
-- indeed money damages of any sort -- are not
available in a private suit under the IDEA. See
Nieves-Marquez v. Puerto Rico, 353 F.3d 108,
124 (1st Cir.2003) (holding that the only
monetary awards available under the IDEA are
"[a]wards of compensatory education and
equitable remedies that involve the payment of
money, such as reimbursements to parents for
expenses incurred on private educational
services to which their child was later found to
have been entitled"). Nor are punitive damages
available under the Rehabilitation Act. See id.
at 126; see also Barnes, 536 U.S. at 189, 122
S.Ct. 2097 ("[P]unitive damages may not be
awarded in . . . suits brought under . . . 504 of
the Rehabilitation Act."). This was the law at
the time of trial, as counsel for both sides
should have known.
On appeal, plaintiffs add the argument
that punitive damages were justified under
Title II of the ADA. The law is equally clear
that no punitive damages are available under
that cause of action either. See Barnes, 536
U.S. at 189, 122 S.Ct. 2097; Nieves-Mrquez,
353 F.3d at 126.
..
B. Compensatory Damages
In addition to the punitive damages, the
jury awarded general compensatory damages
in the amount of $45,000 for Daz and $3000
for Lyssette against the Commonwealth
defendants and Rey and Rios, in their personal
capacities.
At trial, Diaz testified that she sustained
an array of economic damages, including: (1)
wages lost while attending administrative
hearings and IEP meetings; (2) copying
Page 30
and other paperwork costs in preparation for
administrative proceedings; (3) medical
deductibles for psychiatric treatment for
Lyssette; (4) private school tuition in the
amount of $3248.24 for the 2003-2004 school
year and "around $3400" for the 2004-2005
school year (seventh and eighth grade,
respectively); and (5) transportation costs to
and from private school. Daz also testified
about future expenditures she expected to pay

15

for Lyssette's private school education,


adaptive physical education, transportation,
and psychological counseling through the
2005-2006 school year. Plaintiffs stated in
closing arguments that the sum of all of Daz's
economic damages, past and prospective, was
$44,813.44. They did not attempt to quantify
damages for emotional harm, though they
argued that Daz did suffer such harm on
account of defendants' conduct. Lyssette did
not testify as to any specific losses, though she
did say that defendants' actions made her feel
"bad" and isolated, and caused her to have to
seek counseling.

1. Compensatory Damages Against the
Commonwealth Defendants
Defendants argue that the types of
compensatory damages awarded by the jury
were not available as a matter of law.
a. Compensatory Damages on Federal
Claims
The key question is whether the IDEA
permitted an award of the various types of
damages sought, given that we have held that
the other federal causes of action, on the facts
here, do not provide any broader remedies than
those available under the IDEA.[19]
Page 31
"[T]ort-like money damages" are not
within the scope of appropriate relief under the
IDEA, because the "IDEA's primary purpose is
to ensure FAPE, not to serve as a tort-like
mechanism for compensating personal injury."
Nieves-Marquez, 353 F.3d at 124-25. This was
the law of this and every other circuit that had
addressed the issue by the time of trial.[20]
In an IDEA-based suit like this one,
monetary relief is limited to "[a]wards of
compensatory education and equitable
remedies that involve the payment of money,
such as reimbursements to parents for
expenses incurred on private educational
services to which their child was later found to
have been entitled." Id. at 124. The IDEA
provides that "a court or a hearing officer may
require the agency to reimburse the parents for
the cost of [private school] enrollment if the
court or hearing officer finds that the agency
had not made [FAPE] available to the child in
a timely manner prior to that enrollment." 20
U.S.C. 1412(a)(10)(C)(ii); see also Ms. M. ex
rel. K.M. v. Portland Sch. Comm., 360 F.3d
267,
268
(1st
Cir.2004).
Such
"[r]eimbursement is 'a matter of equitable

relief, committed to the sound discretion of the


district court.' "[21] Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 999 (1st Cir.1990)
(quoting Town of Burlington v. Dep't of Educ.,
736 F.2d 773, 801 (1st Cir.1984), aff'd sub
nom. Sch. Comm. v. Dep't of Educ., 471 U.S.
359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385
(1985)); see also Florence County Sch. Dist.
Four v. Carter ex rel. Carter, 510 U.S. 7, 16,
114 S.Ct. 361, 126 L.Ed.2d 284 (1993)
("Courts fashioning discretionary equitable
relief under IDEA must consider all relevant
factors, including the appropriate and
reasonable level of reimbursement that should
be required."). In fashioning appropriate relief,
courts have generally interpreted the IDEA as
allowing reimbursement for the cost not only
of private school tuition, but also of "related
services," see 20 U.S.C. 1401(26) (defining
"related services" to include "transportation,
and such developmental, corrective, and other
supportive services (including . . .
psychological services . . .) as may be required
to assist a child with a disability to benefit
from special education"). See, e.g., Sch.
Comm., 471 U.S. at 369, 105 S.Ct. 1996
(allowing for reimbursement under the
predecessor statute to the IDEA); M.M. ex rel.
C.M. v. Sch. Bd., 437 F.3d 1085, 1100-01
(11th Cir.2006) (per curiam); see also 34
C.F.R. 300.24. This law was also clear at the
time of trial.

Defendants' final argument, that Daz is
not entitled to prospective relief in the amount
of future educational expenses until Lyssette
reaches maximum school age, has more bite.
As the term "reimbursement" suggests, tuition
reimbursement is a backward-looking form of
remedial relief; "[r]eimbursement merely
requires the [defendant] to belatedly pay
expenses that it should have paid all along and
would have borne in the first instance had it
developed a proper IEP." Sch. Comm., 471
U.S. at 371-72, 105 S.Ct. 1996. It goes without
saying that those "expenses" must be actual
and retrospective, not anticipated. Indeed, this
reasoning is at the heart of the distinction,
recognized by this court, between "tuition
reimbursement"
and
"compensatory
education."[22] See Ms. M. ex rel. K.M., 360
F.3d at 273 ("[W]hen this court has used the
term 'compensatory education,' it has usually
assumed that the remedies available involve
prospective injunctive relief, which would not

16

encompass tuition reimbursement."); see also


id. at 273-74 (citing cases). This was also
plainly the law at the time of trial.
Under normal IDEA principles, Diaz is
thus not entitled to be reimbursed for
educational expenses that she has yet to pay.
She is entitled to no more than the sum of the
educational expenses she has already paid-that is, the sum of Lyssette's private school
tuition and costs for transportation, see 34
C.F.R. 300.24(b)(15), and psychological
services, see id. 300.24(b)(9), that she has
paid through the conclusion of the 2005-2006
school year.[23] All other "compensatory
damages" awarded by the jury, including those
for lost wages and emotional distress, are
simply not available as a matter of law. We
discuss later whether defendants are
nonetheless bound to pay damages
Page 33
not available as a matter of law because of
their failure to timely object.
.
2. Compensatory Damages Against the
Individual Defendants in Their Personal
Capacities
The jury determined that each of the
individual defendants (in addition to the
Commonwealth defendants) was responsible
for the compensatory damages award, totaling
$48,000.
Our discussion earlier demonstrates that
the likely basis for the award was under the
Rehabilitation Act or 1983 theories, neither
of which had been pleaded against the
individual defendants in the amended
complaint. We have also discussed why the
award (to the extent it represents general
damages) is not, in any event, viable as a
matter of law on those bases. And so we return
to what this case is really about -- a claim
under the IDEA -- to see if the IDEA
authorizes a monetary award against
individuals in their personal capacities.
Plaintiffs do not even attempt to defend
the award of damages against the individuals;
they merely assert that compensatory damages
are generally available against defendants as a
group. We have already held that general
compensatory damages are not available at all
under the IDEA. We add that the IDEA does
not permit an award of any monetary relief,
including
tuition
reimbursement
and
compensatory education, against individual

school officials who are named in their


personal capacities as defendants in an
Page 35
IDEA action. As the Eighth Circuit recognized
in Bradley v. Arkansas Department of
Education, 301 F.3d 952, "the IDEA is devoid
of textual support for . . . an award" of
education
expenses
against
individual
defendants; "such expenses would be
recoverable [only] from the school district" (or
public agency). Id. at 957 n.6. Indeed, the plain
text of the statute authorizes reimbursement of
educational expenses only against the agency,
not against any of its officials. See 20 U.S.C.
1412(a)(10)(C)(ii) ("If the parents of a child
with a disability, who previously received
special education and related services under
the authority of a public agency, enroll the
child in a private elementary school or
secondary school without the consent of or
referral by the public agency, a court or a
hearing officer may require the agency to
reimburse the parents for the cost of that
enrollment if the court or hearing officer finds
that the agency had not made a [FAPE]
available to the child in a timely manner prior
to that enrollment." (emphasis added)). That
only the public agency is liable for
reimbursement follows naturally from the fact
that Congress assigned to the agency the
ultimate responsibility for ensuring FAPE. See
id. 1400(c)(6) ("States, local educational
agencies, and educational service agencies are
primarily responsible for providing an
education for all children with disabilities ....");
id. 1401(9)(A) (requiring that FAPE be
"provided at public expense, under public
supervision and direction, and without
charge"). No claim for monetary relief can thus
be stated against individual defendants under
IDEA.
..
V.
We affirm the district court's default
sanction against defendants. We reverse and
vacate the punitive and compensatory damages
awards against Rey and Rios in their personal
capacities and order dismissal of those claims.
We also reverse and vacate the compensatory
damages award against the Commonwealth
defendants, with the exception of the award of
reimbursement for educational expenses of
tuition, transportation, and psychological
services that Daz has actually incurred during
the 2003-2006 school years, and remand to the

17

district court for the calculation of the amount


of the reimbursement, for which only the
Commonwealth defendants are liable. The
district court may reopen the record and take
evidence for the limited purpose of
determining the appropriate amount of the
reimbursement. Finally, we reverse and vacate
the declaratory judgment, and order dismissal
of those claims.
No costs are allowed.[33]
--------Notes:
[*] Of the Eighth Circuit, sitting by
designation.
[1] In Puerto Rico, it is the Commonwealth's
DOE that is responsible for the education of
students. See P.R. Laws Ann. tit. 3, 143a et
seq.; see also P.R. Laws Ann. tit. 18,
1356(b)(2)(B) (stating that the DOE is to
"[p]rovide the education services in the public
system adapted to persons with disabilities").
[2] One of Lyssette's doctors had prescribed
"[a]dapted physical education swimming
type," and had ordered that Lyssette refrain
from participating in contact sports or "any
activity that could cause trauma to the neck."
[3] Ros was not named in the original
complaint; plaintiffs were granted leave to
amend their complaint to add her as a
defendant, in her personal and official
capacities, on February 6, 2004.
[4]
The
parties'
briefs
consistently
mischaracterize the jury trial as being limited
to the issue of damages. That characterization
is belied by the record.
[5] Defendants retained new counsel the day
before jury selection.
[6] At this time, defendants also raised an
objection, not argued in their previous Rule
50(a) motion, that the Rehabilitation Act claim
should
be
dismissed
because
"the
accommodation under that law has nothing to
do with the accommodation that is claimed
under [the] IDEA," and thus the only legal
claim available was one under the IDEA.
[7] The jury verdict form did not specify
whether the compensatory and punitive
damages were assessed against the individual
defendants in their personal or official
capacities; however, the amended complaint
specified that the individuals were "sued in
their official capacities for purposes of
declaratory, injunctive and ancillary relief and
in their personal capacities for purposes of
monetary relief."

[8] Plaintiffs argue that the default order is not


properly before this court on appeal because
defendants failed to specify in their notice of
appeal that they were contesting the default
order. See Fed. R. App. P. 3(c)(1)(B)
(requiring the notice of appeal to "designate
the judgment, order, or part thereof being
appealed"). Because we uphold the default
order, we need not reach this issue.
[9] Defendants also argue that "[i]t was an
abuse of discretion for the [court] to have
imposed sanctions on [them] for what were, at
worst inadvertent discovery violations, while
failing to even address the fact that [p]laintiffs
had clearly not complied with Local Rule
26(b)." See D.P.R. R. 26(b) ("The judicial
officer shall not consider any discovery motion
that is not accompanied by a certification that
the moving party has made a reasonable and
good-faith effort to reach an agreement with
opposing counsel on the matters set forth in the
motion."). Defendants never invoked this rule
in their motion for reconsideration of the
default order, and thus the argument is
forfeited. In any case, "[w]e generally will not
disturb the district court's departure from its
local rules so long as there is sound reason for
the departure and no party's substantial rights
have been unfairly jeopardized." GarcaGoyco v. Law Envtl. Consultants, Inc., 428
F.3d 14, 19-20 (1st Cir.2005). Here, both the
plaintiffs and the court gave defendants
multiple opportunities to comply with
outstanding discovery orders, as well as notice
that sanctions would be imposed if compliance
did not occur.
[10] Plaintiffs argue that a Rule 59 motion is
not available to a party against whom a default
judgment was entered. Whatever the merits of
this argument in an ordinary default scenario,
the district court made clear that this case does
not involve a run-of-the-mill default judgment
entered pursuant to Rule 55 of the Federal
Rules of Civil Procedure.
[11] Defendants' challenge on appeal focuses
on the unavailability of the damages awards as
a matter of law. We do not understand them to
be raising any objection as to the sufficiency of
the evidence in support of the jury verdict. To
the extent that they do raise such an argument,
it is waived for lack of appellate development.
See United States v. Zannino, 895 F.2d 1, 17
(1st Cir.1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some

18

effort at developed argumentation, are deemed


waived.").
[12] By the time this case went to trial, the
only surviving claims against the individual
defendants were those under the IDEA and
Puerto Rico law. Although plaintiffs' original
complaint pleaded a Rehabilitation Act claim,
after the district court dismissed the claim
against Rey in his personal capacity, plaintiffs
amended their complaint to plead a
Rehabilitation Act claim solely against the
Commonwealth defendants. Plaintiffs also
originally pleaded a cause of action under Title
II of the ADA, but the court correctly
dismissed that claim early in the case, and
plaintiffs took no appeal. After the entry of
default, however, plaintiffs attempted to
resurrect the Title II claim, surreptitiously
reintroducing it by way of their proposed jury
instructions. Plaintiffs also floated a theory that
they had an independent cause of action under
42 U.S.C. 1983 and submitted jury
instructions to that effect, even though neither
their original or amended complaints ever
alleged a 1983 violation.
[13] The court inquired of plaintiffs' counsel:
"[I]s there case law that allows for the
imposition of punitive damages in a case like
this?" Counsel responded: "Under the
Rehabilitation Act, yes .... [T]here is case law
indicating that the same damages that are
available generally under a 42 U.S.C. [] 1983
case are available under the Rehabilitation Act,
and that would be the one particular legal
claim that would provide for punitive damages
in this case."
[14] The only argument that defense counsel
made as to punitive damages was that Rey and
Ros ought to be protected by qualified
immunity on the federal claims because the
evidence was insufficient to show their
personal involvement.
[15] Punitive damages are not available under
the Puerto Rico law claims.
[16] Defendants argue that to the extent the
court's instructing the jury on 1983 can be
construed as permitting a constructive
amendment to the pleadings, such an
amendment was an abuse of discretion on the
part of the court, since it "permitted [p]laintiffs
to enjoy the benefits of having default entered
against [d]efendants even on a claim that
[plaintiffs] had not included in their
[c]omplaint." Defendants also argue that even
if plaintiffs properly raised a 1983 claim,

plaintiffs nevertheless failed to allege or show


that Ros and Rey were personally responsible
for any discrimination against Lyssette.
Finally, defendants argue that Ros and Rey
were entitled to qualified immunity. We need
not reach any of these arguments.
[17] Plaintiffs made allegations of retaliation
in their amended complaint. However,
plaintiffs have not suggested that these
allegations go to an independent claim under
the Rehabilitation Act, and the Rehabilitation
Act claims against the individual defendants
were correctly dismissed.
[18] Defendants objected to the verdict form
and to the instructions, but on grounds not
pertinent here.
In their post-trial motion, which the district
court summarily denied, the Commonwealth
defendants argued that the types of
compensatory damages the jury awarded were
not available as a matter of law under the
IDEA and the Rehabilitation Act, and that the
Eleventh Amendment gave them immunity for
the Puerto Rico law claims. The individual
defendants also argued that there was no
surviving federal cause of action against them
in their personal capacities, that they were
entitled to qualified immunity, and that they
were not personally liable under state law.
[19] Plaintiffs do not attempt to justify the
compensatory damages award under 1983.
We deal with whether compensatory damages
are available against defendants under state
law in a following section.
[20] Accord Gean v. Hattaway, 330 F.3d 758,
774 (6th Cir.2003); Polera v. Bd. of Educ., 288
F.3d 478, 483-86 (2d Cir.2002); Witte v. Clark
County Sch. Dist., 197 F.3d 1271, 1275 (9th
Cir.1999); Sellers, 141 F.3d at 526-27; Charlie
F. by Neil F. v. Board of Educ., 98 F.3d 989,
991 (7th Cir.1996); Heidemann, 84 F.3d at
1033; see also Ortega v. Bibb County Sch.
Dist., 397 F.3d 1321, 1325-26 (11th Cir.2005);
Crocker, 980 F.2d at 386-87 (general damages
not available under predecessor statute to the
IDEA); Manecke v. Sch. Bd., 762 F.2d 912,
915 n.2 (11th Cir.1985) (same).
[21] The issue of tuition reimbursement is,
therefore, an issue for the judge, not the jury.
In this case, however, neither party raised an
objection on this ground, and we have no
reason to conclude that the court would not
have granted reimbursement had it reserved
the decision for itself. Cf. Fed.R.Civ.P. 39(c)
("In all actions not triable of right by a jury the

19

court upon motion or of its own initiative may


try any issue with an advisory jury ...."). In
fact, the court did grant partial tuition
reimbursement as part of the declaratory
judgment.
[22] Plaintiffs do not take issue with
defendants' characterization of the relevant
parts of the jury award as "tuition
reimbursement," and do not attempt to recast
that award as "compensatory education." Nor
do plaintiffs argue that tuition reimbursements
are available under Puerto Rico law. In fact,
plaintiffs do not respond at all to any of
defendants' arguments with respect to tuition
reimbursement.
[23] Although it is true that reimbursement can
only be retrospective, the "stay-put" provision
of the IDEA requires Lyssette to remain in her
"then-current educational placement" --that is,
her current private school placement -- "during
the pendency of any [administrative or
judicial] proceedings conducted pursuant to
[20 U.S.C. 1415]." 20 U.S.C. 1415(j). The
law does not firmly establish whether "the
pendency of any [judicial] proceedings"
includes review through the court of appeals,
and the parties have not briefed the issue of
whether Daz is entitled to reimbursement for
the costs of tuition and related services that she
has already incurred through the conclusion of
these appellate proceedings. In the context of
this case, in which there has been so many
defaults on the part of the Commonwealth
defendants, it is equitable to permit
reimbursement through the school year ending
with the issue of our judgment -- that is, the
2005-2006 school year. We also take into
consideration the facts that the jury determined
that Daz had properly enrolled Lyssette in
private school, that Daz has already paid for
this year's tuition and related services, and that,
from what we understand, as of the date of
issuance of this opinion, Lyssette not only has
finished the school year, but also has graduated
from middle school.
[24] Section 1802 of the Civil Code provides:
"A person who by an act or omission causes
damage to another through fault or negligence
shall be obliged to repair the damage so done."
P.R. Laws Ann. tit. 31, 5141. Section 1803
extends 5141 to the Commonwealth: "The
Commonwealth is liable in this sense under the
same circumstances and conditions as those
under which a private citizen would be liable."
Id. 5142.

[25] Law 51 states that parents of a disabled


student are entitled to "[f]ile complaints to
request a mediation meeting or an
administrative hearing." P.R. Laws Ann. tit.
18, 1353(b)(2)(D). It also provides that
"parents shall be entitled to . . . [h]ave any
objection on their part considered diligently at
the corresponding level, including those cases
whose
particular
circumstances
merit
determinations at state level or in the pertinent
forum." Id. 1353(b)(2)(F).
[26] In Chestnut, this court vacated a jury
award of $500,000 in punitive damages against
the co-defendant municipality, where defense
counsel remained silent as plaintiff's counsel
misled the court that punitive damages were
available, even though a twenty-year-old
Supreme Court precedent held otherwise;
neither party brought the precedent to the
attention of the trial court until after the jury
verdict; and the windfall to the plaintiff would
have come at the expense of innocent
taxpayers. See 305 F.3d at 20-21.
Plaintiffs argue that Chestnut is inapposite
because it vacated damages solely as to the
municipality, not as to the co-defendant police
officer who was sued in his personal capacity.
They point out that the punitive damages here
were assessed against Rey and Ros in their
personal capacities, and not against the
Commonwealth
defendants.
But
the
Commonwealth generally indemnifies its
officials for suits against them in their personal
capacities, see P.R. Laws Ann. tit. 32, 3085,
and it has not declared its intention not to do so
in this case. Moreover, here, as in Chestnut,
other factors in addition to impact on
nonparties militate strongly in favor of
vacating the damages award.
[27] Plaintiffs styled their motion as a
"Request for Declaratory Relief"; nevertheless,
the nature of the relief sought and granted went
beyond a mere declaration of rights.
[28] Although the amended complaint did seek
"the cost of appropriate remedial services,
including educational services," plaintiffs do
not characterize the prospective relief
requested here as compensatory education.
Even if they were to have so characterized
their claim, their arguments justifying such
relief on the basis of defendants' procedural
violations of the IDEA would nonetheless be
off the mark, as this court has "recognize[d]
that compensatory education is not an
appropriate remedy for a purely procedural

20

violation of the IDEA." Me. Sch. Admin. Dist.


No. 35 v. Mr. R., 321 F.3d 9, 19 (1st Cir.2003).
[29] Aponte's testimony was unclear as to
which DOE officials convened these meetings.
She stated that "[e]ither Iris Rivera or from the
legal department, the secretary, . . . would call
the" meetings. Rivera, Aponte later explained,
was "in administrative remedies," though it is
not clear what Rivera's position was in that
department. It is also not obvious whether "the
secretary" refers to Rey, the Secretary of
Education, or to a secretary in the legal
department.
[30] Aponte testified that she "was asked, in
front of the other judges, by Ms. Rosario that -what was I thinking to put such a steep penalty
on the Department [by assessing a daily fine
against the DOE in one case]? It wasn't -- those
weren't the exact words that she told me, but
she told me: What happened . . . that made you
take that position [in that case]?"
As to the other case, Aponte testified that "they
told me I couldn't do that, that wasn't the way
to do it, because that would affect the way they
---------

operated, because I mentioned a specific


account number in my decision." It is not clear
from the context what it was precisely that
Aponte did.
[31] Defendants attempted to impeach Aponte
by eliciting from her testimony designed to
show that she was actually terminated because
she represented a party as an attorney in a suit
against the DOE while she was serving as an
ALJ, and that she held a grudge against the
DOE because of her termination.
[32] Plaintiffs have not directed us to any
provision in the IDEA that requires the
keeping of minutes as a matter of course. At
trial, plaintiffs' counsel asked Daz whether the
keeping of minutes was required by law. She
replied: "I require it."
[33] In their reply briefs, defendants requested
compensation from plaintiffs for the cost of
translating certain documents and sought
sanctions against plaintiffs for their litigation
conduct. We deny both of these belated
requests.

21

covered by the IDEA may nonetheless be


entitled to some relief to compensate him for
the deprivation of a FAPE during an earlier
period. The district court answered these
questions in ways that pretermitted the
appellants' claims for attorneys' fees and
compensatory education. Concluding, as we
do, that the court erred, we reverse the
judgments below and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
We sketch the relevant facts. The
appellants, Mr. and Mrs. R., are the parents of
S.R. S.R., who was born in December of 1980,
suffers from Down's Syndrome. He has had
special educational needs throughout his
formative years. During the times material
hereto, Maine School Administrative District
No. 35 (the School District) has had the
responsibility of ministering to these needs.
Generally speaking, the IDEA obliged the
School District to furnish S.R. with a FAPE
sufficient to confer some educational benefit.
See Bd. of Educ. v. Rowley, 458 U.S. 176, 207,
102 S.Ct. 3034,
Page 12
73 L.Ed.2d 690 (1982); Roland M. v. Concord
Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
Federal law directs school districts to carry out
such a duty through the development and
implementation of an annual individualized
education program (IEP). See 20 U.S.C.
1401(11), 1412(a)(4), 1414(d); see also 34
C.F.R. 300.340-50. S.R. was eligible for
such special education services through the
2000-2001 school year (when he turned twenty
years of age). See 20 U.S.C.
1412(a)(1)(B)(i)-(ii) (linking eligibility for
special education services to state law);
Me.Rev.Stat, tit. 20-A, 5201(1) (granting
every student the right to public education
through the school year encompassing his or
her twentieth birthday).
It would serve no useful purpose to
discuss S.R.'s early scholastic experiences.
Rather, we begin with the1999-2000 school
year (which encompassed S.R.'s nineteenth
birthday). In furtherance of its responsibilities
under the IDEA, the School District prepared
an IEP for that year. Under it, S.R. spent
mornings at Marshwood High School and
afternoons at a work-site training program
(where he also received some special
education services).

Page 9
321 F.3d 9 (1st Cir. 2003)
MAINE SCHOOL ADMINISTRATIVE
DISTRICT NO. 35, Plaintiff, Appellee,
v.
MR. AND MRS. R., on their own Behalf
and on Behalf of their Son, S.R.,
Defendants, Appellants.
Mr. and Mrs. R., on their own Behalf and
on Behalf of their Son, S.R., Plaintiffs,
Appellants,
v.
Maine School Administrative District No.
35, Defendant, Appellee.
Nos. 01-1714, 02-1312.
United States Court of Appeals, First
Circuit
February 24, 2003
Heard Dec. 4, 2002.
Page 10
[Copyrighted Material Omitted]
Page 11
Richard L. O'Meara, with whom Amy M.
Sneirson and Murray, Plumb & Murray were
on brief, for appellants.
Eric R. Herlan, with whom Drummond
Woodsum & MacMahon were on brief, for
appellee.
Before
SELYA,
Circuit
Judge,
FARRIS,[*] Senior Circuit Judge, and
HOWARD, Circuit Judge.
SELYA, Circuit Judge.
The
Individuals
with
Disabilities
Education Act (IDEA), 20 U.S.C. 14001487 (1997), obligates school districts to
furnish a free appropriate public education
(FAPE) to children with disabilities. See id.
1401(8), 1411(b)(2)(C), 1412(a)(1), 1413(i)(1),
1415(b)(1). That is the good news. The bad
news is that the IDEA is not self-executing,
and parents, school officials, bureaucrats, and
judges alike have struggled to master its
intricacies.
These consolidated appeals illustrate the
point. Taken together, they present two loosely
related questions. The first concerns whether
parents who successfully resist a school
district's effort, in an independent legal action,
to overturn a stay-put placement on the ground
of the alleged dangerousness of a child with
disabilities are considered prevailing parties
within the purview of the IDEA'S fee-shifting
provision. The second concerns the
circumstances under which a learning-disabled
child who, by reason of his age, is no longer

22

During the 1999-2000 school year, S.R.


displayed a variety of behavioral problems,
including verbal outbursts and assaultive
conduct. Believing that these problems
stemmed from S.R.'s "ineffective and
frustrating" IEP, Mr. and Mrs. R. repeatedly
requested modifications. Officials of the
School District met with the family many
times to address these remonstrances, discuss
S.R.'s current IEP, and ponder his future
curriculum.
In June of 2000, the School District
proffered a new IEP for the 2000-2001 school
year. Under this proposal, S.R. was to be
relegated to a work-site training program for
the entire school day. His vocational training
would be augmented with monthly speech
therapy, sign language lessons, behavioral
consultations, and social skills instruction.
S.R.'s parents rejected this proposal. They
took especial umbrage at the fact that the draft
IEP completely removed S.R. from a
mainstream academic setting. Concluding that
this circumstance violated their son's right to
receive educational services in the least
restrictive environment possible, see
20
U.S.C. 1412(a)(5), the parents sought a
hearing before the Maine Department of
Education, see id. 1415(f). The parents
simultaneously invoked the IDEA's stay-put
provision, id. 1415(j), so that S.R. would
remain in his 1999-2000 educational
placement pending a resolution of his 20002001 IEP.[1] The School District defended the
draft IEP, and, accordingly, resisted the
parents' administrative petition.
The School District then took a more
unusual step: it initiated a civil action in the
United States District Court for the District of
Maine (the First Suit) seeking to bar S.R. from
returning to Marshwood High because his
presence there would pose (or so the School
District alleged) a substantial risk of danger to
himself or others. Coincident with the filing of
its complaint, the School District moved for
temporary and preliminary injunctive relief.
After reviewing the motion papers and the
family's objection, the district court refused to
issue a temporary restraining
Page 13
order (TRO). The effect of that ruling was to
leave the stay-put order (and, thus, S.R.'s
placement at Marshwood High) intact. The
School District chose not to pursue the matter
further, but, rather, moved to dismiss its

complaint. See Fed.R.Civ.P. 41(a). The parents


did not object but asserted an entitlement to
attorneys' fees and costs. See 20 U.S.C.
1415(i)(3)(B). The district court granted the
School District's motion for voluntary
dismissal but denied the parents' request for
remuneration on the ground that they were not
a prevailing party. Me. Sch. Admin. Dist. No.
35 v. Mr. & Mrs. R., Civ. No. 00-242 (D.Me.
Apr. 9, 2001). The parents filed a timely
appeal.
Meanwhile, the administrative hearing
anent the adequacy of the proposed 2000-2001
IEP went forward on a parallel track. In a
decision dated October 31, 2000, the hearing
officer approved the concept of a totally nonscholastic placement but determined that the
IEP was inadequate in other respects.
Consequently, he ordered the School District
to prepare an amended IEP. The parents
exercised their right to judicial review of this
decision, see 20 U.S.C. 1415(i)(2)(A); they
commenced an action in the federal district
court (the Second Suit) in which they sought to
overturn the hearing officer's approval of S.R.'s
work-site placement. The School District filed
a cross-complaint challenging other parts of
the administrative decision.
In December of 2001, S.R. reached his
twentieth birthday. The following June, he
graduated from Marshwood High. Upon the
occurrence of that event, the School District
took the position that the parents' appeal from
the administrative decision had become moot.
In their reply, the parents gainsaid this
contention. They pointed out that S.R. had
dropped out of his special education program
at Marshwood High during the 2000-2001
school year and asserted that he was entitled to
compensatory education to offset the
inadequate IEP that the School District had
proposed.[2] After some skirmishing (the
details of which need not concern us), the
district court ruled that the suit was not
"procedural[ly] moot[ ]" because the parents
had raised the claim for compensatory
education in a timely fashion.[3] Me. Sch.
Admin. Dist. No. 35 v. Mr. & Mrs. R., 176
F.Supp.2d 15, 24-25 (D.Me.2001). The court
nevertheless dismissed the case for what it
termed "substantive mootness," declaring that
"S.R. [had] received, for all that appears in the
record, the very relief he and his parents
initially sought in this action, by virtue of the .

23

. . 'stay-put' ruling." Id. at 25. The second


appeal followed.
Page 14
We consolidated it with the earlier appeal
(which had been stayed) for briefing and
argument. We now resolve both appeals.
II. ANALYSIS
The parentswe henceforth shall refer to
them as the appellantspress ahead on two
fronts. They assign error to the lower court's
determination that they were not prevailing
parties in the First Suit. They also protest the
district court's dismissal of the Second Suit as
moot, pointing to the pendency of their
compensatory education claim. We address
these points sequentially.
A. The Attorneys' Fee Claim.
[Court discusses familys claim for attorney
fees]
B. The Compensatory Education Claim.
We turn now to the justiciability of the
appellants' compensatory education claim. It is
black-letter law that, in a federal court,
justiciability requires the existence of an actual
case or controversy. U.S. Const, art. III, 2, cl.
1. Even if an actual case or controversy exists
at the inception of litigation, a case may be
rendered moot (and, therefore, subject to
dismissal) if changed circumstances eliminate
any possibility of effectual relief. CMM Cable
Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d
618, 620-21 (1st Cir. 1995).
In a suit seeking only injunctive relief,
this ordinarily means that once the act sought
to been joined occurs, the suit must be
dismissed as moot. E.g., Oakville Dev. Corp. v.
FDIC, 986 F.2d 611, 613 (1st Cir. 1993). If,
however, a plaintiff seeks alternative redress
(such as money damages) in addition to
injunctive relief, the occurrence of the
watershed event may not render the
controversy moot. CMM Cable Rep., 48 F.3d
at 621; Curtis Indus., Inc. v. Livingston, 30
F.3d 96, 97-98 (8th Cir. 1994). We review de
novo a lower court's dismissal of an action on
the ground of mootness. See Verhoeven v.
Brunswick Sch. Comm., 207 F.3d 1, 5 (1st Cir.
1999); N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir.
1996).
In this instance, the question of mootness
depends on the viability of the appellants'
compensatory education claim. We know that
a child eligible for special education services
under the IDEA may

Page 18
be entitled to further services, in compensation
for past deprivations, even after his or her
eligibility has expired. See, e.g., Adams, 159
F.3d at 682 n. 1; Pihl v. Mass. Dep't of Educ.,
9 F.3d 184, 188-89 & n. 8 (1st Cir. 1993).
Such a child's claim for compensatory
education begins to accrue when his or her IEP
is so inappropriate that the child is receiving
no real educational benefit. M. C. v. Cent.
Reg'l Sch. Dist, 81 F.3d 389, 396 (3d Cir.
1996); Murphy v. Timberlane Reg'l Sch. Dist,
22 F.3d 1186, 1195 (1st Cir. 1994). The
presence of an actionable claim for
compensatory education will insulate an IDEA
case against a mootness challenge even after
the child's eligibility for special education
services ends. Indep. Sch. Dist. No. 284 v. A.
C, 258 F.3d 769, 774-75 (8th Cir. 2001); cf.
Thomas R.W. v. Mass. Dep't of Educ., 130 F.3d
477, 480 (1st Cir. 1997) (stating the negative
of the same proposition).
Orderly procedure suggests that we
bifurcate our discussion of this issue. We first
must determine whether the appellants timely
asserted their claim for compensatory
education. If so, we then must address the
question of whether S.R. arguably suffered a
deprivation of services that would give rise to
such a claim.
1. Timeliness. The district court
concluded that the appellants had advanced the
compensatory education claim in a timely
manner. See Me. Sch. Admin. Dist, 176
F.Supp.2d at 24-25. We affirm that holding on
the basis of the district court's lucid analysis of
the record and its perspicacious reasoning. See
id. We add only that, once the end of S.R.'s
eligibility for special education services
loomed, the appellants acted expeditiously to
make known their desire that the School
District offset the inadequacies of the 20002001 school year by providing compensatory
education. No more was exigible. See Thomas
R.W., 130 F.3d at 480.
In a related vein, we reject the School
District's importuning that the compensatory
education claim was barred by a failure to
exhaust
administrative
remedies.
The
appellants' objections to the IEP related only to
S.R.'s final year in school. S.R. was within the
eligible age limits when that year began; by the
time that year ended, the administrative record
had been closed for quite some time and the
case was pending before the district court.

24

Although parents ordinarily must exhaust their


administrative remedies before appealing to a
federal court, see Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 59, 63 (1st Cir. 2002),
the appellants' failure to raise a thennonexistent compensatory education claim
before the hearing officer is not fatal to judicial
review. See id. at59; Pihl, 9 F.3d at 190-91.
Parents are not expected to have the gift of
prophecy.
2. Mootness. We turn next to the district
court's holding that the compensatory
education claim was substantively moot. Me.
Sch. Admin. Dist, 176 F.Supp.2d at 25. In
coming to this conclusion, the court focused on
the appellants' challenge to the work-site
placement. We think that this focus was too
narrow.
S.R.'s placement at a work site rather than
in a school was only a part of the over all IEP.
The record shows beyond hope of
contradiction that the appellants sought from
the beginning an appropriate IEP for the 20002001 school yeara new IEP that did not
merely replicate S.R.'s unsuccessful 1999-2000
IEP. The hearing officer responded to these
expressed concerns, dissecting the School
District's suggested IEP, approving parts of it
(including the work-site placement) and
disapproving other parts. Although the
appellants only sought judicial review of the
placement decision, not of the order to add
other features to the IEP, the fact
Page 19
remains that S.R. never enjoyed the benefits
that would have flowed from the
implementation of those other features. In
short, while S.R. was not relegated to a work
site for the 2000-2001 school year, he may not
have received an appropriate IEP for that year
(and, thus, may not have received the FAPE to
which he was entitled).
The School District attempts to cast doubt
upon the factual antecedents of the appellants'
position. The attempt fails. The record fully
supports the appellants' asseveration that, all
along, they sought the development of an
appropriate IEP, different from both the
previous IEP (1999-2000) and the proposed
IEP (2000-2001). Indeed, their criticisms of
the 1999-2000 IEP were vociferous. So
viewed, the appellants have a colorable claim
that the continuation of this benighted
placement into the2000-2001 school year
deprived S.R. of the compendium of services

reasonably necessary to constitute a FAPE. See


Roland M., 910 F.2d at 992.
Let us be perfectly clear. We recognize
that compensatory education is not an
appropriate remedy for a purely procedural
violation of the IDEA. Erickson v.
Albuquerque Pub. Schs., 199 F.3d 1116, 112223 (10th Cir. 1999). In contrast, a substantive
violation may give rise to a claim for
compensatory relief. See Rome Sch. Comm.,
247 F.3d at 31; Pihl, 9 F.3d at 188, 189-90
(collecting cases). Here, the prospective relief
that
the
appellants
sought
at
the
commencement of these proceedings was both
procedural and substantive. Thus, a claim for
compensatory education arguably liesand
their case is not moot.
In an effort to blunt the force of this
reasoning, the School District complains that
the appellants forced it, through the invocation
of the stay-put provision, to maintain S.R.'s
contested 1999-2000 IEP throughout the 20002001 school year (or nearly so). That is true as
far as it goes but it does not advance the
School District's cause. The appellants never
sought a stay-put placement as relief on the
merits before either the hearing officer or the
district court. For them, the stay-put placement
was merely the lesser of two evils.[7] See Burr
v. Ambach, 863 F.2d 1071, 1076 (2d Cir. 1988)
(describing the stay-put provision as protection
against an even worse placement during the
pendency of review proceedings). Conferring
blanket
immunity
from
compensatory
education claims during the course of a stayput placement would reward school districts
for misfeasance or nonfeasance in providing
appropriate educational services. Cf. Jefferson
County Bd. of Educ. v. Breen, 853 F.2d 853,
857-58
(11th
Cir.
1988)
(awarding
compensatory education to deter school
districts from unnecessarily prolonging
litigation); Doe v. Brookline Sch. Comm., 722
F.2d 910, 916 (1st Cir. 1983) (condemning a
rule that would allow a party who shirks its
duties during a stay-put placement to escape
liability for its laxity). The case law, though
sparse, suggests that courts should refuse to
confer any such blanket immunity. See, e.g.,
W.B. v. Matula, 67 F.3d 484, 500 (3d Cir.
1995); M.C v. Voluntoum Bd. of Educ, 56
F.Supp.2d 243, 250 n. 7 (D.Conn.1999). We so
hold: claiming to be caught between a rock and
a hard place is no excuse for dereliction of
duty. The IDEA charges

25

sufficient to permit it to make the highly


nuanced judgments necessary to resolve the
claim for compensatory education, it may
remand the matter for further administrative
adjudication.
III. CONCLUSION
We need go no further.[8] We hold that
the appellants were prevailing parties in the
First Suit; that the claim for compensatory
education was properly raised, and remained
viable, in the Second Suit; and that, therefore,
the district court erred in its adjudication of
appellants' claims. Hence, we reverse the
judgments below and remand for further
proceedings consistent with this opinion.
Reversed and remanded. Costs are taxed
in favor of the appellants.
--------Notes:
[*] Of the Ninth Circuit, sitting by designation.
[1] The stay-put provision, with an exception
not applicable here, states:
[During the pendency of any proceedings
conducted pursuant to [IDEA 1415], unless
the State or local educational agency and the
parents otherwise agree, the child shall remain
in the then-current educational placement of
such child, . . . until all such proceedings have
been completed. 20 U.S.C. 1415(j).
[2] We need not dwell on the withdrawal, as it
is irrelevant to the appellants' compensatory
education claim. Cf. Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 4 n. 3, 113
S.Ct. 2462, 125 L.Ed.2d 1 (1993) (holding that
a school district's responsibility for providing
appropriate educational services is not
discharged merely because the parents
voluntarily withdrew their child from a
placement); Doe v. Brookline Sch. Comm., 722
F.2d 910, 916 (1st Cir. 1983) (suggesting that
after withdrawal from a public school, a
handicapped student still may pursue funding
for an appropriate placement during that
period). If it is eventually determined that S.R.
would not have received a FAPE had he
remained at Marshwood under the stay-put
placementa matter on which we take no
viewhis withdrawal would not foreclose his
claim for compensatory education.
[3] The district judgethe same judge who
earlier had dismissed the First Suit without an
award of attorneys' feesreferred the School
District's motion to dismiss to a magistrate
judge. See 28 U.S.C. 636(b)(1)(B); Fed.
R.Civ.P. 72(b). He thereafter accepted and

Page 20
school districts with making reasonable efforts
both to work with parents and to satisfy the
needs of special education students. That
entails the responsibility to find a path that
runs between the rock and the hard place.
Kneejerk compliance with a stay-put provision
does not negate that responsibility.
The School District also submits that the
appellants failed to allege specific facts in
support of their claim for compensatory
education. They suggest that the appellants
needed to show precisely what services S.R.
should have received (but did not) during
the2000-2001 school year. This sets the bar too
high.
The IDEA constructs a framework that
ensures procedural due process in the IEP
context. See 20 U.S.C. 1415. It does not
attempt to delineate the specific substance of
any particular child's IEP. That is as it should
be: IEPs are by their very nature idiosyncratic,
and the appropriate content of a particular
child's IEP for a given year can only be
determined by those assigned to evaluate the
child and develop the IEP (with the help of the
parents). See id. 1401(11), 1412(a)(4),
1414(d); 34 C.F.R. 300.340-50. In
mounting a challenge to a current or proposed
IEP, the most that parents can be expected to
do is to point out areas in which the IEP is
deficient. See Rowley, 458 U.S. at 208-09, 102
S.Ct. 3034; Erickson, 199 F.3d at 1123;
Roland M., 910 F.2d at 992.
These tenets hold true vis--vis claims for
compensatory education. See Cent. Reg'l Sch.
Dist, 81 F.3d at397 (noting that "a child's
entitlement to special education should not
depend upon the vigilance of the parents").
The appellants, who pointed to many problems
in both the 1999-2000 IEP and the proposed
2000-2001 IEP, did their part. Consequently,
we reject the School District's suggestion that
the appellants' compensatory education claim
was insufficiently precise.
None of this is equivalent to saying that
S.R. is entitled to compensatory education. We
hold only that the appellants' claim for
compensatory education deserves to be
considered on the merits and that the district
court should not have jettisoned it as moot.
Accordingly, the order of dismissal must be
reversed and the compensatory education issue
remanded to the district court. If the district
court does not believe that the record is

26

adopted the magistrate judge's detailed report


and recommendation. For simplicity's sake, we
do not distinguish between the two judicial
officers. Rather, we take an institutional view
and refer to the determinations below as those
of the district court.
[4] In a case involving the fee-shifting
provisions of the Americans with Disabilities
Act, 42 U.S.C. 12205, and the Fair Housing
Act Amendments, id. 3613(c)(2), the
Supreme Court concluded that the change in
the legal relationship must be one to which a
judicial imprimatur attaches. Buckhannon, 532
U.S. at 605, 121 S.Ct. 1835. We applied that
rationale to a claim brought under the Fees
Act, 42 U.S.C. 1988. See New Engl. Reg'l
Council of Carpenters v. Kinton, 284 F.3d 9,
30 (1st Cir. 2002). Two of our sister circuits
have adopted Buckhannon 's reasoning in
connection with the IDEA'S fee-shifting
provision. See John T. v. Del. County
Intermed. Unit, 318 F.3d 545, 556-59 (3d Cir.
2003); J.C. v. Reg'l Sch. Dist. 10, 278 F.3d
119, 123-24 (2d Cir. 2002). But see TD v. La
Grange Sch. Dist. No. 102, 222 F.Supp.2d
1062, 1065 (N.D.111.2002) (positing that
"there exist critical distinctions in the text and
structure of the IDEA and the ADA and FHAA
that persuade me that the Court's ruling in
Buckhannon was not meant to extend to the
IDEA"). These appeals do not require us to
resolve this conflict, and we therefore express
no opinion as to whether the Buckhannon rule
applies in IDEA cases.
[5] We say "often" because the rule is not
invariable. See, e.g., Foreman v. Dallas
---------

County,193 F.3d 314, 323 (5th Cir. 1999)


(stating that TROs can never constitute meritsbased relief).
[6] This result is not altered because the
critical decision took place on a motion for a
TRO. The court below must have been
cognizant of the delays characteristic of
administrative and judicial proceedings under
the IDEA. See Burlington Sch. Comm. v. Mass.
Dep't of Educ, 471 U.S. 359, 370,105 S.Ct.
1996, 85 L.Ed.2d 385 (1985) (describing such
proceedings as" ponderous"). Thus, the denial
of the School District's motion was effectively
a final judgment on the merits of the
"dangerousness" claim that the School District
had brought. See Coalition for Basic Human
Needs v. King, 691 F.2d597, 600-01 (1st Cir.
1982).
[7] The School District did not seek to secure
the parents' agreement to an alternative interim
placement. See 20 U.S.C. 1415(j) (quoted
supra note 1) (permitting such consensual
arrangements). Such an agreement would have
averted any liability for compensatory
education. See W.B. v. Matula, 67 F.3d 484,
500 (3d Cir. 1995); see also Doe v. Defendant
I, 898F.2d 1186, 1189 (6th Cir. 1990).
[8] The appellants' complaint in the Second
Suit also contained claims under the
Rehabilitation Act, 29 U.S.C. 794, and
Maine's special education laws, Me.Rev.Stat,
tit. 20-A, 7001-8207. The district court
never addressed these claims, and the parties
do not discuss them on appeal. We therefore
take no view as to their justiciability.

27

The parents now appeal. We conclude


that the lower court committed no clear error
in weighing the facts. While we reach the same
ultimate conclusion as did the court below, that
court's meticulous factfinding allows us to take
a different, more direct analytic path. In the
end, we affirm the judgment below.
I. BACKGROUND
The district judge, in the first instance,
referred this case to a magistrate judge for a
report and recommendation. See 28 U.S.C.
636(b)(1); Fed. R. Civ. P. 72(b). The
magistrate judge canvassed the record, made
extensive findings of fact, and set forth various
conclusions of law. C.G. & B.S. v. FiveTown
Cmty. Sch. Dist., Civ. No. 05-237 (D. Me. Feb.
12, 2007) [2007 WL 494994]. The district
judge, in a summary order, adopted the
magistrate judge's recommended analysis in its
entirety and entered judgment accordingly.
C.G. & B.S. v. FiveTown Cmty. Sch. Dist., Civ.
No. 05-237 (D. Me. Apr. 6, 2007). For
simplicity's sake, we do not distinguish further
between the magistrate judge and the district
judge but, rather, take an institutional view and
refer only to "the district court."[1]
We recount the background facts as
supportably found by the district court. C.G.
and B.S. are the parents of A.S., a teenage girl
who suffers from an emotional disability. The
family resides in Camden, Maine. Five Town
Community School District (the School
District) is the school system in which A.S. is
entitled to receive public education.
The parents first met formally with Five
Town about A.S.'s potential to qualify for
services under the IDEA on March 3, 2004.
They requested that the School District pay for
A.S., who was then fourteen years old, to
enroll in a private residential placement.
Before the School District could evaluate the
bona fides of this request, A.S. hit a crisis
point and her parents unilaterally transferred
her into a private residential placement outside
of Maine. The parents do not seek to recover
the costs of that placement in this appeal, so
we make no further mention of it.
Notwithstanding efforts on the part of the
School District to re-start the IDEA eligibility
process, nothing of consequence happened for
well over a year. In the interim (unbeknownst
to the School District), A.S. returned to Maine,

Page 279
513 F.3d 279 (1st Cir. 2008)
C.G. and B.S., As Parents and Next Friends
of A.S., A Minor, Plaintiffs, Appellants,
v.
FIVE TOWN COMMUNITY SCHOOL
DISTRICT et al., Defendants, Appellees.
No. 07-1708.
United States Court of Appeals, First
Circuit.
January 18, 2008
Heard Nov. 7, 2007.
APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE, [Hon. George Z.
Singal, U.S. District Judge] [Hon. David M.
Cohen, U.S. Magistrate Judge]
Page 280
[Copyrighted Material Omitted]
Page 281
Staci K. Converse, with whom Richard
L. O'Meara and Murray, Plumb & Murray
were on brief, for appellants.
James C. Schwellenbach, with whom
Drummond Woodsum & MacMahon was on
brief, for appellees.
Before
LYNCH,
Circuit
Judge,
CAMPBELL and SELYA, Senior Circuit
Judges.
SELYA, Senior Circuit Judge.
This case requires us to examine the
rights of a disabled child under the Individuals
with Disabilities Education Act (IDEA), 20
U.S.C. 1400-1415. The principal issue,
scantily addressed in the
Page 282
case law, involves how judicial review should
proceed when the last individualized education
program (IEP) proposed by the school system
is incomplete.
Here, the district court found that the
IEP's incompleteness was due to the parents'
obstruction of the developmental process. It
proceeded to consider extrinsic evidence and
concluded that, had the parents permitted the
process to run its course, the school system
would have provided the child with a
satisfactory IEP. On that basis, it decreed that
the parents were not entitled either to
reimbursement for costs incurred in a private
placement or to compensatory education
benefits.

28

enrolled for several months as a residential


student in a private school, and upon leaving
spent two additional months without any
scholastic affiliation.
In June of 2005, A.S.'s parents demanded
a due process hearing under the IDEA. See 20
U.S.C. 1415(f). The School District sought to
meet with them in order to
Page 283
resume the earlier eligibility discussions. The
due process hearing was deferred pending the
completion of this attempt to reach a
consensus.
The common practice is to form a team
of parents, teachers, school administrators, and
others to evaluate a child with a disability and,
if she is found eligible for remedial services, to
develop an IEP. See id. 1414(d)(1)(B) &
(d)(3). In Maine, this cohort is called a Peer
Evaluation Team (PET). See 05-071-101 Me.
Code R. 1.4, 8.1. The School District
assembled such a team and scheduled the
initial PET meeting for September 1, 2005.
During that session, the parents agreed that an
independent evaluator, Dr. Frank McCabe,
could assess A.S.
After the PET participants received the
evaluator's report, the School District
scheduled a second PET meeting for October
12, 2005. At that session, the participants
discussed
the
evaluator's
assessment,
concluded that A.S. qualified for services as a
disabled child, and began work to develop an
IEP. The participants jointly delineated the
main components to be included in the IEP and
noted areas of the IEP that would require
additional input from A.S., her therapist, and
her parents.
During the same meeting, some
placement options were discussed. The
independent evaluator indicated that A.S.
could receive an adequate and appropriate
education in a public school day program. In
response, the School District described some
public school options, including Camden Hills
Regional High School (CHRHS) and the
Zenith program. A.S. previously had attended
CHRHS, and her parents expressed concern
about a placement there. They seemed willing,
however, to learn more about the Zenith nonresidential day program or any similar regime.
The School District indicated that it
would send the parents a copy of a proposed
IEP prior to the next PET meeting. On October
18, 2005, it transmitted an IEP document to the

parents by facsimile. The October 18 version


of the IEP included the main components of
the program to which the participants
previously had agreed. Consistent with the
discussions at the October 12 conclave,
however, the IEP left open other areas for later
development. It is nose-on-the-face plain from
even a cursory inspection of the October 18
submission that the IEP was not intended to
constitute a completed IEP.[2]
The next PET meeting took place on
October 20, 2005. At that session, the
participants discussed placement options. The
meeting was "very contentious." Five Town,
2007 WL 494994, at *18. The participants
quickly reached an impasse: the parents
insisted that A.S. be educated in a therapeutic
residential setting, whereas the School District
insisted that a non-residential public school
placement could provide A.S. with an adequate
and appropriate education. The meeting ended
abruptly when the parents announced that they
had decided to send A.S. to the F.L.
Chamberlain
School
(an
out-of-state
residential institution) and would seek
reimbursement for the costs incurred. The
meeting never progressed to a discussion either
of the IEP or of how to fill the gaps in it.
A.S.'s parents memorialized their
unilateral placement decision in a letter sent
the following week to the School District.
Given
Page 284
this parting of the ways, the due process
hearing moved forward. Arguing that the
School District's proposed IEP and refusal to
sanction a residential placement betokened a
failure to provide A.S. with a free and
appropriate public education (FAPE), the
parents sought compensatory education and/or
reimbursement for the expenses incurred in
educating A.S. at Chamberlain. The School
District denied any breach of its duties under
the IDEA. The hearing went forward, and the
hearing officer ultimately rejected the parents'
entreaties.
Undaunted, the parents shifted the
battleground to the federal district court. See
20 U.S.C. 1415(i)(2)(A). As previously
noted, the district judge, on de novo review of
the
magistrate
judge's
report
and
recommendation, upheld the hearing officer's
ukase. This appeal followed.
II. ANALYSIS

29

In IDEA cases, as elsewhere, we review


the district court's answers to questions of law
de novo and its findings of fact for clear error.
Lenn v. Portland Sch. Comm., 998 F.2d 1083,
1087 (1st Cir. 1993); Roland M. v. Concord
Sch. Comm., 910 F.2d 983, 990-91 (1st Cir.
1990). Clear-error review demands substantial
deference to the trier; under that standard, we
may reverse only if the record, read as a whole,
gives rise to a "strong, unyielding belief that a
mistake has been made." Lenn, 998 F.2d at
1087 (quoting Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
Whether an IEP is adequate and appropriate is
a mixed question of law and fact. Thus,
appellate review involves a degree-ofdeference continuum, which takes into account
whether
particular
aspects
of
that
determination are fact-dominated or lawdominated. Mr. I. v. Me. Sch. Admin. Dist. No.
55, 480 F.3d 1, 10 (1st Cir. 2007); see In re
Extradition of Howard, 996 F.2d 1320, 132728 (1st Cir. 1993).
Here, the parents' chief argument is that
the district court applied an improper legal rule
in evaluating the October 18 IEP. In turn, this
argument depends on whether the IEP was
complete (and if not, why not). In addressing
it, we will first step back and sketch the
architecture of the IDEA. Once this is done,
we will consider the completeness of the
proffered IEP, the cause of its stunted growth,
whether the die was cast at that point, and the
parents' prayers for relief.
A. The IDEA.
Congress designed the IDEA as part of
an effort to help states provide educational
services to disabled children. Each state
receiving federal funding through its
provisions must ensure that every disabled
school-age child receives a FAPE. 20 U.S.C.
1412(a)(1)(A). A FAPE encompasses special
education and support services provided free
of charge. See id. 1401(9). A school system
has met this obligation as long as the program
that it offers to a disabled student is
"reasonably calculated" to deliver "educational
benefits." Hendrick Hudson Bd. of Educ. v.
Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982); see Lt. T.B. v. Warwick
Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004).
At bottom, this obligation is an
obligation to provide an adequate and
appropriate education. The IDEA does not
place school systems under a compulsion to

afford a disabled child an ideal or an optimal


education. See Lenn, 998 F.2d at 1086.
If a school system is unable to furnish a
disabled child with a FAPE through a public
school placement, it may be obliged to
subsidize the child in a private program. See
Burlington Sch. Comm. v. Mass. Dep't of
Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85
L.Ed.2d 385 (1985). In
Page 285
such circumstances, the school system will be
responsible for the reasonable costs incident to
that private placement. See id. at 369, 105
S.Ct. 1996; Diaz-Fonseca v. Puerto Rico, 451
F.3d 13, 31 (1st Cir. 2006).
It is common ground that the IDEA
manifests a preference for mainstreaming
disabled children. See, e.g., Rowley, 458 U.S.
at 202, 102 S.Ct. 3034; Roland M., 910 F.2d at
987. This entails ensuring, "[t]o the maximum
extent appropriate," that disabled children are
taught with non-disabled children. 20 U.S.C.
1412(a)(5)(A). The goal, then, is to find the
least restrictive educational environment that
will accommodate the child's legitimate needs.
See id.; see also Honig v. Doe, 484 U.S. 305,
321, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988);
Kathleen H. v. Mass. Dep't of Educ., 154 F.3d
8, 11 (1st Cir. 1998).
The method of the IDEA is
straightforward. Under it, school systems must
take steps to identify children who may qualify
as disabled, evaluate each such child to
determine his or her eligibility for statutory
benefits, and develop a customized IEP
designed to ensure that the child receives a
level of educational benefits commensurate
with a FAPE. 20 U.S.C. 1412(a)(3)-(4),
1414(a)-(b). The IEP must include information
about the child's disabilities, a statement of
educational goals, a description of the
measures that will be used to determine
whether the child has met those goals, and a
compendium of special education and related
services that will be furnished to the child. See
id. 1414(d)(1)(A); see also Roland M., 910
F.2d at 987 (describing IEP requirements
under the precursor to the IDEA). Those
related services typically will consist of
individualized services tailored to address the
child's particular needs. See 20 U.S.C.
1414(d)(1)(A); see also Burlington Sch.
Comm., 471 U.S. at 368, 105 S.Ct. 1996.
The development of an IEP is meant to
be a collaborative project. A team must be

30

identified for that purpose. It should include


the parents, teachers representing various parts
of the educational spectrum (that is, teachers
with training in both regular and special
education), officials of the school system, and
sometimes others with expertise in the nature
of the disability or the provision of particular
services. See 20 U.S.C. 1414(d)(1)(B).
If no consensus emerges from these
collective endeavors, the parents may
challenge either the school system's handling
of the IEP process or the IEP itself. The first
step in this adversarial pavane is a due process
hearing. See id. 1415(f). Either party may
then seek judicial review of the hearing
officer's decision by prosecuting an appeal to a
state or federal court. Id. 1415(i)(2)(A).
To determine whether an IEP provides
the requisite educational benefit in a given
case, some courts will in some circumstances
consider only the final version of the IEP that
the school system offered during the IEP
process. See, e.g., County Sch. Bd. of Henrico
v. Z.P., 399 F.3d 298, 306 n.5 (4th Cir. 2005);
Knable v. Bexley City Sch. Dist., 238 F.3d 755,
768 (6th Cir. 2001). The thinking behind this
so-called "four corners" rule is that when the
IEP process has run its course and the school
system has made its last, best offer of an IEP, a
reviewing court faced with a substantive
challenge will have a clear record of what
placements and educational services were
offered. See Union Sch. Dist. v. Smith, 15 F.3d
1519, 1526 (9th Cir. 1994); see also A.K. v.
AlexandriaCity Sch. Bd., 484 F.3d 672, 682
(4th Cir. 2007). This circuit has yet to decide
whether or not to adopt the four corners rule
and, as we explain below, we have no occasion
to consider the advisability of that course
today.
Page 286
If there is no last, best offer - -that is, if
the parents have initiated the adversary process
in advance of the development of a final IEP -it makes very little sense to consider only the
latest version of the IEP. This is especially true
where the school system has acted
expeditiously and the development of a final
IEP has been frustrated by the parents' refusal
to cooperate fully in the collaborative process.
See Loren F. v. Atlanta Indep. Sch. Sys., 349
F.3d 1309, 1312 (11th Cir. 2003); MM v. Sch.
Dist. of Greenville Cty., 303 F.3d 523, 535 (4th
Cir. 2002). In such circumstances, it would be
wrong to put blinders on a reviewing court and

restrict its inquiry to the partially completed


IEP. Cf. Roland M., 910 F.2d at 995 (warning
that courts ought not to allow parents to prevail
when the inadequacy of an IEP was "created
by their own obstructionism").
When this sort of scenario arises, the
court should proceed to consider issues such as
the way in which the IEP process unfolded and
the relative responsibility of the participants
for the breakdown of the process. In exploring
such issues, the court is entitled to look at the
totality of the circumstances, consider extrinsic
evidence if necessary, and judge the parents'
claims accordingly.
B. Incompleteness of the IEP.
In this case, the district court determined
that the October 18 IEP was not "final"
because the parents had disrupted the IEP
process midstream. Five Town, 2007 WL
494994, at *33. Having made that finding, the
court proceeded to consider information
outside the IEP to assure itself that the School
District's partially formulated position was
consistent with its responsibilities to A.S.
under the IDEA. See id. It concluded that, had
the parents continued to cooperate and allowed
the School District to fill in the gaps, the result
would have been a satisfactory IEP that
provided A.S. with a FAPE. See id. at *34.
The parents' primary challenge to this
conclusion contests the finding that the IEP
was incomplete. In that regard, they point out
that the School District's special education
director, Cindy Foreman, stated during the
October 20 PET meeting that the October 18
IEP was "final." Based largely on that
utterance, the parents assert that the district
court's inquiry should have been restricted as a
matter of law to the four corners of the October
18 IEP. The School District rejoins that
Foreman's comment cannot be taken literally,
that the October 18 IEP was obviously
incomplete, and that the district court acted
appropriately in looking beyond the four
corners of that document. The parents cannot
be heard to complain about the incompleteness
of the IEP, the School District adds, because
their refusal to cooperate in the IEP process
obstructed the development of a full-fledged
IEP.
The district court, like the hearing
officer, resolved this contretemps in favor of
the School District. As a matter of fact, we
discern no clear error in that ruling: on its face,
the October 18 IEP was manifestly incomplete.

31

While it contained the main components of an


individualized plan, it was missing several
subsidiary components (such as the behavioral
support and crisis management plans). On this
record, the district court's finding that the IEP
was incomplete was virtually inevitable.
Foreman's comment that the IEP was
"final" does not require a different result.
Taken in context, that remark does not seem to
mean what the parents suggest. Conversation is
not trigonometry, and in informal settings
spoken language is rarely used in
mathematically precise ways. In that
connection, we have acknowledged that
"words are like chameleons; they frequently
have different shades of meaning
Page 287
depending upon the circumstances." United
States v. Romain, 393 F.3d 63, 74 (1st Cir.
2004).
Here, the record considered as a whole
plainly indicates that while the main
components of the IEP (including the School
District's decision to accommodate A.S.'s
needs in a non-residential setting) may have
been final in mid-October, the IEP most
assuredly was not. Given the obvious gaps in
the IEP, it would have been absurd for the
district court to have treated Foreman's
awkward locution as sufficient to transmogrify
a partially completed IEP into a fully
completed one.[3] Therefore, even in those
jurisdictions that have adopted the four corners
rule, the rule would not apply.
C. Obstructive Conduct.
The district court also found, as had the
hearing officer, that the parents' precipitous
actions had prevented the consummation of the
IEP. See Five Town, 2007 WL 494994, at *33.
The court found that the parents harbored a
fixed purpose: to effect a residential placement
for their daughter at the School District's
expense, come what may. See id. at *18, *33.
Once the parents realized that the School
District was focused on a non-residential
placement, they essentially lost interest in the
IEP process. See id. That finding, which was
not clearly erroneous, [4]supported an
inference of parental obstruction. See MM, 303
F.3d at 535. In turn, the finding of
obstructionism, coupled with the finding of
incompleteness, underbraced the court's
decision to consider extrinsic evidence.
Viewed in context, that decision makes
perfect sense: while considering extrinsic

information in the adequacy calculus may not


be appropriate in the mine-run of cases, that
course is peculiarly appropriate where, as here,
the record reveals with conspicuous clarity that
all the participants in the October 12 PET
meeting wanted Dr. Miller's input in order to
develop a proper crisis plan and positive
behavior support plan for A.S. as part and
parcel of a final IEP. Neither plan had been
formulated when the School District
transmitted the October 18 IEP to the parents.
The parents cannot ignore these facts, nor
expect a reviewing court to blind itself to them.
Cf. Doe v. Defendant I, 898 F.2d 1186, 1190
(6th Cir. 1990) (approving consideration of
extrinsic information when parents, as part of
the team, "had all of the information required,"
even though all the particulars were "not
contained within the four corners of the IEP").
From this point forward, the court, like
the hearing officer, considered whether a
public school day placement was appropriate
and what benefits a finalized IEP would have
provided. See Five Town, 2007 WL 494994, at
*34. It supportably concluded that a public
school non-residential placement constituted
the least restrictive environment. It also
concluded that, had the parents allowed the
process to run its course, the School District
would have developed a sound behavioral
support plan and formulated a menu of
psychiatric services to be offered to A.S.
(which were in line with the goals limned in
the proposed IEP). Id. at *34-35. And, finally,
it held that because the resultant IEP would
have
Page 288
been adequate to afford A.S. a FAPE, the
parents' claim failed. Id. at *35.
In the last analysis, we need not probe
too deeply into the adequacy of the IEP. Given
the district court's comprehensive factual
findings, we can decide this case on a less
nuanced ground. We explain briefly.
Congress deliberately fashioned an
interactive process for the development of
IEPs. In so doing, it expressly declared that if
parents act unreasonably in the course of that
process, they may be barred from
reimbursement under the IDEA. See 20 U.S.C.
1412(a)(10)(C)(iii)(III) (providing that "[t]he
cost of reimbursement . . . may be reduced or
denied . . . upon a judicial finding of
unreasonableness with respect to actions taken
by the parents").

32

Here, the School District argues


persuasively that the parents' conduct was
unreasonable and that this unreasonableness
precludes relief. Although the district court
drew no conclusions with regard to this
provision of the IDEA, we are free to affirm its
decision on any alternative ground that is
evident from the record. See InterGen N.V. v.
Grina, 344 F.3d 134, 141 (1st Cir. 2003);
United States v. Flemmi, 225 F.3d 78, 91 (1st
Cir. 2000). Moreover, where the evidence
supports a district court's findings of fact, we
may realign those findings under a different
legal matrix and decide the case on that basis.
See, e.g., Wine & Spirits Retailers, Inc. v.
Rhode Island, 481 F.3d 1, 7 (1st Cir. 2007)
(explaining that "[a] trial court's findings of
fact, made in connection with one legal theory,
may often be treated as fungible in connection
with another [legal theory]"); Ferrara v.
United States, 456 F.3d 278, 281 (1st Cir.
2006) (relying on district court's subsidiary
findings of fact to decide appeal under a
different articulation of the applicable rule of
law); see also Societé des Produits
Nestle v. Casa Helvetia, Inc., 982 F.2d 633,
642 (1st Cir. 1992).
This is such a case. The district court
supportably found that the parents' actions
disrupted the IEP process, stalling its
consummation
and
preventing
the
development of a final IEP. Moreover, the
court found, the parents did so despite their
knowledge that the School District planned to
complete the unfinished portions with the
parents' help. Tellingly, the court determined
that the cause of the disruption was the parents'
single-minded refusal to consider any
placement other than a residential one. Five
Town, 2007 WL 494994, at *33. Such
Boulwarism, whether or not well-intentioned,
constitutes an unreasonable approach to the
collaborative process envisioned by the IDEA.
See Roland M., 910 F.2d at 995. Here, that
attitude sufficed to undermine the process.
To sum up, the district court found that
the October 18 IEP was incomplete and that
the parents' unreasonable actions had frustrated
the completion of the IEP process.[5] Given
these warrantable findings of fact, section
1412(a)(10)(C)(iii)(III) provides a solid ground
for resolving the case against the parents. Their
unreasonable obstruction of an otherwise
promising IEP process fully justifies a denial
of reimbursement under the IDEA. See M.S. v.

Mullica Tp. Bd. of Educ., 485 F.Supp.2d 555,


568 (D.N.J. 2007) (denying reimbursement
because parents failed to cooperate in
completion of IEP).
Page 289
D. Substantive Adequacy.
The parents' challenge to the lower
court's decision has a further dimension. They
assert that the IEP process, whether or not still
ongoing, had effectively reached a dead end: in
their view, the partially completed IEP
includes so many wrong choices that a finding
of inadequacy would have been inevitable (and
so, completing the IEP process would have
been an exercise in futility). The force of this
assertion hinges on the parents' insistence that
the School District arbitrarily ruled out a
residential placement even though such a
placement was the only feasible way to
provide A.S. with a FAPE.
This insistence flies in the teeth of the
School District's evidence and the independent
evaluator's recommendations. After canvassing
the record, we conclude that the need for a
residential placement was fairly debatable.
Crediting the independent evaluator's views
and the School District's testimony, the district
court - -like the hearing officer - -found that
the least restrictive educational environment
would have been in a public non-residential
placement. Five Town, 2007 WL 494994, at
*35. Given the truism that courts should
recognize the expertise of educators with
respect to the efficacy of educational
programs, Rowley, 458 U.S. at 207-08, 102
S.Ct. 3034, we see no clear error in this finding
(and, thus, no basis for setting aside the district
court's decision).
The parents' remaining arguments on this
issue need not occupy us for long. The few
themes that they spin either mischaracterize
the IEP's provisions or seek to have us
undertake a de novo balancing of the facts. We
are not swayed by the former, nor are we
permitted to indulge the latter.
In all events, the best that can be said for
the parents' position is that the evidence may
support
competing
viewpoints.
That
circumstance dooms their challenge: we are
not at liberty to reject the district court's
plausible interpretation of the facts simply
because the record also might sustain a
conflicting interpretation. See Anderson v.
BessemerCity, 470 U.S. 564, 574, 105 S.Ct.
1504, 84 L.Ed.2d 518 (1985) ("Where there

33

are two permissible views of the evidence, the


fact finder's choice between them cannot be
clearly erroneous."). Nor may we reject an
adequate public school placement for an
optimal private placement. See Rowley, 458
U.S. at 200, 102 S.Ct. 3034; see also Lenn, 998
F.2d at 1086 (explaining that federal law
requires school districts to provide a
reasonable level of educational benefit to
disabled children, not an optimal level).
E. Requests for Relief.
This essentially ends our inquiry.
Although reimbursement of parental expenses
for private residential placements sometimes is
available under the IDEA, such reimbursement
is contingent upon a showing that the parents
diligently pursued the provision of appropriate
services from the public school system, yet the
school system failed to provide those services;
and that the private placement is a suitable
alternative. See Florence Cty. Sch. Dist. Four
v. Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126
L.Ed.2d 284 (1993); Burlington Sch. Comm.,
471 U.S. at 370, 105 S.Ct. 1996. When the
parents make a unilateral choice, they must
bear the associated risk: if the conditions for
reimbursement are not met, the financial
burdens are theirs. Burlington Sch. Comm.,
471 U.S. at 373-74, 105 S.Ct. 1996; Roland
M., 910 F.2d at 1000.
That is precisely what transpired here.
The parents made a unilateral choice to
abandon the collaborative IEP process without
allowing that process to run its course. Thus,
the parents are precluded from obtaining
reimbursement for the
Page 290
costs of the Chamberlain School placement,
see supra Part II(C), and a fortiori, they have
not satisfied that prong of the reimbursement
analysis.[6]
The parents' alternative claim for
compensatory education is easily dispatched.
Compensatory education is a surrogate for the
warranted education that a disabled child may
have missed during periods when his IEP was
so inappropriate that he was effectively denied
a FAPE. See Me. Sch. Admin. Dist. No. 35 v.
Mr. & Mrs. R., 321 F.3d 9, 18 (1st Cir. 2003).
However, compensatory education is not an
automatic entitlement but, rather, a
discretionary remedy for nonfeasance or
misfeasance in connection with a school
system's obligations under the IDEA. See Pihl
v. Mass. Dep't of Educ., 9 F.3d 184, 188 (1st

Cir. 1993); see also G v. Ft.Bragg Dependent


Schs., 343 F.3d 295, 309 (4th Cir. 2003)
(stating that "[c]ompensatory education
involves discretionary . . . relief crafted by a
court" to correct a school district's failure
under the Act).
As we have explained, the parents have
failed to establish any violation by the School
District of its duties under the IDEA. Their
claim for compensatory education cannot
surmount this barrier.
III. CONCLUSION
We need go no further. For the reasons
elucidated above, we uphold the district court's
judgment.
Affirmed.
--------Notes:
[1] The district court appropriately engaged in
a bounded, independent review of the hearing
officer's decision, see, e.g., Hampton Sch. Dist.
v. Dobrowolski, 976 F.2d 48, 52 (1st Cir.
1992), giving due deference to the hearing
officer's determinations. Because the district
court's findings and conclusions were
essentially the same as those of the hearing
officer, we for the most part eschew separate
reference to the hearing officer's decision.
[2] For example, the October 18 IEP
referenced an attached behavior plan but (as
the parents knew) no such plan had yet been
developed and, thus, none was annexed. This
area of the IEP was intentionally left
incomplete pending input from Dr. Miller
(A.S.'s therapist). The IEP displayed several
other inchoate provisions that obviously were
meant to be fleshed out during further
iterations of the IEP.
[3] The parents note that the October 12
meeting minutes suggest at one point that a
"completed" IEP would be sent to the parents.
Their reliance on this aspirational phrase
suffers from the same shortcomings as their
reliance on Foreman's infelicitous use of the
word "final."
[4] To be sure, the parents presented evidence
that they made a good-faith effort to visit the
Zenith program prior to the last PET meeting.
But under the applicable standard of review,
the district court was entitled to choose among
conflicting inferences suggested by the
evidence. See Lenn, 998 F.2d at 1087.
[5] The parents' argument that the School
District engaged in a "bait and switch" tactic
by calling the IEP "final" and then

34

backtracking at the due process hearing,


Appellants' Reply Br. at 6, is meritless. As we
have said, there is substantial evidence in the
record that the School District expressed the
need for further development of the IEP prior
to the time of the parents' unilateral decision to
relocate A.S. to a private residential placement.

[6] This result obtains whether or not the


Chamberlain School offered a desirable
placement for the child (a matter on which we
take no view).
---------

35

some of the reimbursement sought by the


Deals. The district court found no IDEA
violations and reversed the reimbursement
ordered by the ALJ. Based on the following
analysis, the Court AFFIRMS in part and
REVERSES in part.
I. BACKGROUND
A. Factual Background
In 1997, when Zachary was three years
old, the School System and the Deals
developed Zachary's first "individualized
education program" ("IEP"). [1] Pursuant to
the terms of the IEP, Zachary attended a
preschool comprehensive development class
("CDC") at Ooltewah Elementary School.
While Zachary was assigned to Ooltewah,
his parents, in September 1997, began to
teach Zachary outside of school using a
program developed by the Center for Autism
and
Related
Disorders
("CARD").
According to the ALJ, this program is
patterned after a methodology for treating
autistic children developed by Dr. Ivar
Lovaas at the University of California at Los
Angeles. [2] The CARD program consists of
one-on-one applied behavioral analysis
("ABA") that relies heavily
Page 846
on extremely structured teaching and
comprehensive data collection and analysis.
On May 11, 1998, an IEP team met to
consider extended school year ("ESY")
services for Zachary. The Deals, convinced
that Zachary was making exceptional
progress because of the one-on-one ABA
program they were funding in their home,
requested that the School System fund a 40hour per week home based ABA program
for the summer, as well as provide for yearround speech therapy. The School System
refused to fund the parents' program and
likewise refused to provide the Deals with
data regarding the efficacy of the School
System's approach to teaching autistic
children. Instead, the agreed upon IEP
provided for ESY services consisting of
three 45 minute speech therapy sessions per
week.

Page 840
392 F.3d 840 (6th Cir. 2004)
Maureen DEAL; Phillip Deal, Parents,
On Behalf of Zachary Deal, PlaintiffsAppellants,
v.
HAMILTON COUNTY BOARD OF
EDUCATION, Defendant-Appellee.
No. 03-5396.
United States Court of Appeals, Sixth
Circuit
December 16, 2004
Argued: Aug. 12, 2004.
Page 841
[Copyrighted Material Omitted]
Page 842
[Copyrighted Material Omitted]
Page 843
[Copyrighted Material Omitted]
Page 845
Before: MOORE and COLE, Circuit
Judges; MARBLEY, District Judge. [*]
OPINION
MARBLEY, District Judge.
This case arises under the Individuals
with Disabilities Education Act, 20 U.S.C.
1400 et seq. ("IDEA"), and
corresponding Tennessee laws and rules.
Plaintiffs-Appellants, Maureen and Phillip
Deal (the "Deals"), bring this action for and
on behalf of their autistic son, Zachary.
Defendant-Appellee is the Board of
Education of Hamilton County, Tennessee
(the "School System"). Plaintiffs-Appellants
appeal the decision of the district court
reversing in part and affirming in part the
decision of the administrative law judge
("ALJ")
who
presided
over
the
administrative hearing. Plaintiffs-Appellants
assert that the School System failed to
provide Zachary with a "free and
appropriate public education" ("FAPE") in
Zachary's "least restrictive environment"
("LRE") and that they therefore are entitled
to reimbursement from the School System
for the education that they provided Zachary
at their own expense. The ALJ found several
procedural and substantive violations of the
IDEA and ordered the School System to pay

36

On October 9, 1998, an IEP meeting


was held to develop Zachary's 1998-1999
IEP. The 95-page IEP, dated October 15,
1998, provided, among other things, for 35
hours per week of special education
instruction, with many explicit goals. [3]
Zachary also was to receive related services,
including physical therapy and speech
therapy. The Deals filed a "minority report"
requesting that the School System fund their
private ABA program in the home. The
School System convened additional IEP
meetings that were attended by the Deals in
November 1998, December 1998, February
1999, and March 1999 to discuss Zachary's
progress and the Deals' concerns. During the
1998-1999 school year, Zachary attended
the School System's program only 16% of
the time.
At a May 24, 1999, IEP meeting, the
Deals requested an ESY program of 43
hours per week of one-on-one ABA therapy
and 5 hours per week of speech therapy. The
IEP team determined that it could not
document any regression Zachary would
suffer without ESY services due to his lack
of attendance at the School System's
program, so the School System declined to
offer any ESY services.
On August 20 and again on August 25,
1999, an IEP team met to develop an IEP for
Zachary for the 1999-2000 school year. The
School System proposed that Zachary
would, in addition to his CDC classes,
attend a regular kindergarten classroom
three times per week for 15 minutes each.
He would also have lunch with a regular
kindergarten class. The time spent with the
regular class would increase as Zachary was
able to tolerate it. Zachary would have with
him a classroom assistant familiar with and
trained to meet his needs. The proposal
included specific goals and objectives.
Teaching methods would include one-onone discrete trial teaching; the use of picture
cues; incidental teaching to provide an
opportunity for carry over and application of
learned skills; continual use of functional
communication techniques; activity-based
instruction; the use of music, story telling,
and reading; and other techniques. The

proposal also provided for speech and


language therapy for 30 minutes five times
per week, occupational therapy two times
per month, and physical therapy for 30
minutes once a week.
On September 2, 1999, Zachary began
attending a private preschool, the Primrose
School, at which his parents had enrolled
him. Zachary attended a regular pre-K class
at the Primrose School for 3 hours per day, 2
days per week, with a personal aide paid for
by the Deals. On September 7, 1999, the
Deals informed the School System of their
rejection of the IEP in favor of the private
program. The Deals' disagreement with the
IEP
Page 847
stemmed from their belief that Zachary
should spend more time in a regular
education classroom, as well as their desire
to have the School System pay for the
CARD program or offer similar ABA
therapy. On September 16, 1999, the Deals
requested a due process hearing under the
provisions of the IDEA. Zachary did not
attend public school at all during the 19992000 school year.
On August 11, 2000, an IEP meeting
was held to develop an IEP for Zachary for
the 2000-2001 school year. The proposed
IEP called for Zachary to be placed
primarily in a regular education kindergarten
class at Westview Elementary School. The
IEP included specific goals and objectives
and provided for various support services,
including pre-teaching and re-teaching
sessions. The full school day and week
program included related services of speech
therapy and occupational therapy. The Deals
rejected the IEP and continued to insist that
the School System pay for their private
ABA program for Zachary. Zachary did
attend Westview that year, but only part
time.
B. Procedural History
The administrative hearing requested
by the Deals on September 16, 1999, began
on March 15, 2000, and concluded on
February
13,
2001.
The
hearing
encompassed 27 full days of testimony from
20 fact and expert witnesses. The ALJ also

37

reviewed tens of thousands of pages of


exhibits, viewed several video tapes, and
personally observed Zachary in a number of
settings.
In an opinion and order dated August
20, 2001, the ALJ made explicit credibility
findings as to all 20 witnesses and provided
191 findings of fact. He also announced the
following legal conclusions:
(1) The School System violated the
procedural requirements of the IDEA by
predetermining, pursuant to an unofficial
policy of refusing to consider "Lovaas style
ABA," that the School System's extant
program was appropriate for Zachary. [4]
(2) The School System's failure to have
regular education teachers attend the IEP
team meetings also constituted a procedural
violation.
(3) These procedural violations themselves
amounted to denial of a FAPE.
(4) The School System had substantively
violated the IDEA by failing to provide a
proven or even describable methodology for
educating autistic children. [5]
Page 848
(5) An additional substantive violation
resulted from the School System's failure to
provide Zachary with 30 hours per week of
the intensive Lovaas style ABA that had
been proven to be effective for him. [6]
(6) The School System also substantively
violated the IDEA by failing to provide
Zachary with ESY services in 1999.
(7) The Deals were not entitled to
reimbursement for private evaluations of
Zachary.
(8) The Deals were entitled to
reimbursement for up to 30 hours per week
of the home based ABA services they had
provided to Zachary, and the School System
was to continue to reimburse the Deals for
such services until a properly constituted
IEP team, which must include at least one
expert in and advocate for Lovaas style
ABA, had developed an IEP for Zachary
that included at least 30 hours per week of
Lovaas style ABA.
(9) The School System did not sufficiently
consider the LRE requirement of the IDEA
in developing Zachary's 1999-2000 IEP, but

the Deals nonetheless were not entitled to


reimbursement for Zachary's tuition at the
Primrose School because they failed to
provide the School System with the required
statutory notice.
(10) The School System had mishandled its
obligation to provide the related services of
physical therapy, occupational therapy, and
speech therapy to Zachary and therefore was
required to reimburse the Deals for any out
of pocket costs they had incurred in
providing such related services to Zachary.
(11) The Deals have no right to veto
competent providers of services called for in
a properly constituted IEP.
(12) Zachary Deal was the prevailing party.
On October 1, 2001, the Deals initiated
review of portions of the ALJ's decision in
the
district
court.
They
sought
reimbursement of certain expenses that the
ALJ had declined to award, as well as
attorney's fees for the administrative
hearing. The School System filed a
counterclaim seeking reversal of the ALJ's
determinations that the failure to offer
Zachary a "Lovaas style" program violated
Zachary's right to a FAPE and that the Deals
were entitled to reimbursement for privately
obtained related services.

In an opinion and order dated March 4,


2003, the district court reversed in part and
affirmed in part the ALJ's decision. The
court ruled that there had been no procedural
or substantive violations of the IDEA and
that the Deals were not entitled to any
reimbursement relief. The district court held
that the ALJ had erred in exalting the Deals'
preferred educational methodology above
other appropriate methods. This appeal
followed. Plaintiffs-Appellants argue that
the district court erred by (1) allowing and
relying
upon
Defendant-Appellee's
additional evidence; (2) failing to take
judicial notice of federal court filings
challenging the credibility of one of
Defendant-Appellee's experts; (3) reversing
those aspects of the ALJ's decision that
found violations of the IDEA and granted
reimbursement to Plaintiffs-Appellants; and
(4) awarding costs to Defendant-Appellee.

38

2003). Parties challenging an IEP have the


burden of proving by a preponderance of the
evidence that the IEP devised by the school
district is inappropriate. Zelazny, 325 F.3d at
729; Dong ex rel. Dong v. Bd. of Educ. of
the Rochester Cmty. Sch., 197 F.3d 793, 799
(6th Cir. 1999).
With regard to procedural matters, a
court should "strictly review an IEP for
procedural compliance," although technical
deviations will not render an IEP invalid.
Dong, 197 F.3d at 800; seeCleveland
Heights-Univ. Heights City Sch. Dist. v.
Boss ex rel. Boss, 144 F.3d 391, 398 (6th
Cir. 1998) (noting that "minor technical
violations may be excused"). A finding of
procedural violations does not necessarily
entitle appellants to relief. Knable, 238 F.3d
at 764. Only if a procedural violation has
resulted in substantive harm, and thus
constitutes a denial of a FAPE, may relief be
granted. Id. The Supreme Court has
emphasized the importance Congress
attached to the IDEA's procedural
safeguards:
[T]he congressional emphasis upon full
participation
of
concerned
parties
throughout the development of the IEP, as
well as the requirements that state and local
plans be submitted to the Secretary for
approval, demonstrates the legislative
conviction that adequate compliance with
the procedures prescribed would in most
cases assure much if not all of what
Congress wished in the way of substantive
content in an IEP.
Rowley, 458 U.S. at 206, 102 S.Ct. 3034. "If
the procedural requirements of the IDEA are
met, greater deference is to be afforded to
the district's placement decision." Dong, 197
F.3d at 800.
As for substantive compliance, "[t]he
'preponderance of the evidence' language in
the [IDEA] 'is by no means an invitation to
the courts to substitute their own notions of
sound educational policy for those of the
school authorities which they review.' "
Thomas v. Cincinnati Bd. of Educ., 918 F.2d
618, 624 (6th Cir. 1990) (quoting Rowley,
458 U.S. at 206, 102 S.Ct. 3034). The
Supreme Court has cautioned,

II. STANDARD OF REVIEW


[Court discusses standard of review]
III. DISCUSSION
A. Additional Evidence
[Court upholds admission of additional
evidence by District Court]
C. Violations of the IDEA
1. Standards Under the IDEA
The purpose of the IDEA is to give
children with disabilities a free appropriate
public education designed to meet their
unique needs. [11] Burilovich ex rel.
Burilovich v. Bd. of Educ. of the Lincoln
Consol. Sch., 208 F.3d 560, 565 (6th Cir.
2000) (citing 20 U.S.C. 1401(25), 1412).
As part of providing a FAPE, school
districts receiving funds under the IDEA are
required to establish an IEP for each child
with a disability. Knable ex rel. Knable v.
Bexley City Sch. Dist., 238 F.3d 755, 762
(6th Cir. 2001) (citing 20 U.S.C. 1414(a)
(5)). The IEP must "contain a specific
statement of the child's current performance
levels, the child's short-term and long-term
goals, the educational and other services to
be provided, and criteria for evaluating the
child's progress." Id. at 763 (citing 20 U.S.C.
1401(a) (20)).
There are two parts to a court's inquiry
in suits brought pursuant to the IDEA. First,
the court must determine whether the school
system has complied with the procedures set
forth in the IDEA. Bd. of Educ. of the
Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982); McLaughlin v. Holt
Pub. Sch. Bd. of Educ., 320 F.3d 663, 669
(6th Cir. 2003). Second, the court must
assess whether the IEP developed through
those procedures
Page 854
was reasonably calculated to enable the
child to receive educational benefits.
Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034;
McLaughlin, 320 F.3d at 669. "If these
requirements are met, the State has complied
with the obligations imposed by Congress
and the courts can require no more." Rowley,
458 U.S. at 207, 102 S.Ct. 3034;
accordKings Local Sch. Dist., Bd. of Educ.
v. Zelazny, 325 F.3d 724, 729 (6th Cir.

39

In assuring that the requirements of the Act


have been met, courts must be careful to
avoid imposing their view of preferable
educational methods upon the States. The
primary responsibility for formulating the
education to be accorded a handicapped
child, and for choosing the educational
method most suitable to the child's needs,
was left by the Act to state and local
educational agencies in cooperation with the
parents or guardian of the child.
Rowley, 458 U.S. at 207, 102 S.Ct. 3034
(footnote omitted). "Indeed, federal courts
are generalists with no expertise in the
educational needs of handicapped children
and will benefit from the factfinding of a
state agency, which is presumed to have
expertise in the field." Burilovich, 208 F.3d
at 566.
The Supreme Court has spoken on the
level of education that the states are required
to provide to disabled children:
Implicit in the congressional purpose of
providing access to a "free appropriate
public education" is the requirement that the
education to which access is provided be
sufficient to confer some educational benefit
upon the handicapped child.... We therefore
conclude that the "basic floor of
opportunity" provided
Page 855
by the Act consists of access to specialized
instruction and related services which are
individually designed to provide educational
benefit to the handicapped child.
Rowley, 458 U.S. at 200-01, 102 S.Ct. 3034.
The Court explicitly rejected the argument
that school districts are required to provide
services "sufficient to maximize each child's
potential commensurate with the opportunity
provided other children." Id. at 198, 102
S.Ct. 3034 (internal citation omitted)
(finding no congressional intent to achieve
strict equality of opportunity or services);
seeRenner v. Bd. of Educ. of the Pub. Sch.,
185 F.3d 635, 644 (6th Cir. 1999).
Parents may receive retroactive
reimbursement for private educational
services they unilaterally provide to their
child in certain circumstances. Sch. Comm.
of Burlington v. Dep't of Educ., 471 U.S.

359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385


(1985); Knable, 238 F.3d at 763. Parents are
entitled to such reimbursement if a court
concludes both that the public placement
violated the IDEA and that the private
placement was proper under the IDEA.
Florence County Sch. Dist. Four v. Carter
ex rel. Carter, 510 U.S. 7, 15, 114 S.Ct. 361,
126 L.Ed.2d 284 (1993); Knable, 238 F.3d
at 763. A private placement is proper under
the IDEA if the education provided in the
private placement is reasonably calculated to
enable the child to receive educational
benefits. Knable, 238 F.3d at 770 (citing
Florence County, 510 U.S. at 11, 114 S.Ct.
361).
2. Procedural Violations
a. Predetermination
The ALJ found that the School System
"clearly" had an unofficial policy of refusing
to consider Lovaas style ABA for autistic
children and that School System personnel
consistently attended IEP meetings having
"pre-selected" the extant School System
program
regardless
of
Zachary's
demonstrated individual needs. The ALJ's
conclusion of predetermination was based
on the following findings of fact:
24. Ms. Jane Dixon, an HCDE Special
Education Supervisor, met with Mrs. Deal
on May 19, 1997 and at the meeting she
discussed programs available for autistic
children without mentioning the Lovaas
style ABA as a methodology for the parents
to explore.
....
56. At the May 11, 1998 IEP meeting,
Sandra Jerardi told the Deals that there were
certain things she would like to give
(Zachary) but that she could not because she
could not give the same service to
everybody.
....
63. The HCDE has consistently rejected
providing Lovaas style ABA services to
Zachary or any other student in their
system....
....
85. HCDE rejects the validity of the Lovaas
study and its results and embraces the
position of the professionals in the field who

40

have published articles critical of the Lovaas


style ABA approach to treating children
with autism.
....
105. Jane Dixon told the Deals that they
could not ask questions during the March 3,
1999 IEP meeting.
....
111. Ms. Dixon investigated Zachary's
parents' dispute with the IEP and
interviewed various teachers and providers
without interviewing any of the ABA
providers even though Lovaas style ABA
formed the bulk of Zachary's educational
program at that time.
112. HCDE denied the Deal's request for
Lovaas style ABA for Zachary in part
because HCDE believes it is more
Page 856
expensive than HCDE's current approach.
....
126. Prior to the Deals requesting funding
for Zachary's ABA program from the
HCDE, Ms. Sandra Jerardi authored an
internal memo in which she described
Zachary's program under IDEA as a
"sensitive case with regards to school
program and/or Lovaas."
127. Based on other testimony in the record
supporting the proposition that the HCDE
rejects meaningful consideration of the
Lovaas style ABA intervention at least in
large part because of its perceived cost, the
court finds that Ms. Jerardi was flagging
Zachary Deal's education program as
sensitive because of its probable cost and
adverse impact on the HCDE policy of
rejecting any and all requests for Lovaas
style ABA for young autistic children.
128. At the May 11, 1998 IEP meeting, the
Deals outlined the impressive results
Zachary had achieved with the Lovaas style
ABA methodology and asked the HCDE to
fund a continuation of the program over the
summer.
129. HCDE personnel informed the Deals
that "the powers that be" were not
implementing ABA programs.
130. Ms. Jerardi, an HCDE representative
and IEP team member in the May 11, 1998
IEP team meeting told the Deals that she

wished people would pay their taxes so that


HCDE could provide ABA for Zachary.
....
156. Jane Dixon believes that the parents'
proposed goal to make Zachary independent
in society with as normal a life as possible is
unrealistic.
157. HCDE has a policy of not considering
Lovaas style ABA for autistic children.
Sandra Jerardi admits to being impressed by
Zachary's present levels of performance yet
steadfastly refuses to give any credit to
Zachary's intensive Lovaas style ABA
program for these achievements. Ms. Jerardi
refuses to concede that any progress is
attributable to the ABA program even when
the progress was obtained over the course of
a summer in which the school system
provided no services.
....
174. HCDE refused the Deal's offer to help
train HCDE personnel on Zachary's ABA
program and protocols.
J.A. at 37-49 (citations to administrative
hearing record omitted). [12]
The district court did not explicitly
reject any of the ALJ's findings of fact on
the issue of predetermination. Relying on
Ms. C. ex rel. N.L. v. Knox County Schools,
315 F.3d 688 (6th Cir. 2003), the court
simply concluded that "[t]he facts of this
case do not add up to predetermination on
the part of HCDE." The court found
persuasive the fact that the Deals were
present at every IEP meeting convened and
at every meeting took the opportunity "to
forcefully advocate their position." The
court stated,
Page 857
HCDE could come to IEP meetings with
pre-formed opinions regarding the best
course of action for Zachary so long as
school officials were willing to listen to the
Deals, and the Deals had the opportunity to
make objections and suggestions.... There is
nothing in IDEA which requires school
systems to accept the parents' point of view,
or suffer a procedural violation of the
statute.
This Court's review of the
predetermination decision is de novo, since

41

it is a mixed question of law and fact.


SeeKnable ex rel. Knable v. Bexley City Sch.
Dist., 238 F.3d 755, 766 (6th Cir. 2001). The
evidence reveals that the School System,
and its representatives, had pre-decided not
to offer Zachary intensive ABA services
regardless of any evidence concerning
Zachary's individual needs and the
effectiveness of his private program. This
predetermination amounted to a procedural
violation of the IDEA. Because it effectively
deprived Zachary's parents of meaningful
participation in the IEP process, the
predetermination caused substantive harm
and therefore deprived Zachary of a FAPE.
The leading case on predetermination is
Spielberg ex rel. Spielberg v. Henrico
County Public Schools, 853 F.2d 256 (4th
Cir. 1988). There, the district court had
concluded, based on a series of letters
written before the IEP meeting that focused
on a change in placement, that the school
district had decided to change the disabled
student's placement before developing an
IEP to support the change. Id. at 258-59.
The Fourth Circuit affirmed the district
court's determination that a procedural
violation had occurred that deprived the
student of a FAPE:
Under the EHA [the predecessor to the
IDEA], the general rule is that placement
should be based on the IEP. 34 C.F.R.
300.552. The appendix interpreting the EHA
regulations states that "IEP objectives must
be written before placement." 34 C.F.R. Part
300, App. C., Question 42. The decision to
place Jonathan at Randolph before
developing an IEP on which to base that
placement violates this regulation as
interpreted by the Secretary of Education. It
also violates the spirit and intent of the
EHA,
which
emphasizes
parental
involvement. After the fact involvement is
not enough.
Id. at 259 (footnote omitted). The relevant
regulation provides that, in determining the
educational placement of a disabled child,
the public agency must ensure that the
placement "[i]s based on the child's IEP." 34
C.F.R. 300.552.

W.G. v. Board of Trustees of Target


Range School District No. 23, 960 F.2d
1479 (9th Cir. 1992), was a similar case.
There, the Ninth Circuit agreed with the
district court that the school district had
independently developed a proposed IEP
that would place the student in a preexisting,
predetermined program. Id. at 1484. At the
IEP meeting, no alternatives to that program
were considered. Id. The court held that in
order to fulfill the goal of parental
participation in the IEP process, the school
district was required to conduct, not just an
IEP meeting, but a meaningful IEP meeting.
Id. at 1485.
Courts often have declined to find
predetermination; however, such cases are
distinguishable from the case sub judice.
See, e.g.,Knox County Sch., 315 F.3d at 69495 (finding no predetermination where
parent was not involved in initial, ex parte
determination of eligibility but was active
participant
in
final
determination);
Fuhrmann ex rel. Fuhrmann v. E. Hanover
Bd. of Educ., 993 F.2d 1031, 1036 (3d Cir.
1993) (finding parents had opportunity to
participate in IEP formulation in meaningful
way); Hanson ex rel. Hanson v. Smith, 212
F.Supp.2d 474, 486 (D.Md.2002) (noting
credible evidence that school board
Page 858
came to IEP meetings with open mind, and
that several options were discussed and
considered before final recommendation was
made); Doyle v. Arlington County Sch. Bd.,
806 F.Supp. 1253, 1262 (E.D.Va.1992)
(holding that school system had merely
proposed a placement before IEP was
completed and had not "fully made up its
mind before the parents ever [got]
involved," thereby denying the parents "the
opportunity for meaningful input"), aff'd, 39
F.3d 1176 (4th Cir. 1994). In Knox County
Schools, this Court emphasized that school
officials are permitted to form opinions and
compile reports prior to IEP meetings. Knox
County Sch., 315 F.3d at 693-94 n. 3. The
Court cautioned, however, that such conduct
is only harmless as long as school officials
are "willing to listen to the parents." Id. at
694-95 (noting that school system

42

representatives should "come to the meeting


with suggestions and open minds, not a
required course of action").
The facts of this case strongly suggest
that the School System had an unofficial
policy of refusing to provide one-on-one
ABA programs and that School System
personnel thus did not have open minds and
were not willing to consider the provision of
such a program. This conclusion is bolstered
by evidence that the School System
steadfastly refused even to discuss the
possibility of providing an ABA program,
even in the face of impressive results.
Indeed, School System personnel openly
admired and were impressed with Zachary's
performance (presumably attained through
the ABA program), until the Deals asked the
School System to pay for the ABA program.
[13] Several comments made by School
System personnel suggested that they would
like to provide Zachary with ABA services,
i.e., they recognized the efficacy of such a
program, but they were prevented from
doing so, i.e., by the School System policy.
The clear implication is that no matter how
strong the evidence presented by the Deals,
the School System still would have refused
to provide the services. This is
predetermination.
The district court erred in assuming
that merely because the Deals were present
and spoke at the various IEP meetings, they
were afforded adequate opportunity to
participate. Participation must be more than
a mere form; it must be meaningful. W.G.,
960 F.2d at 1485; see alsoKnox County Sch.,
315 F.3d at 694-95 (stating that school
officials must be willing to listen to the
parents and must have open minds). Despite
the protestations of the Deals, the School
System never even treated a one-on-one
ABA program as a viable option. Where
there was no way that anything the Deals
said, or any data the Deals produced, could
have changed the School System's
determination of appropriate services, their
participation was no more than after the fact
involvement. SeeSpielberg, 853 F.2d at 259.
The School System noted, at oral
argument, that the Deals' participation in the

IEP process is evidenced by their


contributions to the descriptions of
Zachary's present levels of performance and
to the stated goals and objectives contained
within the IEPs. The School System was
unable to point to any evidence, however,
Page 859
that the Deals contributed to the operative
portions of the IEP-that their opinions were
considered in determining the services that
would be provided to Zachary. In short,
nothing offered by the School System
suffices to surmount the Golconda of
circumstantial evidence adduced by
Plaintiffs-Appellants to establish the
existence of an unofficial School System
policy of rejecting any requests for an
intensive, one-on-one ABA program. This
evidence includes the internal memorandum
by Sandra Jerardi flagging Zachary's
education program as a "sensitive case with
regards to school program and/or Lovaas,"
as well as various comments from School
System personnel, including a statement that
"the powers that be" were not funding ABA
programs.
The School System seemed to suggest,
at oral argument, that it is entitled to invest
in a program such as TEACCH and then
capitalize on that investment by using the
TEACCH program exclusively. But this is
precisely what it is not permitted to do, at
least without fully considering the individual
needs of each child. A school district
unquestionably may consider cost in
determining appropriate services for a child.
E.g., Clevenger v. Oak Ridge Sch. Bd., 744
F.2d 514, 516-17 (6th Cir. 1984). The
school district is required, however, to base
its placement decision on the child's IEP, 34
C.F.R. 300.552, rather than on the mere
fact of a pre-existing investment. In other
words, the school district may not, as it
appears happened here, decide that because
it has spent a lot of money on a program,
that program is always going to be
appropriate for educating children with a
specific disability, regardless of any
evidence to the contrary of the
individualized needs of a particular child. A
placement decision may only be considered

43

to have been based on the child's IEP when


the child's individual characteristics,
including demonstrated response
to
particular types of educational programs, are
taken into account. SeePolk v. Cent.
Susquehanna Intermediate Unit 16, 853
F.2d 171, 177 (3d Cir. 1988) (noting that the
"system of procedural protection only works
if the state devises an individualized
program and is willing to address the
handicapped child's 'unique needs' ")
(quoting 20 U.S.C. 1401(16)). A "one size
fits all" approach to special education will
not be countenanced by the IDEA.
A procedural violation can cause
substantive harm when it seriously infringes
upon the parents' opportunity to participate
in the IEP process. Knable, 238 F.3d at 765;
see alsoBd. of Educ. of the Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)
("Congress sought to protect individual
children by providing for parental
involvement ... in the formulation of the
child's individual educational program.").
Because the School System deprived the
Deals of a meaningful opportunity to
participate, the predetermination amounts to
denial of a FAPE for Zachary. The Court
accordingly REVERSES the district court's
decision on this basis.
[Court also addresses failure to have
regular educator at meeting and a variety of
substantive issues as well]

4. Reimbursement
The ALJ awarded the Deals
reimbursement for their home-based ABA
program and for "related services," such as
physical, speech, and occupational therapy.
The ALJ found that the 1999-2000 IEP did
not offer an education in the least restrictive
environment, and that the parents' placement
at the Primrose School did. He refused,
however, to award the Deals reimbursement
for that placement because they failed to
give the School System the statutorily
required notice. The district court reversed
the ALJ's decision insofar as it required the
School System to reimburse the Deals for
any of the costs incurred by them in

providing any educational services to


Zachary. It affirmed the ALJ's decision to
the extent that the decision denied
reimbursement for other costs. [18]
Page 866
Once an IDEA violation is found, the
court is authorized to "grant such relief as
the court determines is appropriate." 20
U.S.C. 1415(i) (2) (B) (iii). Parents are
entitled to retroactive reimbursement if the
school district failed to provide the student
with a FAPE and if the private placement
chosen by the parents was reasonably
calculated to enable the child to receive
educational benefits. Florence County, 510
U.S. at 11-16, 114 S.Ct. 361; Knable ex rel.
Knable v. Bexley City Sch. Dist., 238 F.3d
755, 763 (6th Cir. 2001). " '[E]quitable
considerations are relevant in fashioning
relief,' and the court enjoys 'broad discretion'
in so doing." Florence County, 510 U.S. at
16, 114 S.Ct. 361 (quoting Sch. Comm. of
the Town of Burlington v. Dep't of Educ.,
471 U.S. 359, 374, 369, 105 S.Ct. 1996, 85
L.Ed.2d 385 (1985)); seeKnable, 238 F.3d at
771 ("[I]t is the district court's role in the
first instance to weigh the equities in this
case to determine the appropriate level of
reimbursement to be awarded.").
Here, the Deals are entitled to
reimbursement. The School System
deprived Zachary of a FAPE by
predetermining his placement and by failing
to ensure the attendance of regular education
teachers at certain IEP meetings.
Furthermore, the district court has the
opportunity, on remand, to find an
additional, substantive, IDEA violation by
the School System. The private educational
services provided by the Deals clearly were
proper under the IDEA. SeeFlorence
County, 510 U.S. at 11-16; Knable, 238 F.3d
at 770-71. The district court's task on
remand thus is to determine the level of
reimbursement that is "appropriate" in light
of the IDEA's purpose. Burlington, 471 U.S.
at 369, 105 S.Ct. 1996; seeFlorence County,
510 U.S. at 16, 114 S.Ct. 361 (stating that
the district court "must consider all relevant
factors, including the appropriate and
reasonable level of reimbursement that

44

should be required"). For the reasons


previously stated, the district court's
reimbursement decision is REVERSED, and
the case is REMANDED for the court to
weigh the equities and determine the
appropriate level of reimbursement.
.
IV. CONCLUSION
For the foregoing reasons, the Court
AFFIRMS the district court's decisions on
the additional evidence and judicial notice
issues. The Court REVERSES the district
court's determinations regarding procedural
and substantive violations of the IDEA, as
well as reimbursement relating to those
violations. Because Plaintiffs-Appellants are
now the prevailing parties, the issue of costs
is MOOT. This case is REMANDED for
further proceedings in accordance with this
opinion.
--------Notes:
[*] The Honorable Algenon L. Marbley,
United States District Judge for the Southern
District of Ohio, sitting by designation.
[1] Zachary has been diagnosed with autism
spectrum disorder, hereinafter referred to as
"autism":
"Autism" means a developmental disability,
which significantly affects verbal and
nonverbal communication and social
interaction, generally evident before age
three (3), that adversely affects a child's
educational
performance.
Other
characteristics often associated with autism
are engagement in repetitive activities and
stereotyped movements, resistance to
environmental change or change in daily
routines, and unusual responses to sensory
experiences.
TN Bd. Educ. R. 0520-1-9-.01(15) (a).
Zachary
exhibits
certain
of
the
characteristics associated with autism,
including deficits in communication and
social interaction.
[2] Dr. Lovaas, in his seminal research
conducted in the 1980s on methodologies
for teaching autistic children, achieved
extraordinary results. Virtually all students
in his study group showed significant
improvement, and his best outcome students

exhibited dramatic gains in IQ and in their


ability to function within a regular
educational setting. A follow up study
published in 1993 found that 47% of the
students who had received Dr. Lovaas's
intervention
went
on
to
become
"indistinguishable" in their regular education
classrooms. he ALJ found that Lovaas style
interventions of ten hours per week or less
have no effect.
[3] The School System informed the Deals
that several teaching methodologies would
be utilized for Zachary, including discrete
trial teaching, incidental teaching, activitybased learning, and structured teaching.
[4] The ALJ concluded that the School
System's refusal to offer Lovaas style ABA
was based largely on cost considerations.
Indeed, the School System had never funded
an intensive Lovaas style ABA program,
despite the dramatic difference in results
between such a program and the standard
School System program: under the strongest
evidence offered by the School System, only
14% of autistic children receiving only the
School System program went on to become
"indistinguishable" from the children in
regular education classrooms. School
System representatives even acknowledged
the effectiveness of Zachary's ABA
program: one representative told the Deals
that there were things she wished she could
recommend for Zachary but then she would
have to give them to everyone. The ALJ
found that the School System should, at the
very least, have informed the Deals about
the Lovaas style of ABA and explained why
it would recommend against such a
program.
[5] The School System methodology,
described as an "eclectic" approach,
involved the use of various components
from other methodologies, primarily
Treatment and Education of Autistic and
Related
Communication
Handicapped
Children ("TEACCH"). In his factual
findings, the ALJ found TEACCH to be "a
cradle to grave support system based on the
assumption that the core clinical problems in
autism are lifelong." The ALJ found
TEACCH, a less expensive program than

45

Lovaas style ABA, to be "a humane and


effective methodology for addressing the
needs of older autistic children and younger
autistic children who have not shown or who
are incapable of making the progress and IQ
gains demonstrated by Lovaas style ABA."
The ALJ credited the expert testimony of
Dr. James A. Mulick, who stated that, out of
almost 2,000 autistic children he had
evaluated, the only ones he had seen who
had become "indistinguishable" in a regular
education setting were those who received
intensive Lovaas style ABA.
[6] The ALJ described the "remarkable"
progress that Zachary had achieved through
the Lovaas style ABA and found that the
continuation of such a program was
appropriate because any other methodology
would actually retard his education or
development.
[7] Plaintiffs-Appellants cite to Knable,
where this Court upheld a district court's
refusal to allow into evidence the deposition
testimony of a psychologist in part because
the testimony was developed after the
administrative hearing. Knable, 238 F.3d at
771-72. What Plaintiffs-Appellants do not
mention is that the district court in Knable
had also found the proffered testimony to be
duplicative of evidence presented at the
administrative hearing, id. at 771, whereas
here, the district court took pains to avoid
repetitive testimony. Regardless, Knable
does not control this case because the Court
in Knable merely held that the district court
had not abused its discretion. Id. at 772.
[8] A district court could, of course, be
found to have abused its discretion if it
allowed additional evidence "to change the
character [of] the hearing from one of
review to a trial de novo " or if, for example,
one party unfairly reserved its best evidence
for trial. Cook, 915 F.2d at 234-35 (quoting
Burlington, 736 F.2d at 791). There is no
evidence, however, that such was the case
here.
[9] Indeed, Plaintiffs-Appellants are not able
to point to any real reliance by the district
court on the opinions of these experts. Dr.
Rostetter, for example, is mentioned only
once in the district court's opinion.

Plaintiffs-Appellants express particular


concern that the district court relied on and
applied
the
"unprecedented
and
impermissibly low standard" articulated by
Dr. Rostetter. According to the Deals, Dr.
Rostetter urged the district court to assess
the School System's conduct based on
"standards of acceptable practice," i.e., what
other school districts do. There is no
evidence, however, that the district court
utilized any such standard.
[10] Federal Rule of Evidence 201 reads, in
pertinent part, as follows:
(a) Scope of rule. This rule governs only
judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact
must be one not subject to reasonable
dispute in that it is either (1) generally
known within the territorial jurisdiction of
the trial court or (2) capable of accurate and
ready determination by resort to sources
whose accuracy cannot reasonably be
questioned.
....
(d) When mandatory. A court shall take
judicial notice if requested by a party and
supplied with the necessary information.
Although Rule 201 is phrased in mandatory
language, courts of appeals review a district
court's refusal to take judicial notice for
abuse of discretion. Toth v. Grand Trunk
R.R., 306 F.3d 335, 349 (6th Cir. 2002).
[11] The term "free appropriate public
education" is defined in the IDEA as
follows:
The term "free appropriate public education"
means special education and related services
that-(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(B) meet the standards of the State
educational agency;
(C) include an appropriate preschool,
elementary, or secondary school education
in the State involved; and
(D) are provided in conformity with the
individualized education program required
under section 1414(d) of this title.
20 U.S.C. 1401(8). According to the
Supreme Court, a FAPE "consists of

46

educational instruction specially designed to


meet the unique needs of the handicapped
child, supported by such services as are
necessary to permit the child 'to benefit'
from the instruction." Bd. of Educ. of the
Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 188-89, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982).
[12] The Deals point to two additional
pieces of evidence that they claim support a
finding of predetermination. First, Donna
Palmer, a School System psychologist,
testified at the administrative hearing
regarding her familiarity with a publication
entitled, "How to Avoid Parents' Demands
for Lovaas." Second, a letter from the
School System's counsel regarding, inter
alia, the representation in the Deals'
administrative hearing stated, "I previously
briefed the Board in executive session
regarding this litigation and its importance
to the system and received its backing in our
proposal to defend this litigation
vigorously." The Deals contend that this
statement is compelling evidence that the
School System is being driven by its fear of
this case setting a precedent that will require

it to provide similar ABA services to other


autistic children.
[13] As discussed in depth by the ALJ, the
Deals' preference for the CARD program
over the School System program was not the
result of a mere dispute over educational
methodology but, rather, was based on
extensive data regarding Zachary's progress
under the CARD program. Zachary
exhibited significant IQ gains, as well as
practical improvement in daily tasks. One of
the School System's experts, Dr. Taubman,
testified before the district court that after
reviewing numerous boxes of data on
Zachary's progress, he was unable to point
to a single error or inaccuracy.
.
[18] Plaintiffs-Appellants do not seek relief
from this Court on the basis of the district
court's
denial
of
related
services
reimbursement, so the Court need not reach
that issue. The Court also need not analyze
the LRE issue since, even if the Court were
to find that the 1999-2000 IEP violated the
LRE requirement, there would be no basis
upon which to reverse the ALJ's
determination regarding the statutory notice.
---------

47

educationally handicapped under the state


and federal statutes, thereby entitling him to
special education and related services. The
school district heard testimony from Dr.
Robert Mackey, Timothy's pediatrician and
Medical Consultant for SSI (Supplemental
Security Income Program), to the effect that
Timothy was severely handicapped. Dr.
Mackey recommended the establishment of
an educational program for Timothy, which
emphasized
physical
therapy
and
stimulation. Reports by Susan Curtis, M.S.,
and Mary Bamford, O.T.R., an occupational
therapist, also recommended an educational
program consisting of occupational therapy
and increasing Timothy's responses to his
environment. Testimony of Timothy's
mother indicated that he responded to
sounds. Carrie Foss, director of the
Rochester Child Development Center,
testified that Timothy localized sound,
responded to his name, and responded to his
mother. On the other hand, Dr. Alan
Rozycki, a pediatrician at the Hitchcock
Medical Center, reported that Timothy had
no educational potential, and Dr. Patricia
Andrews, a developmental pediatrician,
stated that hydrocephalus had destroyed part
of Timothy's brain. The school district
adjourned without making a finding. In a
meeting on March 7, 1980, the school
district decided that Timothy was not
educationally handicapped--that since his
handicap was so severe he was not "capable
of benefitting" from an education, and
therefore was not entitled to one. During
1981 and 1982, the school district did not
provide Timothy with any educational
program.
In May, 1982, the New Hampshire
Department of Education reviewed the
Rochester
School
District's
special
education programs and made a finding of
non-compliance, stating that the school
district was not allowed to use "capable of
benefitting" as a criterion for eligibility. No
action was taken in response to this finding
until one year later, on June 20, 1983, when
the school district met to discuss Timothy's

Page 954
875 F.2d 954 (1st Cir. 1989)
TIMOTHY W., etc., Plaintiff, Appellant,
v.
ROCHESTER, NEW HAMPSHIRE,
SCHOOL
DISTRICT,
Defendant,
Appellee.
No. 88-1847.
United States Court of Appeals, First
Circuit
May 24, 1989
Heard Feb. 7, 1989.
As Amended May 31, 1989.
Page 955
Before BOWNES, ALDRICH, and
BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Plaintiff-appellant Timothy W. appeals
an order of the district court which held that
under the Education for All Handicapped
Children Act, a handicapped child is not
eligible for special education if he cannot
benefit from that education, and that
Timothy W., a severely retarded and
multiply handicapped child was not eligible
under that standard. We reverse.
I. BACKGROUND
Timothy W. was born two months
prematurely on December 8, 1975 with
severe respiratory problems, and shortly
thereafter experienced an intracranial
hemorrhage,
Page 956
subdural effusions, seizures, hydrocephalus,
and meningitis. As a result, Timothy is
multiply handicapped and profoundly
mentally retarded. He suffers from complex
developmental
disabilities,
spastic
quadriplegia, cerebral palsy, seizure disorder
and cortical blindness. His mother attempted
to obtain appropriate services for him, and
while he did receive some services from the
Rochester Child Development Center, he did
not receive any educational program from
the Rochester School District when he
became of school age.
On February 19, 1980, the Rochester
School District convened a meeting to
decide if Timothy was considered

48

case. Ruth Keans, from the Rochester Child


Development Center, reported that Timothy
responded to bells and his mother's voice,
and recommended frequent handling and
positioning. Brenda Clough, Program
Director
at
the
Rochester
Child
Development Center, also concluded that
Timothy could respond to positioning and
handling, and recommended a physical
therapy program that included a tactile
component. The school district, however,
continued its refusal to provide Timothy
with any educational program or services.
In response to a letter from Timothy's
attorney, on January 17, 1984, the school
district's placement team met. In addition to
the previously listed reports, it had available
a report from Lynn Miller, an expert in
physical therapy for handicapped children,
who had seen Timothy seven times, and
concluded that he responded to motion and
handling and enjoyed loud music. She
determined that his educational needs
included
postural
drainage,
motion
exercises, sensory stimulation, positioning,
and stimulation of head control. The
placement team recommended that Timothy
be placed at the Child Development Center
so that he could be provided with a special
education program. The Rochester School
Board, [1] however, refused to authorize the
placement team's recommendation to
provide educational services for Timothy,
contending that it still needed more
information. The school district's request to
have Timothy be given a neurological
evaluation, including a CAT Scan, was
refused by his mother.
Page 957
On April 24, 1984, Timothy filed a
complaint with the New Hampshire
Department of Education requesting that he
be placed in an educational program
immediately. On October 9, 1984, the
Department of Education issued an order
requiring the school district to place him,
within five days, in an educational program,
until the appeals process on the issue of
whether Timothy was educationally
handicapped was completed. The school
district, however, refused to make any such

educational placement. On October 31,


1984, the school district filed an appeal of
the order. There was also a meeting on
November 8, 1984, in which the Rochester
School Board reviewed Timothy's case and
concluded he was not eligible for special
education.
On November 17, 1984, Timothy filed
a complaint in the United States District
Court, pursuant to 42 U.S.C. Sec. 1983,
alleging that his rights under the Education
for All Handicapped Children Act (20
U.S.C. Sec. 1400 et seq.), the corresponding
New Hampshire state law (RSA 186-C),
Sec. 504 of the Rehabilitation Act of 1973
(29 U.S.C. Sec. 794), and the equal
protection and due process clauses of the
United States and New Hampshire
Constitutions, had been violated by the
Rochester School District. The complaint
sought
preliminary
and
permanent
injunctions directing the school district to
provide him with special education, and
$175,000 in damages.
A hearing was held in the district court
on December 21, 1984. Timothy's mother
testified that he hears somewhat, sees bright
light, smiles when happy, cries when sad,
listens to television and music, and responds
to touching and talking. Lynn Miller, who
had been providing physical therapy to
Timothy for over a year, testified that
Timothy responded to movement, touch,
music, and other sounds, and that his
educational needs included postural
drainage, range of motion, sensory
stimulation of all kinds, correct positioning,
proper sitting equipment, and work with his
head control. Mariane Riggio, an expert in
services for severely handicapped deaf-blind
children, testified that Timothy was severely
retarded but that he had definite light
perception and could differentiate between
sounds. She concluded that Timothy would
be harmed if he was not given the benefit of
an educational program. Dr. William
Schofield, an expert in special education for
the severely handicapped, testified that he
had evaluated Timothy and that his
educational needs included occupational
therapy, development of some kind of

49

communication program, a toileting


program, a feeding program, and tactile
stimulation discrimination which might be
the basis for a communication process. Dr.
Patricia
Andrews,
a
developmental
pediatrician, was the only person who
testified that Timothy did not have
educational needs and could not benefit
from education. Her only contact with
Timothy had been during an evaluation
when he was two months old. While she
testified that Timothy was profoundly
mentally retarded and that an X-ray study of
his brain showed he had virtually no cortex
present, she also stated that such a study
alone could not predict how much
functioning was going to develop. On
January 3, 1985, the district court denied
Timothy's motion for a preliminary
injunction, and on January 8, stated it would
abstain on the damage claim pending
exhaustion of the state administrative
procedures.
On December 7, 1984, the State
Commissioner of Education had ordered a
diagnostic
prescriptive
program
for
Timothy: that he receive three hours of
tutoring per week and that an evaluation be
made concerning his capacity to benefit.
Timothy's attorney, not the school district,
made the necessary arrangements, and
Timothy entered the school district's ABLE
[2] program in May, 1985. The ABLE
reports on Timothy indicate that he is
handicapped, has educational needs, and
would benefit from an educational program.
An Evaluation Summary prepared on
August 2, 1985 by Susan Keefe, a teacher
who worked with Timothy in the ABLE
program, concluded that he demonstrated
abilities in visual development (could see
shadows), auditory development (recognizes
familiar voices, responds
Page 958
with smiles, extension of limbs, and turns
head), tactile development (responds to
stimulation), cognition communication,
language (uses different facial expressions
to show emotions), and social development
(resists changes in his immediate
environment). Keefe noted that Timothy had

made particular progress in learning to move


his head towards a person speaking his name
and in learning to activate a switch.
Subsequently, Timothy was allowed to
attend the ABLE program intermittently:
from October 29, 1985 to November 18,
1985, from December 2 to December 22,
1985, and from May 8, 1986 through June 3,
1986. Keefe reiterated her previous
recommendation
of
a
long-term
uninterrupted program.
In September, 1986, Timothy again
requested a special education program. In
October, 1986, the school district continued
to refuse to provide him with such a
program, claiming it still needed more
information. Various evaluations were done
at the behest of the school district. On
December 30, 1985, Dr. Cecilia Pinto-Lord,
a neurologist, had given Timothy a negative
prognosis for learning, but did indicate he
had some awareness of his environment; on
October 10, 1986, Dr. Pinto-Lord stated that
acquisition of new skills by Timothy was
very unlikely. On May 19, 1986, MaryMargaret
Windsor,
an
occupational
therapist, conducted an occupational therapy
evaluation and concluded that Timothy
might respond to an oral-motor program,
and that without consistent management
strategies there was great potential for
increased deformities and contractures (a
condition of fixed high resistance to passive
stretch of a muscle). A psychological
evaluation conducted by Dr. John Morse, a
psychologist, on June 23, 1986, concluded
that Timothy demonstrates behavioral
awareness of strangers, recognizes familiar
voices, positively responds to handling by a
familiar person, recognizes familiar sounds,
and demonstrates a selective response to
sound. He recommended physical and
occupational therapy, and cognitive
programming efforts to continue in the areas
of consistently responding to sound,
anticipating feeding, and operating an
electronic device to operate a sound source.
And on January 9, 1987, Ruth Keans, a
physical therapist at the Child Development
Center, performed a physical therapy
evaluation and concluded that she did not

50

see any voluntary movements, but that


Timothy did respond to his mother's voice.
She recommended physical therapy.
The school district, on January 12,
1987, arranged another diagnostic placement
at the Rochester Child Development Center.
A report of March 13, 1987 by Dr.
Schofield, an expert in special education for
the severely handicapped, indicated that
Timothy was aware of his environment,
could locate to different sounds made by a
busy box, and that he attempted to reach for
the box himself. He recommended the
establishment of specific teaching/learning
strategies for Timothy. On June 23, 1987,
Rose Bradder, Program Coordinator at the
Center, also recommended that Timothy
continue to receive educational services.
Experts in the field of special education
retained on behalf of Timothy all concluded
that he responded to certain stimuli and was
capable of learning. For example, Dr. Robert
Kugel, a physician specializing in
developmental disabilities, found that
Timothy responded to light, familiar voices,
touch, taste, smell, pain, and temperature,
that he made purposeful movements with his
head, and that he showed evidence of
retaining some higher cortical functioning
which indicated that he could learn in
certain areas.
On May 20, 1987, the district court
found that Timothy had not exhausted his
state administrative remedies before the
New Hampshire Department of Education,
and precluded pretrial discovery until this
had been done. On September 15, 1987, the
hearing officer in the administrative
hearings ruled that Timothy's capacity to
benefit was not a legally permissible
standard for determining his eligibility to
receive a public education, and that the
Rochester School District must provide him
with an education. The Rochester School
District, on November 12, 1987, appealed
this decision to the United States District
Court by filing a counterclaim, and on
March 29,
Page 959

1988, moved for summary judgment.


Timothy filed a cross motion for summary
judgment.
Hearings were held on June 16 and 27,
1988, pursuant to Fed.R.Civ.P. 65(a)(2),
relating "solely to the issue of whether or
not Timothy W. qualifie[d] as an
educationally handicapped individual." In
addition to the large record containing the
reports
described
above,
additional
testimony was obtained from various
experts.
Timothy's
experts,
Kathy
Schwaninger, consultant to United Cerebral
Palsy, and Rose Bradder, Program
Coordinator at the Child Development
Center, testified that Timothy would benefit
from a special educational program
including physical and occupational therapy,
with emphasis on functional skills. The
school district presented Carrie Foss,
Executive
Director
of
the
Child
Development Center, who disagreed with
her own staff and testified that Timothy had
shown no progress. The district court relied
heavily on another school district witness,
Dr. Patricia Andrews, a developmental
pediatrician, who testified that Timothy
probably does not have the capacity to learn
educational skills and activities. She also
testified: that she was not an expert in the
education of handicapped children; that her
only contact with Timothy was when he was
two months old; that he might have the
capacity to respond to his environment and
change in some ways; that the X-ray bubble
test performed on Timothy in 1976, which
she was using as a basis for concluding that
Timothy had virtually no brain cortex and
therefore no capacity to learn, was not the
most sophisticated and accurate technology
currently available; and that even a CAT
scan could not predict Timothy's ability to
learn.
On July 15, 1988, the district court
rendered its opinion entitled "Order on
Motion for Judgment on the Pleadings or in
the Alternative, Summary Judgment." The
record shows that the court had before it all
the materials and reports submitted in the
course of the administrative hearings, and
the testimony from the two-day hearing. The

51

court made rulings of law and findings of


fact. It first ruled that "under EAHCA [the
Education for All Handicapped Children
Act], an initial determination as to the
child's ability to benefit from special
education, must be made in order for a
handicapped child to qualify for education
under the Act." After noting that the New
Hampshire statute (RSA 186-C) was
intended to implement the EAHCA, the
court held: "Under New Hampshire law, an
initial decision must be made concerning the
ability of a handicapped child to benefit
from special education before an entitlement
to the education can exist." The court then
reviewed the materials, reports and
testimony and found that "Timothy W. is not
capable of benefitting from special
education.... As a result, the defendant
[school district] is not obligated to provide
special education under either EAHCA [the
federal statute] or RSA 186-C [the New
Hampshire statute]." Timothy W. has
appealed this order. Neither party objected
to the procedure followed by the court.
The primary issue is whether the
district court erred in its rulings of law.
Since we find that it did, we do not review
its findings of fact.
II. THE LANGUAGE OF THE ACT
A. The Plain Meaning of the Act Mandates a
Public Education for All Handicapped
Children
The Education for All Handicapped
Children Act, [hereinafter the Act], 20
U.S.C. Secs. 1400 et seq., was enacted in
1975 to ensure that handicapped children
receive an education which is appropriate to
their unique needs. In assessing the plain
meaning of the Act, we first look to its title:
The Education for All Handicapped
Children Act. (Emphasis added). The
Congressional Findings section of the Act
states that there were eight million
handicapped children, that more than half of
them did not receive appropriate educational
services, and that one million were excluded
entirely from the public school system. 20
U.S.C. Sec. 1400(b)(1), (3), and (4). Given
these grim statistics, Congress concluded
that "State and local educational agencies

have a responsibility to provide education


for all
Page 960
handicapped children...." 20 U.S.C. Sec.
1400(b)(8) (emphasis added). In directly
addressing the educability of handicapped
children,
Congress
found
that
"developments in the training of teachers
and in diagnostic and instructional
procedures and methods have advanced to
the point that, given appropriate funding,
State and local educational agencies can and
will provide effective special education and
related services to meet the needs of
handicapped children." 20 U.S.C. Sec.
1400(b)(7) (emphasis added). The Act's
stated purpose was "to assure that all
handicapped children have available to them
... a free appropriate public education which
emphasizes special education and related
services designed to meet their unique
needs, ... [and] to assist states and localities
to provide for the education of all
handicapped children ..." 20 U.S.C. Sec.
1400(c) (emphasis added).
The Act's mandatory provisions require
that for a state to qualify for financial
assistance, it must have "in effect a policy
that assures all handicapped children the
right to a free appropriate education." 20
U.S.C. Sec. 1412(1) (emphasis added). The
state must "set forth in detail the policies
and procedures which the State will
undertake ... to assure that--there is
established a goal of providing full
educational opportunity to all handicapped
children ..., [and that] a free appropriate
public education will be available for all
handicapped children between the ages of
three and eighteen ... not later than
September 1, 1978, and for all handicapped
children between the ages of three and
twenty-one ... not later than September 1,
1980...." 20 U.S.C. Sec. 1412(2)(A) and (B)
(emphasis added). The state must also assure
that "all children residing in the State who
are handicapped, regardless of the severity
of their handicap, and who are in need of
special education and related services are
identified, located, and evaluated...." 20
U.S.C. Sec. 1412(2)(C) (emphasis added).

52

See also 20 U.S.C. Sec. 1414(a)(1)(A). The


Act further requires a state to:
establish[ ] priorities for providing a free
appropriate public education to all
handicapped children, ... first with respect to
handicapped children who are not receiving
an education, and second with respect to
handicapped children, within each disability,
with the most severe handicaps who are
receiving an inadequate education....
20 U.S.C. Sec. 1412(3) (emphasis
added). See also 20 U.S.C. Sec.
1414(a)(1)(C). Thus, not only are severely
handicapped children not excluded from the
Act, but the most severely handicapped are
actually given priority under the Act.
In addition, the duties of the Secretary
are listed as including the evaluation of "the
effectiveness of State efforts to assure the
free appropriate public education of all
handicapped children" and transmitting "a
report on the progress being made toward
the provision of free appropriate public
education to all handicapped children." 20
U.S.C. Sec. 1418(a) and (c) (emphasis
added). In its discussion of reallocation of
funds, the Act states that "whenever a State
educational agency determines that a local
educational agency is adequately providing
a free appropriate public education to all
handicapped children ... [it] may reallocate
funds...." 20 U.S.C. Sec. 1414(e) (emphasis
added).
The language of the Act could not be
more unequivocal. The statute is permeated
with the words "all handicapped children"
whenever it refers to the target population. It
never speaks of any exceptions for severely
handicapped children. Indeed, as indicated
supra, the Act gives priority to the most
severely handicapped. Nor is there any
language whatsoever which requires as a
prerequisite to being covered by the Act,
that a handicapped child must demonstrate
that he or she will "benefit" from the
educational program. Rather, the Act speaks
of the state's responsibility to design a
special education and related services
program that will meet the unique "needs"
of all handicapped children. The language of
the Act in its entirety makes clear that a

"zero-reject" policy is at the core of the Act,


and that no child, regardless of the severity
of his or her handicap, is to ever again be
subjected to the deplorable state of affairs
which existed at the time of the Act's
passage, in
Page 961
which millions of handicapped children
received inadequate education or none at all.
In summary, the Act mandates an
appropriate public education for all
handicapped children, regardless of the level
of achievement that such children might
attain.
B. Timothy W.: A Handicapped Child
Entitled to An Appropriate Education
Given that the Act's language mandates
that all handicapped children are entitled to
a free appropriate education, we must next
inquire if Timothy W. is a handicapped
child, and if he is, what constitutes an
appropriate education to meet his unique
needs.
(1) handicapped children:
The implementing regulations define
handicapped children as "being mentally
retarded, hard of hearing, deaf, speech
impaired, visually handicapped, seriously
emotionally
disturbed,
orthopedically
impaired, other health impaired, deaf-blind,
multi-handicapped, or as having specific
learning disabilities, who because of those
impairments need special education and
related services." 34 C.F.R. Sec. 300.5. See
also 20 U.S.C. Sec. 1401(1). "Mentally
retarded" is described as "significantly
subaverage general intellectual functioning
existing concurrently with deficits in
adaptive behavior and manifested during the
developmental period, which adversely
affects a child's educational performance."
34 C.F.R. Sec. 300.5(b)(4). [3] "Multihandicapped" is defined as "concomitant
impairments (such as mentally retarded-blind, mentally retarded--orthopedically
impaired, etc.), the combination of which
causes such severe educational problems
that they cannot be accommodated in special
education programs solely for one of the
impairments." 34 C.F.R. Sec. 300.5(b)(5).
"Orthopedically impaired" means "a severe

53

orthopedic impairment which adversely


affects a child's educational performance"
and "includes impairments caused by
congenital anomaly, ... disease, ... [and]
from other causes (e.g. cerebral palsy, ... )."
34 C.F.R. Sec. 300.5(b)(6). "Specific
learning disability" includes such conditions
as "perceptual handicaps, brain injury,
minimal brain disfunction." 34 C.F.R. Sec.
300.5(b)(9).
There is no question that Timothy W.
fits within the Act's definition of a
handicapped child: he is multiply
handicapped and profoundly mentally
retarded. He has been described as suffering
from severe spasticity, cerebral palsy, brain
damage,
joint
contractures,
cortical
blindness, is not ambulatory, and is
quadriplegic.
(2) appropriate public education:
The Act and the implementing
regulations define a "free appropriate public
education" to mean "special education and
related services which are provided at public
expense ... [and] are provided in conformity
with an individualized education program."
34 C.F.R. Sec. 300.4; 20 U.S.C. Sec.
1401(a)(18).
(a) "Special education " means
"specially designed instruction, at no cost to
the parent, to meet the unique needs of a
handicapped child, including classroom
instruction,
instruction
in
physical
education, home instruction, and instruction
in hospitals and institutions." 34 C.F.R. Sec.
300.14(a)(1); 20 U.S.C. Sec. 1401(a)(16)
(emphasis added). It is of significance that
the Act explicitly provides for education of
children who are so severely handicapped as
to
require
hospitalization
or
institutionalization. Timothy W.'s handicaps
do not require such extreme measures, as he
can be educated at home. The Act goes on to
define "physical education" as the
"development of: physical and motor fitness;
fundamental motor skills and patterns ...
[and] includes special physical education,
adapted physical education, movement
education,
Page 962

and motor development." 34 C.F.R. Sec.


300.14(b)(2). Thus, the Act's concept of
special education is broad, encompassing
not only traditional cognitive skills, but
basic functional skills as well.
(b) "Related services " means
"transportation and such developmental,
corrective, and other supportive services as
are required to assist a handicapped child to
benefit from special education, and includes
speech
pathology
and
audiology,
psychological services, physical and
occupational therapy, recreation...." 34
C.F.R. Sec. 300.13(a); 20 U.S.C. Sec.
1401(a)(17). "Physical therapy" means
"services provided by a qualified physical
therapist." 34 C.F.R. Sec. 300.13(7).
"Occupational
therapy"
includes
"improving, developing or restoring
functions impaired or lost through illness,
injury, or deprivation; improving ability to
perform
tasks
for
independent
functioning...." 34 C.F.R. Sec. 300.13(5).
Furthermore, the "comment" to these
implementing regulations notes that "the list
of related services is not exhaustive and may
include other developmental, corrective, or
supportive services ... if they are required to
assist a handicapped child to benefit from
special education."
(c) An "individualized education
program " is a written plan developed by the
local educational agency in conjunction with
the parents and teacher, which provides
"specially designed instruction to meet the
unique needs" of the handicapped child. 20
U.S.C. Sec. 1401(a)(19). Such a program is
to be periodically reviewed, and if
appropriate, revised. 20 U.S.C. Sec. 1412(4)
and 1414(a)(5).
The record shows that Timothy W. is a
severely handicapped and profoundly
retarded child in need of special education
and related services. Much of the expert
testimony was to the effect that he is aware
of his surrounding environment, makes or
attempts to make purposeful movements,
responds to tactile stimulation, responds to
his mother's voice and touch, recognizes
familiar voices, responds to noises, and parts
his lips when spoon fed. The record contains

54

testimony that Timothy W.'s needs include


sensory stimulation, physical therapy,
improved head control, socialization,
consistency in responding to sound sources,
and partial participation in eating. The
educational consultants who drafted
Timothy's individualized education program
recommended that Timothy's special
education program should include goals and
objectives in the areas of motor control,
communication, socialization, daily living
skills, and recreation. The special education
and related services that have been
recommended to meet Timothy W.'s needs
fit well within the statutory and regulatory
definitions of the Act.
We conclude that the Act's language
dictates the holding that Timothy W. is a
handicapped child who is in need of special
education and related services because of his
handicaps. He must, therefore, according to
the Act, be provided with such an
educational program. There is nothing in the
Act's language which even remotely
supports the district court's conclusion that
"under [the Act], an initial determination as
to a child's ability to benefit from special
education, must be made in order for a
handicapped child to qualify for education
under the Act." The language of the Act is
directly to the contrary: a school district has
a duty to provide an educational program for
every handicapped child in the district,
regardless of the severity of the handicap.
III. LEGISLATIVE HISTORY
An examination of the legislative
history reveals that Congress intended the
Act to provide a public education for all
handicapped children, without exception;
that the most severely handicapped were in
fact to be given priority attention; and that
an educational benefit was neither
guaranteed nor required as a prerequisite for
a child to receive such education. These
factors were central, and were repeated over
and over again, in the more than three years
of congressional hearings and debates,
which culminated in passage of the 1975
Act.
A. Education For All Handicapped Children

The Act was a response to tomes of


testimony and evidence that handicapped
Page 963
children
were
being systematically
excluded from education outright, or were
receiving grossly inadequate education. The
Office of Education provided Congress with
a report documenting that there were eight
million handicapped children, and that more
than four million of them were not receiving
an appropriate education, including almost
two million who were receiving no
education at all. See S.Rep. No. 168, 94th
Cong., 1st Sess. 8 (1975), reprinted in 1975
U.S.Code Cong. & Admin.News, 1425,
1432 [hereinafter Senate Report]; H.R.Rep.
No. 332, 94th Cong., 1st Sess. 11 (1975)
[hereinafter House Report]; codified at 20
U.S.C. Sec. 1400(b)(1)-(4). There were
innumerable individuals, including parents,
teachers, and other professionals, who gave
testimony at the congressional hearings
confirming the exclusion of handicapped
children from educational services. See, e.g.,
Education for all Handicapped Children,
1973-74: Hearings on S6 Before the
Subcomm. on the Handicapped of the
Senate Comm. on Labor and Public Welfare,
93d Cong., 1st Sess. (1973-74) [hereinafter
Senate Hearings].
The record is replete with statements by
legislators that the Act was in response to
this deplorable state of affairs:
Exclusion from school, institutionalization,
the lack of appropriate services to provide
attention to the individual child's need-indeed, the denial of equal rights by a
society which proclaims liberty and justice
for all of its people--are echoes which the
subcommittee has found throughout all of its
hearings....
Senate Hearings at 1155-56 (emphasis
added) (remarks of Sen. Williams,
Committee Chairman, principal author of
bill).
For many years handicapped children have
been placed in institutions, or segregated in
schools and classes, or left to sit at home,
where they have not received the
educational opportunity which is their right
under the law.

55

Senate Hearings at 1153 (emphasis


added) (remarks of Sen. Mondale,
Subcommittee member).
What we are after in this legislation is to
rewrite one of the saddest chapters in
American education, a chapter in which we
were silent while young children were shut
away and condemned to a life without hope.
This legislation offers them hope, hope that
whatever their handicap, they will be given
the chance to develop their abilities as
individuals and to reach out with their peers
for their own personal goals and dreams.
Senate Hearings at 341 (emphasis
added) (remarks of Sen. Kennedy, cosponsor of bill).
Moreover, the legislative history is
unambiguous that the primary purpose of the
Act was to remedy the then current state of
affairs, and provide a public education for
all handicapped children. As the Committee
Chairman, Senator Williams stated:
We must recognize our responsibility to
provide education for all children which
meets their unique needs. The denial of the
right to education and to equal opportunity
within this Nation for handicapped children-whether it be outright exclusion from
school, the failure to provide an education
which meets the needs of a single
handicapped child, or the refusal to
recognize the handicapped child's right to
grow--is a travesty of justice and a denial of
equal protection of the law.
120 Cong.Rec. S15271 (1974).
Most states have legal provisions which
authorize school authorities to exclude
certain [handicapped] children from public
school.... [This] act establishes a target date
of 1976 for bringing all of the Nation's
handicapped
children
into
adequate
programs.
Senate Hearings at 342 (emphasis
added) (remarks of Sen. Brooke, co-sponsor
of bill).
Recent court decisions ... have made it
clearer than ever that we have not only a
moral but also a legal obligation to provide
the opportunity for every handicapped
citizen to insure his or her highest
educational
potential. An important

provision of the bill before us today would


require that every State have in effect a
policy stating the right of all handicapped
children to a "free appropriate public
education".... The bill
Page 964
would also require that each handicapped
child be treated as an individual with unique
strengths and weaknesses, and not as a
member of a category of children all
presumed to have the same needs.
Senate Hearings at 1153-54 (emphasis
added) (remarks of Sen. Mondale,
Subcommittee member). [4] The Senate
Committee recognized "the need for a final
date in legislation by which time all
handicapped children are to be provided a
free appropriate public education," and that
"the failure to provide a right to education to
handicapped children cannot be allowed to
continue." Senate Report at 7, 9 (1975),
1975 U.S.Code Cong. & Admin.News,
1431, 1433. Senator Williams, the principal
author of the statute, described the
Conference Report:
This measure fulfills the promise of the
Constitution that there shall be equality of
education for all people and that
handicapped children no longer will be left
out.... The conference report establishes as a
matter of law ... provisions which will assure
the right to education for all handicapped
children in the United States. It establishes a
process by which the goal of educating all
handicapped can and will be established....
[I]t require[s] an individualized education
program tailored to the unique needs of each
handicapped child.... [It] protects against
handicapped children being excluded from
school by requiring that all such children
aged 3 to 18 be served.... [It] establishes the
State educational agency as solely
responsible for the provision of free
appropriate education to all handicapped
children in the State.... [T]he timetable and
priorities assure that the goals of this act will
be met for each and every handicapped child
within a State.
121 Cong.Rec. S37413-14 (1975)
(emphasis added). [5]

56

B. Priority For The Most Severely


Handicapped
Not only did Congress intend that all
handicapped children be educated, it
expressly indicated its intent that the most
severely handicapped be given priority. This
resolve was reiterated over and over again in
the floor debates and congressional reports,
as well as in the final legislation.
The principal author, Senator Williams,
stated that the bill "assures that handicapped
children in the greatest need will be given
priority by requiring that services be
provided first to those children not receiving
Page 965
an education; and second, to those children
with the most severe handicaps receiving an
inadequate education." 121 Cong.Rec.
S37413 (1975) (emphasis added). [6]
The Senate Committee's report stated:
[T]he Committee has provided that States
shall provide second priority ... to
handicapped children with the most severe
handicaps.... It is the intent of the
Committee that States follow this priority by
providing services to handicapped children
who, within each disability group,
(including the multi-handicapped as a
disability group) have the most severe
handicaps. Priority must be given to multihandicapped children who are the most
severely disabled....
Senate Report at 22 (1975), 1975
U.S.Code Cong. & Admin.News, 1446. See
also id. at 18, 46. The House report also
included such priorities: "In conformance
with the overall goal of ending exclusion ...
[the bill gives] first priority to children
'unserved' [and] second priority to severely
handicapped children." House Report at 12
(1975).
This priority reflected congressional
acceptance of the thesis that early
educational intervention was very important
for severely handicapped children. See, e.g.,
121 Cong.Rec. S19493 (1975) (remarks of
Sen. Williams) ("The Bureau of Education
for the handicapped has documented that,
especially with respect to children who are
most severely handicapped--that is, persons
who are deaf, blind, deaf-blind, severely or

profoundly mentally retarded, severely


physically
handicapped--the
earlier
educational services are provided the greater
the results.").
If the order of the district court denying
Timothy W. the benefits of the Act were to
be implemented, he would be classified by
the Act as in even greater need for receiving
educational services than a severely multihandicapped child receiving inadequate
education. He would be in the highest
priority--as a child who was not receiving
any education at all.
C. Guarantees of Educational Benefit Are
Not A Requirement For Child Eligibility
In mandating a public education for all
handicapped children, Congress explicitly
faced the issue of the possibility of the noneducability
of
the
most
severely
handicapped. The Senate Report stated,
"The Committee recognizes that in many
instances the process of providing special
education and related services to
handicapped children is not guaranteed to
produce any particular outcome." Senate
Report at 11 (1975), 1975 U.S.Code Cong.
& Admin.News, 1435, (emphasis added).
The report continued: "The Committee has
deleted the language of the bill as introduced
which required objective criteria and
evaluation procedures by which to assure
that the short term instructional goals were
met." Id. at 12, 1975 U.S.Code Cong. &
Admin.News, 1436. See also Hendrick
Hudson Bd. of Education v. Rowley, 458
U.S. 176, 192, 102 S.Ct. 3034, 3043, 73
L.Ed.2d 690 (1982) (quoting the Senate
Report as support for its conclusion that the
Act ensures handicapped children access to
a public education, but does not guarantee
any particular level of achievement from
that education).
Thus, the district court's major holding,
that proof of an educational benefit is a
prerequisite before a handicapped child is
entitled to a public education, is specifically
belied, not only by the statutory language,
but by the legislative history as well. We
have not found in the Act's voluminous
legislative history, nor has the school district
directed our attention to, a single affirmative

57

assist states to provide each handicapped


child with his rightful opportunity to an
education." Report of Mr. Perkins to
Accompany H.R. 6692, 95th Cong., 1st
Sess. 5 (1977). The report stressed the need
for continual research to improve and
develop the methodologies for teaching
handicapped children:
The purpose of this provision is to improve
the
educational
opportunities
for
handicapped children through support of
applied research and related activities. The
activities conducted under the research
program provide information on resources
essential to the development of full
educational
opportunities
for
every
handicapped child.
Id. at 10 (emphasis added). The
particular problems of educating the
severely handicapped were acknowledged
and addressed: "The objectives of this
program include the demonstration of
effective educational and training programs,
the long term benefits of providing services
to severely handicapped children, and
building the capacity of state and local
governments to provide quality specialized
services through replication and adaptation
of demonstrated practices." Education of
Handicapped Amendments of 1977, Report
to Accompany S. 725, S.Rep. No. 124, 95th
Cong., 1st Sess. 4 (1977). Congress clearly
understood that educational techniques and
approaches for the severely handicapped
were in a continual state of growth and
readjustment, and that capitalizing on these
refinements was integral for accomplishing
the Act's mandate:
The activities conducted under the research
program provide the information and
resources essential to the development of
full educational opportunities for every
handicapped child.... The research activities
contribute significantly to the total mission
of educating all handicapped children.
Id. at 9 (emphasis added).
Thus, we see that in this amendment,
Congress reiterated the thesis present in the
original Act, that it is the state's
responsibility
Page 967

Page 966
averment to support a benefit/eligibility
requirement. But there is explicit evidence
of a contrary congressional intent, that no
guarantee of any particular educational
outcome is required for a child to be eligible
for public education.
We sum up. In the more than three
years of legislative history leading to
passage of the 1975 Act, covering House
and Senate floor debates, hearings, and
Congressional reports, the Congressional
intention is unequivocal: Public education is
to be provided to all handicapped children,
unconditionally and without exception. It
encompasses a universal right, and is not
predicated upon any type of guarantees that
the child will benefit from the special
education and services before he or she is
considered eligible to receive such
education. Congress explicitly recognized
the particular plight and special needs of the
severely handicapped, and rather than
excluding them from the Act's coverage,
gave them priority status. The district court's
holding is directly contradicted by the Act's
legislative history, as well as the statutory
language.
D. Subsequent Amendments to the Act
In the 14 years since passage of the
Act, it has been amended four times. [7]
Congress thus has had ample opportunity to
clarify any language originally used, or to
make any modifications that it chose.
Congress has not only repeatedly reaffirmed
the original intent of the Act, to educate all
handicapped children regardless of the
severity of their handicap, and to give
priority attention to the most severely
handicapped, it has in fact expanded the
provisions covering the most severely
handicapped children. Most significantly,
Congress has never intimated that a
benefit/eligibility requirement was to be
instituted.
1977:
In 1977, an amendment was proposed
to extend the discretionary programs of the
1975 Act, dealing with research for
educating the handicapped. Congress
reiterated that the goal of the bill was "to

58

to experiment, refine, and improve upon the


educational services it provides to
handicapped children, and not, as the school
district would have it, to exclude
handicapped children if there is no proof
that they can benefit from the existing
program that a state might offer at a
particular time. Congress clearly saw
education for the handicapped as a dynamic
process, in which new methodologies would
be continually perfected, tried, and either
adopted or discarded, so that the state's
educational response to each handicapped
child's particular needs could be better met.
1983:
In the hearings for the 1983
amendments, Congress likewise reaffirmed
the original intent of the 1975 Act:
With the passage of [the Act], Congress
granted to all handicapped children the
"right" to a free appropriate public
education. Prior to the development of this
legislation ... some [handicapped children]
were receiving no educational services at all.
[The Act] is the vehicle through which the
federal government maintains a partnership
with the states and localities to end the
educational neglect of handicapped children.
Oversight Hearings on Proposed
Changes in Regulations for the Education
for All Handicapped Children Act: Hearings
Before the Subcomm. on Select Education
of the Comm. on Education and Labor,
House of Representatives, 97th Cong., 2d
Sess. 8 (1982).
The bill amended the term "special
education" to clarify that services provided
should be designed "to meet the unique
'educational' needs of the handicapped
child," and stated that "it is the intent of the
Committee that the term 'unique educational
needs' be broadly construed to include the
handicapped child's academic, social, health,
emotional, communicative, physical, and
vocational needs." H.R.Rep. No. 410, 98th
Cong., 1st Sess. 19 (1983), reprinted in 1983
U.S.Code Cong. & Admin.News 2088,
2106.
The 1983 amendments, which extended
and strengthened programs authorized under
the 1975 Act, directly addressed the

education of severely handicapped children.


The bill reaffirmed section 624 (dealing with
research,
innovation,
training,
and
dissemination activities in connection with
centers and services for the handicapped) as
"a key component" of the Act, and stated:
"[I]n recognition of the role of section 624
as the principal vehicle since 1978 for
funding projects which serve handicapped
children with the most severe disabilities
(such as the multiple handicapped), the
Committee bill reinforces this focus by
establishing a specific authorization of
appropriation for [this subsection]." Id. at
28, 1983 U.S.Code Cong. & Admin.News,
2115 (emphasis added). The bill also
specifically expanded services for deaf blind
children. Id. at 25-26. As the Senate
Committee's report on the amendments
stated:
This program is designed to assist state and
local educational agencies in improving
education and training to severely
handicapped children and youth, many of
whom require complex, varied and often
times expensive educational services. In
general, this group of children includes
those who are classified as seriously
emotionally disturbed, autistic, profoundly
and severely mentally retarded, and those
with multiple handicapping conditions.
Since 1978, projects have been targeted to
specific areas of national need concerning
the education of the severely handicapped
individuals.
Education of the Handicapped Act
Amendments of 1983: Report of Mr. Hatch
to Accompany S. 1341, Comm. on Labor
and Human Resources, S.Rep. No. 191, 98th
Cong., 1st Sess. 7 (1983).
So once again, Congress reaffirmed its
commitment to provide a public education
for children like Timothy W.
1986:
In the most recent amendments,
Congress again reconfirmed its commitment
to the original Act, and also provided for an
extension of the age groups covered,
mandating that all preschool handicapped
children aged three to five be entitled to

59

public education, and establishing a new


federal
Page 968
education program for handicapped babies
from birth through age two. The Senate
Committee report stated that "the Committee
has provided the impetus for universal
access to services for all handicapped
children beginning at birth." S.Rep. No. 315,
99th Cong., 2d Sess. 3, 5 (1986). See also
H.Rep. No. 860, 99th Cong., 2d Sess.,
reprinted in 1986 U.S.Code Cong. &
Admin.News 2401. Sen. Stafford, cosponsor of the amendments, commented:
We are doing it because we have always
known that all Americans have the right to
equal educational opportunities. Indeed,
over the years court decisions have directed
our attention to the fact that all handicapped
individuals ... [h]ave the right to public
education, regardless of the degree of
disability.... [E]ven the most severely
handicapped child can be made less
dependent through education.
132 Cong.Rec. S7038 (1986) (emphasis
added).
These amendments focused particularly
on the needs of deaf-blind and multiply
handicapped children, extending provisions
for specialized, intensive professional and
allied services, methods and aids that are
found to be most effective. 20 U.S.C. Sec.
1422. The Senate Report stated: "[T]he
majority of the deaf-blind population is
severely and multiply handicapped.... By
retaining current law the Committee
recognizes the continued need for the
resources ... serving deaf-blind children....
[T]hese resources should be made available
to certain severely, multiply handicapped
children." S.Rep. No. 315, 99th Cong., 2d
Sess. 12-13 (1986). Thus, the commitment
to educate the most severely handicapped
was again reconfirmed. As Rep. Miller
concluded in a comment directly pertinent to
the actions of the school district in this case:
What we have seen over the 10 years of this
program is that this law has dramatically
increased the opportunities for the
handicapped to participate.... Time and
again we were told of cases where people

tried to deny that access to go back to the


days that gave them impetus to this
legislation when children who were
handicapped were educated in basements, ...
children were denied education.... This
legislation has overcome that problem.... But
that is not to say that all educational
institutions have accepted it readily and that
they still do not battle and seek the time
when perhaps they can roll this back. So the
extension of this program is an important
signal....
132 Cong.Rec. H7905 (September 22,
1986).
In summary, the Congressional
reaffirmation of its intent to educate all
handicapped children could not be any
clearer. It was unequivocal at the time of
passage of the Act in 1975, and it has been
equally unequivocal during the intervening
years. The school district's attempt in the
instant case to "roll back" the entire thrust of
this legislation completely ignores the
overwhelming congressional consensus on
this issue.
IV. CASE LAW
A. Cases Relied on in the Act
In its deliberations over the Act,
Congress relied heavily on two landmark
cases, Pennsylvania Association for
Retarded Children v. Commonwealth of
Pennsylvania (PARC), 343 F.Supp. 279
(E.D.Pa.1972) and Mills v. Board of
Education of the District of Columbia, 348
F.Supp.
866
(D.D.C.1972),
which
established the principle that exclusion from
public education of any handicapped child is
unconstitutional. See Senate Report at 6-7
(1975), 1975 U.S.Code
Cong. &
Admin.News, 1430, 1431 ("[The Act]
followed a series of landmark court cases
establishing in law the right to education for
all handicapped children.... Since those
initial decisions in 1971 and 1972 and with
similar decisions in 27 states, it is clear
today that this 'right to education' is no
longer in question."); see also House Report
at 3-4 (1975).
The court in PARC articulated the
thesis that:

60

[A]ll mentally retarded persons are capable


of benefitting from a program of education
and training; that the greatest number of
retarded persons, given such education and
training, are capable
Page 969
of achieving self-sufficiency and the
remaining few, with such education and
training are capable of achieving some
degree of self care....
PARC, 343 F.Supp. at 296 (emphasis
added). The Consent Agreement for the
case, approved by the court, concluded that
"Pennsylvania may not deny any mentally
retarded child access to a free public
program of education and training." Id. at
307 (emphasis added). In Mills, the court
held that denying handicapped children a
public education was violative of the
constitutional guarantees of equal protection
and due process. Mills, 348 F.Supp. at 875.
It ordered that the District of Columbia
"shall provide to each child of school age a
free and suitable publicly-supported
education regardless of the degree of the
child's mental, physical or emotional
disability or impairment." Id. at 878
(emphasis added).
B. All Handicapped Children are Entitled to
a Public Education
Subsequent to the enactment of the Act,
the courts have continued to embrace the
principle that all handicapped children are
entitled to a public education, and have
consistently interpreted the Act as
embodying this principle. In Kruelle v. New
Castle County School District, 642 F.2d 687
(3d Cir.1981), the court declared that "[t]he
Education Act embodies a strong federal
policy to provide an appropriate education
for every handicapped child," id. at 690, that
there was an "unequivocal congressional
directive to provide an appropriate education
for all children regardless of the severity of
the handicap, 20 U.S.C. Sec. 1412(2)(C),"
id. at 695, and that "[t]he language and the
legislative history of the Act simply do not
entertain the possibility that some children
may be untrainable." Id. at 695 (emphasis
added). In Gladys J. v. Pearland Independent
School District, 520 F.Supp. 869, 879

(S.D.Tex.1981), it was held that the school


district must provide a residential
educational placement for a severely
retarded,
multiply
handicapped,
schizophrenic child who had "extremely
guarded" prospects, because "[t]he language
and legislative history of [the] Act simply do
not admit of the possibility that some
children may be beyond the reach of our
educational expertise." In Garrity v. Gallen,
522 F.Supp. 171, 215 (D.N.H.1981), aff'd,
697 F.2d 452 (1st Cir.1983), a class action
suit brought by residents of the Laconia
State School against the state, to ensure that
profoundly retarded and multiply physically
handicapped students receive educational
services under the Act, the district court
stated: "plaintiffs succeeded in proving at
trial not only that certain categories of
individuals such as the profoundly retarded
have, as a group, been discriminated against
in the past, but that certain assumptions
about their inability to learn and develop are
inaccurate.... [And] although at one time
[they] were cast aside as 'untrainable,'
[many] have through habilitation learned to
care for themselves...." The court concluded
that "profoundly retarded residents must be
afforded education and training services to
the same extent as mildly retarded residents,
even though the teaching methods might be
different." Id. at 217. In its Order for
Implementation, the court stated "No
member of the aforesaid subclass shall be
denied special education and related services
based on the severity of his/her handicap...."
(emphasis added). And in Battle v.
Commonwealth of Pennsylvania, 629 F.2d
269 (3d Cir.1980), cert. denied, 452 U.S.
968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981),
rather than the court ruling that a severely
and profoundly handicapped child's
seemingly insurmountable handicaps should
preclude him from a public education, the
court ordered the school to provide him an
additional summer program because of the
severity of his disability.
The district court's reliance on
Matthews v. Campbell, 3 EHLR 551:264
(E.D.Va.1979), is misfounded. In ordering
the school district to provide a residential

61

placement for a profoundly mentally


retarded child, the Matthews' court
speculated as to what it might do if the child
proved uneducable even in that setting, but
commented that "[n]either the language of
the Act nor the legislative history appears to
contemplate the possibility that certain
children
Page 970
may simply be untrainable." Id. at 266. The
district court's reliance on Parks v.
Pavkovic, 753 F.2d 1397 (7th Cir.1985), is
also misplaced. In Parks, the court
speculated that in the hypothetical case of a
child in a coma, the state might not have to
pay for the living expenses of such a child
placed in an institution since such a child
would be uneducable and therefore his
living expenses would not be related to
education. Id. at 1405. This dictum is
irrelevant to the instant case. Timothy W.
lives at home, is seeking only educational
services, not institutional placement, is not
in a coma, and does respond to stimuli and
his environment. Moreover, the actual issue
in the Parks case directly dealt with the
question of uneducability for severely
handicapped and retarded children (as
opposed to a hypothetical child in a coma):
With persons as severely retarded as
[plaintiff], the scope for education is
extremely limited, but we do not understand
the state to be arguing that [plaintiff] or the
other members of the class are uneducable.
Nor would such an argument be likely to
succeed (see, e.g., Abrahamson v.
Hershman, 701 F.2d at 228).
Id. at 1406 (emphasis added).
C. Education is Broadly Defined
The courts have also made it clear that
education for the severely handicapped
under the Act is to be broadly defined. In
Battle, 629 F.2d at 275, the court stated that
under the Act, the concept of education is
necessarily broad with respect to severely
and profoundly handicapped children, and
"[w]here basic self help and social skills
such as toilet training, dressing, feeding and
communication
are
lacking,
formal
education begins at that point." See also
Polk v. Central Susquehanna Intermediate

Unit 16, 853 F.2d 171, 176, 183 (3d


Cir.1988) ("the physical therapy itself may
form the core of a severely disabled child's
special education," and the fact that such a
child "may never achieve the goals set in a
traditional classroom does not undermine
the fact that his brand of education (training
in basic life skills) is an essential part of [the
Act's] mandate."); DeLeon v. Susquehanna
Community School District, 747 F.2d 149,
153 (3d Cir.1984) ("[t]he educational
program of a handicapped child, particularly
a severely and profoundly handicapped child
... is very different from that of a nonhandicapped child" and "[t]he program may
consist largely of 'related services' such as
physical, occupational, or speech therapy");
Abrahamson v. Hershman, 701 F.2d 223,
228 (1st Cir.1983) ("Congress established a
priority under the Act for the most severely
retarded children, 20 U.S.C. Sec. 1412(3),
for many of whom, certainly, education will
not consist of classroom training but rather
training in very basic skills"); Kruelle, 642
F.2d at 693 ("the concept of education is
necessarily broad" with respect to severely
or profoundly retarded children); Campbell
v. Talladega County Board of Education,
518 F.Supp. 47, 50 (N.D.Ala.1981) (the
educational programs of children with
severe handicaps consist of teaching them
"functional" skills); North v. District of
Columbia Board of Education, 471 F.Supp.
136, 141 (D.D.C.1979) (in ruling that a
school district must provide residential
placement for the severely handicapped
plaintiff, the court noted that the
educational, social, emotional, and medical
problems were so intimately intertwined, it
could not separate them); School District of
the Menomonie Area v. Rachel W., 19831984 EHLR (Education for the Handicapped
Law Report) DEC. 505:220, 227
(occupational and physical therapy are to be
considered educational services because
education for severely handicapped children
must be viewed broadly to include related
therapies).
In the instant case, the district court's
conclusion that education must be measured
by the acquirement of traditional "cognitive

62

skills" has no basis whatsoever in the 14


years of case law since the passage of the
Act. All other courts have consistently held
that education under the Act encompasses a
wide spectrum of training, and that for the
severely handicapped it may include the
most elemental of life skills.
Page 971
D. Proof of Benefit is Not Required
The district court relied heavily on
Board of Education of Hendrick Hudson
Central School District v. Rowley, 458 U.S.
176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982),
in concluding that as a matter of law a child
is not entitled to a public education unless he
or she can benefit from it. The district court,
however, has misconstrued Rowley. In that
case, the Supreme Court held that a deaf
child, who was an above average student
and was advancing from grade to grade in a
regular public school classroom, and who
was already receiving substantial specialized
instruction and related services, was not
entitled, in addition, to a full time signlanguage interpreter, because she was
already benefitting from the special
education and services she was receiving.
The Court held that the school district was
not required to maximize her educational
achievement. It stated, "if personalized
instruction is being provided with sufficient
supportive services to permit the child to
benefit from the instruction, ... the child is
receiving a 'free appropriate public
education' as defined by the Act," id. at 189,
102 S.Ct. at 3042, and that "certainly the
language of the statute contains no
requirement ... that States maximize the
potential of handicapped children." Id. at
189, 102 S.Ct. at 3042.
Rowley focused on the level of services
and the quality of programs that a state must
provide, not the criteria for access to those
programs. Id. at 207, 102 S.Ct. at 2051. The
Court's use of "benefit" in Rowley was a
substantive limitation placed on the state's
choice of an educational program; it was not
a license for the state to exclude certain
handicapped children. In ruling that a state
was not required to provide the maximum
benefit possible, the Court was not saying

that there must be proof that a child will


benefit before the state is obligated to
provide any education at all. Indeed, the
Court in Rowley explicitly acknowledged
Congress' intent to ensure public education
to all handicapped children without regard to
the level of achievement that they might
attain.
Congress expressly 'recognize[d] that in
many instances the process of providing
special education and related services to
handicapped children is not guaranteed to
produce any particular outcome.' S.Rep., at
11 [1975 U.S.Code Cong. & Admin.News at
1435]. Thus, the intent of the Act was more
to open the door of public education to
handicapped children on appropriate terms
than to guarantee any particular level of
education once inside.
Id. at 192, 102 S.Ct. at 3043 (emphasis
added).
Rowley simply does not lend support to
the district court's finding of a
benefit/eligibility standard in the Act. As the
Court explained, while the Act does not
require a school to maximize a child's
potential for learning, it does provide a
"basic floor of opportunity" for the
handicapped, consisting of "access to
specialized instruction and related services."
Id. at 201, 102 S.Ct. at 3048 (emphasis
added). Nowhere does the Court imply that
such a "floor" contains a trap door for the
severely handicapped. Indeed, Rowley
explicitly states: "[t]he Act requires special
educational services for children 'regardless
of the severity of their handicap,' " id. at 181
n. 5, 102 S.Ct. 3038 n. 5, and "[t]he Act
requires participating States to educate a
wide spectrum of handicapped children,
from the marginally hearing-impaired to the
profoundly retarded and palsied." Id. at 202,
102 S.Ct. at 3048-49. See also Abrahamson,
701 F.2d at 227 ("A school committee is
required by the Act merely to ensure that the
child be placed in a program that provides
opportunity for some educational progress.")
(emphasis added). This is a far cry from a
requirement of proof that educational benefit
will definitely result, before a child is
entitled to receive that education.

63

Two
administrative
decisions
subsequent to the Rowley case are also
instructive. In Contra Costa County
Consortium, 1985-1986 EHLR (Education
for the Handicapped Law Report) DEC.
507:300, 301, the school district argued that
a severely handicapped child with severe
cognitive and motor delays (could not speak,
voluntarily move his arms or legs, or
communicate), was not eligible for special
education services
Page 972
because he could not benefit from such a
program. The hearing officer held that the
child was entitled to the education:
[The Rowley ] court said the intent of the
[Act] was to provide access to special
education for handicapped children without
regard to the level of achievement or success
of the pupil. The court in Rowley further
said that the [Act] provided the "basic floor
of opportunity" for availability to and access
to special education and related services.
The notion that the [Act] intended to open
the door to special education and not to limit
its availability is found at 20 U.S.C. Sec.
1414(a)(1)(A). The Act is shown to require
special education services for children
"regardless of the severity of their
handicap."
Id. at 507:302 (emphasis added). In
School District of the Menomonie Area v.
Rachel W., 1983-1984 EHLR DEC.
505:220, 225, the hearing officer held that
profoundly handicapped children "may not
be excluded from special education
programming solely by virtue of their
inability to demonstrate to the satisfaction of
the [school] district some undefined
quantum of educational benefit resulting
from their exposure to such programming."
The opinion went on to state:
[Rowley ] does not support the position that
access to special education programming
under the EHA is conditioned on the
handicapped child's ability to receive an
educational benefit from the programming.
What is envisioned by the EHA is that the
educational programming and related
services chosen by the schools will be
reasonably calculated to be of some

educational benefit to the child. What is not


envisioned is that the appropriate
educational programming and related
services will result in an educational benefit
being conferred. Special education can no
more ensure good results than can regular
education.
Id. at 225 (emphasis in original).
And most recently, the Supreme Court,
in Honig v. Doe, 484 U.S. 305, 108 S.Ct.
592, 98 L.Ed.2d 686 (1988), has made it
quite clear that it will not rewrite the
language of the Act to include exceptions
which are not there. The Court, relying on
the plain language and legislative history of
the Act, ruled that dangerous and disruptive
disabled children were not excluded from
the requirement of 20 U.S.C. Sec.
1415(e)(3), that a child "shall remain in the
then current educational placement" pending
any proceedings, unless the parents consent
to a change. The Court rejected the
argument that Congress could not possibly
have meant to allow dangerous children to
remain in the classroom. The analogous
holding by the district court in the instant
case--that Congress could not possibly have
meant to "legislate futility," i.e. to educate
children who could not benefit from it--falls
for the reasons stated in Honig. The Court
concluded that the language and legislative
history of the Act was unequivocal in its
mandate to educate all handicapped
children, with no exceptions. The statute
"means what it says," and the Court was
"not at liberty to engraft onto the statute an
exception Congress chose not to create." Id.
108 S.Ct. at 605. As Justice Brennan stated:
"We think it clear ... that Congress very
much meant to strip schools of the unilateral
authority they had traditionally employed to
exclude disabled students ... from school."
Id. 108 S.Ct. at 604 (emphasis in original).
Such a stricture applies with equal force to
the case of Timothy W., where the school is
attempting to employ its unilateral authority
to exclude a disabled student that it deems
"uneducable."
The district court in the instant case, is,
as far as we know, the only court in the 14
years subsequent to passage of the Act, to

64

hold that a handicapped child was not


entitled to a public education under the Act
because he could not benefit from the
education. This holding is contrary to the
language of the Act, its legislative history,
and the case law.
V. CONCLUSION
The statutory language of the Act, its
legislative history, and the case law
construing it, mandate that all handicapped
children, regardless of the severity of their
Page 973
handicap, are entitled to a public education.
The district court erred in requiring a
benefit/eligibility test as a prerequisite to
implicating the Act. School districts cannot
avoid the provisions of the Act by returning
to the practices that were widespread prior
to the Act's passage, and which indeed were
the impetus for the Act's passage, of
unilaterally excluding certain handicapped
children from a public education on the
ground that they are uneducable.
The law explicitly recognizes that
education for the severely handicapped is to
be broadly defined, to include not only
traditional academic skills, but also basic
functional life skills, and that educational
methodologies in these areas are not static,
but are constantly evolving and improving.
It is the school district's responsibility to
avail itself of these new approaches in
providing an education program geared to
each child's individual needs. The only
question for the school district to determine,
in conjunction with the child's parents, is
what
constitutes
an
appropriate
individualized education program (IEP) for
the handicapped child. We emphasize that
the phrase "appropriate individualized
education program" cannot be interpreted, as
the school district has done, to mean "no
educational program."
We agree with the district court that the
Special Education Act of New Hampshire,
N.H. Rev.Stat.Ann. 186-C, implements the
federal statute. Its policy and purpose is as
unequivocal as that of the federal Act:
It is hereby declared to be the policy of the
state that all children in New Hampshire be
provided
with
equal
educational

opportunities. It is the purpose of this


chapter to insure that the state board of
education and the school districts of the state
provide a free and appropriate public
education for all educationally handicapped
children.
N.H.Rev.Stat.Ann. 186-C:1 (emphasis
added). For the reasons already stated, we
hold that the New Hampshire statute is not
subject to a benefit/eligibility test.
The judgment of the district court is
reversed, judgment shall issue for Timothy
W. The case is remanded to the district court
which shall retain jurisdiction until a
suitable individualized education program
(IEP) for Timothy W. is effectuated by the
school district. Timothy W. is entitled to an
interim special educational placement until a
final IEP is developed and agreed upon by
the parties. The district court shall also
determine the question of damages.
Costs are assessed against the school
district.
------------------Notes:
[1]The School Board has the final decisionmaking authority for the school district.
[2]The record does not state whether ABLE
is an acronym or the full name.
[3]It is noteworthy that the regulations make
no distinctions among the four recognized
degrees of mental retardation: mild,
moderate, severe, and profound. See
American
Psychiatric
Association,
Diagnostic and Statistic Manual of Mental
Disorders 39-40 (3d ed. rev. 1987) (children
with profound mental retardation, having
IQ's below 20 and displaying minimal
capacity for sensorimotor functioning, may
improve their motor development, self-care,
and communication skills if appropriate
training is provided).
[4]See also, e.g., statements during the floor
debate on the House Bill: Rep. Cornell (cosponsor of bill): "the purpose of this bill is ...
to assure that all handicapped children have
available to them special educational and
related services designed to meet their
unique needs ... [and] to assist States and
localities to provide for the education of all
handicapped children," 121 Cong.Rec.

65

H25538 (1975); Rep. Quie (ranking


minority member of subcommittee): "we
provide in this legislation that if you [the
States] are going to receive funds by 1978
you have to provide education for all of
those who are handicapped within the
State," id. at H25535. (Emphasis added).
[5]Other floor statements from co-sponsors
and conference committee members
reiterated the same point. For example, Sen.
Schweiker commented: "The purpose of the
pending measure is to ensure that all
handicapped children have available to them
a free appropriate public education," 121
Cong.Rec. S37417 (1975); Sen. Biden:
"there must be an assurance of an effective
policy which guarantees the right of all
handicapped children to a free, appropriate
public education," id. at S37418; Sen.
Cranston: "to assure equal educational
opportunities for all children of this country,
regardless of their physical or mental
abilities," id. at S37418; Sen. Beall:
"establishing education as a right for all
children regardless of any handicap they
may experience," id. at S37419; Rep.
Brademas: "this measure is necessary ... if
we are to insure that all children in the
United States receive the free education to
which they are entitled," 121 Cong.Rec.
H37024 (1975); Rep. Perkins: "the
congressional goal of insuring a full
educational opportunity for all handicapped
children," id. at H37025; Rep. Gude: "all
children regardless of any exceptional
conditions have a constitutional right to
publicly supported education," id. at
H37027; Rep. Ford: "school systems ... must

agree to provide a free, public education to


all handicapped children," id. at H37028;
Rep. Conte: "this legislation ... will prove to
be the long awaited step towards a national
program to 'insure' quality education to all
handicapped Americans who number in the
millions .. and puts education for the
handicapped in its proper perspective--an
'essential' supplementary program due each
and every handicapped American," id. at
H37029. (Emphasis added).
[6]See also, e.g., remarks of Sen. Javits
(conference committee member): "[the bill]
sets forth a priority for the use of Federal
funds for the education of handicapped
children ... the first priority is to children
'unserved,' ... the second priority to children
inadequately served with a priority on the
most severely handicapped children," 121
Cong.Rec. S37417 (1975); Sen. Biden (cosponsor of bill): "[the bill] gives first priority
to 'unserved' handicapped children and then
to children who have been inadequately
served even though they are severely
handicapped," id. at 37418; Rep. Brademas:
"the moneys received ... must be spent first
on providing a public education for
handicapped children not now being served,
and second, on more adequately serving
those
children
who
are
severely
handicapped," 121 Cong.Rec. H37027
(1975).
[7]Pub.L. 95-561, 92 Stat. 2364 (1978);
Pub.L. 98-199, 97 Stat. 1357 (1983); Pub.L.
99-372, 100 Stat. 796 (1986); and Pub.L.
99-457, 100 Stat. 1145 (1986).
-----------------

66

MR. I., AS PARENT AND NEXT FRIEND OF L.I., A MINOR; MRS. I., AS
PARENT AND NEXT FRIEND OF L.I., A MINOR, v. MAINE SCHOOL
ADMINISTRATIVE DISTRICT NO. 55
United States Court of Appeals
For the First Circuit
Nos. 06-1368 and 06-1422
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
Eric R. Herlan with whom Drummond Woodsum & MacMahon, was on brief, for
appellant/cross appellant.
Richard L. O'Meara with whom Amy M. Sneirson, Staci K. Converse and Murray, Plumb
& Murray, were on brief, for appellees/cross-appellees.
Diane C. Smith, on brief for amici curiae Autism Society of Maine, Council of Parent
Advocates and Attorneys, Disability Rights Center, and National Disability Rights Network.
Brendan P. Rielly and Jensen Baird Gardner & Henry, on brief for amici curiae Maine
School Management Association, Maine Education Association, Maine Administrators of
Services for Children with Disabilities, and Maine Principals' Association.
Frank D'Alessandro and Kids Legal at Pine Tree Legal Assistance, on brief for amici
curiae Asperger's Association of New England.
March 5, 2007
HOWARD, Circuit Judge.
This case presents an issue of eligibility for benefits
under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. (Supp. 2006) (the
"IDEA"). We have previously noted that such issues can require a "difficult and sensitive"
analysis. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 162 (1st Cir. 2004) (not reaching the
eligibility question). This case is no exception. The appellant, Maine School Administrative
District No. 55 ("the district"), appeals the district court's determination that the appellees'
daughter ("LI") qualifies as a "child with a disability" eligible for special education and related
services under the IDEA as a result of her Asperger's Syndrome. The appellees ("Mr. and Mrs. I"
or "the parents") cross-appeal the district court's rulings that (1) even though LI was entitled to
IDEA services, her parents were not entitled to reimbursement of their expenses in unilaterally
placing LI in a private school following the district's refusal to provide those services and (2) the
district would not be separately ordered to provide compensatory education services to reverse
the effects of that decision on LI's progress. We affirm the judgment of the district court.
I.

67

We begin with an overview of the statutory framework. The IDEA provides funding to
each state "to assist [it] to provide special education and related services to children with
disabilities," 20 U.S.C. 1411(a)(1), provided that "[a] free appropriate public education is
available to all children with disabilities residing in the state . . . ." Id. 1412(a)(1)(A). In this
sense, a "free appropriate public education" encompasses "special education and related services,"
id. 1401(9), including "specially designed instruction, at no cost to parents, to meet the unique
needs of a child with a disability . . . ." Id. 1401(29). To receive special education and related
services under the IDEA, a child must qualify as a "child with a disability." In relevant part, a
"child with a disability" is a child (i) with mental retardation, hearing impairments (including
deafness), speech or language impairments, visual impairments (including blindness), serious
emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic
impairments, autism, traumatic brain injury, other health impairments, or specific learning
disabilities; and (ii) who, by reason thereof, needs special education and related services. Id.
1401(3)(A). The Secretary of Education has promulgated a regulation defining each of the
categories of disability set forth in 1401(3)(A)(i). Those definitions, so far as they are relevant
here, require that each of the enumerated conditions "adversely affect[] a child's educational
performance" to constitute a disability. 34 C.F.R. 300.8(c)(1)(i) (2006) (autism), (c)(4)(i)
(emotional disturbance), (c)(9)(ii) (other health impairment). [1]
The IDEA places the burden of identifying children with disabilities upon each state. 20
U.S.C. 1412(a)(3)(A). In deciding whether a particular student has a disability under the IDEA,
Maine uses a "pupil evaluation team," or "PET," 05-071-101 Me. Code. R. 9.4 (2006),
consisting of the student's parents, a representative from the school district, and a number of
educational and other professionals. Id. 8.6; see also 20 U.S.C. 1414(d)(1)(B). Though the
members of the PET attempt to achieve consensus on this issue, the school district retains the
"ultimate responsibility to ensure that a student is appropriately evaluated" for IDEA eligibility.
05-071-101 Me. Code. R. 8.11(C).
The parents of a child deemed ineligible for IDEA benefits can challenge that
determination before an impartial hearing officer. 20 U.S.C. 1415(b)(6), (f)(1)(A), (f)(3)(A).
After the hearing, the officer issues a final administrative decision, accompanied by
findings of fact. Id. 1415(h)(4), (i)(1)(A). Any party aggrieved by the decision can then file a
civil action in federal district court. Id. 1415(i)(2)(A). Then the "trial court must make an
independent ruling based on the preponderance of the evidence, but the Act contemplates that the
source of that evidence generally will be the administrative hearing record, with some
supplementation at trial." Town of Burlington v. Dep't of Educ., 736 F.2d 773, 790 (1st Cir.
1984), aff'd sub nom. Sch. Comm. v. Dep't of Educ., 471 U.S. 359 (1986) ("Burlington"); see also
20 U.S.C. 1415(i)(2)(C).
In keeping with this
approach, the district court referred the case to a magistrate
judge for proposed findings and a recommended disposition, see 28 U.S.C. 636(b)(1)(B)
(2006), which were made based on the facts adduced at the due process hearing and supplemental
evidence submitted by the parents. The district court, in the absence of an objection from either
side, accepted the magistrate's proposed findings wholesale. In the continued absence of any
challenge to these factual findings, we take the same tack.
II.
A.

68

LI attended Cornish Elementary School in Cornish, Maine, until 2003. Though she
excelled academically, by the fourth grade she began to experience sadness, anxiety, and
difficulty with peer relationships. These problems persisted into the fifth grade, when LI sought to
distance herself physically from most of her classmates. Her parents sought psychological
counseling for LI and she started taking a prescription anti-depressant. Her grades also dropped
from "high honors" to "honors." As the school year progressed, however, LI became more
successful at interacting with her peers and participating in class.
During the summer recess preceding sixth grade, LI asked her mother, as she had the
previous summer, to allow her to be home-schooled. LI also expressed her desire to attend The
Community School ("TCS"), a private school in South Tamworth, New Hampshire, where her
older sister had matriculated. Nevertheless, LI started the 2003-2004 school year at Cornish,
where Mrs. I believed her daughter would benefit, in particular, from her assigned sixth grade
teacher.
By mid-September, however, LI was "slacking off" in her academic work and regularly
missing school, prompting a meeting between her teacher and Mrs. I. At this meeting, also
attended by LI, Mrs. I noticed cuts or scratches on her daughter's arms; the teacher offered that LI
might have inflicted those wounds on herself during her "lengthy bathroom breaks" from class.
According to the teacher, LI was also having continued trouble relating with her peers due to a
"serious lack of awareness" of their social and emotional states, which bordered on "hostility."
The teacher added that she could not "reach" LI, who had refused to complete assignments and
shown a "passive resistance to meeting learning goals." Yet the teacher considered LI "a very
bright young girl with strong language and math skills . . . capable of powerful insights in her
reading and writing . . . ."
The teacher and Mrs. I came up with a "contract" that would have entitled LI to study
more advanced topics in her areas of interest in November if she satisfactorily completed her
assignments for October. As October approached, however, LI refused to sign the contract and
stayed home from school on both September 30 and October 1. On October 1, following an
argument with Mrs. I over one of LI's academic assignments, LI deliberately ingested excessive
quantities of one her prescription drugs and two over-the-counter medications in a suicide
attempt.
LI spent the balance of the day in the emergency room at a nearby hospital and was
discharged with instructions to remain out of school for two days under high safety precautions.
The hospital social worker also directed Mr. and Mrs. I to "share with [LI] something that would
change in her life, and produce a positive impact on her emotional functioning." Based on LI's
comments to hospital personnel that she hated school, Mr. and Mrs. I told her that she would not
have to return to Cornish Elementary and discussed enrollment at TCS as an alternative.
In the wake of her attempted suicide, LI met with a new counselor, who, suspecting that
LI might suffer from Asperger's Syndrome, referred her to Dr. Ellen Popenoe for
neuropsychological testing. [2]
Mr. and Mrs. I conveyed this information, as well as the news of LI's suicide attempt, to
the district's director of special services, Jim McDevitt. They added that LI would not return to
Cornish Elementary "for the time being" and that they were looking at other options, including
TCS. McDevitt explained the process for seeking reimbursement from the district for placing LI
in a private school and also told the parents that the district planned to convene a pupil evaluation
team for LI at the end of the month. At that meeting, the PET decided that LI should receive up to

69

ten hours of tutoring outside of school each week pending completion of her neuropsychological
testing.
The testing, finished by early November, further suggested that LI had Asperger's
Syndrome, as well as adjustment disorder with depressed mood. [3] Popeneo, the
neuropsychologist, observed that LI "experiences significant limitations in many areas of
adaptive skills" and executive skills, "which likely contribute[s] to her behavioral and emotional
difficulties." [4] These behavioral difficulties, particularly LI's poor pragmatic language abilities
and restricted range of social interests, supported a diagnosis of Asperger's. Popeneo
recommended that LI begin seeing both a social skills coach, who would help her develop social
abilities and judgment, and a therapist familiar with Asperger's, who would use a cognitivebehavioral approach. [5]
Popeneo also recommended that LI undergo a speech- language evaluation, which was
completed in January 2004 by Amber Lambke, a speech-language pathologist. Lambke observed
that LI suffered "significant social understanding deficits which impact her overall emotional and
social well-being." Like Popeneo, Lambke recommended that LI receive direct teaching of social
skills.
In the meantime, McDevitt told Mrs. I that he would attempt to find LI a tutor in
accordance with the PET's decision. Mrs. I had not heard back from him by November 10,
however, so she started home-schooling LI. Despite additional prodding by Mrs. I in November
and December, the district never provided a tutor as ordered by the PET, nor explained its failure
to do so. While LI preferred home-schooling to attending Cornish Elementary, Mrs. I was having
trouble getting LI to complete her assignments, and her counselor believed that LI should resume
formal schooling.
On January 5, 2004, LI began attending TCS. Although she was withdrawn and isolated
at the outset, over time LI developed positive relationships with some of her peers. She also
thrived academically, completing assignments at the seventh- and eighth- grade level with ease.
TCS, however, provided LI with neither the direct teaching of social skills nor the cognitive
behavioral therapy that had been recommended as treatment for her Asperger's.
When the PET reconvened in early March, it accepted Popenoe's conclusion that LI
suffered from both Asperger's and adjustment disorder with depressed mood. The PET also
agreed that LI needed social skills and pragmatic language instruction. The PET, however, could
not reach consensus on whether LI qualified as a "child with a disability" under the IDEA. The
district's representatives argued that LI's condition, whether denominated "autism," "emotional
disturbance," or "other health impairment," 20 U.S.C. 1401(3)(A)(i), had not affected her
academic performance "to a marked degree" or "over a long period of time," which they deemed
essential to IDEA eligibility.
The district then issued a "prior written notice," id. 1415(b)(3), announcing its refusal
to offer special education services on the stated basis of "no significant adverse effect on
education." The district instead asked the PET to consider LI's eligibility for services under the
Rehabilitation Act, 29 U.S.C. 794 (2000).
At its next meeting,
the PET identified LI as a "qualified individual with a disability"
under the Rehabilitation Act, id. 794(a), and recommended an array of services. These included
close supervision throughout the school day; instruction in "social pragmatics"; access to the
district's existing gifted and talented programming as well as additional programming provided

70

through a consultant to be hired by the district; and placement in any elementary school within
the district. The district also offered to supply a tutor to work with LI for three hours each day to
ease her eventual transition back to the classroom.
Mr. and Mrs. I objected to this proposal as inadequate and unduly restrictive, given LI's
success in a classroom environment at TCS and her apprehension over returning to public school.
They wanted LI to remain at TCS for the balance of the academic year with a view toward
beginning her transition back to public school in September 2004, and notified the district that
they intended to seek reimbursement under the IDEA for LI's attendance at TCS. LI completed
the 2003-2004 academic year at TCS, and stayed on for the 2004-2005 and 2005-2006 school
years as well. While she has done well academically, she continues to experience "atypical" peer
relationships and spent the summer of 2004 shunning her TCS classmates in favor of solitary
pursuits. LI also generally refuses to go outdoors or to eat more than a severely limited variety of
foods. Her current social worker believes that, without social skills coaching, LI is unlikely to
master the flexible thinking, problem solving, teamwork, and communication abilities she will
need for employment in the future.
B.
After the final PET decision, Mr. and Mrs. I requested a due process hearing to challenge
the district's refusal to identify LI as a child with a disability under the IDEA. The hearing officer
upheld the district's decision that LI was ineligible for IDEA services. The hearing officer noted
the parties' agreement that LI had Asperger's and a depressive disorder, making her "a troubled
young woman," but further observed that she was not entitled to IDEA benefits unless these
disabilities "'adversely affect[ed]' [her] educational performance."
The hearing officer recognized that both the IDEA and Maine's implementing regulations
define "educational performance" to include more than just academic proficiency, but concluded
that the IDEA does not call for services "to address social and emotional needs when there are no
academic needs." Accordingly, because LI "completes homework independently, is well behaved
in class, is successful at test taking and successfully completes projects," the hearing officer
determined that "neither the [IDEA] nor the Maine Special Education Regulations require a
school district to provide special education services to address what is essentially a mental health
issue."
In response, Mr. and Mrs. I commenced an action in the district court, which, as we have
noted, referred the case to a magistrate judge. [6]
The magistrate judge determined
that the hearing officer erred in treating LI's lack
of academic needs as dispositive of her IDEA eligibility when the correct standard, he believed, is
whether a disability "manifest[s] itself in an adverse effect on the child's ability to learn."
Nevertheless, the magistrate judge ruled that LI did not meet this standard because her condition
did not adversely affect her achievements as measured by any of the criteria Maine uses to define
"educational performance." While the magistrate judge recognized that LI had fallen short of
these benchmarks during the period in the fall of 2003 when she had repeatedly missed school
and attempted suicide, he considered this episode too short-lived "to trigger eligibility for specialeducation services."
The district court, however, rejected the magistrate judge's recommended decision,
concluding that LI's "condition did adversely affect her educational performance as Maine defines
that term and that the events of the fall of 2003 cannot be isolated from [her] underlying

71

condition." 416 F. Supp. 2d 147, 152 (D. Me. 2006). The district court determined that LI's
Asperger's had exerted an adverse effect on her educational performance as measured by state
criteria, most significantly in the areas of socialization and communication. The district court also
disagreed with the view that any downturn in LI's educational performance was too fleeting to
constitute an "adverse effect." Reasoning that neither the Maine regulations defining the
disabilities listed in 1401(3)(A)(i) nor their federal counterparts used any restrictive modifier in
conjunction with the term "adversely affects," the district court ruled that "any negative effect
should be sufficient" to constitute a disability under the IDEA. 416 F. Supp. 2d at 160 (emphasis
added).
Turning to the second prong of the IDEA's eligibility standard, 20 U.S.C.
1401(3)(A)(ii), the district court concluded that LI needed special education and related services
by reason of her disability. First, the district court found that the PET had agreed to provide LI
with a number of accommodations that fit the definition of "special education" under both the
IDEA and Maine law, including one-on-one tutoring and instruction in social pragmatics.
Second, observing that "the PET, the experts, the School District and the parents all initially
believed that [LI] 'needed' the identified services," the district court decided to "hold the parties to
their original understandings" and therefore treated "need" as an uncontested issue. 416 F. Supp.
2d at 167. Based on its determination that LI satisfied both elements of the IDEA eligibility test,
the district court ordered the district "to convene a PET meeting . . . to develop an IEP for [LI]
that meets her unique needs as a student with Asperger's Syndrome and a depressive disorder."
[7] Id. at 168.
The district court also considered the parents' requests for additional relief:
reimbursement of their expenses in unilaterally placing LI at TCS, and compensatory education to
make up for the district's failure to identify her as eligible under the IDEA. Though the district
court found that Mr. and Mrs. I had given the requisite notice of the unilateral placement under
Maine law, the court also ruled that their decision to enroll LI at TCS was not "'reasonably
calculated to enable [her] to receive educational benefits'" so as to entitle them to reimbursement.
416 F. Supp. 2d at 172 (quoting Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510
U.S. 7, 11 (1993) (further internal quotation marks omitted by district court)). Finally, reasoning
that LI's "IEP will necessarily take into account the effect of the school district's failure to identify
and offer [LI] special education services earlier," the district court did not separately grant the
parents' request for compensatory education. Id. at 173.
III.
The district challenges the district court's conclusion that LI qualifies as a "child with a
disability" under the IDEA. While we have never expressly set forth our standard of review for a
district court's decision on IDEA eligibility, we have treated "ultimate determinations in cases
under the Act" as mixed questions of fact and law.
Roland M. v. Concord Sch. Comm., 910
F.2d 983, 990 (1st Cir. 1990); see also Ms. M ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267,
272 (1st Cir. 2004); Kathleen H. v. Mass. Dep't of Educ., 154 F.3d 8, 13 (1st Cir. 1998). We
agree with the parties that whether a student qualifies as "a child with a disability" under
1401(3) also poses a mixed legal and factual inquiry. See J.D. ex rel. J.D. v. Pawlet Sch. Dist.,
224 F.3d 60, 64 (2d Cir. 2000); Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1374 (8th Cir.
1996). Mixed questions generally "fall along a degree-of-deference continuum, ranging from
non-deferential plenary review for law-dominated questions, to deferential review for factdominated questions." In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 4 (1st Cir. 2005). But we
need not decide at the moment where along the continuum the question of IDEA eligibility falls,
as the parties agree that we should review the question for clear error.

72

The district maintains, however, that the district court arrived at its conclusion that LI is
a "child with a disability" only through a series of legal errors. First, the district argues that the
district court misread the terms "adversely affects" and "educational performance" as they appear
in the regulatory definitions of the disabilities attributed to LI, improperly extending the breadth
of 1401(3)(A)(i). Second, the district claims that the district court similarly misinterpreted the
term "special education" as it appears in 1401(3)(A)(ii), the second prong of the test for IDEA
eligibility. The district also challenges the determination that it effectively waived the
opportunity to dispute LI's need for special education. We review these rulings of
law de
novo.
Greenland, 358 F.3d at 156; Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9 (1st Cir.
2002).
A.
1.
Though the IDEA "establishes a basic floor of education" for children with disabilities,
guaranteeing them "[a] free appropriate public education," 20 U.S.C. 1412(a)(1)(A), it does not
displace the states from their traditional role in setting their own educational policy. Burlington,
736 F.2d at 788-89; see also J.D., 224 F.3d at 65; Daniel R.R. v. State Bd. of Educ., 874 F.2d
1036, 1044 (5th Cir. 1989). Each state thus remains free to calibrate its own educational
standards, provided it does not set them below the minimum level prescribed by the statute.
Roland M., 910 F.2d at 987; Burlington, 736 F.2d at 788-89.
As we have seen, the right to special education and related services under the IDEA
extends to children "with" one or more of a variety of disabilities, 20 U.S.C. 1401(3)(A)(i),
"who, by reason thereof, need[] special education and related services." Id. 1401(3)(A)(ii). The
IDEA does not itself define any of the qualifying disabilities listed in 1401(3)(A)(i), though the
Department of Education has issued a regulation fleshing them out. 34 C.F.R. 300.8(c). The
regulatory definitions, with one exception not relevant here, state, among other requirements, that
each condition must "adversely affect[] a child's educational performance." Id. 300.8(c)(1)(c)(13). In keeping with the IDEA's respect for state policy judgments, however, the regulation
does not expand upon this phrase, "leaving it to each State to give substance to these terms."
J.D., 224 F.3d at 65; see also Greenland Sch. Dist. v. Amy N., No. 02-136-JD, 2003 WL 134023,
at *8 (D.N.H. Mar. 19, 2003), aff'd on other grounds, 358 F.3d 150 (1st Cir. 2005).
It is here that the district's argument as to the proper scope of 1401(3)(A) begins to
encounter difficulty. While Maine's Department of Education has promulgated its own regulation
defining the disabilities recognized under the IDEA, those definitions simply ape their federal
counterparts, including the requirement that a disability "adversely affect[] the student's
educational performance." 05-071-101 Me. Code. R. 3.2-3.14 (2006). The regulation, like its
federal cousin, also does not further elaborate on this phrase, although Maine has adopted its own
definition of "educational performance" for IDEA purposes:
The term "educational performance" includes academic areas (reading, math,
communication, etc.), non-academic areas (daily life activities, mobility, etc.),
extracurricular activities, progress in meeting goals established for the general
curriculum, and performance on State-wide and local assessments.
Id. 2.7. Despite this expansive notion of educational performance, and in the absence of any
regulatory guidance as to the term "adversely affects," the district asks us to hold that a child
meets the first criterion of IDEA eligibility in Maine "only if the student's condition imposes a

73

significant negative impact on the child's educational performance . . . limited to those areas of
performance actually being measured and assessed by the local unit, in accordance with law." We
decline to do so.
At the outset, Maine does not look only at "areas of performance actually being measured
and assessed by the local unit" when determining whether a child has a disability under the IDEA.
That much is clear from the regulatory definition of "educational performance" itself, which
counts "performance on state-wide and local assessments" as just one of a number of different
indicators embraced by the concept. As the district points out, the term "general curriculum,"
which also appears in the definition of educational performance, has a narrower meaning under
the regulations, i.e., "the school administrative unit's local curriculum for grades K-12 which
incorporate the content standards and performance indicators of the Learning Results." [8] 05071-101 Me. Code. R. 2.11. Based on this definition, the district argues that "educational
performance" encompasses only those "performance indicators" measured as part of the local
curriculum. [9] Even if the district's reading of "general curriculum" is correct, however, the fact
remains that a student's progress in that regard comprises but one of the aspects of "educational
performance" as defined by the regulation. More far-ranging measurements, such as "academic
areas" and "non-academic areas," are also included.
As the magistrate judge and the district court observed, Maine's broad definition of
"educational performance" squares with the broad purpose behind the IDEA: "to ensure that all
children with disabilities have available to them a free and appropriate public education that
emphasizes special education and related services designed to meet their unique needs and
prepare them for further education, employment, and independent living." 20 U.S.C.
1400(d)(1)(A) (emphases added). We have likewise held that the IDEA entitles qualifying
children to services that "target 'all of [their] special needs,' whether they be academic, physical,
emotional, or social." Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1089 (1st Cir. 1993)
(quoting Burlington, 736 F.2d at 788). It is true that we have also stated that IDEA services need
not address "problems truly 'distinct' from learning problems." Gonzalez v. P.R. Dep't of Educ.,
254 F.3d 350, 352 (1st Cir. 2001); see also Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1st
Cir. 2001) (noting that, in determining adequacy of IEP for emotionally disturbed boy, "[t]he
question is whether [his] behavioral disturbances interfered with the child's ability to learn").
But it does not follow, as the hearing officer wrongly concluded, that a child without
"academic needs" is per se ineligible for IDEA benefits, especially when the state has conditioned
eligibility on a standard that explicitly takes "non-academic areas" into account. See Weixel v. Bd.
of Educ., 287 F.3d 138, 150 (2d Cir. 2002) ("IDEA's coverage is not limited to students with
'learning disabilities' . . . ."). In other words, as the district admits, "educational performance in
Maine is more than just academics." In light of Maine's broad notion of "educational
performance" as the standard of IDEA eligibility, we see no basis for restricting that standard to
"areas of performance actually being measured and assessed by the local unit." Indeed, "there is
nothing in IDEA or its legislative history that supports the conclusion that . . . 'educational
performance' is limited only to performance that is graded." See Robert A. Garda, Jr., Untangling
Eligibility Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev.
441, 471 (2003). To be sure, some states have adopted more circumscribed criteria for identifying
children with disabilities under the IDEA, requiring, for example, that a student perform poorly in
a specific area of "basic skills." See J.D., 224 F.3d at 66 (discussing prior version of 22-000-06
Vt. Code Reg. 2362(a)(2), (f) (2006)). Maine, however, has chosen not to do so. [10] We
therefore decline the district's invitation to reformulate state educational policy by narrowing the
indicia of educational performance used as the test for IDEA eligibility under Maine law. The
district court properly articulated this standard as "whether [LI's] condition adversely affected her

74

performance in any of the educational areas Maine has identified." 416 F. Supp. 2d at 159
(footnote omitted).
The district also argues that the district court misconstrued the "adversely affects"
component of the test to include disabilities with "any adverse effect on educational performance,
however slight . . . ." Id. at 160. The correct formulation, the district urges, requires "some
significant impact on educational performance." In rejecting this proposal, the district court
reasoned that the phrase "adversely affects," as it appears in the relevant regulations, "has no
qualifier such as 'substantial,' 'significant,' or 'marked,'" and declined to infer such a limitation
"from Maine's regulatory silence." Id. We agree with this interpretation of the "adversely affects"
standard.
Though the district marshals a number of arguments in support of its contrary position,
they all sound a common theme: that an unlimited definition of "adversely affects" will qualify
every child with one of the listed disabilities--no matter how minor--for IDEA benefits. This
contention, however, overlooks the structure of the IDEA's eligibility standard, which requires
not only that a child have one of the listed conditions, 1401(3)(A)(i), but also that, "by
reason thereof," the child "needs special education and related services," id. 1401(3)(A)(ii). So
a finding that a child meets the first criterion because his or her disability adversely affects
educational performance--to whatever degree--does not itself entitle the child to special education
and related services under the IDEA. See Mark C. Weber, Special Education Law and Litigation
Treatise 2.2(1), at 2:4 (2d ed.2002); Garda, supra, at 490-91. The child must also need special
education and related services by reason of the disability. [11]
In fact, an adverse effect on educational performance, standing alone, does not even
satisfy the first prong of the eligibility test. The child's condition must also possess the additional
characteristics required by the regulatory definitions of each of the disabilities enumerated in
1401(3)(A)(i). See 34 C.F.R. 300.8(c)(1)-(c)(13); 05-071-101 Me. Code. R. 3.2-3.14. For
example, to meet the first part of the eligibility standard on the basis of autism, a child must have
"[1] a developmental disability [2] significantly affecting [3] verbal and [4] nonverbal
communication and [5] social interaction, [6] generally evident before age three, [7] that
adversely affects a child's educational performance." 34 C.F.R. 300.8(c)(1)(i); 05-071-101 Me.
Code. R. 3.2. Thus, the "adversely affects educational performance" requirement serves as but
one of a list of factors that must be present for a child's condition to qualify as a disability under
1401(3)(A)(i)--and, to receive IDEA benefits, the child must also need special education and
related services by reason of the disability under 1401(3)(A)(ii). The district court's
interpretation of "adversely affects," then, is unlikely to loose the torrent of IDEA claims forecast
by the district and its amici.
The district's specific arguments fare no better. The district contends that 1401(3)(a)(i)
fails to put the states on notice that, as a condition of accepting federal money under the IDEA,
they are required to provide benefits to children whose conditions have merely an "adverse
effect" on their educational performance. It is true that "when Congress attaches conditions to a
State's acceptance of federal funds" pursuant to its Spending Clause authority, "the conditions
must be set out unambiguously" so that each state can intelligently decide whether to take the
money and its accompanying obligations. Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 126
S. Ct. 2455, 2459 (2006) (internal quotation marks omitted). Based on this principle, the
Supreme Court has held that whether the IDEA imposes a particular obligation on the states
depends, at the outset, on whether the IDEA "furnishes clear notice regarding the liability at issue
. . . ." Id.

75

The principal place to look for such notice, of course, is the text of the IDEA itself. Id.
The district asserts that the language of 1401(3)(A)(i) fails to clarify that a state's duty to
provide IDEA benefits extends to children with disabilities having only an adverse effect on
educational performance. In fact, the district argues, the statute--through its use of the term
"disability"--limits that duty to children whose conditions "significantly impact educational
performance." We disagree.
To properly understand "disability" as it appears in the IDEA, we do not, as the district
implores, resort to dictionary definitions of the word "disable," but to 1401(3)(A)(i), which
functions as the first part of the statutory definition of "child with a disability." Section
1401(3)(A)(i), as the district court observed, does not include the qualifying language urged upon
us by the district, but simply defines "child with a disability" as a child "with" one of a number of
specific conditions. [12]
The district also directs us to the more restrictive meaning of the term "disability" under
Title II of the Americans with Disabilities Act and the Rehabilitation Act. Because the IDEA
contains its own definition of the term, however, its appearance in other acts of Congress is of
little moment. See United States v. Meade, 175 F.3d 215, 220-21 (1st Cir. 1999). Putting aside
the difference between the legislative goals of the IDEA and these other acts, then, the IDEA
simply defines "disability" differently than they do. Compare 20 U.S.C. 1401(3)(A) with 29
U.S.C. 705(9)(B) and 42 U.S.C. 12102(2)(A) (defining "disability" as "physical or mental
impairment that substantially limits one or more major life activities"). This clear disparity in
text puts the district's suggestion that we look to those other acts in construing the term
"disability" here on par with comparing "plums and pomegranates." Meade, 175 F.3d at 221.
Given the express definition of "disability" set forth in 1401(3)(A)(i), we need look no
further to conclude that the statute sufficiently articulates the first prong of the standard for IDEA
eligibility and, in so doing, adequately informs the states of the extent of their obligations.
Murphy, 126 S. Ct. at 2463. The district and its amici nevertheless argue that this standard, as
interpreted by the district court, flies in the face of congressional admonishments against
identifying too many students as "children with disabilities" under the IDEA. It is true that, in
amending the Act in 1997, Congress voiced concern about "over identifying children as disabled
when they may not be truly disabled . . . particularly in urban schools with high proportions of
minority students . . . ." H.R. Rep. No. 105-95, at 89 (1997), reprinted in 1997 U.S.C.C.A.N. 78,
86. To remedy this problem, Congress changed the formula for calculating the funds due each
state under the IDEA from one "based on the number of children with disabilities to a formula
based on census and poverty . . . ." Id. at 88, 1997 U.S.C.C.A.N. at 85.
Notably, though, Congress thought this shift--rather than any alteration to the eligibility
criteria--sufficient to address the over-identification problem. Id. at 89, 1997 U.S.C.C.A.N. at 87.
Congress specifically stated, in fact, that the change to the funding formula "should in no way be
construed to modify the obligation of educational agencies to identify and serve students with
disabilities." Id. at 88, 1997 U.S.C.C.A.N. at 85. Congress eschewed any change to the eligibility
standard not only in 1997, but also in 2004, when it amended the IDEA again. Individuals with
Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 602(3)(A), 118 Stat.
2647, 2652, codified at 20 U.S.C. 1401(3)(A). The Department of Education similarly declined,
by and large, to tinker with its definitions of the 1401(3)(A)(i) disabilities when it issued
regulations in response to the amended Act. 71 Fed. Reg. 46,540, 46,549-46,551 (Aug. 14,
2006). Thus, although the district and its amici argue that an over- identification problem
persists, we cannot tighten the standard for IDEA eligibility when Congress itself has chosen not
to do so. [13]

76

The legislative history, then, only strengthens our conviction that 1401(3)(A)(i), as
construed by the district court, does not offend the Spending Clause by springing hidden
liabilities upon participating states. Furthermore, as the district acknowledges, states deciding
whether to enter into the IDEA bargain also have the benefit of the federal regulation defining the
disabilities set forth in 1401(3)(A)(i). Those definitions, again, specifically require that each
disability (save one) "adversely affect[] a child's educational performance." 34 C.F.R.
300.8(c)(1)-(c)(13). They do not contain the limiting language urged by the district, i.e.,
"significantly impacts educational performance."
We reject the district's argument that such a limitation lurks in the term "adversely,"
which the district equates with "calamitously" or "perniciously" on the authority of an unabridged
dictionary. We think it considerably more likely that federal regulators used "adverse" in its
ordinary sense, namely "against." Black's Law Dictionary 58 (8th ed. 2004); see also Webster's
Third New International Dictionary of the English Language (Unabridged) 31 (1993) (giving
primary definition of "adverse" as "acting against or in a contrary direction"). [14] In this way,
the regulation sensibly demands that a disability cannot qualify a child for IDEA benefits unless it
has a negative effect on educational performance; no effect, or a positive one, will not do. [15]
The regulation does not, however, put any quantitative limit, "significant" or otherwise, on the
disability.
Maine's regulation, cribbed from 34 C.F.R. 300.8, also requires no particular degree of
impact on educational performance. 05-071-101 Me. Code. R. 3.2-3.14. This fact alone
distinguishes this case from the decisions of other courts, cited by the district, which derived a
higher standard from state law. See J.D., 224 F.3d at 66-67; Gregory M. ex rel. Ernest M. v. State
Bd. of Educ., 891 F. Supp. 695, 702 (D. Conn. 1995); Doe ex rel. Doe v. Bd. of Educ., 753 F.
Supp. 65, 70 & n.9 (D. Conn. 1990). [16] In J.D., for example, the Second Circuit considered a
Vermont regulation that defined "adverse effect of the disability on educational performance" to
require a determination "that the student is functioning significantly below expected age or grade
norms, in one or more of the basic skills." 224 F.3d at 66 (internal quotation marks omitted).
This provision further required that the "determination of adverse effect, usually defined as 1.0
standard deviation or its equivalent, shall be documented and supported by two or more measures
of school performance," which were themselves specified by the regulation. Id. Based on this
standard, the Second Circuit concluded that the child did not qualify for IDEA benefits because
he was "unable to identify at least two school performance measures that point to an adverse
effect," despite his emotional-behavioral disability. Id. at 67.
The Second Circuit reached its decision in J.D., then, by applying the highly specific
definition of "adversely affects educational performance" set forth in state law, not by imposing
its own gloss on that language, as the district invites us to do here. For the reasons we have stated,
we decline that invitation.
States wishing to put meat on the bones of the "adversely affects" standard
are free
to do so--provided, of course, they do not transgress the "floor" of substantive protection set by
the IDEA. [17] See generally Burlington, 736 F.2d at 788-89. On its own, however, the federal
regulation does not contain the "significant impact" requirement the district desires, and we
cannot put it there. The district court correctly ruled that any negative impact, regardless of
degree, qualifies as an "adverse effect" under the relevant federal and state regulations defining
the disabilities listed in 1401(3)(A)(i).
2.

77

Because the district court applied the right standard, we review its determination that LI
has one of the disabilities included in 1401(3)(A)(i) "for clear error on the record as a whole."
Ms. M., 360 F.3d at 272. We find none. As the hearing officer noted, the parties agree
that LI suffers from Asperger's, manifested in her poor pragmatic language skills and social
understanding difficulties, as well as from a depressive disorder brought on by the stress of
managing these problems; indeed, the district has never questioned the opinions of LI's
neuropsychologist and speech therapist in this regard. The parties disagree, however, on whether
these conditions have adversely affected LI's educational performance in light of her strong
grades, generally nondisruptive classroom behavior, and what the district court called her
"undisputed intellectual ability." 416 F. Supp. 2d at 161. In a lengthy written opinion, the district
court tackled this issue head on, ultimately finding that, despite LI's above-average academic
performance, "many of [her] social and communication deficits, including her isolation,
inflexibility, and self-mutilation during schooltime, are precisely in the content areas and skills
that Maine mandates educationally." Id. at 163. This finding, the district court reasoned,
compelled the conclusion that LI's disability had exerted an adverse effect on her educational
performance under the governing standard.
Much of the district's challenge to this outcome relies on its contention that the district
court applied the "adversely affects educational performance" test too leniently, which we have
already rejected. A few of the district's supplemental points, however, merit additional
discussion. First, the district argues that the district court mistakenly gauged LI's educational
performance on the basis of selected "performance indicators," see 05-071-131 Me. Code R.
1-8, that Maine has developed to measure students' proficiency in various "content standard
subject areas." Me. Rev. Stat. Ann. tit. 20-A, 6209. This was error, the district asserts, because
Maine does not mandate the actual use of the performance indicators by local school districts, but
has simply instructed them to develop their own "local assessment systems." Id. 6202-A.
While we have our doubts about this proposition, see 05-071-127 Me. Code R. 4.02 (requiring
each district to "implement a local assessment system as the measure of student progress on
achievement of the content standards of the system of Learning Results established in" 05-071131 Me. Code R. 1-8), the district court did not assess LI's educational performance solely by
reference to the performance indicators. Our review of the record convinces us that, even if the
district court erred by also using the performance indicators to measure LI's educational
performance, the error did not affect the outcome of its analysis.
In particular, the district court found that LI had difficulty with "communication," an area
of "educational performance" specifically incorporated in Maine's definition of that term for
IDEA purposes. 416 F. Supp. 2d at 162 & n.8 (quoting 05-071-101 Me. Code R. 2.7). The
district disputes this finding, emphasizing certain aspects of both her educators' observations and
the results of the testing conducted by Popeneo and Lambke. The district court, however, focused
on other aspects of those materials, such as the educators' reports of LI's "distancing" herself from
her teachers and peers and, most significantly, the experts' express conclusions that LI had "poor
pragmatic language skills" and "significant social understanding deficits." 416 F. Supp. 2d at
161-63. The district court was by no means required to second-guess these conclusions,
especially after they had been unreservedly accepted by both the districts' representatives at the
PET and the hearing officer. Though the record of the administrative hearing might permit a
different view, the district court did not commit clear error in finding that LI's Asperger's has
impaired her ability to communicate.
Moreover, the district court's ruling that LI had demonstrated an adverse effect on her
educational performance did not rest solely on her deficits in communication, but also on other
difficulties implicating "the career preparation component of the Maine general curriculum." Id.

78

at 162. The district does not question that "career preparation"--which comprises one of the
"content standards" dictated by statute, Me. Rev. Stat. Ann. tit. 20-A, 6209(2)(A), rather than
one of the "performance indicators" established by regulation--is irrelevant to the "educational
performance" inquiry for purposes of the IDEA. Indeed, the IDEA exists, in part, to ensure
children with disabilities receive an education preparing them for employment. 20 U.S.C.
1400(d)(1)(A). Nor does the district question the lower court's specific finding, consistent with
the opinion of LI's current social worker, that a number of LI's symptoms have hindered her in
this area. 416 F. Supp. 2d at 162. This finding was itself an adequate basis for the district's court's
conclusion that LI's educational performance has suffered, even if, as the district argues, her
condition has not impacted her communication skills.
Second, the district argues that the impact of LI's condition on her educational
performance, which it sees as limited to her suicide attempt and the events immediately preceding
it in the fall of 2003, was not sustained enough to constitute an adverse effect. Though the
magistrate judge accepted this point of view, the district court disagreed, treating the suicide
attempt as simply the darkest point in the spectrum of LI's educational difficulties. There is
ample support for this approach in the record. The signs of LI's Asperger's revealed themselves
in the fourth grade, when she began experiencing difficulty with peer relationships, and first
translated into a measurable impact on her schoolwork in the fifth and sixth grades, when her
grades declined. More importantly, there is every indication that these symptoms will persist, to
one degree or another: they have not completely subsided since LI's enrollment at TCS, and both
Popeneo and LI's current social worker believe that continued intervention is essential to LI's
long-term success. In light of this evidence, the district's argument that LI's suicide attempt did
not adversely affect her educational performance is beside the point; as Popeneo explained, the
suicide attempt was but a manifestation of LI's Asperger's and associated depression. The district
court properly treated these disorders, rather than the suicide attempt, as the relevant condition for
assessing the impact of LI's disability upon her educational performance.
Third, the district charges that the district court "committed legal error" by ruling that LI
met the first prong of the standard for IDEA eligibility without assigning her one of the
disabilities listed in 1401(3)(A)(i). As we have pointed out, that a condition "adversely affects
a child's educational performance" functions as just one of the essential elements of each of the
qualifying disabilities as defined in the regulation, so a determination that a child has one of those
disabilities would ordinarily demand a showing as to each of those elements. Here, however, the
district court specifically noted that, while the parties were at odds as to whether LI's condition
adversely affected her educational performance, they were in agreement that her condition
otherwise "fit[] within those enumerated" by 1401(3)(A)(i). 416 F. Supp. 2d at 156. The
district has not questioned this observation. Because the district did not dispute below whether LI
satisfied the additional criteria of any of the relevant disability categories, its argument that the
district court should have chosen from among those categories is forfeit. See, e.g., States Res.
Corp. v. Arch. Team, Inc., 433 F.3d 73, 85 (1st Cir. 2005) ("This circuit religiously follows the
rule that issues not presented to the district court cannot be raised on appeal.") (internal quotation
marks omitted). There was no error in the district court's 1401(3)(A)(i) analysis.
B.
The district also argues that the district court misapplied 1401(3)(A)(ii), which requires
that a child "need[] special education and related services" as a result of his or her disability in
order to qualify for them under the IDEA. The district asserts two errors: first, the district court
used the wrong definition of "special education," and, second, it found that the district had waived
any argument that LI does not "need" special education based on the position it took before the

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PET and the hearing officer. We believe the district court correctly defined "special education"
under 1401(3)(A)(ii). We do not decide, however, whether the district court properly treated
the "need" issue as waived, because the district has not adequately explained to us why LI does
not need special education, even under its view of the proper standard for making that
determination.
1.
The IDEA defines "special education," in relevant part, as "specially designed instruction,
at no cost to parents, to meet the unique needs of a child with a disability . . . ." 20 U.S.C.
1401(29). A federal regulation, promulgated by the Department of Education, elaborates:
Specially designed instruction means adapting, as appropriate to the needs of an eligible child . . .
, the content, methodology, or delivery of instruction-(i) To address the unique needs of the child that result from the child's disability; and
(ii) To ensure access of the child to the general curriculum, so that the child can meet the
educational standards within the jurisdiction of the public agency that apply to all
children.
34 C.F.R. 300.39(b)(3) (2006). [18]
As the district court noted, Maine law also contains its own definition of "special
education": "classroom, home, hospital, institutional or other instruction; educational diagnosis
and evaluation; transportation and other supportive assistance, services, activities, or programs, as
defined by the commissioner [of education], required by exceptional students." [19] Me. Rev.
Stat. Ann. tit. 20-A, 7001(5) (1993).
The district court ruled that a number of the interventions recommended by Popeneo and
Lambke, and included in the services offered by the PET under the Rehabilitation Act, were
"special education" within the meaning of federal law as well as "under Maine's broader
definition." 416 F. Supp. 2d at 166. In challenging this conclusion, the district principally argues
that the district court misinterpreted Maine law to exceed IDEA requirements as to the definition
of "special education." We have little trouble with the district court's interpretation, given the
expansive language of Me. Rev. Stat. Ann. tit. 20-A, 7001(5), but, in any event, that provision
was not essential to the district court's view that LI needs special education. The district court also
specifically ruled that certain of the services recommended for LI constituted "special education"
as defined by federal law. 416 F. Supp. 2d at 166.
Most significantly, the district court reasoned that "extra instructional offerings such as
social-skills and pragmatic- language instruction are 'specially designed instruction' to ensure
[LI's] 'access . . . to the general curriculum.'" Id. (quoting 34 C.F.R. 300.39(b)(3)).
The
district protests that its proffered "social pragmatics instruction," which "was aimed more at
counseling LI at how she could better interact with others" than at traditional "speech services,"
qualifies as a "related service," not "special education," under the IDEA. The district has it
backwards, however. While "speech-language pathology services" comprise a category of
"related services," 20 U.S.C. 1401(26)(A), directly teaching social skills and pragmatic
language to LI amounts to adapting the content of the usual instruction to address her unique
needs and to ensure that she meets state educational standards, viz., those defining educational
performance to include "communication" and requiring progress in "career preparation." [20] See
Part III.A.2, supra. The district court did not err in ruling that the services recommended for LI

80

by her neuropsychologist and speech-language pathologist, and agreed to by the PET as part of its
Rehabilitation Act plan, are "special education."
2.
The district also challenges the district court's resolution of whether LI "needs" the
special education in question. The district court made no finding on this point, electing to "hold
the parties to their original understandings" that "'[n]eed' is not a contested issue." 416 F. Supp.
2d at 168. In support of this course of action, the district court noted that "the factual record on
need is poorly developed" because "the PET meetings proceeded on the basis that everyone
agreed that LI 'needed' and should be afforded what the experts recommended for her" and
because the district gave no indication that it disputed LI's need for special education in either the
prior written notice heralding its denial of IDEA benefits or its brief filed in advance of the due
process hearing. Id. 167. Accordingly, the district court reasoned that "[w]hether or not waiver is
the correct term," it had no sensible option but to conclude that LI "'needed' the identified
services" as the parties "all initially believed." Id.
The district insists that it preserved the issue of LI's need for special education by
presenting argument and evidence on that score at the due process hearing. We agree with the
district that it adduced some evidence at the hearing, in the form of testimony from McDevitt, as
to LI's need for special education. Specifically, in response to a question from counsel for the
district on whether he believed that LI "requires special education, specialized instruction, take
your pick, to do acceptably well in school," McDevitt replied, "No, I don't." He went on to state
his view that LI was "having a successful time" at TCS, even without "special services."
McDevitt then explained why the district's offer of Rehabilitation Act services should not be
construed as its opinion that "these interventions are necessary interventions for [LI] to participate
meaningfully in public school," i.e., because they did not constitute special education, but
accommodations intended to make LI and her parents feel comfortable about her return to
Cornish.
We need not decide whether this presentation came too late to raise the issue of LI's need
for special education, as the district court ruled, because the district does not explain why LI does
not need special education under the standard it urges us to follow in making that determination.
The district contends that "whether a child needs special education for IDEA eligibility should
depend on whether that child requires special education to benefit in those areas of educational
performance that are adversely affected," but does not argue that LI does not pass that test.
Instead, the district argues, based on McDevitt's testimony and LI's performance at TCS, that she
does not need special education "to benefit from school" or "to do well in school."
But whether a child requires special education "to do well in school," or even "to benefit
from school," presents a different question from whether the child requires special education "to
benefit in those areas of educational performance that are adversely affected by her disability."
The former inquiry considers the effect of special education on the child's overall achievement in
school, while the latter focuses on the effect of special education on the components of that
achievement hampered by the child's disability. See Garda, supra, at 498-99 (positing "which of
the child's performance areas must need special education?" as a crucial question in developing
the test for IDEA eligibility under 1401(3)(A)(ii)). Indeed, a child may "do well in school"
without special education, accumulating a high grade point average, but may nevertheless
perform below acceptable levels in other areas, such as behavior. See, e.g., In re Monrovia
Unified Sch. Dist., 38 Inds. with Disabilities Educ. L. Reptr. (LRP Publ'ns) 84, at 342-43 (Cal.
State Educ. Agency Nov. 27, 2002) (finding student to "require special education to address

81

social, behavioral, and written expression needs" despite "good academic work"). The questions
of whether such a child "needs special education" under a proper interpretation of
1401(3)(A)(ii)and how to articulate that interpretation in the first instancehave generated a
cacophony of different answers. See Garda, supra, at 491-507 (surveying divergent authority).
We do not attempt to compose the correct standard of "need" here. We simply note the
significant variance between the standard the district urges us to adopt and the standard it argues
has been satisfied. McDevitt's testimony may have supported a finding that LI does not require
special education "to do well in school," had the district court not ruled that the issue had been
waived. But the district does not explain how such a finding would support the conclusion that LI
does not "need special education" under the IDEA and, in fact, argues that the proper inquiry
incorporates a substantially different standard, i.e., whether LI "requires special education to
benefit in those areas of educational performance that are adversely affected." Conversely, the
district does not explain how the evidence received at the due process hearing falls short of that
standard. The district has therefore failed to show that the district court's treatment of the "need"
issue as settled had any effect on its ultimate conclusion that LI qualified for IDEA benefits.
Even if the district court erred in finding the district had waived the "need" argument, then, the
error was harmless. See Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992)
(treating district court's mistaken ruling that parents waived procedural objections to development
of IEPs as harmless error where alleged procedural flaws did not meaningfully affect substance of
IEPs).
The district has not directed us to any error undermining the district court's determination
that LI meets the second prong of the standard for IDEA eligibility, 20 U.S.C. 1401(3)(A)(ii).
[21] Having found that the district court's ruling as to the first prong also holds up, Part III.A,
supra, we affirm the district court's decision that LI is eligible for services under the IDEA.
IV.
In their cross-appeal, the parents challenge the adequacy of the relief given as a remedy
for the district's failure to provide LI with IDEA benefits. First, they argue that the district court
wrongfully denied them reimbursement for the costs of enrolling LI at TCS on the ground that it
is not an educationally appropriate placement. Second, they argue that the district court should
have explicitly ordered the district to provide LI with a compensatory education as a remedy for
its denial of IDEA services, rather than leaving that matter for the PET to decide in the first
instance. We address these contentions in turn.
A.
The IDEA authorizes a district court reviewing the outcome of a due process hearing to
"grant such relief as the court determines is appropriate." 20 U.S.C. 1415(i)(2)(C)(iii). The
Supreme Court has read this provision, as it appeared in the predecessor to the IDEA, as
empowering a court "to order school authorities to reimburse parents for their expenditures on
private special education for a child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act." Burlington, 471 U.S. at 369. In accordance with
this holding, parents "are entitled to reimbursement only if a federal court concludes both that the
public placement violated IDEA and that the private school placement was proper under the Act."
Florence County, 510 U.S. at 15.
We have identified reimbursement under the IDEA as "'a matter of equitable relief,
committed to the sound discretion of the trial court.'" Roland M., 910 F.2d at 999 (quoting

82

Burlington, 736 F.2d at 801). Ordinarily, we review a district court's decision to award or
withhold equitable relief for an abuse of that discretion. See, e.g., Valentin-Almeyda v.
Municipality of Aguadilla, 447 F.3d 85, 104 (1st Cir. 2006). But, as the Court made clear in
Florence County, the right to reimbursement of private special education expenses depends in the
first instance on whether the private school placement was "proper." We consider this threshold
inquiry, like other conclusions demanded by the IDEA, as a mixed question of fact and law. Part
III, supra. As we did with the question of LI's eligibility for IDEA benefits, we will review the
propriety of her enrollment at TCS for clear error based on the parties' accession to that standard.
Id.
Mr. and Mrs. I, however, claim that the district court applied the wrong test in deciding
that TCS was not a "proper" placement for LI, a question we review de novo. Id. Again, the
district court ruled that the parents' decision to enroll LI at TCS was not "'reasonably calculated to
enable [her] to receive educational benefits'" so as to entitle them to reimbursement. 416 F. Supp.
2d at 172 (quoting Florence County, 510 U.S. at 11 (further internal quotation marks omitted by
district court)). Despite the district court's recitation of this test, the parents insist that it actually
applied what they describe as a more restrictive standard, derived from the Sixth Circuit's
decision in Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003). The parents contend
that this standard, which disallows reimbursement for a unilateral private placement that "does
not, at a minimum, provide some element of special education services in which the public school
placement was deficient," id. at 523, is at odds with Florence County. [22]
Like the district court, we do not detect any tension between this aspect of the Sixth
Circuit's holding in Berger and the principle that a private school placement is improper unless it
is reasonably calculated to enable the child to receive educational benefit. 416 F. Supp. at 172;
see also Frank G. v. Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006) (applying "reasonably
calculated" test while discussing and distinguishing, but not criticizing, Berger); Berger, 348
F.3d at 522 (quoting "reasonably calculated" test). In Burlington, the Supreme Court reasoned
that because "parents who disagree with the proposed IEP are faced with a choice: go along with
the IEP to the detriment of their child if it turns out to be appropriate or pay for what they
consider to be the appropriate placement," they are entitled to reimbursement of the expenses of
that placement if it turns out they were right in choosing it. 471 U.S. at 370. Implicit in this
reasoning is the notion that parents rightfully decide on a private placement when it addresses, at
least in part, their child's special educational requirements, while the IEP does not.
We do not see, then, how the decision to reject public education in favor of enrolling a
child in private school can be described as "reasonably calculated to enable the child to receive
educational benefit" if the private school does not offer at least "some element of special
education services in which the public school placement was deficient." Berger, 348 F.3d at 523.
To hold otherwise would, in essence, embrace the argument we explicitly rejected in Rafferty:
that the IDEA entitles a parent, at public expense, to "seek any alternative school she wishes if the
public education is inadequate." 315 F.3d at 27.
Accordingly, the district court did not apply the wrong standard in finding that TCS is not
an appropriate private school placement under the IDEA because it "does not offer any of the
special education services recommended by the experts or the PET." 416 F. Supp. 2d at 173. We
are left, then, to review this finding for clear error, and discern none. Although both of the
experts who examined LI, as well as her present social worker, have stressed that LI needs direct
teaching of social skills to manage the effects of her Asperger's, it is undisputed that TCS has
never provided her with this service, or any roughly equivalent intervention. TCS has also not
supplied the cognitive behavioral therapy recommended by Popeneo or the close supervision or

83

one-on- one tutoring offered by the PET as part of the Rehabilitation Act plan. The district court
did not clearly err in judging TCS an inappropriate private placement in the absence of any of
these special education services.
The parents resist this conclusion on two principal grounds. First, they liken certain of
TCS's distinguishing features to the interventions recommended for LI and found by the district
court to constitute "special education" in assessing LI's eligibility under the IDEA. As we have
recognized, a private placement need provide only "some element of the special education
services" missing from the public alternative in order to qualify as reasonably calculated to enable
the child to receive educational benefit. Berger, 348 F.3d at 523 (emphasis added). Nor must the
placement meet every last one of the child's special education needs. Frank G., 459 F.3d at 365.
But the reasonableness of the private placement necessarily depends on the nexus between the
special education required and the special education provided. Here, the connection between, for
example, the one-on-one tutoring recommended for LI and the relatively small student-faculty
ratio boasted by TCS was more than remote enough to support the district court's conclusion that
the choice of the private school was not reasonably calculated to ensure that LI received
educational benefit--particularly in light of the fact that, as we have just discussed, TCS did not
offer anything approaching the direct teaching of social skills unanimously endorsed by the
professionals who have tested and treated LI.
Second, the parents protest that, laboring under the trauma of LI's suicide attempt and
facing a lack of cooperation from the district, they acted reasonably by any measure in
unilaterally placing LI at TCS. We sympathize with the family's emotional upheaval, and we
certainly do not condone the district's apparent inattention to the task of locating a tutor for LI as
it repeatedly promised it would. And we cannot doubt that TCS, where LI's sister had prospered
and where LI herself had expressed interest in attending even before the events of the fall of
2003, must have seemed an attractive solution to an exceedingly difficult set of circumstances.
But these considerations cannot change the fact that TCS, where LI has remained for more than
two full academic years, simply does not provide the special education services that LI's mental
health professionals have prescribed. The district court did not commit clear error when it found
that TCS is not an appropriate private placement under the IDEA. [23]
B.
Finally, Mr. and Mrs. I challenge the district court's refusal to order the district to provide
LI with compensatory education. We have recognized that, as another form of "appropriate
relief" available under 1415(i)(2)(C)(iii), a court may require "compensatory education" in the
form of "further services, in compensation for past deprivations" of IDEA benefits. Me. Sch.
Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 17-18 (1st Cir. 2003). Compensatory education, like
reimbursement, is a form of equitable relief.
G ex rel. RG v. Fort Bragg Dependent Schs.,
343 F.3d 295, 309 (4th Cir. 2003); accord Ms. M, 360 F.3d at 273-74. Accordingly, we review
the district court's decision on compensatory education for abuse of discretion. Part IV.A, supra.
The district court considered the parents' request for compensatory education in light of
the other relief granted, namely its order to the district "to convene a PET meeting in accordance
with State and Federal law to develop an IEP for [LI] that meets her unique needs as a student
with Asperger's Syndrome and a depressive disorder." 416 F. Supp. 2d at 168. Noting that "[t]he
IEP necessarily will take into account the effect of the School District's failure to identify and
offer special education services earlier," the district court declined to order compensatory
education on the theory that the PET could better assess "what special education [LI] needs at this
point . . . ." Id. at 173.

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This approach strikes us as sensible and, moreover, not an abuse of the district court's
discretion. As the parents acknowledge, it is not unheard of for a compensatory education claim
to be remanded to the responsible educational authority for consideration, particularly where "the
district court does not believe that the record is sufficient to permit it to make the highly nuanced
judgments necessary to resolve the claim . . . ." Mr. R, 321 F.3d at 20. The parents, in fact, do
not appear to object to such an approach here, provided we "ensure at the very least that
guidelines governing the type, form, intensity, and duration of services are specified to assist the
parties in moving forward without confusion or acrimony." This is a worthy objective, to be sure,
but we are not up to the task.
Like the district court, we confront an administrative record naturally devoid of any
evidence as to the effect of the district's failure to offer IDEA services to LI over the past two
years and counting, since LI's eligibility for those services was precisely what was at issue in the
due process hearing. As a result, any "guidelines" that we might set forth to "govern" the
resolution of the compensatory education claim would amount to an improper advisory opinion,
just as it would have been a highly speculative exercise for the district court to attempt to resolve
the claim on its merits. The district court ordered the district to convene a PET, in accordance
with applicable law, for the purpose of formulating an IEP for LI that meets her needs, and
further recognized that this task would necessarily require resolution of the compensatory
education inquiry. We do not view this as an abuse of discretion, and Mr. and Mrs. I have not
provided us with any authority to the contrary.
V.
For the foregoing reasons, we affirm the judgment of the district court in its entirety.

85

MR. & MRS. I V. MSAD 55


CASE NOTES
1. Although this regulation was amended during the pendency of this appeal, none of the
amendments affects our analysis. See generally Assistance to States for the Education of
Children With Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg.
46,540 (Aug. 14, 2006) (codified at 34 C.F.R. pt. 300). For ease of reference, then, we cite to the
current version of the regulation throughout.
2. "Asperger's disorder is a developmental disability on the autism spectrum that is associated
with significant misperceptions of otherwise routine elements of daily life. It is a permanent
condition that is not treatable with medication." Greenland, 358 F.3d at 154.
3. Adjustment disorder with depressed mood is characterized by a psychological response to an
identifiable stressor that results in the development of clinically significant emotional or
behavioral symptoms, i.e., depressed mood, tearfulness, or feelings of hopelessness. Am.
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 679 (4th ed. 2000)
("DSM-IV").
4. Adaptive skills are those necessary to cope with common life demands and meet the standards
of personal independence appropriate for one's age, sociocultural background, and community
setting. DSM-IV at 42. Executive skills are those necessary to think abstractly and to plan,
initiate, monitor, and stop complex behavior. Id. at 149.
5. In general, cognitive-behavioral therapy seeks to identify the thinking associated with
unwanted feelings and behaviors in order to replace it with thoughts leading to more desirable
reactions. Nat'l Ass'n of Cognitive-Behavioral Therapists, http://www.nacbt.org/whatiscbt.htm
(last visited January 26, 2007).
6. In addition to seeking review of the hearing officer's decision under 20 U.S.C. 1415(i)(2),
Mr. and Mrs. I also asserted a claim for relief under the Rehabilitation Act, which was rejected
by the district court. They have not pursued this claim on appeal.
7. The state must develop and implement an "individualized education program," or "IEP," to
meet the particularized needs of each child with a disability. 20 U.S.C. 1412(a)(4),
1414(d)(1)(A)(i).
8. Maine's "Learning Results" are a "statewide system" developed to "establish high academic
standards at all grade levels" in eight different subject areas. Me. Rev. Stat. Ann. tit. 20-A,
6209 (Supp. 2006).
9. More specifically, the district argues that, while Maine has developed extensive performance
indicators to measure progress toward the "Learning Results," 05-071-131 Me. Code R. 1-8,
state law does not require the use of these criteria, leaving measurement of student achievement
to a "local assessment system." Me. Rev. Stat. Ann. tit. 20-A, 6202-A. We need not, and do
not, pass upon this argument. See Part III.A.2, infra.
10. The Maine Department of Education has proposed amending its special education
regulations to insert, inter alia, a requirement that "[a] child's disability must result in an adverse
affect [sic] on the child's ability to learn and/or perform the academic, daily living, and/or age-

86

relevant tasks required to demonstrate educational progress in the general curriculum." Maine
Unified Special Education Regulation VII.3 (proposed Nov. 2006), to be codified at 05-071101 Me. Code R. 1 et. seq., available at http://www.maine.gov/education/rulechanges.htm (last
visited Feb. 21, 2006). The proposed regulations also restrict the definition of "educational
performance" for children older than five to "academic areas
(written literacy skills, math,
communication, etc.) [and] functional areas of performance (daily life activities) . . . ." Id. II.9.
These draft regulations, still in the public comment period, are not before us.
11. In attacking this reasoning, the district argues that the second part of the definition of "child
with a disability" is too broad to function as a meaningful filter for IDEA eligibility. For the
reasons stated in Part III.B.2, infra, we do not have occasion to address the scope of that provision
here. For the moment, we note only that the district recognized, in its brief to the hearing officer,
that the first and second prongs of 1401(3)(A) do operate in conjunction to determine eligibility.
Post-Hrg. Memo. at 6 ("'adverse effect' and the child's 'need for special education are intertwined .
. . .").
12. Contrary to the district's suggestion, that 1401(3)(A)(i) uses the words "impairment" or
"serious" in naming some of the disabilities set forth provides no basis for inferring that any
condition must be a "serious impairment" to meet the statutory standard, let alone a "significant
impact" requirement.
13. Moreover, Congress took this course of action despite the presidential committee report
touted by the district and its amici in support of their proffered standard. President's Comm'n on
Excellence in Special Educ., A New Era: Revitalizing Special Education for Children and Their
Families (2002), available at http://www.ed.gov/inits/commissionsboards/whspecialeducation/
index.html (last visited Jan. 19, 2007). This report not only further expressed concern about
over-identification, as the district and its amici point out, but strongly criticized the
regulatory definitions of the disabilities recognized by the IDEA. Id. At 22. Because neither
Congress nor the Department of Education appears to have acted on the commission's
recommendations, however, the report is of little use in construing the eligibility standards that
have endured.
14. One district court recently used the secondary definition of "adverse" from a different
dictionary--"causing harm"--to interpret the "adversely affects" requirement, concluding that,
when a student "experiences only a slight impact on his educational performance, it cannot be said
that the student is harmed." Ashli & Gordon C. ex rel. Sidney C. v. Hawaii, No. 05-00429-HGKSC, 2007 WL 247761, at *9 (D. Hawai'i Jan. 23, 2007). In fact, however, the student is still
"harmed"if only slightlyso the court's conclusion does not follow from the definition it cites.
As a result, Ashli & Gordon C. does not persuasively address the absence of any qualitative
limitation in the regulatory language.
15. The "adversely affects" test also serves an additional function: ensuring that it is the
"enumerated disability, and not other factors" that impacts educational performance. See Garda,
supra, at 486.
16. The Connecticut decisions applied a now-superseded state regulation defining "socially and
emotionally maladjusted" in part as "a condition which 'significantly impedes the child's rate of
educational development.'" Doe, 753 F. Supp. at 70 n.9 (quoting Conn. Agencies Regs. 10-76a1(m) (1989)); see also Gregory M., 891 F. Supp. at 702 (articulating same test).

87

17. Maine recently passed emergency legislation, effective May 30, 2006, defining "child with a
disability," in relevant part, as: "[f]or children at least 3 years of age and under 20 years of age
evaluated in accordance with [20 U.S.C. 1414(a)-(c)] as measured by both standardized, normreferenced diagnostic instruments and appropriate procedures with delays or impairments such
that the children need special education . . . with at least one" of a number of specified conditions.
An Act To Improve Early Childhood Education, 2006 Me. Legis. Serv. 662, sec. A-15, 7001(1B)(B), to be codified at Me. Rev. Stat. Ann. tit. 20-A, 7001(1-B)(B). The Maine Department of
Education has also proposed a regulation imposing a number of requirements, similar to
Vermont's, on the adverse effect determination. See Maine Unified Special Education
Regulation, supra, VII.3 These versions of the Maine definitions are not before us, however,
and we express no opinion on them.
18. Again, this regulation was amended effective October 13, 2006, but the amendment does not
affect our analysis, so we cite to the current version. See note 1, supra.
19. This definition is set forth as part of a statute requiring each school district to, inter alia,
"[p]rovide special education for each exceptional student within its jurisdiction." Me. Rev. Stat.
Ann. tit. 20-A, 7202(5) (1993). The statute defines "exceptional student" as a person between
the ages of five and twenty who "[r]equires special education because of an impairment in one or
more" specified functions. Id. 7001(2). As we have observed, supra note 17, this provision
was recently amended, as were 7001(5) and 7202(5), but the amended versions are not before
us.
20. Contrary to the district's reading, the Second Circuit in J.D. did not "conclude" that "training
in peer relationship skillsis more akin to a related service rather than special education."
Rather, as we have discussed, the court in J.D. ruled that the student did not qualify for IDEA
benefits because his condition did not adversely affect his educational performance in the manner
required for IDEA eligibility under Vermont law. 224 F.3d at 67-68. The court in J.D. therefore
had no occasion to define "training in peer relationship skills," which the defendant had offered as
part of a Rehabilitation Act plan, as either special education or a related service under the IDEA,
and did not do so.
21. In its reply brief, the district contends that, even if LI in fact needed the services deemed
special education by the district court, she did not need them "by reason of" her condition as
required by 1401(3)(A)(ii). Because the district did not raise this argument in its principal
brief (or, for that matter, before the district court), we do not consider it. See, e.g., Forcier v.
Metro. Life Ins. Co., 469 F.3d 178, 183 (1st Cir. 2006).
22. It should be noted that Florence County does not hold that a private school placement must be
"reasonably calculated to enable the child to receive educational benefits" to give rise to
reimbursement under the IDEA; in fact, whether the private placement there was proper had been
"settled" by the time the case arrived at the Court. 510 U.S. at 12-13. While the "reasonably
calculated" language appears in the opinion, the Court used it only in quoting from the lower court
decision being reviewed, which in turn took the language from the Court's earlier opinion in Bd. of
Educ. v. Rowley, 458 U.S. 176 (1982). Rowley itself set forth the "reasonably calculated" test as
the measure of the adequacy of an IEP, not the propriety of a private school placement. 458 U.S.
at 206-07. Nevertheless, we have previously held, based on Florence County, that "a private
school placement must be reasonably calculated to enable the child to receive educational
benefits" to constitute a proper placement. Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21,
26 (1st Cir. 2002) (internal quotation marks omitted). We are bound by this prior holding, see,

88

e.g., United States v. Malouf, 466 F.3d 21, 26-27 (1st Cir. 2006), which, in any event, the parties
do not question.
23. We do not reach, then, the district's alternative arguments for affirmance: that the parents
failed to provide the requisite notice of their intent to enroll LI in private school at public
expense, and that the district offered LI a free and appropriate public education in the form of its
Rehabilitation Act plan.

89

Only the Westlaw citation is currently available.


United States District Court,
D. Maine.
R.C. and E.P., as parents and next friends of J.C., a minor, Plaintiffs
v.
YORK SCHOOL DEPARTMENT, Defendant.
Civil No. 07-177-P-S. | Sept. 25, 2008.
Attorneys and Law Firms
Nicole L. Bradick, Murray, Plumb & Murray, Portland, ME, Richard L. OMeara Murray, Plumb
& Murray, Portland, ME, for Plaintiff.
Eric R. Herlan, Peter C. Felmly, Drummond, Woodsum & MacMahon, Portland, ME, for
Defendant.
Opinion

RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW


JOHN H. RICH III, United States Magistrate Judge.
*1 R.C. and E.P. (Parents) challenge a decision of a Maine Department of Education
(MDOE) hearing officer (Hearing Officer) upholding the finding of defendant York School
Department (York or District) that their daughter, J.C., is ineligible for special-education
services pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400,
et seq., and Maines laws regarding education of exceptional students, 20-A M.R.S.A. 7001, et
seq. See Plaintiffs Memorandum of Law (Parents Brief) (Docket No. 30) at 1-2. The Parents
ask the court to reverse the Hearing Officers decision and enter judgment in their favor, requiring
York to reimburse them for costs incurred in placing J.C. in King George School, a private
therapeutic school in Vermont. See id. After careful review of the entire record filed in this case
and the memoranda of the parties, I propose that the court adopt the following findings of fact and
conclusions of law, on the basis of which I recommend that judgment be entered in favor of
York.1

I. Proposed Findings of Fact


1. J.C., now 18 years old, was born in 1990. Special Education Due Process Hearing [Decision]
(Hearing Decision), [P] & [C] v. York Sch. Dept, Case No. 07.100H (Me. Dept of Educ. July
23, 2007), at 2, 1; Administrative Record (Record) at 403.2 Her mother, E.P., has taught in
Yorks early elementary schools for 21 years. Hearing Decision at 2, 1; Testimony of E.P.
(E.P.) at 90-91.3 Her father, R.C., lives in Cape Neddick, Maine, teaches middle-school science
in Lexington, Massachusetts, and has been an educator for more than 25 years. Hearing Decision
at 2-3, 1; Testimony of R.C. (R.C.) at 438, 483. Although the Parents separated i n 1999, they
maintain an amicable relationship and are both very involved i n J.C.s life. Hearing Decision at
3, 1; E.P. at 187-88, R.C. at 440-41, 445. J.C. primarily has lived with her mother since her
parents separation. R.C. at 440-41.
2. J.C. has always been a very spirited child. Hearing Decision at 3, 2: E.P. at 93 (describing
J.C. as a spicy enchilada). She was a very bright young girl with a theatric flair and a bubbly
personality. Hearing Decision at 3, 2; E.P. at 96, 103. She has always required a lot of attention

90

from her parents and has had a defiant nature her whole life. Hearing Decision at 3, 2; E.P. at
93.

A. Elementary School
[Court Reviews Elementary School Years]
B. Middle School
9. In the fifth grade (2000-01), J.C. began attending York Middle School. Hearing Decision at 3,
5; E.P. at 105-06; Record at 550. She had a fabulous year academically. Id. She loved her
teacher and earned straight As, with excellent marks for social development and work habits. Id.
10. E.P. has described the sixth grade (2001-02) as the beginning of the nightmare for J.C. E.P.
at 107. J.C. spent considerable time on projects, working on them until the last minute in an
attempt to make them as perfect as possible. Id. These projects took an emotional toll on J.C.; she
typically would get frustrated, cry, and rip up her work. Id. She developed anxiety about school
and became edgy, sassy, [and] difficult at home. Id. at 107-08.
*3 11. During the sixth grade, J.C. began to mature physically, which caused boys to pay
attention to her. Hearing Decision at 4, 7; Record at 272. She began feeling depressed and
started cutting herself. Id. She later explained, my depression revealed itself and began to change
me. Record at 272. That year, she consumed her first alcoholic drink. Hearing Decision at 4, 7;
Record at 272. At the time, the Parents were not aware that J.C. was suffering from depression,
cutting herself, or drinking. E.P. at 109-10; R.C. at 442-43. When R.C. tried to set limits for J.C.,
she responded with defiance and rage, becoming emotionally and physically abusive to him. R.C.
at 443-44. In school, J.C. did very well, achieving all As and Bs, and she had excellent attendance
and behavior, Hearing Decision at 4, 7; Record at 549, receiving marks of 1 (outstanding) and 2
(satisfactory) for conduct and work habits, Record at 549.
12. J.C.s feelings of depression grew worse during the seventh grade (2002-03). Hearing
Decision at 4, 8; Record at 272. In her own words, her depression took over. Record at 272.
She began dressing provocatively to continue to get attention from boys and became involved
with her first boyfriend, Hearing Decision at 4, 8; Record at 272-73, an older boy whom her
mother believed to be big trouble and a loser boy, E.P. at 111-12. J.C. began experimenting
with sexual activity, and her boyfriend disclosed their intimate relations to others at school,
making J.C. feel disgusting. Hearing Decision at 4, 8; Record at 273. She continued cutting
herself, snuck out of the house to meet her boyfriend, and tried marijuana for the first time.
Hearing Decision at 4, 8; Record at 273; E.P. at 412. She even wrote a suicide note, later
revealing that she then felt that the world and our family would be better off without me.
Hearing Decision at 4, 8; Record at 274. She considered this to have been her most difficult
year emotionally. Id. At home, E.P. found J.C. to be even more oppositional, surly and rude.
E.P. at 410-11.
13. That year, E.P. learned of J.C.s cutting behaviors from Wendy Gailey, a school counselor at
York Middle School. Hearing Decision at 8, 4; E.P. at 112. E.P. immediately sought therapy for
her daughter. Hearing Decision at 8, 4; E.P. at 112-13.5 J.C. began attending therapy sessions
with counselor Bobbie Gray in April 2003. Hearing Decision at 4, 8; E.P. at 113; Record at 373.
Gray recorded in her notes that E.P described the purpose of the counseling as to work with
[J.C.] to see her dad and [to address] concern about [J.C.s] choice of friends. Hearing Decision

91

at 4-5, 8; Record at 374. J.C. expressed continuing feelings of loss about her parents divorce.
Hearing Decision at 5, 8; Record at 375.
14. Because J.C. was cutting herself, Gray recommended that she see Joshua Gear, M.D., a
psychiatrist. Hearing Decision at 5, 9; Record at 332-33. She began seeing Dr. Gear in May
2003. Hearing Decision at 5, 9; Record at 205. At that time, Dr. Gear diagnosed her with an
anxious depression and an Attention Deficit Disorder, complicated by family and developmental
issues. Hearing Decision at 5, 9; Record at 205, 337. 6 He initially prescribed Effexor for
depression. Hearing Decision at 5, 9; Record at 436.7
*4 15. In the seventh grade, J.C.s school attendance was good, and she earned mostly As and Bs,
with a C for one trimester in physical education and for one trimester in math. Hearing Decision
at 4, 8; Record at 545.8 She again received marks of 1 and 2 for her conduct and work habits
that year. Record at 545. J.C. also played sports and was on the track team. Hearing Decision at 4,
8; Testimony of Kevin David Wyatt (Wyatt ) at 677.9 That year, she received five behavior
reports: two for public displays of affection with her boyfriend, one for failing to report to
homeroom, and one for being in an unauthorized area of the school, and another for going
swimming without permission during a school picnic. Hearing Decision at 4, 8; Record at 319,
323, 328, 354-55.10 J.C. consistently rationalized what she had done to get in trouble, arguing that
the rules were stupid. E.P. at 114.
16. These behavioral issues prompted E.P. to e-mail Gailey and ask her to keep an eye on J.C. at
school, and caused the Parents to request that a behavior plan be created. Record at 327, 353; E.P.
at 115, 118. District personnel did not agree that a behavior plan was warranted. Record at 325.
Instead, they proposed switching J.C.s assigned homeroom, reasoning that this was the period of
the day when she was most inappropriate at school. Id. R.C. requested a meeting with J.C. and
her teachers to address the specific behaviors of concern. Record at 320; R.C. at 446-48. At that
meeting, J.C. was given an extension on some writing assignments, and teachers promised
weekly e-mail communications to the Parents. R.C. at 448.
17. During the summer after the seventh grade, J.C. began sneaking out of the house frequently
and lying to her parents about where she was going. E.P. at 123-24. She continued to cut herself.
Id. at 125. E.P. ensured that J.C. continued therapy with Gray throughout the summer. Id. J.C.s
friendship circle shifted to an undesirable group of peers. R.C. at 449. E.P. felt that J.C. was
hanging out with children from troubled homes and that adults in those homes werent
necessarily stepping up to their parenting duties. E.P. at 124. J.C. frequently argued with her
parents, especially about limit-setting, and screamed at her father. R.C. at 449-50.
18. In the eighth grade (2003-04), J.C. was no longer seeing her boyfriend but continued to use
her sexuality to obtain attention from boys. Hearing Decision at 5, 10; Record at 274. She wore
sexually provocative clothing, used marijuana regularly, and snuck out of the house at night.
Hearing Decision at 5, 10; Record at 274-75; E.P. at 126. She was lonely and found temporary
comfort in sexual promiscuity with many partners. Record at 274. 11 E.P. described her daughter
during that year as being very difficult at home, disrespectful, not following rules, and fighting
over her clothing choices. E.P. at 125, 146, 421. J.C. could appear happy and cheerful and was
popular at school, but with her parents she showed considerable disrespect and rudeness. Id. at
127, 422.
*5 19. That year, J.C. got in trouble at school a few times, for not bringing home a progress
report, cutting chorus, and being disrespectful to a teacher. Hearing Decision at 5, 10; Record at
562-64. One of those behavior reports, issued in October, described her as wandering the halls

92

instead of attending chorus class. Record at 564. The chorus teacher, Susan Frank, sent an e-mail
to E.P. in November stating that J.C. was extremely unhappy in chorus and that she just sits
there, looking depressed, will not participate, will not move, will not stand up when everyone else
does, and has an attitude the minute she walks in. Record at 316. Frank reported that when she
confronted J.C. about her issues with the class, J.C. was verbally harsh and abusive to her. Id.
Wyatt stated in an e-mail in November 2003 that, although J.C. had [n]o behavior issues with
me, ever[,] she was very depressed, and down, and has no self esteem or confidence in math,
even though she does well. Id. at 313.
20. In late 2003, the York DARE officer, Scott Cogger, informed E .P. that J.C. was sneaking out
at night to join others to smoke marijuana. E.P. at 129-30.12 This was the first time that E .P.
became aware that J.C. had been sneaking out of the house. Id. at 421. Cogger and Assistant
Principal Steve Bishop agreed to call J.C. in for a meeting to discuss the issue in January 2004.
Hearing Decision at 5, 11; E.P. at 130; Record at 570. When J.C. approached the meeting room
and saw her mother, accompanied by the DARE officer and the assistant principal, she sprinted
out of the building, heading through crowded hallways and the gymnasium, where basketball
practice was in progress. E.P. at 130-31. Cogger pursued her and physically restrained her.
Hearing Decision at 5, 11; E.P. at 130-31. In the office, when E.P. explained why they were
gathered for a meeting, J.C. reacted like a wild animal, screaming, shouting, and trashing the
office. E.P. at 131. J.C. later wrote: My immediate response was rage, it was a complete
explosion of all my feeling [s] inside. Three people I didnt want knowing anything that was
going on inside of me had found my only small source of comfort besides cutting. Record at
275. After her outburst subsided, J.C. sat in a window casement with her knees to her chest in
what appeared to be a catatonic state, rocking back and forth while emitting an eerie, unearthly
howling. E.P. at 131-32.
21. Terrified, E.P. phoned J.C.s counselor, who advised her to take J.C. to the emergency room.
Id. at 132. J.C. left the school by ambulance. Id. In the emergency room at York Hospital, an
officer was stationed to watch J.C., for her safety and that of the family, until a decision was
made to transfer her by ambulance to Spring Harbor Hospital (Spring Harbor). Id. at 133.
22. On January 12-13, 2004, Michael Broderick, Ph.D., conducted a psychological evaluation of
J.C. at Spring Harbor. Hearing Decision at 5, 11; Record at 570. Her cognitive testing results
were consistent with those obtained in previous testing, with a full-scale IQ of 122 (superior).
Hearing Decision at 5, 11; Record at 571. Again, there was considerable scatter in her scores,
with a verbal comprehension index of 124, which is superior, and a freedom from distractibility
index of 87, which is low average. Id. Dr. Broderick noted J.C.s marked strength in
comprehension, which indicated an extremely good ability to demonstrate practical information,
a superior ability to evaluate and use past experience, and a superior knowledge of conventional
standards of behavior. Record at 572. He wrote: Abilities shared with other subtests would
suggest ... good common sense, social comprehension and crystallized intelligence. Id.
*6 23. Dr. Broderick reported that both the results of both Rorschach and Millon Adolescent
Clinical Inventory (MACI) testing showed evidence of marked depression that is not always
apparent, marked antisocial and aggressive/sadistic personality features, marked, though
largely compensatory narcissism to compensate for low self esteem, and often highly impaired
social perceptions. Id. at 573-75. Dr. Broderick found sufficient evidence to warrant a diagnosis
of Major Depressive Disorder, noting that there might also be a double depression with an
underlying Dysthymic Disorder that she chronically self-medicates with drugs and vis a vis the
cutting behavior. Hearing Decision at 6, 11; Record at 575.13 He also diagnosed J.C. cannabis
abuse and possible alcohol abuse. Id. His recommendations centered on psychological treatment

93

and dealing with substance abuse. Hearing Decision at 6, 11; Record at 575-76. He noted that
J.C.s characterological features would pose a major stumbling block to treatment in any
modality and that there might be a need for a more structured treatment setting to address her
substance-abuse issues. Record at 575-76. J.C. left Spring Harbor with a new prescription for
Lexapro. E.P. at 140.
24. Following a six-day inpatient hospitalization at Spring Harbor, J.C. returned home. Id. at 141;
Record at 299. For about two weeks after her discharge from Spring Harbor, J.C. received inhome support services after school. E.P. at 141. J.C. later wrote that the hospitalization only
intensified my depression and self loathing. The rest of the year went in a blur of meaningless
hookups, friendship loss, and constant hurt and rejection by her former boyfriend. Record at 275.
25. Academically, J.C. continued to earn As and Bs in the eighth grade, although she received a C
and a C+ in English during the second and third grading periods. Hearing Decision at 5, 10;
Record at 541-42. She and her English teacher had a personality conflict. Hearing Decision at 5,
10; E.P. at 145. She participated i n track and basketball that year and did well i n both. Hearing
Decision at 5, 10; Wyatt at 677, 681-82. On her report card, her teachers described her as a true
pleasure to have in class and as having outstanding skills and creativity[.] Record at 542. She
again received marks of 1 and 2 for her conduct and work habits. Id.
26. At hearing, Wyatt testified that J.C. was extremely hard working and [v]ery organized[,]
although she did not appear to have much confidence in her math skills. Wyatt at 679. He
described her as extremely charismatic [,] a classroom leader, and an absolute joy to have
in class. Id. He further testified that she got along very well with her peers, was comfortable with
students from all sorts of groups and could transcend barriers that would sometimes divide
student groups in school. Id. at 680. He found her to be a very good leader on the track team
and bubbly, outgoing, and charismatic both i n school and during track practice. Id. at 682. He
testified that he believed that his observation in his November 2003 e-mail that J.C. was
depressed related to a particular incident that had happened and that, overall, she appeared happy
and bubbly at school. Id. at 683.

C. High School
*7 27. J.C. transitioned to York High School for the ninth grade (2004-05). Hearing Decision at
6, 12; Record at 522. She had a new boyfriend who did not use illegal substances and treated
her with respect, Hearing Decision at 6, 12; E.P. at 150-51, whom her mother described as a
wonderful influence on her, E.P . at 151. Consequently, she stopped using drugs and alcohol
and stopped cutting herself. Hearing Decision at 6, 12; E.P. at 151; Record at 275. She was
better around the house, was not sneaking out at night, and was less surly. E.P. at 150-51, 427. As
part of her academic schedule, she participated in the learning and resiliency program (LRP), a
program for children who have potential but are at risk. Hearing Decision at 6, 12; E.P. at 147.
In the LRP program, which was run by Andrea Warren of York Hospital and Gina Brodsky, the
high schools wellness counselor, J.C. was the only ninth grader in a group of tenth graders.
Testimony of Georgina K. Brodsky (Brodsky ) at 736-37, 743, 753; Record at 79-80. The
program involved a weekly group meeting, a monthly volunteering experience, and an adventure
excursion every other month. Brodsky at 743-44. J.C. did exceptionally well with this program,
and it had a stabilizing effect on her. Hearing Decision at 6, 12; Brodsky at 752-54; E.P. at 149.
She was a bright spot in the group, enthusiastically participating i n projects. Hearing Decision at
6, 12; Brodsky at 752. By the end of the school year, J.C. became tired of her responsible
boyfriend, terminated that relationship, and began seeing a different boy, with whom she smoked

94

marijuana regularly. Hearing Decision at 6, 12; Record at 275-76; E.P. at 154-55.


28. In the ninth grade, J.C. earned As and Bs, with a C+ in algebra. Hearing Decision at 6, 12;
Record at 522. There was no evidence that she violated school rules or was disciplined during
that school year. Hearing Decision at 6, 12; Testimony of Susan Macri (Macri ) at 643.14
Catherine Daley, an English teacher at York High School who served as J.C.s team leader during
her time there and saw her every day, described her as having excellent social skills, being very
good at breaking down barriers between different cliques of students, having a great personality,
and being bubbly and upbeat, nice to have around. Testimony of Catherine Daley (Daley ) at
715-17, 723-26. Daley testified that J.C. seemed more mature than most students and actually
more stable in her mood than most. Id. at 728. Wyatt found J.C. that year to be comfortable,
social, transcending lines of different groups, and still bubbly and smiling. Wyatt at 686.
Brodsky described J.C. as an enthusiastic participant in LRP. Brodsky at 752-53. J.C. exhibited
leadership from the beginning of the class, was humorous, had no difficulty with communication,
and seemed to have no emotional difficulties other than normal adolescent ups and downs. Id.
Brodsky received no reports of concerns about emotional or substance abuse issues for J.C. from
teachers or others that year. Id. at 757.
*8 29. J.C. began the 10th grade (2005-06) at Emma Willard School (EWS), a private school in
Troy, New York, where her mothers family lived. Hearing Decision at 6, 13; E.P. at 152-53.
The family decided to send J.C. to EWS because the family had a long-term connection with the
school and because J.C. wanted to go, having fallen in love with EWS during family visits. E.P.
at 152-53. J.C.s mental health providers supported her enrollment at EWS in the hope that it
would provide her with a clean slate and a more positive peer group. Id. at 154-55. J.C. liked the
academic challenge, feeling intelligent and that she was working to her potential. Hearing
Decision at 6, 13; Record at 277. Her grades were very good: she earned As and Bs and a C in
biology. Hearing Decision at 6, 13; Record at 528-29. Her grades for performance in the
residence halls were good/excellent in four out of five areas, including ability to follow dorm
expectations, and good in the fifth area, room care. Record at 535. She was noted to
participate in hall teas with zest and humor, and seem[ed] to be finding a comfortable role for
herself within that group. Record at 535.
30. While initially EWS seemed like a good fit for J.C., she was very homesick. Hearing Decision
at 6, 13; Record at 276; E.P. at 156. On January 21, 2006, during a school trip to New York
City, she was caught shoplifting. Hearing Decision at 6-7, 13; Record at 302; E.P. at 157.15 She
was allowed to return to school on probation, but she began cutting herself again and passed out
after she drank an entire bottle of liquor with a friend in her dormitory on her 16th birthday, as a
result of which EWS dismissed her. Hearing Decision at 7, 13; Record at 52, 277; E.P. at 15758. J.C. returned to York High School in mid-March 2006. Hearing Decision at 7, 13; E.P. at
158.
31. On March 10, 2006, following J.C.s return to York High School, the Parents referred her to
the PET to consider whether she was eligible for special education and related services as a
student with either a specific learning disability, an emotional disability, or another health
impairment. Hearing Decision at 7, 14; Record at 519. The familys referral form noted ADD
(Attention Deficit Disorder), depression and anxiety, but not substance abuse. Record at 519. The
Parents stated that J.C. achieves high grades at tremendous cost to her emotional well-being. Id.
With E.P.s consent, evaluations were performed. Hearing Decision at 7, 14; Record at 508-17.
Daniel Scuccimarra, M.S., a District psychological service provider, administered a WISC-IV,
which again revealed a scatter in J.C.s subtest scores. Hearing Decision at 7, 14; Record at 514.
Her verbal comprehension index was 119, again in the superior range, and her perceptual

95

reasoning index was 112, high average, but her working memory index score was 83, low
average. Hearing Decision at 7, 14; Record at 513. J.C.s composite achievement test scores
placed her in the 94th percentile, but she scored in the 55th percentile for word reading and
pseudoword decoding. Hearing Decision at 7, 14; Record at 508-09. Scuccimarra also
administered a Behavioral Assessment System for Children (BASC) test, on which, based on
her parents responses, J.C. scored in the clinically significant range for attention problems,
conduct issues, and depression. Record at 512, 515.
*9 32. In May 2006, York also administered a Wechsler Individual Achievement Test (WIAT)
to J.C. to measure her academic achievement. Id. at 508. Although J.C. achieved scores in the
average range or above, the evaluator remarked about her self-reported desire to sleep, selfreported lack of interest and possible difficulty i n filtering out extraneous stimuli. Id. at 510.
33. The PET convened on May 19, 2006, and evaluated J.C. for the existence of an emotional
disability, using a form that asked whether the student had exhibited:
one or more of the following characteristics that adversely affects [her]
educational performance: A.... An inability to learn that cannot be explained
by intellectual, sensory, or health factors[;] B.... An inability to build or
maintain satisfactory interpersonal relationships with peers and teachers [;]
C.... Inappropriate types of behaviors or feelings under normal
circumstances[;] D.... A general pervasive mood of unhappiness or
depression [;] or E.... A tendency to develop physical symptoms or fears
associated with personal or school problems[.]
Hearing Decision at 7-8, 14; Record at 506. The PET found that J.C. had a general pervasive
mood of unhappiness or depression. Id.16 It then evaluated whether this behavior had been
demonstrated over a long period of time or was displayed to a marked degree in school. Id. It
answered the first question in the positive and the second in the negative. Id. It did not feel that
J.C.s behaviors in the school setting adversely affected her educational performance, as she was
attentive in class and earned good grades and scores on standardized tests. Id. Accordingly, the
PET found her ineligible under the category of emotional disability. Hearing Decision at 8, 14;
Record at 507. The Parents signed a space on the form indicating agreement with the decision,
Record at 507, although E.P. testified that she did so because she was misinformed that a student
who was doing well academically could not qualify, and R.C. explained that he signed merely to
indicate his presence at the meeting, E.P. at 164; R .C. at 468-69.
34. While the PET found J.C. ineligible for special education, York staff members agreed that she
should have a 504 plan. Hearing Decision at 8, 14; R.C. at 465-68.17 R.C., along with school
special-education staff, remained after the PET meeting ended and developed a list of
accommodations for J.C., which was revised in an August 2006 meeting between J.C., E.P., and
Sue Randolph, Yorks 504 liaison. Hearing Decision at 8, 14; R.C. at 465-69; E.P. at 173-75.
35. J.C. ended her sophomore year earning As, Bs, and a C+ in biology. Hearing Decision at 8,
14; Record at 522. She was not cited for breaking any school rules during her sophomore year at
York High School. Hearing Decision at 8, 14; Macri at 643. She got along fine with teachers
and peers. Wyatt at 687-89; Daley at 720-22, 725-27; Macri at 643. She was invited to rejoin LRP
when she returned to York High School in March 2006, but she declined. Hearing Decision at 7,
13; E.P. at 159. She attended the Options program at the Cottage Program for teens with
substance abuse problems and successfully completed it in April 2006. Id.; Record at 297.
Warren, the substance abuse counselor, recommended that she continue with substance abuse

96

counseling. Id .
*10 36. J.C. later wrote that upon her return to York High School, I immediately dove into
drugs. I was high all the time, morning, noon, and night. My good grades were deceiving. The
trivial ways of York High allowed me to do nothing and still succeed. Record at 277.
37. During the summer after 10th grade, J.C. later wrote, her life was spinning out of control[,]
although she thought that she was happy because she was always under the influence and drank
relentlessly. Id. at 277-78. She took a job at a restaurant, but was fired after she drank a half
bottle of champagne at the end of a shift and could barely stand up. E.P. at 168-70. She began
skipping her counseling appointments with Warren and became increasingly defiant at home. Id.
at 170-72, 179. One night, when her father was away, J.C. threw a party at his house. R.C. at 470.
When R.C. confronted her, she frightened him when, in a rage, she impaled steak knives into the
kitchen breadboard while informing him in no uncertain terms how much she hated him. Id. at
470-71. She shoplifted again in August 2006, and expressed no remorse. Record at 294; E.P. at
170-71.
38. J.C. was glad to return to school in the fall to start her junior year (2006-07). Hearing
Decision at 8, 15; Record at 278. She was happy to be home, and she did not drink during
September. Id. She got back with an old boyfriend and wanted to redeem herself with him.
Record at 278. She did not drink again until October 2006, and then only on weekends. Id. In
addition to her boyfriend, with whom she shared mutual love[,] she had a small group of good
friends whom she felt she could trust. Id. at 279. During the first quarter, her grades were very
good: she earned As in all subjects except marine science, in which she earned a B+, and
geometry, in which she earned a C+. Hearing Decision at 8, 15; Record at 522. She thought that
her depression was under control, and that things were better. Hearing Decision at 8, 15; Record
at 278-79. Her parents, however, disagreed. Hearing Decision at 8, 15; E.P. at 175-76. In their
view, she continued to be edgy and sarcastic with them and to resist their attempts to impose
limitations upon her. E.P. at 175-76.
39. Following J.C.s job loss in August 2006, her mother began planning a substance abuse
intervention for her with substance abuse counselor Warren. E.P. at 435-36; Record at 368-72.
Early in J.C.s junior year, E.P. and J.C. participated in a Youth Alternatives mediation program.
Hearing Decision at 8-9, 15; E .P. at 180-81. In the second session, the mediator advised E.P.
that E.P. could not control J.C. and, as a result, J.C. was in control of her own safety. E.P. at 181.
This advice was a wake-up call for E.P., causing her to feel that immediate intervention was
necessary. Id. The Parents promptly began to explore alternatives for educating J.C. elsewhere,
including the Hyde School, a private school in Bath, Maine. Id. at 182-83; Record at 359, 363.
*11 40. On September 27, 2006, J.C. and her parents traveled to the Hyde School for an
interview. Hearing Decision at 9, 16; Record at 359; E.P. at 182. Although J.C. walked out of
the interview during the first half-hour when challenged about her attitude, the interviewer
continued to discuss options with the Parents. E.P. at 182-83. She recommended that they look
into wilderness intervention programs. Id. at 183.
41. On October 2, 2006, the Parents met with Randolph and Alalia Thaler, a guidance counselor
at York High School, to discuss J.C.s 504 plan. Hearing Decision at 9, 17; E.P. at 183-84.
When they notified Thaler of their intent to send J.C. to a wilderness intervention program, she
commented, [Y]oure trying to save your daughter[]s life, arent you[?] E.P. at 185. On
November 9, 2006, the Parents provided York with notice that they would be sending J.C. to New
Horizons for Young Women (NHYW). Record at 456. The District agreed to place J.C. on

97

temporary leave to facilitate her attendance at NHYW. Hearing Decision at 9, 18; Record at
486.
42. On November 14, 2006, the Parents and others conducted an intervention in which they
expressed to J.C. their concerns about her, and Warren informed her that she would be going to
NHYW. E.P. at 187-89. J.C. left willingly. Id. at 189. However, her mother reported that J.C. was
shocked and blindsided by the intervention, and J.C. herself later reported that she was
blindsided and had not expected to be sent away again. Id. at 188; Record at 279. NHYW, in
Orrington, Maine, is licensed as an outdoor camp and an outpatient mental health program.
Hearing Decision at 9, 18; Testimony of Eilean Mackenzie (Mackenzie ) at 45; Record at
282.18 Participants, each of whom has a treatment plan, learn how to manage challenging
situations in the wilderness. Hearing Decision at 9, 18; Mackenzie at 44-47. The usual stay at
NHYW is six to nine weeks, but J.C. remained there for about 12 weeks while the family was
trying to locate a longer term residential program for her to attend. Mackenzie at 44; E.P. at 204;
Record at 434.
43. York teachers and staff with whom J.C. had contact during her junior year, prior to her
departure from York, again generally described her during that time frame as appearing bubbly
and upbeat and being a good class participant. Daley at 726 (J.C. had a great personality and
was bubbly and upbeat); Testimony of Elizabeth Bacon (Bacon )19 at 705-06 (J.C. was good
student, good participant, very capable, very lively, not depressed, had excellent communication
skills), Testimony of Jean Lynch Beetz (Beetz ).20 J.C.s 11th grade French teacher, Nancy
Somerset Stevens, testified that at times J.C. seemed sleepy during that first-period class and at
times she was reluctant to participate i n small group discussions and activities, but she did so
well in the class that Stevens nominated for the Socit Honoraire de Franais, a world
languages national honor society. Testimony of Nancy Somerset Stevens (Stevens ) at 590;
Record at 522.
*12 44. After J.C.s arrival at NHYW on November 15, 2006, Pam Braley, LCSW, conducted a
comprehensive mental health evaluation. Hearing Decision at 9, 19; Record at 282-91.21 J.C.
described her strengths as academics and love of languages and history and being friendly and
outgoing; she was noted to be attractive and engaging. Hearing Decision at 9, 19; Record at
290. She described her weaknesses as ADHD, depression, having a bad temper, lethargy, lack of
motivation, becoming easily frustrated, and having a negative attitude much of the time. Id. She
added, I guess my drinking is also a weakness. Id. Her Axis I diagnoses were substance abuse,
alcohol, and pot, and depression, NOS [not otherwise specified]. Hearing Decision at 9, 19;
Record at 291. Her Axis IV diagnoses were severe stress, peer relationship problems,
depression, family conflict, very low self-esteem[.] Id.
45. J.C. remained at NHYW for three months, during which time she wrote truth letters
confessing her feelings and behaviors to her parents. Hearing Decision at 10, 20; Record at 26366, 270A-81; E.P. at 191. The clinical director at NHYW testified that, as J .C. started to talk
about her behavior, she would spiral into a sense of shame and guilt and, i n turn, try to control
everything around her. Mackenzie at 62. When J.C. felt that she was not in control, she would
become even more frustrated, depressed and angry. Id. When J.C. heard from her parents that her
stay at NHYW was being extended to permit them to find a residential placement for her, and she
was not going to go home, she regressed, engaging i n such behaviors as screaming, shouting,
swearing, pounding on the floor, kicking things around the office, and, on one occasion, grabbing
a pair of scissors from her therapists desk and threatening to kill herself. Id. at 62-65; Record at
260. Despite this, J.C. began to learn coping skills and anger management strategies. Mackenzie
at 63. Although she made considerable progress, her counselors considered her to be still in the

98

early stages of recovery. Hearing Decision at 10, 20; Mackenzie at 62-63.


46. In a discharge summary dated January 4, 2007, Braley stated:
[J.C.] is capable of making an excellent presentation. Underneath this false
presentation is a child who suffers with low self-esteem, lack of confidence
and spiraling issues of shame due to her behaviors and failures. In school she
presents a facade of [a] capable and confident student but feels very
inadequate and highly threatened by fear of failure.... She constantly copes
with severe mood swings. Her academic success comes at a high price and
has a compulsive nature to it. This teen is at high risk for further behavioral,
mental health and substance abuse problems. [J.C.s] complex array of
behavioral and psychological difficulties require a structured, contained
setting with firm limits and 24 hour supervision[.] In a residential,
educational program with a strongly integrated clinical component [J.C.] will
have the the [sic] greatest chance of working through the significant issues
that compromise her daily functioning and be able to achieve her social,
emotional and educational potential. The NHYW team strongly recommends
a residential placement to contain [J.C.], maintain her safety and allow her to
internalize
healthy
positive
strategies
to
deal
with
her
psychological/behavioral difficulties.
*13 Hearing Decision at 10, 20; Record at 228. The discharge summary assessed J.C. with
ADHD, major depression, unspecified, rule out bipolar disorder, and polysubstance dependence.
Record at 228. Braley also noted J.C.s significant family conflict, negative peer network, and
high-risk, out-of-control behaviors. Id.
47. On December 20, 2006, the Parents made a new special-education referral to the PET, which
met on January 4, 2007. Hearing Decision at 10, 21; Record at 469-70, 483. Braleys discharge
summary was forwarded to the PET. Hearing Decision at 10, 21; Record at 472-79. At the
January 4, 2007, meeting, the PET discussed J.C.s presentation in the classroom. Hearing
Decision at 10, 21; Record at 462. J.C.s teachers all liked her very much and agreed that she
always did quality work and that they had no problems with her at school. Id. The PET did not
find J.C. eligible for special education under the emotional disability category, noting that she did
not display behaviors of emotional disability in school pervasively and did not suffer adverse
educational effect. Hearing Decision at 10, 21; Record at 470. In making that determination,
the District used the same eligibility checklist that it had used at the May 19, 2006, PET meeting.
Hearing Decision at 10, 21; Record at 469-70. The Parents indicated their disagreement with
that decision. Id. York subsequently offered to have Kerry Hoag, Psy.D., perform a new
psychological assessment of J.C., and the Parents consented to the suggested evaluation. Record
at 430, 440-41.
48. The Parents began looking at residential therapeutic placements for J.C. Hearing Decision at
11, 22; E.P. at 197-98. By letter dated January 24, 2007, they notified the District that they
would be removing J.C. from District schools and placing her in a residential therapeutic facility.
Hearing Decision at 11, 22; Record at 434-35. They again expressed disagreement with the
Districts ineligibility determination, and informed the District that they would seek
reimbursement of the costs associated with J.C.s unilateral placement. Id.
49. On February 1, 2007, Diane Tennies, Ph.D., performed a psychological evaluation of J.C.
Hearing Decision at 11, 23; Record at 246. She did so at the request of NHYW. Record at 296.

99

Dr. Tennies has performed about 100 evaluations for young women at NHYW in the past five
years. Testimony of Diane Tennies (Tennies ) at 787. She conducted a clinical interview with J
.C., performed a mental status assessment of her, reviewed records, and interviewed her parents
by telephone. Record at 246. J.C. reported to Dr. Tennies that she felt neglected and unloved
because she had been at NHYW for so long, that she felt her placement there had been a
punishment, and that being there was making her depressed. Id. at 247; Tennies at 802.
50. Dr. Tennies diagnosed J.C. with Major Depressive Disorder, Polysubstance Dependence, and
Attention Deficit Disorder. Hearing Decision at 11, 23; Record at 249. J.C. did not present with
anxiety symptoms, and was not diagnosed with an anxiety disorder. Hearing Decision at 11, 23;
Record at 246, 249. Dr. Tennies expressed the opinion that J.C.s depressive disorder existed
prior to her history of substance abuse, noting her dramatic mood swings [without] alcohol [and]
drugs. Record at 202-03. Dr. Tennies agreed with Braleys recommendation of a contained
residential placement to solidify J.C.s treatment gains, based upon her difficulties with mood
management, impulsivity, irritability, and containing her emotional outbursts, and her previous
psychiatric hospitalization. Hearing Decision at 11, 23; Record at 249. In her testimony, Dr.
Tennies admitted that placement in an e boarding school is a fairly common recommendation
as a followup for young women at NHYW. Tennies at 795.
*14 51. On February 8, 2007, while J.C. was still at NHYW, Dr. Hoag performed a psychological
evaluation of her at the Districts request. Hearing Decision at 11, 24; Record at 405. The
evaluation included normed, formal assessments, completed with input from six of J.C.s teachers
as well as J.C., a record review, and interviews with J.C. and her social worker at NHYW. Record
at 406. Dr. Hoag noted that J.C. presented well and that her engaging personality easily could be
misinterpreted to indicate that she was happy and well-adjusted. Hearing Decision at 11, 24;
Record at 406. Her testing indicated that J.C. was struggling with a dual diagnosis of substance
abuse and depression, with evidence of Dysthymia as well as Major Depression. Hearing
Decision at 11, 24; Record at 410. J.C. also obtained a clinically significant score on borderline
tendencies, indicating that she might be developing Axis II traits of a personality disorder.
Hearing Decision at 11, 24; Record at 407. Results of MACI testing indicated that J.C. was
experiencing significant clinical distress[.] Record at 407. She also scored well above the
clinically significant cut off in the areas of substance abuse proneness and depression. Id.
52. Dr. Hoag obtained completed BASC questionnaires from six of J .C.s teachers and from J.C.
Hearing Decision at 11, 24; Record at 408-09. The responses of one teacher placed J.C. in the
clinically significant range for withdrawal and at risk for hyperactivity and a typicality. Record at
409. Two of J.C.s teachers rated her in the clinically significant range for lack of social skills and
at risk for lack of leadership skills. Id. J.Cs self-ratings on the BASC produced clinically
significant scores for lack of self esteem and placed her at risk for sensation-seeking behaviors,
social stress, and depression. Id. Dr. Hoag observed that it was notable that [J.C.] does not
present many behavioral or emotional concerns at school. Hearing Decision at 11-12, 24;
Record at 410. Dr. Hoag concluded that J.C.s good grades demonstrated her ability to benefit
from her education, despite experiencing significant emotional turmoil. Id. She noted that sports
and academics were areas about which J.C. could feel good, which was different than how she
felt most of the time. Id. Dr. Hoag also felt that J.C. suffered from two kinds of depression, and
that her major depression stemmed from being removed from her family. Hearing Decision at 12,
24; Testimony of Kerry Hoag (Hoag ) at 536-37. For this reason, she did not recommend a
residential placement for J.C. Hoag at 568-69.
53. Dr. Hoag testified that she believed that J.C.s ongoing, low-grade depression likely resulted
from guilt or shame that she felt over her behaviors. Hoag at 536. She concluded that, on

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occasion, J.C. would experience more marked, short-term depression in response to incidents of
significant emotional distress, such as when she was placed at Spring Harbor and at NHYW. Id.
at 536-37. Dr. Hoag testified that she absolutely disagrees that J.C.s substance abuse is a form
of self-medication for her depression. Id. at 539. Instead, she believes that it represents a selfdestructive behavior that arises out of J.C.s personality traits. Id. She testified that she did not
believe that J.C. requires any kind of specialized education in order to perform well in any area of
school. Id. at 549.
*15 54. On February 6, 2007, the Parents settled on placing J.C. at the King George School
(KGS) in Sutton, Vermont, and submitted her application. Record at 229-45. They chose KGS,
an emotional growth boarding school, because it offered a strong academic program, a focus on
the arts, and a secure, supportive environment. Hearing Decision at 13, 26; E.P. at 199;
Testimony of Mark Evan Tucker (Tucker ) at 212.22 As of the time of hearing, KGS had a
coeducational population of 38 students, most of whom were there for emotional reasons.
Hearing Decision at 13, 26; Tucker at 218, 220. KGS teaches students self-regulation, selfsufficiency, and self-esteem. Hearing Decision at 13, 26; Tucker at 213. Students progress
through different phases and are usually there for 12 to 15 months. Hearing Decision at 13, 26;
Tucker at 238.
55. KGSs emotional growth component includes rewards-based phase work, individualized to
meet the functional needs of each student; therapeutic in-the-moment coaching; and an arts
education program that supplements the therapeutic programming. Tucker at 228-30, 239-47. The
school offers a standard academic curriculum, which runs through most of each school day.
Record at 219. Students participate in KGSs separate emotional growth phases curricula for
about an hour and a half each day, and somewhat longer in the summer. Tucker at 279. KGS is
approved as an independent school in Vermont but not as a special-education school or program.
Id. at 260. No staff member who delivers the emotional growth curriculum has any mental health
degrees or certification. Id. at 281-82; Testimony of Erin Sarah Sheldon Kingsbury (Kingsbury
)23 at 336-37; Testimony of Joshua Greeley Carpenter (Carpenter )24 at 374-75. There are no
scientific or longitudinal studies assessing the success of emotional growth educational programs
at KGS. Tucker at 259; Carpenter at 379.
56. J.C. left NHYW on February 13, 2007, and arrived at KGS on February 14, 2007. Hearing
Decision at 13, 26; E.P. at 391-94.
57. The PET met again in York on February 15, 2007, to consider J .C.s eligibility for special
education. Hearing Decision at 13, 27; Record at 397. The Parents attended by conference call,
as they were snowed in while in Vermont. Id. Dr. Hoag discussed the results of her evaluation,
and several of J.C.s teachers discussed their experience with her. Hearing Decision at 13, 27;
Record at 397-400. Dr. Hoag described J.C. to the PET as present[ing] better and more
emotionally stable than her testing shows[,] having depression and dysthymia as well as
substance abuse[,] having low self-esteem in contrast to her presentation[,] and experiencing
a great deal of anxiety. Record at 399. She noted, however, that J.C. reported that she feels
good about herself in school and in sports[,] and [t]esting indicated that school is an area that
she feels good about herself. Id. Dr. Hoag told the PET that testing indicated that the answer to
the question of whether there was a general, pervasive mood of unhappiness or depression was
yes, but the question is does it adversely affect educational performance. Id. at 401. This time,
the team determined that J.C. did not display any of the five characteristics listed in the emotional
disability form, and found her ineligible under the emotional disability category on that basis.
Hearing Decision at 13, 27; Record at 401. The PET also determined that J.C. was not eligible
as a student with a learning disability or other health impairment. Id. The Parents again expressed

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their disagreement with the ineligibility determination. E.P. at 397-98.


*16 58. At KGS, J.C. had a therapist, attended both individual and group therapy sessions, and
made progress. Hearing Decision at 13, 28; Kingsbury at 295, 302. She also attended Alcoholics
Anonymous and Narcotics Anonymous meetings regularly and had no access to alcohol or drugs.
Hearing Decision at 13, 28; Kingsbury at 306.
59. During the spring of 2007, J.C. took the following courses and earned the following grades:
algebra IIA, B; art history, A; diseases and history, A-; photography I, B+, studio art, A, and U.S.
history, A+. Hearing Decision at 14, 29; Record at 81. All of her teachers commended her for
her work. Id.
60. Since enrolling at KGS, J.C. has had occasional issues with personal displays of affection
with boys at the school. Kingsbury at 329-30. Yet, J.C. made excellent progress at KGS,
developing the ability to label her emotions, identify the root of those feelings, and demonstrate i
n functional ways a new repertoire of healthy coping skills, such as talking and writing. E.P. at
399; Kingsbury at 307; Fitzhugh Dep. at 16-18. She demonstrated a newfound ability to advocate
for herself, rather than simply exploding emotionally in the face of authority and limit-setting,
and developed self esteem unrelated to her physical appearance. Fitzhugh Dep. at 10, 18, 24, 26;
E.P. Dep. at 5-6. She developed healthy relationships with male peers that were not based on her
sexuality. E.P. at 401-02. At her deposition on February 22, 2008, Dr. Fitzhugh said that J.C. was
doing as well at that time as the average 18-year-old girl i n terms of seeing herself as an
autonomous person whose self image doesnt depend on relationships with guys[.] Fitzhugh
Dep. at 51-52.
61. J.C. was elected president of the student council at KGS in January 2008, having served on
the council prior to that time. Id . at 13, 43. She was scheduled to complete the emotional growth
phase system curriculum at KGS and to graduate with a high school diploma on April 26, 2008.
Id. at 30-31. She was planning to attend college i n the fall, to the amazement of her parents and
KGS staff. Id. at 31; E.P. Dep. at 10-11.
62. The Parents state that they incurred costs of $98,489.29 for tuition, room, and board at KGS
from February 2007 through April 2008, and costs of $7,945.83 for transportation and related
expenses through February 2008. Parents Brief at 21, 46.
63. On April 17, 2007, the Parents filed a request with the MDOE for an administrative due
process hearing. Record at 1-7. A hearing was conducted on June 4, 7, 12, and 20, 2007. Hearing
Decision at 1. Fifteen witnesses testified. Id. The Parents submitted 439 pages of exhibits, and the
District submitted 412 pages of exhibits. Id. at 2. The Parents argued that J.C. should have been
found eligible as a student with an emotional disability given that (i) she had a condition
exhibiting, over a long period of time and to a marked degree, either inappropriate types of
behaviors or feelings under normal circumstances, or a general pervasive mood of unhappiness or
depression, and (ii) her condition adversely affected her educational performance. Id. at 14, 1617. They sought relief for the Districts failure to identify their daughter as eligible for special
education in the form of reimbursement of the costs of her KGS placement. Id. at 15. The District
defended its decision of non-eligibility. Id.
*17 64. The Hearing Officer found in favor of the District. Id. at 23. She found that J.C. had been
suffering from mild to moderate depression over a period of several years, that her problems were
not related solely to substance abuse, and that [i]n comparison with her peers, the students
emotionally disturbed behavior was more frequent and intense, and therefore, manifested itself to

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a marked degree. Id. at 17-18. She noted that because J.C. had depression, whether she also was
socially maladjusted was irrelevant for purposes of eligibility analysis. Id. at 18-19. However, she
concluded that J.C.s condition had not adversely affected her educational performance. Id. at 1922. She found that J.C. did not demonstrate inappropriate behaviors under normal circumstances.
Id. at 22. Finally, she discerned a separate barrier to J.C.s eligibility: that the evidence did not
support a conclusion that she needed special education and related services. Id. at 22-23. She
concluded that because the District had not violated J.C.s rights in deeming her ineligible for
special education services, the District was not responsible for the costs of her unilateral
placement at KGS. Id. at 23.
[Court reviews Hearing Officer ruling]

II. Proposed Conclusions of Law


1. A party dissatisfied with the decision of an MDOE hearing officer may appeal that decision to
the Maine Superior Court or to the United States District Court. 20-A M.R.S.A. 7207-B(2)(B);
see also 20 U.S.C. 1415(i)(2)(A).
2. The IDEA provides that a court reviewing the decision of a hearing officer (i) shall receive the
records of the administrative proceedings; (ii) shall hear additional evidence at the request of a
party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as
the court determines is appropriate. 20 U.S.C. 1415(i)(2)(C).
3. The role of the district court is to render bounded, independent decisions-bounded by the
administrative record and additional evidence, and independent by virtue of being based on a
preponderance of the evidence before the court. Hampton Sch. Dist. v. Dobrowolski, 976 F.2d
48, 52 (1st Cir.1992) (citation and internal quotation marks omitted). While the court must
recognize the expertise of an administrative agency, as well as that of school officials, and
consider carefully administrative findings, the precise degree of deference due such findings is
ultimately left to the discretion of the trial court. Id. (citations and internal quotation marks
omitted).
4. The First Circuit and other courts have suggested that with respect to a hearing officers legal
conclusions, the level of deference due depends on whether the court is equally well-suited to
make the determination despite its lack of educational expertise. See, e.g., Deal v. Hamilton
County Bd. of Educ., 392 F.3d 840, 849 (6th Cir.2004) (Less weight is due to an agencys
determinations on matters for which educational expertise is not relevant because a federal court
is just as well suited to evaluate the situation. More weight, however, is due to an agencys
determinations on matters for which educational expertise is relevant.) (citations and internal
quotation marks omitted); Abrahamson v. Hershman, 701 F.2d 223, 231 (1st Cir.1983) (noting
that while it might be inappropriate for a district court under the rubric of statutory construction
to impose a particular educational methodology upon a state[,] court was free to construe term
educational in IDEA so as to insure, at least, that the state IEP [individualized education plan]
provides the hope of educational benefit.). Even as to findings of fact, the court retains the
discretion, after careful consideration, to accept or reject the findings in part or in whole. Town
of Burlington v. Department of Educ., 736 F.2d 773, 792 (1st Cir.1984), affd, 471 U.S. 359, 105
S.Ct. 1996, 85 L.Ed.2d 385 (1985)).
*19 5. In IDEA cases, as i n other contexts, the burden of persuasion rests on the party seeking

103

relief. See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51, 126 S.Ct. 528, 163 L.Ed.2d
387 (2005); Dobrowolski, 976 F.2d at 54; Maine Sch. Admin. Dist. No. 35 v. Mr. and Mrs. R., 176
F.Supp.2d 15, 23 (D.Me.2001) (rec. dec., affd Feb. 27, 2002), revd on other grounds, 321 F.3d
9 (1st Cir.2003) (The party allegedly aggrieved must carry the burden of proving ... that the
hearing officers award was contrary to law or without factual support.).

A. Definitions: Child With a Disability


6. The IDEA defines a child with a disability, in relevant part, as a child (i) with ... serious
emotional disturbance (referred to in this chapter as emotional disturbance) ... (ii) who, by reason
thereof, needs special education and related services . 20 U.S.C. 1401(3)(A).
7. Emotional disturbance is defined, in relevant part, as:
(i) ... a condition exhibiting one or more of the following characteristics over a long period of
time and to a marked degree that adversely affects a childs educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and
teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school
problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are
socially maladjusted, unless it is determined that they have an emotional disturbance under
paragraph (c)(4)(i) of this section.
34 C.F.R. 300.8(c)(4).25
8. In like vein, at relevant times, Maine defined a student with a disability as an individual who,
inter alia, has one or more listed disabilities (which include emotional disability) and who [h]as
been evaluated according to these rules and has been determined to have a disability which
requires the provision of special education and supportive services. Maine Special Education
Regulations, Code Me. R. 05-071 ch. 101 (2003) (MSER), 3.1, 3.5.26 The MSER also
defined emotional disability in a manner virtually identical to that of relevant federal
regulations. Compare 34 C.F.R. 300.8(c)(4) with MSER 3.5.
9. Neither the IDEA nor accompanying federal regulations defines the phrase adversely affects
educational performance, thereby leaving it to each State to give substance to these terms. J.D.
ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir.2000).
10. The MSER did not define the terms adversely affects or adverse effect. See MSER 2.
However, this court has interpret[ed] the phrase as reflecting Congresss and Maines intent that
any adverse effect on educational performance, however slight, meets this prong of the
definition. Mr. and Mrs. I, 416 F.Supp.2d at 160.
*20 11. The MSER did define educational performance, as follows: The term educational

104

performance includes academic areas (reading, math, communication, etc.), non-academic areas
(daily life activities, mobility, etc.), extracurricular activities, progress in meeting goals
established for the general curriculum, and performance on State-wide and local assessments.
MSER 2.7. I n turn, the term general curriculum was defined to mean the school
administrative units local curriculum for grades K-12 which incorporate [s] the content standards
and performance indicators of the Learning Results. Id. 2.11. The Learning Results were
defined, at relevant times, as a comprehensive, statewide system of learning results based
broadly upon six guiding principles and aimed at establishing high academic standards at all
grade levels in the [eight content] areas of math; English; science and technology; social studies,
including history, economics and civics; career preparation; visual and performing arts; health
and physical education; and foreign languages. 20-A M.R.S.A. 6209 (eff. May 30, 2006,
through June 8, 2007).
12. The IDEA defines special education as specially designed instruction, at no cost to
parents, to meet the unique needs of a child with a disability, including ... (A) instruction
conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education. 20 U.S.C. 1401(29). Related services are defined as
transportation, and such developmental, corrective, and other supportive services (including
speech-language pathology and audiology services, interpreting services, psychological services,
physical and occupational therapy, recreation, including therapeutic recreation, social work
services, school nurse services ..., counseling services, including rehabilitation counseling,
orientation and mobility services, and medical services, except that such medical services shall be
for diagnostic and evaluation purposes only) as may be required to assist a child with a disability
to benefit from special education, and includes the early identification and assessment of
disabling conditions in children. Id. 1401(26).
13. If a child is determined to have an enumerated condition but only needs a related service and
not special education, the child is not eligible under the IDEA unless, consistent with 34 C.F.R.
300.39(a)(2), the related service required by the child is considered special education rather
than a related service under State standards[.] 34 C.F.R. 300.8(a)(2).27
14. Effective May 30, 2006, the Maine legislature defined special education and related
services as follows:
4-B. Related services. Related services means special education transportation and such
developmental, corrective and other related services, as defined by the commissioner, as are
required to assist children with disabilities to benefit from their special education programs.
*21 5. Special education. Special education means specially designed instruction, at no cost
to parents, to meet the unique needs of children with disabilities, as defined by the
commissioner, including:
A. Instruction conducted in the classroom, in the home, in hospitals and institutions and i n
other settings; and
B. Instruction in physical education.
20-A M.R.S.A. 7001(4-B) & (5) & Historical & Statutory Notes thereto.28
15. The MSER defined special education services and supportive services as follows:
2.23 Special Education Services

105

Special education services are educational services specially designed to meet the unique
needs of a student with a disability provided at no cost to the parent by qualified individuals
as defined by the commissioner. All special education services shall be provided by qualified
individuals employed or contracted by a school administrative unit, a private special purpose
school, or a private general purpose school approved to provide special education and
supportive services.
***
2.28 Supportive Services
Supportive Services means special education transportation, and such developmental,
corrective, and other supportive services as are required to assist a student with a disability to
benefit from his/her special education program. The term includes, but is not limited to,
speech-language pathology, audiology, counseling services including rehabilitation
counseling, orientation and mobility services, psychological services, physical therapy,
occupational therapy, recreation including therapeutic recreation, early identification and
assessment of students with disabilities, and medical services except that such medical
services shall be for diagnostic or evaluation purposes only. The term also includes school
health services, social work services in schools, and parent counseling and training. All
supportive services shall be provided by appropriately certified or licensed professionals or
appropriately supervised support staff. The term Supportive Services is synonymous with
the term Related Services as used in the 1997 Amendments to the Individuals with
Disabilities Education Act.
MSER 2.23, 2.28. The MSER contained an exclusion for medical services or treatment,
providing: Services or treatment performed by psychiatrists, physicians, optometrists,
chiropractors, registered substance abuse counselors, or other medical personnel are not an
allowable special education or supportive service. Id. 6.2(A).
16. Schools that receive federal funding are required to identify, locate, and evaluate students
who are in need of special education and related services. See, e.g., 20 U.S.C. 1412(a)(3)(A);
MSER 7 (describing Maine schools child find obligations). Schools must provide such
students with a free appropriate public education, or FAPE, via an individualized education
program, or IEP, that is reasonably calculated to enable the child to receive educational
benefits[.] 20 U.S.C. 1412(a)(1) & (4); Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct.
3034, 73 L.Ed.2d 690 (1982).

B. Parties Arguments
[Court summarizes arguments of both parties]
C. Analysis
21. This is a difficult case, involving a highly intelligent but deeply troubled young woman who
suffered serious adverse effects from her condition, but displayed virtually none in school,
particularly York High School, where the PET decisions at issue were made. As such, this lawsuit
tests the outer boundaries of IDEA eligibility. After a thorough review of the entire record,
including the supplemental evidence that the Parents were permitted to file with this court, and
after careful consideration of counsels well-crafted briefs, I conclude that the Hearing Officer

106

correctly perceived this case as falling without those boundaries.


*25 22. As a threshold matter, I agree with the District that the Hearing Officer erred in failing to
make an explicit finding as to whether J.C.s depression was pervasive. The Parents offer good
reason why, from a clinical and common-sense point of view, one should be required to
demonstrate either a general pervasive mood of unhappiness or depression. See Parents
Reply at 2-3. However, they offer no caselaw or regulatory authority for that proposition, see id.,
and, on a plain reading, the text indicates that the word pervasive modifies the word
depression, requiring that a childs condition exhibit [a] general pervasive mood of
unhappiness or depression [,] 34 C.F.R. 300.8(c)(4)(i)(D), not a general pervasive mood of
unhappiness, or depression, or depression, or a general pervasive mood of unhappiness.
23. Nonetheless, the evidence amply supports a finding that J.C.s depression was pervasive, that
is, spreading throughout or permeating her life. See Websters II New Riverside Univ. Dictionary
878 (1994) (defining pervade as [t]o be spread throughout: PERMEATE). From May 2003,
when Dr. Gear first assessed J.C. with anxious depression, through February 2007, when Dr.
Hoag performed a comprehensive psychological evaluation on behalf of the District, J.C.
consistently has been assessed as suffering from depression or dysthymia. Professionals assessing
her did not suggest that she was episodically free of depression or dysthymia, but, rather, that she
was capable of successfully masking her symptoms. See, e.g., Record at 406 (observation of Dr.
Hoag that J.C. presents well and her engaging personality could easily be misinterpreted that she
is a happy, well adjusted adolescent without much emotional distress), 573 (observation of Dr.
Broderick that J.C. typically deals with her feelings in a more intellectual manner, effectively
masking at times the depth of her distress or dysphoric affect); E.P. at 126-27 ([O]ne thing
thats been true about [J.C.] from early years is that she appears happy and cheerful and appears
that shes handling things, but inside, shes you know, a black hole.). J.C.s own truth letters
attest to the roiling, underlying emotions she felt even at school. See Record at 272-79. Even Dr.
Hoag, the Districts psychological expert, deemed J.C.s depression pervasive. See id. at 401.30
24. The question of whether J.C. exhibited depression to a marked degree is a closer one. By and
large, J.C. did not exhibit her depression at school. As Dr. Hoag observed, she struggled with
dysthymia, exhibiting signs of major depression only when under extreme stress, for example,
following her removals to Spring Harbor and NHYW. Nonetheless, on the totality of the
evidence, I agree with the Hearing Officer and the Parents that J.C. fairly can be described as
having a condition exhibiting characteristics of unhappiness or depression to a marked degree.
That evidence includes not only her documented incidents of major depression, but also her
sometimes explosive interactions with her parents and her long-running history of risky, selfdestructive behaviors, including cutting herself, drinking, drugging, and promiscuity,
commencing as early as in the sixth grade. As the Hearing Officer observed: In comparison with
her peers, the students emotionally disturbed behavior was more frequent and intense, and
therefore, manifested itself to a marked degree. Hearing Decision at 18.31
*26 25. I turn to whether J.C.s condition adversely affected her educational performance. The
Parents bear the burden of persuasion that the decision they challenge was wrong. See, e.g., Mr.
and Mrs. I., 416 F.Supp.2d at 156. They fail to carry that burden.
26. The Parents assail the Hearing Officers erroneous distinction between a learning problem
(i.e., the inability to understand something) and a failure to incorporate such knowledge into the
manner in which one functions in daily life (i.e., the inability to utilize learned knowledge),
Parents Brief at 27, emphasizing that both the IDEA and the latest iterations of Maines Learning
Results and its special education regulations make clear that functional performance is a key

107

part of educational performance, see id. at 27-30; see also, e.g., 20 U.S.C. 1414(d)(1)(A)(i)
(defining an IEP as a written statement for each child with a disability that ... includes ... a
statement of the childs present levels of academic achievement and functional performance);
MUSER II.9 (defining educational performance as performance in academic area (for
example, written literacy skills, math, communication), functional areas of performance (how the
child demonstrates his/her skills and behaviors in cognition, communication, motor, adaptive,
social/emotional and sensory areas), and for a child age 3-5, age appropriate developmental
activities across five domains of development (communication, physical, cognitive, selfhelp/adaptive, and social/emotional) in an educational setting); II. 13 (defining functional
performance as how the child demonstrates his/her skills and behaviors in cognition,
communication, motor, adaptive, social/emotional and sensory areas).
27. The Parents reliance on the current versions of Maines Learning Results and special
education regulations (the MUSER) is misplaced: those versions were not in effect during the
times the Parents themselves have identified as relevant in this case, and therefore can shed no
light on how Maine then defined educational performance.
28. In any event, even assuming arguendo that it is appropriate to look to Maines current
regulations to divine Maines definition of educational performance at the relevant times, I am
unpersuaded that Maine considers students conduct, or misconduct, outside of the school milieu
a part of their educational performance.
29. The Parents point out that the current version of Maines Learning Results requires students to
demonstrate a number of functional behaviors by the time they graduate, including, in the content
area of Career and Education Development, strategies to improve their personal traits and
behaviors and successful strategies for accomplishing tasks, balancing career and life roles, and
reducing stress in a variety of school, work, and community settings, and in the content area of
Health Education and Physical Education, a variety of behaviors to avoid or reduce health
risks to self and others, skills for communicating effectively with family, peers, and others to
enhance health, effective communication skills including asking for and offering assistance to
enhance the health of self and others, and refusal, negotiation, and collaboration skills to
enhance health and avoid and reduce health risks[.] Parents Brief at 29-30 (quoting Learning
Results/Parameters at 7, 9, 38, 41-42). They posit that, even if J.C. possessed the intellectual
ability to understand such concepts and skills, she engaged in drinking, drugging, cutting herself,
and promiscuity because of her functional inability to use those skills. See id. at 32. Hence, they
reason, she had not effectively learned a number of skills that are part and parcel of Maines
general curriculum, including the ability to demonstrate, inter alia, strategies for reducing stress
and healthy practices to improve her health. See id. at 34.
*27 30. Nevertheless, none of the Learning Results or M USER passages that the Parents cite
makes clear that students are required to demonstrate the requisite skills and behaviors at home,
or in any context outside of school, as part of their educational performance. See MUSER II.9,
II, 13; Learning Results/Parameters at 6-7, 9, 38, 41-42. For the Parents, the proposition is selfevident: the whole point of education is to teach skills that can be generalized outside of the
school context. See Parents Brief at 35 (Just as no one would be impressed by a school that
taught a child to read only at school, but not elsewhere, the test for eligibility is not simply
whether a student can negotiate the school day-especially when expectations are substantially
lowered in that setting to accommodate the students disability-if she is destined to leave school
without the skills necessary to becoming an independent, functioning adult in the community.).
31. Yet there is material difference between requiring demonstration of skills and behaviors i n

108

school in the hope that they will be generalized to other contexts, see, e.g., Mr. and Mrs. I, 416
F.Supp.2d at 158 n. 4 (describing Maines aspirational guiding principles), and requiring
demonstration of skills and behaviors outside of school as part of the educational curriculum
itself. As the District observes: [T]here is nothing anywhere in these regulations [the Learning
Results/Parameters sections cited by the Parents] that in any manner indicates that the standard
for measurement should be how the child is acting after hours with his or her friends. Such an
Orwellian approach to demonstrating knowledge or skills would draw the school and school
officials out into the community, into the homes, and into the youth hang outs of the communityat incredible expense and intrusiveness. District Brief at 38 (footnote omitted); see also, e.g.,
Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities
Education Act, 69 Mo. L.Rev. 441, 479 (2004) (Garda) (noting that, while schools typically
track behavior, the poor behavior must occur in-school, as out-of-school behaviors such as those
relating to parent/child relationships are typically not tracked by schools and not covered in the
curriculum.... The only exception [for purposes of assessing adverse effect on educational
performance] should be when the out-of-school behavior affects an area of educational
performance, such as completing homework or attending school.).
32. Nor does caselaw touching on the question of in-school versus out-of-school conduct help the
Parents. In Gonzlez, the First Circuit made clear that the IDEA does not address social
problems at home, as distinct from a students educational needs, although it acknowledged
that, in some serious cases, as a practical matter, the two are intertwined:
As a conceptual matter, the district courts recitation of the relevant legal standard was correct
as to problems truly distinct from learning problems. Educational benefit is indeed the
touchstone in determining the extent of governmental obligations under the IDEA. Thus we
have said, for example, that the Act does not require a local school committee to support a
handicapped child in a residential program simply to remedy a poor home setting or to make up
for some other deficit not covered by the Act. It is not the responsibility of local officials under
the Act to finance foster care as such: other resources must be looked to.
*28 Nonetheless, as a practical matter, in cases such as this one, where all agree that the
students activities need to be highly structured both during and after school in order for him to
receive an appropriate education, clear lines can rarely be drawn between the students
educational needs and his social problems at home. Thus, typically an IEP in cases where the
students disability is this serious (and requires such a degree of structure) must address such
problems in some fashion, even if they do not warrant residential placement.
Gonzlez, 254 F.3d at 352-53 (citations and internal quotation marks omitted). Other courts have
reached similar conclusions. See, e.g., Escambia County Bd. of Educ. v. Benton, 406 F.Supp.2d
1248, 1265 (S.D.Ala.2005) ([T]he IDEA is focused on provision of a FAPE to disabled children,
and is not designed to ameliorate inappropriate behaviors beyond the school environment.).
33. Mr. and Mrs. I does not indicate otherwise. Judge Hornby focused on the multiple ways in
which Aspergers Syndrome, the impairment suffered by the student in question, had affected her
in school and, in keeping with Gonzlez, found that the school district and the Hearing Officer
had erred in determining that she was ineligible for special education. See Mr. and Mrs. I, 416
F.Supp.2d at 161 (The problems [the student] experienced at school as a result of Aspergers
Syndrome occurred in areas that Maine considers educational performance, including academic
areas, non-academic areas, and progress toward Maines general curriculum standards.)
(emphasis added), 162 n. 8 (There is also the fact of [the students] self-mutilation (carving into
her own arms) during long breaks from math class in sixth grade, surely demonstrating a failure

109

to understand the relationship between healthy behaviors and injury prevention, how to avoid or
change situations that threaten personal safety, or distinguish between healthy and unhealthy
stress management techniques or how to learn responsible personal and social behaviors. These
are all skills that Maine requires students to acquire and demonstrate in school.) (citation
omitted) (emphasis added).
34. The Parents cite Parent v. Gorham Sch. Dept, Case No. 07 .020H, at 12-13 (Me. Dept of
Educ. Jan. 5, 2007), for the proposition that [s]chools may not wash their hands of students
solely because they do not present their behavioral or emotional issues in school if they are falling
apart outside of school. Parents Brief at 35. However, Gorham was not an eligibility case. The
student had already been found eligible; the question presented was whether his IEP adequately
addressed the full scope of his needs, including behaviors at home that were linked to events and
experiences at school and impacting his performance there. See Gorham, Case No. 07.020H, at
12-13 (It is clear to this hearing officer that the students emotional and social difficulties both
derived from his experiences at school, and significantly contributed to his inability to access her
very superior cognitive potential[,] as a result of which he had performed poorly in reading,
writing, and spelling).
*29 35. Other cases on which the Parents rely likewise cannot fairly be read to buttress the
proposition that, for eligibility purposes, it is immaterial whether adverse effect occurs in school.
See Parents Brief at 36-37 (citing Independent Sch. Dist. No. 284 v. A.C. ex rel. C.C., 258 F.3d
769, 777 (8th Cir.2001); Benton, 406 F.Supp.2d at 1266 n. 25; Mohawk Trail Regl Sch. Dist. v.
Shaun D. ex rel. Linda D., 35 F.Supp.2d 34 (D.Mass.1999)). In those cases, as in Gorham, courts
addressed whether the IEPs of students who already had been found eligible for special education
adequately addressed problematic behaviors that were occurring outside of, but impacting, their
performance in school. See A.C., 258 F.3d at 776-77 (rejecting district courts conclusion that
social, emotional problems are necessarily segregable from learning process; noting, If the
problem prevents a disabled child from receiving educational benefit, then it should not matter
that the problem is not cognitive in nature or that it causes the child even more trouble outside the
classroom than within it. What should control our decision is not whether the problem itself is
educational or non-educational, but whether it needs to be addressed in order for the child to
learn.); Benton, 406 F.Supp.2d at 1266 n. 25 (noting, in case regarding whether IDEA eligible
child had received a FAPE, far from erecting an absolute barrier separating inappropriate home
behaviors from school behaviors, Gonz []lez recognizes the symbiotic, interrelated connection
between the two, and the obvious possibility that inappropriate behaviors at home may carry over
into the educational context and interfere with a childs right to a FAPE unless managed via an
IEP.); Mohawk Trail, 35 F.Supp.2d at 41 (Like the child in Abrahamson, Shaun presents a
unique case. His out-of-school behavior was not only related to various recorded diagnoses, but
was inextricably intertwined with his educational performance. As in Abrahamson, Shauns need
for residential care, as determined by the hearing officer, came about only upon finding that the
minimal educational benefits to which Shaun was entitled could not be obtained i n a day
program alone; rather the kind of training he needed had to be given round-the-clock, thus
necessitating placement in a residential facility.) (citation and internal punctuation omitted).32
36. For al l of these reasons, the Parents fall short of making a persuasive case that the question of
whether J.C.s condition adversely affected her educational performance must be judged with
reference to misconduct occurring outside of school, such as drinking, drugging, and promiscuous
behavior.
37. With this clarification, the Hearing Officers ultimate conclusion can be deemed correct. Even
assuming arguendo that it is appropriate to look to Maines current regulations to discern how

110

Maine defined educational performance at the relevant times, and that the Hearing Officer
therefore erred to the extent that she held that educational performance encompasses only the
ability to learn, but not the ability to put learned concepts into practice, she nonetheless also
ruled, more narrowly, that J.C.s educational performance had not been affected because she
suffered from a condition that led her to abuse drugs and alcohol and engage in other undesirable
behaviors outside of school, but these mental health problems had not damaged her ability to
succeed in school. See Hearing Decision at 21. The evidence bears out that conclusion. J.C.
performed well academically. She had no attendance problems. She worked very hard, completed
her work, and worked well independently. She was well-liked by peers and teachers. In school,
she displayed excellent social skills, including abilities to transcend cliques and to assume
leadership roles. She generally presented in school as happy. She had no difficulty
communicating orally or in writing.
*30 38. While J.C. was disciplined when she was in the seventh and eighth grades, the District
fairly characterizes her offenses of personal displays of affection, being rude to a substitute
teacher, and going swimming at a school picnic as minor. District Brief at 31-32. As the
District points out, J.C. had no disciplinary incidents of any kind during her freshman year and
parts of her sophomore and junior years when she attended York High School and when the PET
was considering referral. See id. at 32. It is true that, in PET minutes cited by the Parents, see
Parents Brief at 35 n. 6, Stevens was reported to have said that J.C.s behavior could be a bit
erratic during Stevens first-period French class; she sometimes fell asleep and sometimes had
too much energy; at times she was a little self-isolating[;] and she sometimes said things in a
startling way. Record at 398, 462. Nonetheless, Stevens also was reported to have described J.C.
as a great French student and a pleasure to have in class and to have noted that she always did
quality work[,] never stepped over boundaries, and, most of the time, engaged well in
activities. Id. It is difficult in these circumstances to discern that J.C.s condition, as serious as it
was outside of school, and as understandably alarming to her parents, had even a slightly adverse
effect on her educational performance.
39. Nonetheless, even assuming arguendo that J.C.s condition did adversely affect her
educational performance, the Hearing Officer correctly held her ineligible because she did not
need special education. See Hearing Decision at 22-23. As the District reasons, The adverse
effect and need for special education prongs are independent of each other. A child could have
some minor adverse effect and still be doing quite well in school academically, behaviorally, and
functionally. That child would not need special education to benefit[.] District Brief at 42
(footnote omitted); see also, e.g., Garda at 490 ([A] child that achieves a B+ in math instead of
an A because of a disability fulfills the adversely affects requirement but does not need special
education, even if special education would help. Determining that a childs disability adversely
affects educational performance simply does not answer the question of whether the child needs
special education.) (footnote omitted).
40. Despite concerns raised in middle school about J.C.s conduct and affect, and the observations
made at PET meetings by her 11th grade French teacher that she seemed sleepy and nonparticipatory and occasionally said startling things, it is clear that J.C. consistently performed
strongly across all spheres in school, including academics, conduct, communication, citizenship,
leadership, and social skills. Whatever the extent and scope of her needs generally, she did not
need special education to benefit from the education offered her in public school. See Katherine
S. v. Umbach, No. CIV.A. 00-T-982-E, 2002 WL 226697, at * 10 (M.D.Ala. Feb.1, 2002) (child
did not need special education when she attended school regularly, had friends, participated in
extracurricular activities, had slipping, but still passing, grades in accelerated courses, and her
behavior problems and family conflict experienced at home were not reflected in her behavior in

111

school); Garda at 511 ([T] he free appropriate public education standard applied to eligible
children supports finding that children passing yet performing poorly need special education. This
standard appropriately eliminates average and above average performers from eligibility, an
outcome that already finds virtually unanimous support from courts and hearing officers.
Children able to compensate for their disability so that their educational performance (e.g.,
grades, attendance, behavior) is average to above average should not be eligible.). As the
Hearing Officer noted, this independently disqualifies her from eligibility.
*31 41. Because the Hearing Officer correctly determined that J.C. was ineligible for special
education services on the bases that her condition did not adversely affect her educational
performance or, alternatively, that she did not need special education, the District is not
responsible for the costs of her unilateral placement at KGS.

III. Conclusion
For the foregoing reasons, I recommend that the instant appeal be DENIED.

Footnotes
1
The Parents were permitted to supplement the administrative record, see Memorandum Decision on Motion To
Supplement Record (Docket No. 19), following which they filed copies of depositions of E.P. and of Karen E.
Fitzhugh, Ph.D., see Deposition of E.P. (E.P.Dep.) (Docket No. 21); Telephone Deposition of Karen E.
Fitzhugh, Ph.D. (Fitzhugh Dep.) (Docket No. 22).
2

For ease of reference, I shall refer to the Hearing Officers decision, contained at pages 911-33 of the Record, as
Hearing Decision, citing the consecutively numbered pages of the Hearing Decision itself rather than Record
pages. I have drawn my proposed facts from the Hearing Officers findings, supplemented by additional
information, including facts proposed by the District and the Parents, to the extent the findings and additional
information are relevant, or useful by way of background, and are supported by a preponderance of the
evidence.

When citing hearing testimony, I shall refer to the consecutively numbered pages of the hearing transcript,
contained at pages 934-1206 of the Record, rather than to Record pages.

Nonetheless, when asked at hearing whether she agreed with the PETs 1998 decision, E.P. testified: [W]as I in
agreement Probably I was. E.P. at 100.

E.P. testified that, after practically wrest[ling] her to get it and look, she checked J.C.s arm and found
evidence of many cuts. E.P. at 112-13. E.P. understood that cutting was a way to relieve pain. Id. at 112.

Although the Hearing Officer stated that Dr. Gear diagnosed J.C. in May 2003 with, inter alia, Major
Depressive Disorder and anxiety, the Record indicates that Dr. Gear initially assessed her with anxious
depression and had changed the diagnosis as of February 14, 2004, to Major Depressive Disorder following an
episode, described below, in which J.C. was hospitalized for depression. Record at 350. As of December 30,
2006, Dr. Gear assessed J.C. as struggling with a complicated combination of ADHD [Attention DeficitHyperactivity Disorder] and a Mood Disorder, possibly a bipolar disorder. Id. at 351.

The Hearing Officer stated that Dr. Gear prescribed medication to address J.C.s depression and ADHD;
however, the Record indicates that she was initially prescribed Effexor for depressive symptoms. Record at 436.

112

The Hearing Officer mistakenly found that J.C. received an occasional C in physical education.

Wyatt taught J.C. math in the eighth, ninth, and 10th grades and coached her in track in the seventh and eighth
grades and basketball i n the eighth grade. Wyatt at 676-77.

10

The Hearing Officer mistakenly found that J.C. had received four behavior reports during the seventh grade.

11

The Parents submitted this proposed finding of fact. See Parents Brief at 8, 17. York protested that the Record
did not support that characterization, and that the obvious overstatement was improper in this sensitive case.
See Defendants Memorandum of Law (District Brief) (Docket No. 31) at 8 n. 4. I find the characterization to
be supported by the Record.

12

Coggers last name evidently is misspelled in the hearing transcript. See Parents Brief at 9, 9; Record at 275.

13

Dysthymia is [a] chronic mood disorder manifested as depression for most of the day, more days than not,
accompanied by some of the following symptoms: poor appetite or overeating, insomnia or hypersomnia, low
energy or fatigue, low self-esteem, poor concentration, difficulty making decisions, and feelings of
hopelessness[.] Stedmans Med. Dictionary 556 (27th ed.).

14

Macri was the Districts assistant director of special education. Macri at 636.

15

The Hearing Officer stated that J.C. was arrested for shoplifting, but the Record indicates that she was placed
on house arrest at EWS following the incident. E.P. at 157.

16

The Hearing Officer mistakenly stated that the PET found that J.C. had a general pervasive mood of
unhappiness and depression.

17

This is a reference to accommodations offered pursuant to section 504 of the federal Rehabilitation Act, 29
U.S.C. 794. See, e.g., Mr. and Mrs. I v. Maine Sch. Admin. Dist. 55, 416 F.Supp.2d 147, 152 (D.Me.2006),
affd, 480 F.3d 1 (1st Cir.2007).

18

Mackenzie was NHYWs clinical director. Mackenzie at 43.

19

Bacon taught J.C. science in the 11th grade at York High School. Bacon at 702-04.

20

Beetz was the Districts director of special education. Beetz at 614.

21

The Hearing Officer mistakenly stated that J.C. had arrived on November 15, 2007.

22

Tucker was KGSs associate academic dean. Tucker at 208-09.

23

Kingsbury was J.C.s primary therapist at KGS. Kingsbury at 291.

24

Dr. Carpenter was KGSs clinical director. Carpenter at 344.

25

Federal regulations defining child with a disability were amended both during and subsequent to the period
the Parents describe as the relevant period in this case, from May 2006 through February 2007. See Parents
Brief at 24 n. 2. However, there was no material change in the definition of emotional disturbance. Compare
34 C.F.R. 300.8(c)(4) (eff.Oct.30, 2007) with 34 C.F.R. 300.8(c)(4) (eff. Oct. 13, 2006, to Oct. 29, 2007); 34
C.F.R. 300.7(c)(4) (eff. to Oct. 12, 2006). Hence, I quote from the regulation currently in effect.

113

26

Subsequent to the relevant time period, the MSER was superseded by a new set of special-education regulations,
the Maine Unified Special Education Regulation, Birth to Age Twenty, Code Me. R. 05-071 ch. 101 (final
adoption eff. May 15, 2008) (MUSER).

27

Section 300.39(a)(2) provides that special education includes speech-language pathology services, or any other
related service, if considered special education rather than a related service under state standards, travel training,
and vocational education. 34 C.F.R. 300.39(a)(2)

28

While the Maine and federal definitions of special education now are virtually identical, Maine previously
defined the term more inclusively, to wit: classroom, home, hospital, institutional or other instruction;
educational diagnosis and evaluation; transportation and other supportive assistance, services, activities or
programs required by students with disabilities. Mr. and Mrs. I, 416 F.Supp.2d at 166 (quoting former 20-A
M.R.S.A. 7001(5)).

29

The Parents also initially alternatively sought a remedy of compensatory education in the form of
reimbursement of KGS costs. See Parents Brief at 48-50. However, in their reply brief, they omitted mention of
that request, seemingly in tacit recognition of the correctness of the Districts position that reimbursement is not
available as a form of compensatory education. See District Brief at 49-50; Plaintiffs Reply Memorandum of
Law (Parents Reply) (Docket No. 32); Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267, 273 (1st
Cir.2004).

30

The District states that Dr. Hoag testified that she did not believe that J.C.s depression was pervasive. See
District Brief at 28 (citing Hoag at 531). That is not a fair characterization of the cited passage. Dr. Hoag
testified that she did not feel that J.C. met the criteria for borderline personality disorder because the personality
traits in which she scored high were not pervasive. See Hoag at 531-32.

31

I do not reach the Parents alternative argument that their daughter had a condition exhibiting inappropriate
types of behavior or feelings under normal circumstances. See Parents Brief at 25 n. 3; Parents Reply at 4-7.
They preserved that issue only to the extent that J.C. was deemed not to have had a condition exhibiting a
general pervasive mood of unhappiness or depression. See id. I also do not reach the Districts argument that
J.C. suffered solely from social maladjustment. See District Brief at 44-46.

32

Tellingly, while courts have not hesitated to hold that an IEP must address out-of-school behaviors that impact a
childs ability to progress at school, they have balked at mandating that an IEP address a childs ability to
generalize lessons learned at school outside of the school context. See Thompson R2-J Sch. Dist. v. Luke P. ex
rel. Jeff & Julie P., --- F.3d ----, No. 07-1304, 540 F.3d 1143, 2008 WL 3984361, at *5 (10th Cir. Aug.29, 2008)
(holding that students IEP did not fail to provide him with a FAPE because it failed to address adequately his
inability to generalize functional behavior learned at school to the home and other environments; noting, The
school district responds that, as a matter of law, generalization across settings is not required by IDEA so long
as Luke can be said to be making some progress in school, and cites cases from the Eleventh and First Circuits,
as well as various district courts, so holding. We are constrained to agree with the school district and our sister
courts.) (footnote omitted). The First Circuit case to which the court referred was Gonzlez. See id. at *5 n. 7. It
also cited, inter alia, Devine v. Indian River County Sch. Bd., 249 F.3d 1289 (11th Cir.2001), see id., in which
the United States Court of Appeals for the Eleventh Circuit observed: [T]his circuit has specifically held that
generalization across settings is not required to show an educational benefit[,] Devine, 249 F.3d at 1293.

114

or above average. He attended a private


school from seventh to ninth grade and
received no special education services there.
When he returned to Fairfax County schools
for his tenth grade year, he enrolled in
regular education classes at McLean High
School and attained a C+ grade point
average. Throughout this period, Edward
maintained positive relationships with his
teachers and peers. During high school he
participated in a church group, the Boy
Scouts, and the McLean High School
wrestling team.
Edward
developed
significant
behavioral problems in his eleventh grade
year. He was arrested in August 1993 for
possessing burglary tools and tampering
with an automobile, offenses for which he
was sentenced to one year probation, fifty
hours of community service, and a
suspended fine of $2,500. Edward would
frequently sneak out of his parents' house
and stay out all night with friends. He stole
from his parents and others. He regularly
used marijuana and alcohol. Edward often
broke school rules and had a high rate of
absenteeism. He was disciplined for driving
recklessly on school property, cutting
classes, forgery, leaving school grounds
without permission, and fighting. Towards
the end of the eleventh grade, Edward and
his friends stole a fellow student's car.
Edward kept the car for a week of joyriding. In connection with this episode he
was sentenced to probation until his
eighteenth birthday.
Although he continued to score in the
average to superior range of intellectual
ability on standardized tests, Edward's
eleventh-grade
performance
suffered
because he cut class and frequently failed to
complete assignments. During his week of
joy-riding, he skipped school and missed his
final exams, causing him to fail three of his
seven courses for the year. His teachers, his
mother, and Edward himself agreed that
these difficulties resulted from truancy, lack
of motivation, and poor study habits. At the
time, Edward recognized that with more
effort he could obtain above average grades.

Page 659
134 F.3d 659 (4th Cir. 1998)
Edward P. SPRINGER, a minor, by his
parents and next
friends, Edward and JoAnne Springer;
Edward
Springer; Joanne Springer, PlaintiffsAppellants,
v.
THE FAIRFAX COUNTY SCHOOL
BOARD, Defendant-Appellee,
and
Robert
Spillane,
officially
as
Superintendent, Fairfax
County Public Schools, Defendant.
No. 97-1482.
United States Court of Appeals, Fourth
Circuit
January 23, 1998
Argued Dec. 1, 1997.
Page 660
OPINION
WILKINSON, Chief Judge:
Edward Springer and his parents seek
reimbursement from the Fairfax County
School Board for tuition paid to a private
school in which the Springers enrolled
Edward after he failed the eleventh grade.
The School Board determined that Edward
was not suffering from a "serious emotional
disturbance," as the Springers claim, and
that he was therefore ineligible for special
education services under the Individuals
with Disabilities Education Act, 20 U.S.C.
1415 ("IDEA"). The district court upheld the
State Review Officer's determination that
Edward was not disabled and that his
parents were not entitled to tuition
reimbursement. Because the applicable
IDEA regulations do not equate mere
juvenile delinquency with a "serious
emotional disturbance," we affirm.
I.
During most of his years in the Fairfax
County school system, Edward Springer
demonstrated no need for special
educational services. He progressed
successfully from grade to grade in regular
education programs. Throughout elementary
school his grades were consistently average

115

In response to his behavioral problems


the Springers enrolled Edward in September
1994 in the New Dominion School, a private
residential school located in Dillwyn,
Virginia. The Springers requested that the
School Board fund this placement, claiming
that Edward exhibited a serious emotional
disturbance, a qualifying disability under
IDEA. See 34 C.F.R. 300.7(a)(1). A
Fairfax County special education eligibility
committee evaluated Edward's condition and
determined that his behavior indicated a
conduct disorder that did not qualify as a
Page 662
serious emotional disturbance. Thus the
committee ruled that Edward was ineligible
for special education services and tuition
reimbursement.
The Springers requested a local due
process hearing, which took place on
February 9, 1995. The Local Hearing
Officer ("LHO") rendered his decision on
March 16, 1995. Relying exclusively on a
letter written by a psychiatrist, Dr. Joseph
Novello, to the Juvenile Court at the time of
Edward's second brush with the law, the
LHO found that Edward suffered from a
conduct disorder and a dysthymic disorder
(a moderate depressive disorder). Edward's
"inability to get along with his teachers and
fellow students and to abide by school rules"
was deemed consistent with these diagnoses.
The LHO concluded, without elaboration,
that Edward "should be considered
'seriously emotionally disturbed' rather than
merely 'socially maladjusted,' " and that he
thereby qualified for special education
services. Finding that Edward was making
educational progress at the New Dominion
School, the LHO ordered the School Board
to reimburse the Springers for tuition there.
The School Board appealed to a State
Review Officer ("SRO"), who reversed the
LHO and found that Edward did not meet
the criteria for a seriously emotionally
disturbed student under state and federal
special education regulations. The SRO
primarily questioned the LHO's reliance on
the letter from Dr. Novello. First the SRO
noted that this letter was originally written at
the Springers' request to persuade a juvenile

court judge to sentence Edward to three


weeks in a camp in Idaho rather than
incarceration for the theft of another
student's car. The SRO noted that Dr.
Novello had never testified in person to
elaborate on "[t]he sketchy, incomplete
description and evaluation of the Student's
makeup" in the letter. The SRO concluded
that this sketchiness and incompleteness and
"the casual reference to his 'clinical
diagnosis,' all render [the letter] insufficient
in detail and dignity to use as the LHO did,
which was to supply the theoretical
underpinning of a qualifying factual finding
of disability."
Most critically, the SRO pointed out
the abundant psychological evidence that
Edward did not have a serious emotional
disturbance--evidence that was not even
mentioned by the LHO. Several separate
evaluations of Edward had uniformly
supported the conclusion that, while Edward
was "socially maladjusted" and had a
"conduct disorder," he exhibited no
symptoms of a serious emotional
disturbance. In the face of this evidence, the
SRO could not accept the LHO's conclusory
assertion that Edward should be considered
"seriously emotionally disturbed" rather than
merely "socially maladjusted."
The Springers filed suit in district
court, seeking reversal of the SRO's
decision. At this point, they sought to
supplement the administrative record with
live testimony from Dr. Novello, although at
the state-level review they had represented
"that the probable delays and inconvenience
in scheduling" his participation (and that of
another doctor) "outweigh the need for what
they can contribute." The district court
granted the School Board's motion in limine,
disallowing Dr. Novello's testimony as
"additional evidence" under 20 U.S.C.
1415(e)(2). The district court found that Dr.
Novello had in fact been available to testify
throughout the administrative proceedings
and ruled that the Springers would have to
live with their repeated decisions not to call
him. Further, given that Dr. Novello had not
examined Edward since before Fairfax
County's initial eligibility committee

116

meeting, the district court determined that


any testimony the doctor could offer would
not qualify as "additional" under the statute.
The district court thus agreed with the
SRO that Edward was not seriously
emotionally disturbed. The court therefore
ruled that the School Board was not required
to reimburse the Springers for tuition at the
New Dominion School. The Springers now
appeal.
II.
A student becomes eligible for special
education services if he suffers from a
"serious emotional disturbance":
(i) The term means a condition
exhibiting one or more of the following
characteristics
Page 663
over a long period of time and to a marked
degree that adversely affects a child's
educational performance-(A) An inability to learn that cannot be
explained by intellectual, sensory, or health
factors;
(B) An inability to build or maintain
satisfactory interpersonal relationships with
peers and teachers;
(C) Inappropriate types of behavior or
feelings under normal circumstances;
(D) A general pervasive mood of
unhappiness or depression; or
(E) A tendency to develop physical
symptoms or fears associated with personal
or school problems.
(ii) The term includes schizophrenia. The
term does not apply to children who are
socially maladjusted, unless it is determined
that they have a serious emotional
disturbance.
34 C.F.R. 300.7(b)(9); see also
Regulations Governing Special Education
Programs for Children with Disabilities in
Virginia Part 1, "Definitions," at p. 9
(restating federal definition of serious
emotional disturbance).
The regulatory definition delineates no
fewer than four specific conditions a student
must satisfy in order to qualify for special
education services as seriously emotionally
disturbed: the student must demonstrate that
he has (1) exhibited one of the five listed

symptoms, (2) "over a long period of time,"


and (3) "to a marked degree," and (4) that
this condition adversely affects his
educational performance. Finally, the
definition pointedly excludes students whose
behavior
is
attributable
to
social
maladjustment, unless they also suffer an
independent serious emotional disturbance.
In interpreting this regulation district
courts are required to give deference to the
state and local education authorities whose
primary duty it is to administer IDEA. As
the Supreme Court noted in Board of Educ.
of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, "[t]he primary responsibility for
formulating the education to be accorded a
handicapped child, and for choosing the
educational method most suitable to the
child's needs, was left by the [IDEA] to state
and local educational agencies in
cooperation with the parents or guardian of
the child." 458 U.S. 176, 207, 102 S.Ct.
3034, 3051, 73 L.Ed.2d 690 (1982).
Accordingly, we have held that "[a]bsent
some statutory infraction, the task of
education belongs to the educators who have
been charged by society with that critical
task. Likewise, federal courts must accord
'due weight' to state administrative
proceedings." [*] Hartmann v. Loudoun
Cty., 118 F.3d 996, 1000 (4th Cir.1997)
(quoting Rowley, 458 U.S. at 206, 102 S.Ct.
at 3051), cert. denied, --- U.S. ----, 118 S.Ct.
688, --- L.Ed.2d ---- (1998) (No. 97-586).
Above all, federal courts must avoid the
temptation "to substitute their own notions
of sound educational policy for those of the
school authorities which they review."
Rowley, 458 U.S. at 206, 102 S.Ct. at 3051;
accord Ash v. Lake Oswego Sch. Dist. No.
7J, 980 F.2d 585, 587-88 (9th Cir.1992);
Kerkam v. McKenzie, 862 F.2d 884, 887
(D.C.Cir.1988).
III.
The Springers claim that Edward
exhibited a serious emotional disturbance
that entitled him to special education
services, including reimbursement for
tuition at the New Dominion School.
However, we agree with the SRO and the
district court that Edward's

117

Courts and special education authorities


have routinely declined, however, to equate
conduct disorders or social maladjustment
with serious emotional disturbance. See,
e.g., A.E. v. Independent Sch. Dist. No. 25,
936 F.2d 472, 476 (10th Cir.1991); Doe v.
Board of Educ., 753 F.Supp. 65, 71 n. 8
(D.Conn.1990); In re Morgan Hill Unified
Sch. Dist., 19 IDELR 557, 564-65 (SEA,
Cal.1992). The fact "[t]hat a child is socially
maladjusted is not by itself conclusive
evidence that he or she is seriously
emotionally disturbed." A.E., 936 F.2d at
476. Indeed, the regulatory framework under
IDEA pointedly carves out "socially
maladjusted" behavior from the definition of
serious
emotional
disturbance. This
exclusion makes perfect sense when one
considers the population targeted by the
statute. Teenagers, for instance, can be a
wild and unruly bunch. Adolescence is,
almost by definition, a time of social
maladjustment for many people. Thus a "bad
conduct" definition of serious emotional
disturbance might include almost as many
people in special education as it excluded.
Any definition that equated simple bad
behavior with serious emotional disturbance
would exponentially enlarge the burden
IDEA places on state and local education
authorities. Among other things, such a
definition would require the schools to
dispense criminal justice rather than special
education. As one Hearing Officer
explained:
[I]t is not intended to be the duty of special
education to force socially maladjusted
children to school by residentially placing
them if they choose to remain truant.
Programs within other political divisions,
such as the Juvenile Justice system, ... must
address this serious problem.... If they do
not, then Congress should act to place this
duty clearly.
In re Corpus Christi, 18 IDELR 1281,
1283 (SEA, Tex.1992). We agree and find
that the conduct at issue falls within the
explicit social maladjustment exception to
IDEA's coverage.
B.

Page 664
juvenile delinquency did not reflect a
serious emotional disturbance within the
meaning of the federal and state regulations
implementing IDEA.
A.
It seems incontrovertible that Edward
was socially maladjusted. Although neither
the federal nor the Virginia regulations
define the term, Edward's behavior fits the
definition offered by experts and accepted
by the LHO and the SRO. The LHO rightly
understood the term to refer to "continued
misbehavior outside acceptable norms." See
also In re Sequoia Union High Sch. Dist.,
1987-88 EHLR Dec. 559:133, 135
(N.D.Cal.1987) ("socially maladjusted [is] a
persistent pattern of violating societal norms
with lots of truancy, substance ... abuse, i.e.,
a perpetual struggle with authority, easily
frustrated, impulsive, and manipulative").
The reports of psychologists and other
witnesses at the local due process hearing
uniformly described Edward's condition in
terms of social maladjustment, not serious
emotional disturbance. For example, in
January 1995, Wendy Rudolph, Ph.D., a
school psychologist for Fairfax County,
administered a battery of tests to evaluate
Edward's psychological condition. She
found symptoms of social maladjustment:
Edward displayed "a disregard for social
demands or expectations. It appears that Ed
understands these expectations but that his
behavior is not always guided by them." The
most consistent diagnosis of Edward's
problems was that of a "conduct disorder,"
which supports a finding of social
maladjustment. Conduct disorder is marked
by a pattern of violating societal norms and
"is often associated with ... drinking,
smoking, use of illegal substances, and
reckless and risk-taking acts," all behaviors
that Edward exhibited. Barbara G. Lanzer, a
teacher and counselor of disturbed youth for
over twenty years, testified at the local due
process hearing that "[c]onduct disorder is
often associated, most frequently associated
with socially maladjusted behaviors." And
Dr. Rudolph opined that "a conduct disorder
is consistent with social maladjustment."

118

As the district court recognized, finding


that Edward was socially maladjusted does
not end the inquiry. The regulations
Page 665
contemplate that a student may be socially
maladjusted and suffer an independent
serious emotional disturbance that would
qualify him for special education services
under IDEA. The Springers insist that
Edward's is such a case. Like the district
court, we disagree.
First we note the overwhelming
consensus among the psychologists who
examined Edward. No fewer than three
psychologists examined him, and each
independently concluded that he was not
seriously emotionally disturbed. An
evaluation done in October 1993 by
psychologist Randy Roberts, Ph.D., "[did]
not indicate the presence of significant or
major psychiatric disturbance." This finding
confirmed the assessment of Edward by
psychologist Stanley J. Kulewicz, Ph.D.,
who in July 1993 had identified "no
significant
behavioral
or
emotional
difficulties." Likewise Dr. Rudolph's
January 1995 examination unearthed no
evidence of an emotional disability. In her
detailed report, which is the most recent
psychological analysis of Edward, Dr.
Rudolph described him as "a poised and
pleasant young man" who is used to being
able to " 'figure out' how to make the people
around him like him and allow him to have
his own way." Even when he was
misbehaving, Dr. Rudolph concluded,
Edward was getting "his own way"; she
testified before the LHO "that last year [in
the eleventh grade], in particular, Ed was
getting what he wanted. He didn't want to do
work, so he didn't. He didn't like going to
class, so he didn't do that." Dr. Rudolph thus
concluded that during this time Edward was
in complete control of his actions, which
distinguished him from emotionally
disturbed individuals, who may be "in such
pain and in such difficulty that they cannot
get to their goals." Based on her thorough
examination, Dr. Rudolph refused to
attribute Edward's behavior, troubling
though it was, to any emotional disability or

disturbance. Indeed, this case is somewhat


remarkable
in
that
the
relevant
psychological
evidence
is
virtually
uncontradicted. According to Ms. Lanzer's
expert appraisal of this evidence, finding
that Edward is not seriously emotionally
disturbed is not even "a close question."
The Springers have given us no reason
to doubt this professional consensus. They
first attempt to show that Edward exhibited
one of the five enumerated symptoms of a
serious emotional disturbance by asserting
that he was unable "to build or maintain
satisfactory interpersonal relationships with
peers and teachers," 34 C.F.R.
300.7(b)(9)(i)(B). However, ample evidence
supports the SRO's contrary finding. His
father indicated that "Ed has lots of friends
across a broad spectrum, from very good
students to the academically unsuccessful
students." Edward perceived himself as
"socially ... very involved with a large group
of people that he considered friends." Dr.
Rudolph's observation of him confirmed this
selfperception, as did his history of
involvement with social and extracurricular
activities during his time in the Fairfax
County schools. Nor did Edward fail to
develop good relationships with teachers.
His French teacher from McLean High,
Ghislaine Toulu, told the LHO that she
"really liked Ed, and ... still really like[s]
Ed." His history teacher from McLean,
Robert Peck, described Edward as "very
friendly [with] peers and me." And even Mr.
and Mrs. Springer have described Edward as
"respectful of teachers and appropriate," and
indicated that he "got along well with his
teachers." Nothing in the record indicates
that an inability to maintain interpersonal
relationships existed at all, not to mention
persisting "over a long period of time" or "to
a marked degree." See 34 C.F.R.
300.7(b)(9)(i). Thus, neither the SRO nor
the district court committed any error in
rejecting the contention that Edward was in
any way incapable of forming and
maintaining relationships with peers or
teachers.
The Springers also claim that Edward
exhibited a second enumerated symptom, "a

119

general pervasive mood of unhappiness or


depression," id. at 300.7(b)(9)(i)(D).
However, we agree with the SRO and the
district court that the record simply does not
support this contention. Three separate
psychological evaluations of Edward
revealed no evidence of abnormal
depression or other emotional disturbance.
Two of the psychologists who reached this
result, Dr. Roberts and Dr. Kulewicz, were
chosen by the Springers themselves. Dr.
Roberts even noted that
Page 666
based on his depression and anxiety testing
"Ed is reporting significantly fewer
symptoms and distress than is typical of an
adolescent his age." The observations of
those who had regular contact with Edward
during the eleventh grade confirm these
psychological findings. For example,
Edward's French teacher, who saw Edward
on at least 160 days during that year,
testified that "[h]e did not appear sad. There
was no pervasive sadness. He had friends.
He was laughing, joking in the hallways."
The only contrary evidence, indeed the
only hint that Edward ever suffered from
depression at all, was the "sketchy" and
"incomplete" letter from Dr. Novello
diagnosing Edward with dysthymia. This
condition is clinically defined as less severe
than a major depressive disorder. Although
Dr. Novello never elaborated on his
diagnosis, Ms. Lanzer confirmed that
dysthymia is "sort of a low-grade
depression." She noted that in over twenty
years of work with emotionally disturbed
students she has never worked with a
student who was classified as seriously
emotionally disturbed based solely on a
diagnosis of dysthymia. Thus, Dr. Novello's
diagnosis would indicate only that Edward
suffered from mild or moderate depression,
if anything. This evidence simply does not
support the Springers' claim that Edward
experienced "pervasive ... depression," 34
C.F.R. 300.7(b)(9)(i)(D).
There is one final flaw in the Springers'
case for tuition reimbursement. Even if they
had been able to demonstrate that Edward
exhibited one or more of the five qualifying

characteristics for a long period of time and


to a marked degree, the Springers still have
failed to establish the critical causal
connection between this condition and the
educational difficulties Edward experienced,
the final step in proving a serious emotional
disturbance. Id. at 300.7(b)(9)(i). Prior to
his eleventh grade year, Edward had made
steady educational progress, advancing from
grade to grade on schedule. Cf. Rowley, 458
U.S. at 209-10, 102 S.Ct. at 3052-53
(evidence that student was advancing from
grade to grade indicated educational
progress). In the eleventh grade Edward
stopped attending classes, regularly used
drugs and alcohol, and engaged in other
criminal activities. The precipitous drop in
Edward's grades at this time appears to be
directly attributable to his truancy, drug and
alcohol use, and delinquent behavior rather
than to any emotional disturbance. See In re
Pflugerville Indep. Sch. Dist., 21 IDELR
309, 311 (SEA, Tex.1994) (noting that when
student had made passing grades prior to
involvement with drugs, "it is inferentially
permissible to attribute any lowering of his
grades to his unwise choice to spend less
mental energies on his academics and to
spend more mental energies on [drug
activities]"). Particularly given the paucity
of evidence that Edward suffered any sort of
emotional disorder, it can hardly be said that
the record directs a finding that a serious
emotional disturbance adversely affected his
educational
performance.
Edward's
delinquent behavior appears to be the
primary cause of his troubles.
IV.
[The Court rejects certain procedural
arguments by the family]
.
V.
For the foregoing reasons, we affirm
the judgment of the district court.
AFFIRMED.
------------------Notes:
[*]We reject the Springers' assertion that
Doyle v. Arlington Cty. Sch. Bd., 953 F.2d
100 (4th Cir.1991), requires a decision in
their favor. Doyle and this case are different

120

in at least three respects. First, the LHO in


this case has no special claim to deference,
as did the LHO in Doyle. There "[t]he only
point on which the local and state hearing
officers differed in any consequence was in
the credibility of one of the witnesses" who
had testified before the LHO and did not
appear before the SRO. Id. at 104. Here, by
contrast, the LHO's decision did not turn on
witness credibility but on the weight to be
given the Springers' evidence, an inquiry
which both the LHO and SRO are required
to make independently. Second, the LHO in
Doyle explained his result with some care,
whereas the opinion of the LHO in this case
was both cursory and conclusory. Third,
Doyle establishes a prima facie presumption
of correctness for administrative findings,
which requires that the SRO must provide
reasons for departing from the LHO's
findings. Unlike the SRO in Doyle, the SRO
did exactly that here.
-----------------

121

State of Maine
Special Education Due Process Hearing Decision
Parent v. MSAD 49, Case No. 01.159
REPRESENTING THE SCHOOL:

Eric Herlan, Esq., Drummond Woodsum & MacMahon

REPRESENTING THE PARENT:

Richard OMeara, Esq., Murray Plumb & Murray

HEARING OFFICER:

Carol B. Lenna

This hearing was held and the decision written pursuant to 20 USC 1415 et seq., and Title 20-A,
MRSA, 7207-B et seq., and accompanying regulations.
The case involves Student, whose date of birth is xx/xx/xx. She resides with her mother, in Fairfield,
Maine, and is currently a xx-year-old eighth grade student who recently attended Lawrence Junior
High School. She was suspended on March 26, 2001 following a behavioral incident at the school.
She has not been permitted to return to school.
Student has not been identified as a student eligible for special education services. Her mother
referred her to the Pupil Evaluation Team on March 21, 2001. The PET met on April 23 to consider
the parents referral, and to order out-of-school placement with tutoring until the special education
referral process was completed. Evaluations were conducted in April and May. The PET met again
on June 22 to consider the results of testing and to determine eligibility. The PET determined that the
student did not qualify for special education services as a student with an emotional disability. The
parent disagreed with this determination.
The parent originally requested an expedited hearing on June 8, 2001, since the student was out of
school and an expulsion hearing had been scheduled. After the parent and the school reached an
agreement setting aside the expulsion hearing until the conclusion of the due process hearing, the
parent requested the hearing be transferred to a regular due process hearing. She then requested an
extension of the dates scheduled for hearing. The school subsequently requested a continuance as
well. The parties met in a prehearing conference on Wednesday, June 27, 2001. The hearing
convened on July 25 and 26. Nine witnesses testified at the hearing. One-hundred-nineteen pages of
documents were entered into the record.
Following is the decision in this matter.
I. Preliminary Statement
The student is a xx-year-old, eighth grade student, most recently attending Lawrence Junior High
School. In mid-March 2001, after two years of increasing truancy, oppositional behaviors, substance
abuse and failing grades, the students mother made a special education referral. On March 26, before
the referral process had begun, the student was suspended as a result of an incident in which she
assaulted a teacher. The PET met to order evaluations and later to consider her eligibility for special
education services as a student with a disability. The PET determined that she was not eligible. The
student has not been permitted to return to school since the March 26 incident.

122

The parent disagrees with the PET determination. She argues that the student is eligible for services as
a student with an emotional disability given a current diagnosis of bi-polar disorder, and her
increasingly inappropriate behaviors both in and out of school. It is the parents position that the
school acted inappropriately during the suspension process, failing to conduct either a functional
behavioral assessment or to convene a manifestation determination PET. She wishes the hearing to
find that the student is a student with an emotional disability who requires special education services,
and that the behavioral incident that resulted in her removal was a manifestation of her disability. She
seeks compensatory education for the improper long-term exclusion from school.

It is the schools position that, based on current testing, the student does not meet criteria as a student
with a disability. They argue that she is angry and oppositional with active substance abuse issues,
and is most appropriately described as socially mal-adjusted. It is their contention that the suspension
was an appropriate response to the students assault on a staff member.
II.

Issues

The issues to be decided by this hearing are:


1. Is the student eligible as a student with a disability under the category of emotional disability?
2. If so, was the behavior of the incident that led to the students removal from school a
manifestation of her disability9?
3. Did the school commit procedural violations following the incident?

III.

Findings of Fact
1. The student is a short, slightly built xx-year-old who did not complete her 8th grade year in
school. She has a history over the past two and a half years of increasingly rude,
oppositional and inappropriate behavior, school truancy, school failure, trouble with the law
and arrests, drug and alcohol abuse, running away, and, most recently, assault. (Ex: 93, 92,
88, 64, 74; Testimony: Parent, Long, Cooper)
2. The students grades through 6th grade were Bs and Cs. Her conduct and interest in her
schoolwork fell slightly during the last quarter of 6th grade, but she ended the year, again, with
Bs and Cs in all subjects. (Ex: 97, 100, 107-113; Testimony Parent)
3. The student completed group achievement tests in 4th and 6th grade. Scores on the
Comprehensive [sic] Tests of Basic Skills fell across all subjects from 4th to 6th grade, with
the total battery score falling from the 54th to the 35th percentile. Test scores on the Terra

The parties have asked the hearing officer to decide this issue if the student if found eligible as a
student with a disability under IDEA in order to save the parties from a possible second hearing to
resolve the issue.

123

4.

5.
6.

7.

8.

9.

10.

Nova group achievement battery completed in the middle of 7th grade show a further decline
in all areas tested with a total score falling in the 26th percentile. (Ex: 90, 103-105)
Throughout 7th grade the student exhibited a pattern of cutting classes for which she served 11
days of in-house suspension and one day of out-of-school suspension. The students final
grades at the conclusion of 7th grade were: one C-, two D+s, one D and one F. She was
absent a total of 36 days and tardy 33 days. (Ex. 89, 92-94)
This behavior continued in 8th grade. The student was absent or suspended from classes for
129 days during the school year. She flunked all subjects for the year. (Ex: 15, 14)
The student was detained at the Northern Maine Juvenile Detention Facility on charges of
theft during September and October 2000. She returned to school briefly in November then
was returned to the facility until Christmas vacation. During her incarceration, on October
7, 2000, a court-ordered psychological evaluation was conducted by P. Kent Louscher, Ph. D.
The evaluation was ordered in preparation for a judicatory hering [sic]. The assessment
consisted of a clinical interview, review of records, a Multiaxial Diagnostic Inventory:
Adolescent Clinical Scales (AMDI), Shipley Institute of Living Scale, and the Minnesota
Multiphasic Personality Inventory Adolescent. While Dr. Louscher concluded that the
evaluation did not find evidence that [the student] is experiencing a psychological or
characterlogical [sic] disorder he did note that her responses on the AMDI met diagnostic
criterion on the Dysthymia, Suicidal Ideation and Over-Anxious Scales. [She] reported one
symptom on the Psychosis Scale indicating that she feels a force taking control of her mind
when she flips out in anger. Responses on the Shipley Scale led him to conclude that
while she has good verbal skills [h]er abstract reasoning skills are a relative source of
disability raising the suspicion that an underlying neurological impairment may be
inhibiting her ability to make judgments based on abstract information. The evaluator
concluded that the students substance abuse problems have contributed to acting-out
impulses and disinhibited [sic] her underlying anger. Her resultant behaviors have become
intensely oppositional to all authority figures He recommended to the court that she be
placed in a substance abuse treatment program. (Ex. 15, 16, 74-80)
The parent met with the guidance counselors at the junior high school, Ms. Pohlman and Mr.
Spiegel, in January and February 2001. The parent was concerned about the students
behaviors and school failure, and wanted a referral to special education. Notes from her
meeting with Mr. Spiegel show that on February 7 a referral to the PET was requested. A
formal referral form was not completed until March 21, 2001 when the parent again asked
about special education assistance10. From that point the student was considered a student
not yet eligible for special education services, but entitled to all of the disciplinary
protections available to students with disabilities. (Ex. 60, 66-70; Testimony: Parent, Rich)
On March 26 the student was involved in a disturbance with the teacher who supervises the inschool suspension classroom. The incident ended in the student being escorted from school in
handcuffs by the local police, and the teacher filing assault charges. The student was
suspended for 10 days, beginning that day. Subsequently, the Superintendent elected to
suspend the student indefinitely until testing was completed and a decision could be made on
an expulsion hearing before the school board. The student was not allowed to return to school
for the balance of the school year. (Ex. 19, 57, 62, 63-65; Testimony Underwood, Haney,
Rich, Parent)
The school convened the students initial PET meeting on April 23. Tutoring was offered to
the student at her home, pending the completion of testing. The student attended tutoring on
May 10 and 11, but declined to attend any other scheduled tutoring sessions. On May 25 the
tutoring was suspended until such time as the student indicated an interest in attending. (Ex.
36, 50, 55, 57, 62; Testimony: Rich, Parent)
At this the team determined that: 1) [the student] is eligible to receive tutoring services for
two hours daily while she is suspended from school and remains in the special education
referral process, 2) [the students] program will change from in school regular education to in

10

It is not clear who actually filled out the form, but it was signed as received by the principal on
March 29, 2001.

124

11.

12.

13.
14.

15.

16.

home instruction two hours daily, 3) [the student] will be assessed on Wednesday, April 25
The examiner will be testing [the students] ability, achievement, and danger factor before the
PET reconvenes to make any program decisions. Achievement testing was never completed
because the student failed to appear at scheduled testing appointments. (Ex. 24, 9, 33, 34, 5051; Testimony: Rich, Parent)
The PET-ordered psychological evaluation was initially scheduled for the week of April 9, but
rescheduled when the student failed to appear for testing. The evaluation was conducted on
April 25 and May 9, 2001, by Richard A. Kauffman. The requested purpose of the evaluation
was to determine her emotional status and her risk of further assaultive behavior and the
possible presence of educational disability. The evaluator administered the Wechsler
Intelligence Scale for Children Third Edition (WISC-III), the Rotter Incomplete Sentences
Blank-High School Form (RISB-H), the Minnesota Multiphasic Personality Inventory
Adolescent (MMPI-A), the Rorschach Inkblot Technique. Four of the students teachers
completed the Conners Teacher Rating Scale Revised: Long Version (CTRS-R:L), and the
parent completed the Child Behavior Checklist (CBC). Review of records and an interview
with the student and the parent were also part of the evaluation. The student obtained a Full
Scale IQ score of 92 on the WISC-III. Subtest scaled scores all fell within the average range.
The evaluator concluded that there is no indication that severe mental illness or emotional
disturbance was present He recommended that the PET should consider all the available
information to determine the possible presence and nature of educational disability, but
determined that the students primary problem was substance abuse and social maladjustment.
(Ex. 42-49, 55; Testimony: Kauffman)
The student has been under the psychiatric care of Dr. Yvonne Taylor for medication
management since March. As a working diagnosis the psychiatrist has determined the student
suffers from Bi-polar Disorder-Early Onset, and has prescribed Lithium as a mood stabilizer.
She sees the student as responding positively to the treatment, thereby supporting her
diagnosis. In her opinion, because of this condition the student exhibits inappropriate
behaviors under normal circumstances, has an impaired ability to control aggression, is highly
impulsive, and exhibits Dysphoria with mood swings and sometimes depression. She has seen
the student five times since March in medication review sessions. She is of the opinion that
the student meets the criteria as a student with an emotional disability. (Testimony: Taylor)
The students history is positive for family violence, family members who are diagnosed with
bi-polar disorder and depression, and drug and alcohol abuse. (Testimony: Parent, Long)
The student has actively participated in a court-ordered Drug Court Treatment Program since
March 2001. Her case manager observes positive changes in behavior and affect. Periodic,
random screening is a requirement for continued participation in the program. Results have
remained negative for all substances tested since February 2001. Successful participation has
resulted in the student moving from phase one to phase two in the program. (Testimony:
Cooper)
The student participates in individual and family counseling sessions as part of her treatment
program. She has seen her therapist, Mr. Robert Long, weekly since March. He supports Dr.
Taylors diagnosis of Bi-polar Disorder, and thinks she suffers from Conduct Disorder and
Substance Abuse as well. The focus of therapy has been mental health issues, family history
stressors, and substance abuse issues. Mr. Long is of the opinion that the student began and
continued to use substances in an attempt to self-medicate. He has found her to have
unsatisfactory interpersonal relationships, extreme behaviors under normal circumstances and
long term dysthymia. He has no doubt that she meets the criteria as a student with an
emotional disability. (Testimony: Long)
The students mother has become increasingly concerned about the student over the past 18
months. Based on her reports the student has been unhappy for a long time, with talk of
suicide on more than one occasion. The student has had increasing behaviors that are extreme
and oppositional. On one occasion in January 2001 she took the student to the hospital
because her behavior had become so out of control. Over the past 12 months she has
requested assistance for the student from the courts, the school, the local mental health center,

125

and the local hospital. She has observed positive responses to the treatment regimen with
Lithium. (Testimony: Parent)
17. The PET convened to consider the students eligibility for special education on June 22. In
addition to the parent and the students 8th grade math teacher, the PET members were a
psychological services examiner who did not know the student and had never evaluated her, a
special education teacher who did not know the student, and the director of special education
who had never met the student. (Exhibit: 1-3; Testimony: Rich)
18. The school proceeded to schedule a hearing before the school board to consider the students
expulsion from school for the March 26 incident. The hearing has been rescheduled twice, but
has not yet occurred. (Ex. 26, 27, 37-41; Testimony Rich, Parent)
IV.

Conclusions
Is the student eligible as a student with a disability under the category of emotional
disability?

This hearing offered an unusual set of circumstances regarding a not-yet-identified 8th grade student
who has exhibited increasing school failure, drug abuse, juvenile detention and finally an assault on a
teacher that resulted in her suspension from school. During the current school year her mother met
with the schools guidance counselors to inquire about possible assistance from the school. It is
unclear when the parent actually requested a referral to special education, but, without doubt, notes
from the meeting with Mr. Spiegel on February 7, 2001 show that she inquired about PET
involvement at that meeting. It was not until the end of March, however, that a formal referral was
made. Before the referral process could be completed, the student was suspended for assault and not
allowed back into school for the remainder of the school year.
An evaluation was initially scheduled for early April. When the student failed to attend the testing
session, the evaluation was rescheduled for April 25 and May 9. The PET met on June 22 to consider
the issue of the students eligibility as a student with a disability under the definition of emotional
disability.
A student with an emotional disability has a condition which exhibits one or more of the
following characteristics over a long period of time and to a marked degree that adversely
affects the students educational performance:

A.

An inability to learn that cannot be explained by intellectual, sensory, or health


factors;
B. An inability to build or maintain satisfactory interpersonal relationships with peers and
teachers;
C. Inappropriate types of behaviors or feelings under normal circumstances;
D. A general pervasive mood of unhappiness or depression;
E. A tendency to develop physical symptoms or fears associated with personal or school
problems.
The term includes schizophrenia. The term does not apply to students who are socially
maladjusted, unless it is determined that they have an emotional disability.

126

[Maine Special Education Regulations, 3.5, Also 34 CFR 300.7(c)(4)]


The PET did not come to consensus regarding the eligibility question. School personnel contend that
the student is not a student with a disability. The district views the student as a student who is socially
maladjusted, but without an emotional disability, and thus expressly exempt from a determination of
eligibility as a student with an emotional disability. They also assert that the student actively abuses
illegal substances, which contributes to inappropriate behaviors. To support this decision the school
points to conclusions of evaluations conducted by Dr. Kauffman and Dr. Louscher and teacher reports.
The parent disagrees with this conclusion. Parent witnesses Mr. Long and Dr. Taylor, and to some
extent Ms. Cooper, using their personal knowledge of the student together with the parents
observations, lead them to assert that she meets one or more of the criteria in the definition. While
they also agree that the student is socially maladjusted, they believe that the student has an emotional
disability as described in regulations. Both parties build strong arguments for their positions, but a
preponderance of the evidence supports the parents position that the student meets the criteria given
in regulations and can thus be considered eligible for special education services as a student with a
disability.
The students treating psychiatrist, Dr, Taylor, became involved with the student when the student was
referred to the Kennebec Valley Mental Health Clinic by her mother. Dr. Taylor began treating the
student for Bi-polar Disorder-Early Onset in early March. While she admits this is a working
diagnosis at this stage, Dr. Taylor feels reasonably comfortable with the diagnosis, and until there is
sufficient evidence to rule it out, she considers it a condition that affects the students educational
performance. She points to the quick deterioration of the students behaviors, the time of onset and
her responsiveness to a prescription regime with first Tegretol, and presently Lithium, as supporting
her conclusion. The students therapist, Mr. Long, has met with the student weekly since March 2001.
In his opinion the student meets the criteria as a student with an emotional disability. He supports Dr.
Taylors working diagnosis of Bi-Polar Disorder and believes the student also carries a diagnosis of
Conduct Disorder11 both of which he feels adversely affect the students educational performance.
There was no discussion or disagreement that the student exhibited an inability to learn or a tendency
to develop physical symptoms or fears. Witnesses for both the school and the parent focus their
testimony on item B. an inability to build or maintain satisfactory interpersonal relationships, C.
inappropriate types of behaviors or feelings under normal circumstances, and D. a general pervasive
mood of unhappiness or depression.
Beyond her immediate family, Dr. Long does not see evidence that the student has the ability to
maintain satisfactory interpersonal relationships with peers. He rejects the schools notion that she
just makes poor choices in friends, but instead describes the students peers as people she takes on that
need help, not friends. The parent testified that the students friends have a high turnover rate with no
long-term friendships. Even Mr. Kauffman, who testified that the student was not a student with a
disability reports in his evaluation that [the student] seems to have considerable difficulty interacting
with her peers Two of the four teachers who completed behavior-rating scales for his evaluation

11

Dr. Louscher, Mr. Kauffman and Mr. Long all agree that the student has a Conduct Disorder.

While Mr. Kauffman dismissed Conduct Disorder in his consideration of the students eligibility for
services, regulations do not prohibit students with Conduct Disorder from being identified. A student
with Conduct Disorder can be considered eligible as a student with an emotional disability if other
criteria in the regulations are met.

127

indicated that the student had moderate to severe problems with social relationships 12. Dr. Louschers
report from earlier in the year states that [the student] reported that her best friend is Max, her
German Shepard dog She stated that she does not like any of her teachers because she doesnt get
along with them. Taken individually none of these observations is remarkable, but as a pattern, the
student exhibits problems with building and maintaining satisfactory relationships.
The school embraces Mr. Kauffmans conclusion that the Rorschach provided no indication of a
depressive disorderno indications of thought disorder, psychotic functioning, and therefore
maintains that since the student does not exhibit bizarre, or psychotic behaviors she is ineligible for
consideration under item C. It is true that the students behaviors have never been described by
anyone as bizarre or psychotic, but regulations do not require such a narrow view of the students
behaviors before making a positive finding of eligibility. Muller v. Comm. On Spec. Educ.. Of East
Islip Union Free Sch. Dis., 28 IDELR 188, 192 (2nd Cir 1988) Rather, regulations use language that
directs schools to view the student within the context of his or her environment. Does the student
exhibit inappropriate behaviors under normal circumstances?
Mr. Long was clear that the student often over-reacts in normal circumstances and can easily go to
extremes. She seemingly hasnt the ability to discriminate between private and public environments
as evidenced by her intensely oppositional behaviors and impulsively voicing whatever comes into her
mind, without any consideration of the consequence. He holds the opinion that her reaction around
the events that led to her suspension showed an impaired understanding of the consequences of her
behaviors, which he thinks is very relevant to an emotional disability. Dr. Taylor supported the
opinion that the student exhibits inappropriate types of behaviors or feelings under normal
circumstances when she reacts in an extreme way with little provocation. She describes the student
as exhibiting the Dysphoria, irritability, impulsivity, inability to control aggressions and other physical
symptoms of someone exhibiting Bi-Polar Disorder.
The events of the March 26 assault as described by the parent and school personnel present a picture
of extremely inappropriate behavior under normal circumstances. Her behavior escalated and quickly
became out of control for reasons that seem unjustified. When she began swearing at the teacher, he
told her to go to the office, and then started to escort her there when she refused to leave his
classroom. The student, in her words, flipped out13. This slightly built 5 2 girl was able to
overpower and injure a 6 2 athletically-built ex-Marine who had to pick her up and carry her the
last 20 to 30 feet. The principal testified that she had never seen another event like this in her years
as an educator. I was also very upset when I went home that night having witnessed this thirteen year
old girl being handcuffed and yet she showed no emotion, she writes in her prepared statement for the
Superintendent.
The students mother is perhaps the most consistent observer of the students behaviors. She
described a series of inappropriate behaviors which have been exhibited by the student over the past
18 months such as running away, cutting herself, getting in trouble with the law, extreme irritability,
impulsivity and anger. In early March the student called her from school saying, Something is very
wrong with me, which led to the parents seeking the assistance of Dr. Taylor. After a short course of
Tegretol14 the parent saw definite improvements in the students mood, impulsivity and irritability.
When the student stopped taking the Tegretol because of adverse reaction, she saw the behaviors reemerge. She described the extreme reaction the student exhibited as she flipped out when the
12

The school maintains that the student is observed to have a peer group (albeit an undesirable one), to
work well in groups within the classroom. A students ability to engage in seemingly appropriate
conversations with peers does not necessarily support a conclusion that the student has the ability to
build or maintain satisfactory relationships.
13
Dr. Louscher reported in his evaluation that the student reported one symptom on the Psychosis
Scale indicating that she feels a force taking control of her mind when she flips out in anger.
14
The student had not been taking Tegretol long enough by March 26 for it to have reached
therapeutic levels and thus have its desired effect.

128

students brother tried to restrain her from running away. She sees this event as similar to the
students behavior the day she was suspended from school15.
Even Mr. Kauffmans descriptions of the students observed behaviors and responses during testing
would seem to support that the student demonstrates inappropriate behaviors under normal
circumstances: [the students] interactions with the examiner were verbal with statements that ranged
from the assertive to the aggressively confrontational; when discussing her assault against the school
staff-member, [the student] expressed absolutely no remorse; she insisted that the sole reason for her
poor performance at school was her failure to do schoolwork because she found it to be boring;
even after experiencing the considerable consequences that have thus far resulted from her actions,
she was unwilling to conclude that she had acted badly.
While no witness described the student as meeting the criteria for clinical Depression, parent witnesses
were convincing that the student has exhibited an invasive mood of hopelessness and sadness for some
length of time. Mr. Long perceives her as having low self-esteem with an overlying mood of
unhappiness. He declares that she has a history of Dysthymia. Therapy discussions with him revealed
long-term feelings of hopelessness around her life. She doesnt think that her life will ever get any
better. The parent testified that the student has been unhappy and depressed for a long period of time
and close to suicide on more than one occasion. Dr. Louscher reported that [the students]
responses on the AMDI met diagnostic criterion on the Dysthymia, [and] Suicidal IdeationScales.
Even Dr, Kauffman reported that [the student] wonders about the purpose of life and feels little hope
for the future, and reasoned from her responses on the Rorschach Inkblot Technique that the student
has limited self-esteem and she feels quite incapable of caring for herself [S]he is sometimes quite
overwhelmed by her emotions and her difficulty coping with those emotions and employs fantasy
as a coping mechanism. As individual statements or concerns, these may not meet the criteria as a
pervasive mood of unhappiness but taken as a whole the give a picture of a student who is struggling
with her sense of well-being.
Whatever the position on the students eligibility for special education, there is no disagreement that
the student has exhibited problems over a long period of time16 and to a marked degree17 that
adversely affects the students educational performance. The student is described as having done well
in school until late 6th grade, when work completion and conduct began to deteriorate. This pattern
continued into 7th grade when she began exhibiting outrageous behaviors both in and out of school and
earning Ds and Fs in her school work. These behaviors reached a peak in 8 th grade when the student
was put out of school for assault and failed to pass any subject. By any standard the there has been an
adverse affect on the students educational performance. Johnson v. Metro Davidson County Sch.
System, 33 IDELR 59 (M.D. Tenn. Aug. 8, 2000)
It is the schools position that the student does not qualify as a student with an emotional disability
because she is primarily socially maladjusted. They argue that her behaviors are driven by, and are a
direct consequence of, her illegal drug and alcohol abuse. There was no dispute that the student is
socially maladjusted. But, Dr. Taylor, Mr. Long and Ms. Cooper all testified that the student also has
an emotional disability. Dr. Long testified that he felt the students substance abuse came about as a
result of emerging mental health issues and was an attempt to self-medicate. Dr. Louscher wrote in
his report that the students emergent conduct disorder appears to be a reaction to severe and
15

The school argues that the event of March 26, even if an extreme behavior event would not qualify
the student since it would not meet the criteria for over a long period. The March 26 event was in
fact the second time in less than six months that such an event occurred.
16
States have elected to operationalize long period of time by providing a range of time during
which the behavior must have been present, generally two to nine months. Letter to Anonymous,
213:247 EHLR (OSEP 8/11/89)
17
Few State Education Agencies (SEAs) define marked degree. Those States which do offer
specific guidelines with regard to this term generally refer to the frequency, duration and/or intensity
of the behavior in comparison to the students peers and/or school and community norms. Id.

129

prolonged stress in her home, life exacerbated by her substance abuse, not because of it. As to her
present abuse of illegal substances, parent witnesses testified that random testing as part of the Drug
Court, collateral reports from the parent, check-ins by the case manager, and observations and
discussions in therapy support her claim of abstinence since sometime in March 200118.
School personnel contend that the students emotional status and demonstrated behaviors do not fit the
criteria for her to be identified under Section 3.5 of the Regulations. Whether school personnel are in
a better position to judge the severity of a students behaviors than outside service providers is perhaps
an open debate19.
However the PET cannot ignore valuable and reliable information in its
deliberation. The PET made its decision on June 22, almost three months after the student left school,
based on the conclusions of one evaluator20. Of the five participants at the PET meeting, outside of the
students mother, only one other person had any personal knowledge of the student, and none had seen
her since April 23. Neither the students therapist, psychiatrist nor case manager attended the PET
and their opinions and conclusions were not consulted. Each of them has seen the student multiple
times in individual and group situations. They had valuable information to add to the discussion.
This student does not present a clear-cut picture of a student with an emotional disability, but there is
sufficient evidence to conclude that she meets the criteria in the definition. Determination of
eligibility is not an exact science. The definition in the regulations is a somewhat amorphous one,
perhaps for such reasons as this. It is a guide to include students who may be in need of assistance,
not a template to exclude them. If we are to err in our efforts to decide who is in need of special
education, let us err on the side of the student.
Did the school commit procedural violations in the actions surrounding the March 26 event?
The event that led to the students suspension occurred on March 26, 2001. Initially, the suspension
was to be for 10 school days, but in a memo dated April 2, it is clear the Superintendent was moving
forward with an expulsion hearing. Subsequently, the Director of Special Education, Ms Rich,
informed the Superintendent that the student was afforded protections under the Individuals with
Disabilities Education Act (IDEA) as a student which the district had previous knowledge might be a
student with a disability.

A child who has not been determined to be eligible for special education and related services
under this part and who has engaged in behavior that violated any rule or code of conduct of the
local educational agencymay assert any of the protections provided for in this part if the LEA
had knowledgethat the child was a child with a disability before the behavior that precipitated

18

The school cited some circumstantial evidence where the student could have abused substances. In
order to remain in the Court approved drug treatment program, she must continue to test clean. The
Drug Court believes her to have met this contract. I have no reason to dispute that conclusion.
19
Mr. Baldwin testified that the student appeared as a normal junior high school student in his social
studies class. From an analysis of the students attendance record, it appears that she could have
been in his classroom no more than 46 days during the year, and possibly as few as 36.
20
While the school refers to Dr. Louschers evaluation, his evaluation had a very different purpose.
He was requested to conduct a Court-ordered psychological evaluation in preparation for a
judicatory hearing. He was not, and has never to the knowledge of the hearing officer, been asked to
determine if the student meets the criteria of a student with an emotional disability.

130

the disciplinary action occurred. An LEA must be deemed to have knowledge that a child is a
child with a disability ifthe parent of the child has requested an evaluation of the child
[34 CFR 300.527]
There is no dispute. The district had knowledge that the student had, and was asserting, the protections
afforded her under section 300.527. While the actual referral was not processed until March 29, three
days after the incident that caused the suspension, the referral and evaluation had been requested at
least as early as February. It is not clear why the school did not provide these protections provided
the student by IDEA.
The student was suspended from school for more than 10 school days, thereby triggering regulations
governing the change of placement for disciplinary removal of a child with a disability. The Parent
was then notified that the student would not be allowed to return to school and that an expulsion
hearing was being scheduled. This action by the school constituted a change of placement without
notice and without benefit of a determination of relationship between the students behavior and a
suspected disability.
[A] change of placement occurs if the removal is for more than 10 consecutive school
days
[MRSA, 14.1]
If an action is contemplatedinvolving a removal that constitutes a change of placement under
14.1 for a student with a disability who has engaged in other behavior that violated any rule of
code of conduct of the SAU that applies to all students, not later than the date on which the
decision to take that action is made, the parents must be notified of that decision and provided
the procedural safeguards notice described in 12.11; and immediately, if possible but in no case
later than10 school days after the date on which the decision to take that action is made, a review
must be conducted of the relationship between the students disability and the behavior subject to
the disciplinary action.
[Id. 14.5]
The parent received a letter from the Superintendent dated April 6 stating his removal of the student
until I have made a determination about whether or not to proceed with expulsion hearings against
her. The PET did not meet until April 23 to discuss a change of placement as defined in 14.1, and at
no time was a review conducted of the relationship between the students disability and the behavior
subject to the disciplinary action. Instead the PET at that meeting ordered an evaluation to test the
students achievement, ability and danger factor.

It is true that the whole process was hampered by the students failure to appear for the scheduled
evaluation on April 9, thus delaying even further the PETs determination of eligibility. And, it is
equally true that without a determination of disability any manifestation determination would have
been inconclusive. However, the school had an obligation to at least convene the PET within 10 days
and review the information available to the members at that time. Failing to convene such a meeting
then, or subsequently, was a violation of procedure.

131

Letters from the Superintendent and testimony of Ms. Rich make it clear that the school would not
allow the student to return to school until a danger assessment had been completed. Neither
Regulations, nor the courts give schools the right to unilaterally exclude students from the educational
setting, and especially not based on a danger assessment. Regulations direct school personnel to
conduct manifestation reviews to determine if a students behavior was, or was not, a manifestation of
his disability. If it is determined that the behavior was not a manifestation of the students disability,
the district may employ the relevant disciplinary procedures applicable to students without disabilities.
Only if a student is involved with weapons or drugs at school does the district have the authority to
remove the student to an interim educational placement. Beyond that,

A hearing officer may order a change in the placement of a studentto an appropriate


interim alternative educational setting for not more than 45 days if the hearing officer, in
an expedited due process hearing, determines that the public agency has demonstrated
by substantial evidence that maintaining the current placement of the student is
substantially likely to result in injury to the student or to others.

[Id. 14.4]

The removal of the student from the school for the balance of the school year without parent approval
or benefit of an expedited hearing to remove her to an interim alternative educational setting, was not
only a violation of procedure, but a violation of the students right to be afforded the protections due
her as a student yet to be identified.

We think it clear, however, that Congress very much meant to strip schools of the
unilateral authority they had traditionally employed to exclude disabled students,
particularly emotionally disturbed students, from school. In so doing, Congress did not
leave school administrators powerless to deal with dangerous students; it did, however,
deny school officials their former right to self-help and directed that in the future the
removal of disabled students could be accomplished only with the permission of the
parents or, as a last resort, the courts. [Emphasis in original.]

Honig v. Doe, 108 S. Ct. 592, 609 (1988)

If the student is a student with an emotional disability, was the behavior of the March 26, 2001
incident related to her disability?
The parties asked the hearing officer to address the manifestation issue if it is determined that the
student qualifies as a student with an emotional disability in order to save the parties the need for a
separate meeting and possible second hearing to resolve the issue. Given the determination by the
hearing officer that the student qualifies as a student with an emotional disability, and the discussion
of the conclusions leading to that decision, the hearing officer determines that the students conduct on
March 26 was a manifestation of her disability.

132

On March 26, 2001, the student assaulted a teacher who was attempting to take her to the office for
inappropriate behavior exhibited in the hallway as she was leaving his classroom. The situation
quickly escalated and ended with the student so out of control I had to pick her up and carry her the
last 20 to 30 feet. In the process the student kneed the teacher in the groin. The student was escorted
from school in handcuffs by the police. The teacher filed charges against the student. At this stage
the student had been referred to the Pupil Evaluation Team for consideration as a student with a
disability, but she had not yet been identified as eligible. Students in this status in the referral process
are considered a student not yet eligible, but a student for whom the district had knowledge. As
discussed above, students in this situation may assert any of the protections afforded a student with a
disability.
Regulations direct schools to immediately, if possible, but in no case later than 10 school days after
the date on which the decision [to remove the student from school] is made to conduct a review of the
relationship between the students disability and the behavior subject to the disciplinary action.
In carrying out a reviewthe Pupil Evaluation Team and other qualified
personnelmay determine that the behavior of the student was not a manifestation of
the students disability only if the Pupil Evaluation Team and other qualified
personnel first considerall relevant information including evaluation and diagnostic
resultsthe results or other relevant information supplied by the parents of the
student; observations of the student; and the students IEP and placement; then
determine that in relationship to the behavior subject to disciplinary action, the
students IEP and placement were appropriatethe disability did not impair the
ability of the student to understand the impact and consequences of the behavior
subject to disciplinary action; and the students disability did not impair the ability of
the student to control the behavior subject to disciplinary action. [Emphasis added.]
[MSER, 14.6]
The school may determine the behavior (that was the subject to disciplinary action) not a
manifestation of the students disability only if they have considered evaluation and diagnostic
results, including information supplied by the parents; observations of the student; and the IEP and
placement before they move to the next phase. They must then determine that, in relationship to the
behavior, the IEP and placement was appropriate; the students disability did not impair her ability to
understand the impact and consequences of the behavior; and her disability did not impair her ability
to control the behavior.
The school maintains that there was no basis upon which to conduct the review described in Section
14.6. They reasoned that the student had no current educational evaluation, no disability
determination, and no IEP or placement to consider in making a determination whether the students
behavior subject to disciplinary action was a manifestation of the students disability.
I have some sympathy for the dilemma facing the school. Clearly there was no IEP and placement to
consider for this student. Certainly, there is more information available about the student now than
was available in April 2001 when the manifestation review should have been conducted, or June when

133

the eligibility determination PET was held. But, that does not discharge the obligation they held for
the student as a student not yet eligible.

The district owed this student no less consideration to assemble whatever information was available at
the time, and to, at least, attempt to determine a relationship between the event of March 26 and the
students reasons for referral. The school did not convene any PET until April 23, and there was no
consideration at that meeting of whether the event of March 26 was a manifestation of the students
disability. Both Dr. Taylor and Mr. Long had begun to work with the student. Had they been asked to
consider the question of manifestation they might have offered comments such as those made at the
hearing. She has a tendency to display extreme behavioral reactions to seemingly minor events.
(Long and Taylor) As her stress curve goes up, her understanding about the consequences goes
down. (Long) Her condition makes her prone to lack of control (Taylor) She has an emotional
blackout, loses control and impulsively strikes out. Touching her is a trigger. She has an impaired
ability to control her behavior within the event. (Long) She has an impaired understanding of the
appropriateness of her reaction. (Long) Intellectually she has the ability to understand, but her
condition would impair her ability to control aggression. (Taylor)

The student, of course, is still without an IEP or placement, and educational evaluations are
incomplete21. However, the behaviors described in evidence that led the hearing officer to conclude
the students disability eligibility, are the very behaviors exhibited during the event. The student was
wrongfully excluded from her educational environment.
V.

Order
1. The PET shall convene within 15 days of the receipt of this decision for the purpose of
developing an interim IEP for the student until such time as achievement testing shall be
completed. Dr. Long, Ms. Cooper, Dr. Taylor shall be invited to attend. If they are unable to
attend, their input shall be solicited,in writing, and shall be shared with other PET members.
2. The school shall schedule further educational evaluations, including educational achievement
testing, as deemed appropriate by the PET. The school shall employ the assistance of the
Court, the students therapist or psychiatrist, as appropriate, to compel her attendance at
scheduled testing dates.

3. The PET shall consider, and provide as necessary, compensatory services required by the
student to assist her to complete, and gain credit for, her 8th grade curriculum.
4. Upon completion of any additional assessments ordered by the PET, but in no case later than
October 31, 2001 the PET shall finalize the students IEP. The IEP shall include a behavior
intervention plan as deemed necessary by the PET.
5. The school shall provide to the Department of Education confirmation of compliance of this
order by providing the following:
21

Achievement testing has yet to be completed. The student failed to appear at several scheduled
testing appointments.

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By September 30, 2001, copy of the PET minutes and the interim IEP.
By October 31, 2001 copy of any evaluation reports regarding the student ordered
for PET review.
By September 30, 2001 a description of the plan developed to provide the student
with assistance to complete the 8th grade curriculum.
By November 15, 2001, a copy of the IEP developed for the student for the 20012002 school year.

Carol B. Lenna
Hearing Officer
August 24, 2001

135

BOARD OF EDUCATION v. ROWLEY


Supreme Court of the United States
102 S. Ct. 3034 (1982)
Raymond G. Kuntz, Bedford Village, N.Y., for petitioners.
Michael A. Chatoff, Floral Park, N.Y., for respondent.
Elliott Schulder, Washington, D.C., for the United States as amicus curiae by special leave of
the Court.
Justice REHNQUIST delivered the opinion of the Court in which Justice BURGER and
Justices POWELL, STEVENS and OCONNOR joined. Justice BLACKMUN filed a concurring
opinion. Justice WHITE filed a dissenting opinion in which Justices MARSHALL and BRENNAN
joined.
I
The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. 1401 et
seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating
handicapped children, and conditions such funding upon a States compliance with extensive goals
and procedures. The Act represents an ambitious federal effort to promote the education of
handicapped children, and was passed in response to Congress perception that a majority of
handicapped children in the United States were either totally excluded from schools or [were] sitting
idly in regular classrooms awaiting the time when they were old enough to drop out. H.R.Rep. No.
94-332, p. 2 (1975) (H.R.Rep.).
* * *
In order to qualify for federal financial assistance under the Act, a State must demonstrate that
it has in effect a policy that assures all handicapped children the right to a free appropriate public
education. 20 U.S.C. 1412(1). That policy must be reflected in a state plan submitted to and
approved by the Secretary of Education, 1413, which describes in detail the goals, programs, and
timetables under which the State intends to educate handicapped children within its borders. 1412,
1413. States receiving money under the Act must provide education to the handicapped by priority,
first to handicapped children who are not receiving an education and second to handicapped
children with the most severe handicaps who are receiving an inadequate education, 1412(3), and
to the maximum extent appropriate must educate handicapped children with children who are not
handicapped. 1412(5). [6] The Act broadly defines handicapped children to include mentally
retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally
disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific
learning disabilities. 1401(1). [5]
The free appropriate public education required by the Act is tailored to the unique needs of
the handicapped child by means of an individualized educational program (IEP). 1401(18). The

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IEP, which is prepared at a meeting between a qualified representative of the local educational agency,
the childs teacher, the childs parents or guardian, and, where appropriate, the child, consists of a
written document containing
(A) a statement of the present levels of educational performance of
such child, (B) a statement of annual goals, including short-term instructional
objectives, (C) a statement of the specific educational services to be provided
to such child, and the extent to which such child will be able to participate in
regular educational programs, (D) the projected date for initiation and
anticipated duration of such services, and (E) appropriate objective criteria
and evaluation procedures and schedules for determining, on at least an
annual basis, whether instructional objectives are being achieved. 1401(19).
Local or regional educational agencies must review, and where appropriate revise, each
childs IEP at least annually. 1414(a)(5). See also 1413(a)(11).
In addition to the state plan and the IEP already described, the Act imposes extensive
procedural requirements upon States receiving federal funds under its provisions. Parents or guardians
of handicapped children must be notified of any proposed change in the identification, evaluation, or
educational placement of the child or the provision of a free appropriate public education to such
child, and must be permitted to bring a complaint about any matter relating to such evaluation and
education. 1415(b)(1)(D) and (E). Complaints brought by parents or guardians must be resolved at
an impartial due process hearing, and appeal to the State educational agency must be provided if the
initial hearing is held at the local or regional level. 1415(b)(2) and (c). Thereafter, [a]ny party
aggrieved by the findings and decision of the state administrative hearing has the right to bring a
civil action with respect to the complaint in any State court of competent jurisdiction or in a district
court of the United States without regard to the amount in controversy. 1415(e)(2).
Thus, although the Act leaves to the States the primary responsibility for developing and
executing educational programs for handicapped children, it imposes significant requirements to be
followed in the discharge of that responsibility. Compliance is assured by provisions permitting the
withholding of federal funds upon determination that a participating state or local agency has failed to
satisfy the requirements of the Act, 1414(b)(2)(A), 1416, and by the provision for judicial review.
At present, all States except New Mexico receive federal funds under the portions of the Act at issue
today. Brief for United States as Amicus Curiae 2, n. 2.
II
This case arose in connection with the education of Amy Rowley, a deaf student at the
Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has
minimal residual hearing and is an excellent lipreader. During the year before she began attending
Furnace Woods, a meeting between her parents and school administrators resulted in a decision to
place her in a regular kindergarten class in order to determine what supplemental services would be
necessary to her education. Several members of the school administration prepared for Amys arrival

137

by attending a course in sign-language interpretation, and a teletype machine was installed in the
principals office to facilitate communication with her parents who are also deaf. At the end of the
trial period it was determined that Amy should remain in the kindergarten class, but that she should be
provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the
teacher or fellow students during certain classroom activities. Amy successfully completed her
kindergarten year.
As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year.
The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should
continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one
hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts
of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her
academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had
been placed in Amys kindergarten class for a 2-week experimental period, but the interpreter had
reported that Amy did not need his services at that time. The school administrators likewise
concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this
conclusion after consulting the school districts Committee on the Handicapped, which had received
expert evidence from Amys parents on the importance of a sign-language interpreter, received
testimony from Amys teacher and other persons familiar with her academic and social progress, and
visited a class for the deaf.
When their request for an interpreter was denied, the Rowleys demanded and received a
hearing before an independent examiner. After receiving evidence from both sides, the examiner
agreed with the administrators determination that an interpreter was not necessary because Amy was
achieving educationally, academically, and socially without such assistance. App. to Pet. for Cert. F22. The examiners decision was affirmed on appeal by the New York Commissioner of Education on
the basis of substantial evidence in the record. Id., at E-4. Pursuant to the Acts provision for judicial
review, the Rowleys then brought an action in the United States District Court for the Southern
District of New York, claiming that the administrators denial of the sign-language interpreter
constituted a denial of the free appropriate public education guaranteed by the Act.
The District Court found that Amy is a remarkably well-adjusted child who interacts and
communicates well with her classmates and has developed an extraordinary rapport with her
teachers. 483 F. Supp. 528, 531 (1980). It also found that she performs better than the average child
in her class and is advancing easily from grade to grade, id., at 534, but that she understands
considerably less of what goes on in class than she could if she were not deaf and thus is not
learning as much, or performing as well academically, as she would without her handicap, id., at 532.
This disparity between Amys achievement and her potential led the court to decide that she was not
receiving a free appropriate public education, which the court defined as an opportunity to achieve
[her] full potential commensurate with the opportunity provided to other children. Id., at 534.
According to the District Court, such a standard requires that the potential of the handicapped child
be measured and compared to his or her performance, and that the resulting differential or shortfall
be compared to the shortfall experienced by nonhandicapped children. Ibid. The District Courts

138

definition arose from its assumption that the responsibility for giv[ing] content to the requirement of
an appropriate education had been left entirely to the [federal] courts and the hearing officers.
Id., at 533. [8]
A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The
Court of Appeals [agreed] with the [District] [Courts] conclusions of law, and held that its
findings of fact [were] not clearly erroneous. 632 F.2d 945, 947 (1980).
We granted certiorari to review the lower courts interpretation of the Act. 454 U.S. 961
(1981). Such review requires us to consider two questions: What is meant by the Acts requirement
of a free appropriate public education? And what is the role of state and federal courts in exercising
the review granted by 20 U.S.C. 1415? We consider these questions separately. [9]
III
A
This is the first case in which this Court has been called upon to interpret any provision of the
Act. As noted previously, the District Court and the Court of Appeals concluded that [t]he Act itself
does not define appropriate education, 483 F. Supp., at 533, but leaves to the courts and the
hearing officers the responsibility of giv[ing] content to the requirement of an appropriate
education. Ibid. See also 632 F.2d, at 947. Petitioners contend that the definition of the phrase
free appropriate public education used by the courts below overlooks the definition of that phrase
actually found in the Act. Respondents agree that the Act defines free appropriate public education,
but contend that the statutory definition is not functional and thus offers judges no guidance in their
consideration of controversies involving the identification, evaluation, or educational placement of
the child or the provision of a free appropriate public education. Brief for Respondents 28. The
United States, appearing as amicus curiae on behalf of respondents, states that [although] the Act
includes definitions of a free appropriate public education and other related terms, the statutory
definitions do not adequately explain what is meant by appropriate. Brief for United States as
Amicus Curiae 13.
We are loath to conclude that Congress failed to offer any assistance in defining the meaning
of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the
conclusions of the courts below, the Act does expressly define free appropriate public education:
The term free appropriate public education means special
education and related services which (A) have been provided at public
expense, under public supervision and direction, and without charge, (B) meet
the standards of the State educational agency, (C) include an appropriate
preschool, elementary, or secondary school education in the State involved,
and (D) are provided in conformity with the individualized education program
required under 1414(a)(5) of this title. 1401(18) (emphasis added).

139

Special education, as referred to in this definition, means specially designed instruction, at


no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom
instruction, instruction in physical education, home instruction, and instruction in hospitals and
institutions. 1401(16). Related services are defined as transportation, and such developmental,
corrective, and other supportive services . . . as may be required to assist a handicapped child to
benefit from special education. 1401(17). [10]
Like many statutory definitions, this one tends toward the cryptic rather than the
comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether
or not the definition is a functional one, as respondents contend it is not, it is the principal tool
which Congress has given us for parsing the critical phrase of the Act. We think more must be made
of it than either respondents or the United States seems willing to admit.
According to the definitions contained in the Act, a free appropriate public education
consists of educational instruction specially designed to meet the unique needs of the handicapped
child, supported by such services as are necessary to permit the child to benefit from the instruction.
Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and
services be provided at public expense and under public supervision, meet the States educational
standards, approximate the grade levels used in the States regular education, and comport with the
childs IEP. Thus, if personalized instruction is being provided with sufficient supportive services to
permit the child to benefit from the instruction, and the other items on the definitional checklist are
satisfied, the child is receiving a free appropriate public education as defined by the Act.
Other portions of the statute also shed light upon congressional intent. Congress found that of
the roughly eight million handicapped children in the United States at the time of enactment, one
million were excluded entirely from the public school system and more than half were receiving an
inappropriate education. 89 Stat. 774, note following 1401. In addition, as mentioned in Part I, the
Act requires States to extend educational services first to those children who are receiving no
education and second to those children who are receiving an inadequate education. 1412(3).
When these express statutory findings and priorities are read together with the Acts extensive
procedural requirements and its definition of free appropriate public education, the face of the
statute evinces a congressional intent to bring previously excluded handicapped children into the
public education systems of the States and to require the States to adopt procedures which would result
in individualized consideration of and instruction for each child.
Noticeably absent from the language of the statute is any substantive standard prescribing the
level of education to be accorded handicapped children. Certainly the language of the statute contains
no requirement like the one imposed by the lower courts that States maximize the potential of
handicapped children commensurate with the opportunity provided to other children. 483 F. Supp.,
at 534. That standard was expounded by the District Court without reference to the statutory
definitions or even to the legislative history of the Act. Although we find the statutory definition of
free appropriate public education to be helpful in our interpretation of the Act, there remains the

140

question of whether the legislative history indicates a congressional intent that such education meet
some additional substantive standard. For an answer, we turn to that history. [11]
B
(i)
As suggested in Part I, federal support for education of the handicapped is a fairly recent
development. Before passage of the Act some States had passed laws to improve the educational
services afforded handicapped children, [12] but many of these children were excluded completely
from any form of public education or were left to fend for themselves in classrooms designed for
education of their nonhandicapped peers. As previously noted, the House Report begins by
emphasizing this exclusion and misplacement, noting that millions of handicapped children were
either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time
when they were old enough to drop out. H.R.Rep., at 2. See also S.Rep., at 8. One of the Acts two
principal sponsors in the Senate urged its passage in similar terms:
While much progress has been made in the last few years, we can
take no solace in that progress until all handicapped children are, in fact,
receiving an education. The most recent statistics provided by the Bureau of
Education for the Handicapped estimate that 1.75 million handicapped
children do not receive any educational services, and 2.5 million handicapped
children are not receiving an appropriate education. 121 Cong. Rec. 19486
(1975) (remarks of Sen. Williams).
This concern, stressed repeatedly throughout the legislative history, [13] confirms the
impression conveyed by the language of the statute: By passing the Act, Congress sought primarily to
make public education available to handicapped children. But in seeking to provide such access to
public education, Congress did not impose upon the States any greater substantive educational
standard than would be necessary to make such access meaningful. Indeed, Congress expressly
[recognized] that in many instances the process of providing special education and related services to
handicapped children is not guaranteed to produce any particular outcome. S.Rep., at 11. Thus, the
intent of the Act was more to open the door of public education to handicapped children on
appropriate terms than to guarantee any particular level of education once inside.
Both the House and the Senate Reports attribute the impetus for the Act and its predecessors
to two federal-court judgments rendered in 1971 and 1972. As the Senate Report states, passage of the
Act followed a series of landmark court cases establishing in law the right to education for all
handicapped children. S.Rep., at 6. [14] The first case, Pennsylvania Assn. for Retarded Children v.
Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), was a suit on
behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to
exclude them from public education and training. The case ended in a consent decree which enjoined
the State from [denying] to any mentally retarded child access to a free public program of education
and training. 334 F. Supp. at 1258.

141

PARC was followed by Mills v. Board of Education of District of Columbia, 348 F. Supp. 866
(D.C. 1972), a case in which the plaintiff handicapped children had been excluded from the District of
Columbia public schools. The courts judgment, quoted in S.Rep., at 6, provided that
no [handicapped] child eligible for a publicly supported education in
the District of Columbia public schools shall be excluded from a regular
school assignment by a Rule, policy, or practice of the Board of Education of
the District of Columbia or its agents unless such child is provided (a)
adequate alternative educational services suited to the childs needs, which
may include special education or tuition grants, and (b) a constitutionally
adequate prior hearing and periodic review of the childs status, progress, and
the adequacy of any educational alternative. 348 F. Supp., at 878 (emphasis
added).
Mills and PARC both held that handicapped children must be given access to an adequate,
publicly supported education. Neither case purports to require any particular substantive level of
education. [15] Rather, like the language of the Act, the cases set forth extensive procedures to be
followed in formulating personalized educational programs for handicapped children. See 348 F.
Supp., at 878-883; 334 F. Supp., at 1258-1267. [16] The fact that both PARC and Mills are discussed
at length in the legislative Reports [17] suggests that the principles which they established are the
principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after
discussing these cases the Senate Report describes the 1974 statute as having incorporated the major
principles of the right to education cases. S.Rep., at 8. Those principles in turn became the basis of
the Act, which itself was designed to effectuate the purposes of the 1974 statute. [18]
That the Act imposes no clear obligation upon recipient States beyond the requirement that
handicapped children receive some form of specialized education is perhaps best demonstrated by the
fact that Congress, in explaining the need for the Act, equated an appropriate education to the
receipt of some specialized educational services. The Senate Report states: [T]he most recent
statistics provided by the Bureau of Education for the Handicapped estimate that of the more than 8
million children . . . with handicapping conditions requiring special education and related services,
only 3.9 million such children are receiving an appropriate education. S.Rep., at 8. [19] This
statement, which reveals Congress view that 3.9 million handicapped children were receiving an
appropriate education in 1975, is followed immediately in the Senate Report by a table showing that
3.9 million handicapped children were served in 1975 and a slightly larger number were unserved.
A similar statement and table appear in the House Report. H.R. Rep., at 11-12.
It is evident from the legislative history that the characterization of handicapped children as
served referred to children who were receiving some form of specialized educational services from
the States, and that the characterization of children as unserved referred to those who were receiving
no specialized educational services. For example, a letter sent to the United States Commissioner of
Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in
the House, asked the Commissioner to identify the number of handicapped children served in each

142

State. The letter asked for statistics on the number of children being served in various types of
special education program[s] and the number of children who were not receiving educational
services. Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on
Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of
the Acts principal sponsors in the Senate, noted that roughly one-half of the handicapped children in
the United States are receiving special educational services. Id., at 1. [20] By characterizing the 3.9
million handicapped children who were served as children who were receiving an appropriate
education, the Senate and House Reports unmistakably disclose Congress perception of the type of
education required by the Act: an appropriate education is provided when personalized educational
services are provided. [21]
(ii)
Respondents contend that the goal of the Act is to provide each handicapped child with an
equal educational opportunity. Brief for Respondents 35. We think, however, that the requirement
that a State provide specialized educational services to handicapped children generates no additional
requirement that the services so provided be sufficient to maximize each childs potential
commensurate with the opportunity provided other children. Respondents and the United States
correctly note that Congress sought to provide assistance to the States in carrying out their
responsibilities . . . under the Constitution of the United States to provide equal protection of the
laws. S.Rep., at 13. [22] But we do not think that such statements imply a congressional intent to
achieve strict equality of opportunity or services.
The educational opportunities provided by our public school systems undoubtedly differ from
student to student, depending upon a myriad of factors that might affect a particular students ability to
assimilate information presented in the classroom. The requirement that States provide equal
educational opportunities would thus seem to present an entirely unworkable standard requiring
impossible measurements and comparisons. Similarly, furnishing handicapped children with only
such services as are available to nonhandicapped children would in all probability fall short of the
statutory requirement of free appropriate public education; to require, on the other hand, the
furnishing of every special service necessary to maximize each handicapped childs potential is, we
think, further than Congress intended to go. Thus to speak in terms of equal services in one instance
gives less than what is required by the Act and in another instance more. The theme of the Act is free
appropriate public education, a phrase which is too complex to be captured by the word equal
whether one is speaking of opportunities or services.
The legislative conception of the requirements of equal protection was undoubtedly informed
by the two District Court decisions referred to above. But cases such as Mills and PARC held simply
that handicapped children may not be excluded entirely from public education. In Mills, the District
Court said:
If sufficient funds are not available to finance all of the services and
programs that are needed and desirable in the system then the available funds
must be expended equitably in such a manner that no child is entirely

143

excluded from a publicly supported education consistent with his needs and
ability to benefit therefrom. 348 F. Supp., at 876.
The PARC court used similar language, saying i[t] is the commonwealths obligation to place
each mentally retarded child in a free, public program of education and training appropriate to the
childs capacity . . . . 334 F. Supp., at 1260. The right of access to free public education enunciated
by these cases is significantly different from any notion of absolute equality of opportunity regardless
of capacity. To the extent that Congress might have looked further than these cases which are
mentioned in the legislative history, at the time of enactment of the Act this Court had held at least
twice that the Equal Protection Clause of the Fourteenth Amendment does not require States to expend
equal financial resources on the education of each child. San Antonio Independent School Dist. v.
Rodriguez, 411 U.S. 1 (1973); McInnis v. Shapiro, 293 F. Supp. 327 (ND Ill. 1968), affd sub nom.
McInnis v. Ogilvie, 394 U.S. 322 (1969).
In explaining the need for federal legislation, the House Report noted that no congressional
legislation has required a precise guarantee for handicapped children, i. e. a basic floor of opportunity
that would bring into compliance all school districts with the constitutional right of equal protection
with respect to handicapped children. H.R.Rep., at 14. Assuming that the Act was designed to fill
the need identified in the House Report that is, to provide a basic floor of opportunity consistent
with equal protection neither the Act nor its history persuasively demonstrates that Congress thought
that equal protection required anything more than equal access. Therefore, Congress desire to
provide specialized educational services, even in furtherance of equality, cannot be read as imposing
any particular substantive educational standard upon the States.
The District Court and the Court of Appeals thus erred when they held that the Act requires
New York to maximize the potential of each handicapped child commensurate with the opportunity
provided nonhandicapped children. Desirable though that goal might be, it is not the standard that
Congress imposed upon States which receive funding under the Act. Rather, Congress sought
primarily to identify and evaluate handicapped children, and to provide them with access to a free
public education.
(iii)
Implicit in the congressional purpose of providing access to a free appropriate public
education is the requirement that the education to which access is provided be sufficient to confer
some educational benefit upon the handicapped child. It 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. The statutory definition of free appropriate public education,
in addition to requiring that States provide each child with specially designed instruction, expressly
requires the provision of such . . . supportive services . . . as may be required to assist a handicapped
child to benefit from special education. 1401(17) (emphasis added). We therefore conclude that
the basic floor of opportunity provided by the Act consists of access to specialized instruction and
related services which are individually designed to provide educational benefit to the handicapped
child. [23]

144

The determination of when handicapped children are receiving sufficient educational benefits
to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating
States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to
the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of
the spectrum will differ dramatically from those obtainable by children at the other end, with infinite
variations in between. One child may have little difficulty competing successfully in an academic
setting with nonhandicapped children while another child may encounter great difficulty in acquiring
even the most basic of self-maintenance skills. We do not attempt today to establish any one test for
determining the adequacy of educational benefits conferred upon all children covered by the Act.
Because in this case we are presented with a handicapped child who is receiving substantial
specialized instruction and related services, and who is performing above average in the regular
classrooms of a public school system, we confine our analysis to that situation. The Act requires
participating States to educate handicapped children with nonhandicapped children whenever possible.
[24] When that mainstreaming preference of the Act has been met and a child is being educated in
the regular classrooms of a public school system, the system itself monitors the educational progress
of the child. Regular examinations are administered, grades are awarded, and yearly advancement to
higher grade levels is permitted for those children who attain an adequate knowledge of the course
material. The grading and advancement system thus constitutes an important factor in determining
educational benefit. Children who graduate from our public school systems are considered by our
society to have been educated at least to the grade level they have completed, and access to an
education for handicapped children is precisely what Congress sought to provide in the Act. [25]
C
When the language of the Act and its legislative history are considered together, the
requirements imposed by Congress become tolerably clear. In so far as a State is required to provide a
handicapped child with a free appropriate public education, we hold that it satisfies this requirement
by providing personalized instruction with sufficient support services to permit the child to benefit
educationally from that instruction. Such instruction and services must be provided at public expense,
must meet the States educational standards, must approximate the grade levels used in the States
regular education, and must comport with the childs IEP. In addition, the IEP, and therefore the
personalized instruction, should be formulated in accordance with the requirements of the Act and, if
the child is being educated in the regular classrooms of the public education system, should be
reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
[26]
IV
A
As mentioned in Part I, the Act permits [a]ny party aggrieved by the findings and decision
of the state administrative hearings to bring a civil action in any State court of competent
jurisdiction or in a district court of the United States without regard to the amount in controversy.
1415(e)(2). The complaint, and therefore the civil action, may concern any matter relating to the

145

identification, evaluation, or educational placement of the child, or the provision of a free appropriate
public education to such child. 1415(b)(1)(E). In reviewing the complaint, the Act provides that a
court shall receive the record of the [state] administrative proceedings, shall hear additional evidence
at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate. 1415(e)(2).
The parties disagree sharply over the meaning of these provisions, petitioners contending that
courts are given only limited authority to review for state compliance with the Acts procedural
requirements and no power to review the substance of the state program, and respondents contending
that the Act requires courts to exercise de novo review over state educational decisions and policies.
We find petitioners contention unpersuasive, for Congress expressly rejected provisions that would
have so severely restricted the role of reviewing courts. In substituting the current language of the
statute for language that would have made state administrative findings conclusive if supported by
substantial evidence, the Conference Committee explained that courts were to make independent
decision[s] based on a preponderance of the evidence. S.Conf.Rep. No. 94-455, p. 50 (1975). See
also 121 Cong.Rec. 37416 (1975) (remarks of Sen. Williams).
But although we find that this grant of authority is broader than claimed by petitioners, we
think the fact that it is found in 1415, which is entitled Procedural safeguards, is not without
significance. When the elaborate and highly specific procedural safeguards embodied in 1415 are
contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we
think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It
seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance
with procedures giving parents and guardians a large measure of participation at every stage of the
administrative process, see, e.g., 1415(a)-(d), as it did upon the measurement of the resulting IEP
against a substantive standard. We think that the congressional emphasis upon full participation of
concerned parties throughout the development of the IEP, as well as the requirements that state and
local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that
adequate compliance with the procedures prescribed would in most cases assure much if not all of
what Congress wished in the way of substantive content in an IEP.
Thus the provision that a reviewing court base its decision on the preponderance of the
evidence is by no means an invitation to the courts to substitute their own notions of sound
educational policy for those of the school authorities which they review. The very importance which
Congress has attached to compliance with certain procedures in the preparation of an IEP would be
frustrated if a court were permitted simply to set state decisions at nought. The fact that 1415(e)
requires that the reviewing court receive the records of the [state] administrative proceedings carries
with it the implied requirement that due weight shall be given to these proceedings. And we find
nothing in the Act to suggest that merely because Congress was rather sketchy in establishing
substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it
intended that reviewing courts should have a free hand to impose substantive standards of review
which cannot be derived from the Act itself. In short, the statutory authorization to grant such relief

146

as the court determines is appropriate cannot be read without reference to the obligations, largely
procedural in nature, which are imposed upon recipient States by Congress.
Therefore, a courts inquiry in suits brought under 1415(e)(2) is twofold. First, has the State
complied with the procedures set forth in the Act?[27] And second, is the individualized educational
program developed through the Acts procedures reasonably calculated to enable the child to receive
educational benefits? [28] If these requirements are met, the State has complied with the obligations
imposed by Congress and the courts can require no more.
B
In assuring that the requirements of the Act have been met, courts must be careful to avoid
imposing their view of preferable educational methods upon the States. [29] The primary
responsibility for formulating the education to be accorded a handicapped child, and for choosing the
educational method most suitable to the childs needs, was left by the Act to state and local
educational agencies in cooperation with the parents or guardian of the child. The Act expressly
charges States with the responsibility of acquiring and disseminating to teachers and administrators
of programs for handicapped children significant information derived from educational research,
demonstration, and similar projects, and [of] adopting, where appropriate, promising educational
practices and materials. 1413(a)(3). In the face of such a clear statutory directive, it seems highly
unlikely that Congress intended courts to overturn a States choice of appropriate educational theories
in a proceeding conducted pursuant to 1415(e)(2). [30]
We previously have cautioned that courts lack the specialized knowledge and experience
necessary to resolve persistent and difficult questions of educational policy. San Antonio
Independent School Dist. v. Rodriguez, 411 U.S., at 42. We think that Congress shared that view when
it passed the Act. As already demonstrated, Congress intention was not that the Act displace the
primacy of States in the field of education, but that States receive funds to assist them in extending
their educational systems to the handicapped. Therefore, once a court determines that the
requirements of the Act have been met, questions of methodology are for resolution by the States.
* * *
VI
Applying these principles to the facts of this case, we conclude that the Court of Appeals erred
in affirming the decision of the District Court. Neither the District Court nor the Court of Appeals
found that petitioners had failed to comply with the procedures of the Act, and the findings of neither
court would support a conclusion that Amys educational program failed to comply with the
substantive requirements of the Act. On the contrary, the District Court found that the evidence
firmly establishes that Amy is receiving an adequate education, since she performs better than the
average child in her class and is advancing easily from grade to grade. 483 F. Supp., at 534. In light
of this finding, and of the fact that Amy was receiving personalized instruction and related services
calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts

147

should not have concluded that the Act requires the provision of a sign-language interpreter.
Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion. [32]
So ordered.
(Concurring opinion of Justice Blackmun and dissenting opinion of Justice White, with which
Justices Brennan and Marshall joined, omitted.)
* * *

148

BOARD OF EDUCATION v. ROWLEY


CASE NOTES
4. Despite this preference for mainstreaming handicapped children educating them with
nonhandicapped children Congress recognized that regular classrooms simply would not be a
suitable setting for the education of many handicapped children. The Act expressly acknowledges that
the nature or severity of the handicap [may be] such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily. 1412(5). The Act thus provides
for the education of some handicapped children in separate classes or institutional settings. See ibid.;
1413(a)(4).
5. In addition to covering a wide variety of handicapping conditions, the Act requires special
educational services for children regardless of the severity of their handicap. 1412(2)(C),
1414(a)(1)(A).
8. For reasons that are not revealed in the record, the District Court concluded that [the] Act itself
does not define appropriate education. 483 F.Supp., at 533. In fact, the Act expressly defines the
phrase free appropriate public education, see 1401(18), to which the District Court was referring.
See 483 F.Supp., at 533. After overlooking the statutory definition, the District Court sought guidance
not from regulations interpreting the Act, but from regulations promulgated under 504 of the
Rehabilitation Act. See 483 F.Supp., at 533, citing 45 CFR 84.33(b).
9. The IEP which respondents challenged in the District Court was created for the 1978-1979 school
year. Petitioners contend that the District Court erred in reviewing that IEP after the school year had
ended and before the school administrators were able to develop another IEP for subsequent years.
We disagree. Judicial review invariably takes more than nine months to complete, not to mention the
time consumed during the preceding state administrative hearings. The District Court thus correctly
ruled that it retained jurisdiction to grant relief because the alleged deficiencies in the IEP were
capable of repetition as to the parties before it yet evading review. 483 F.Supp. 536, 538 (1980). See
Murphy v. Hunt, 455 U.S. 478, 482 (1982); Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
10. Examples of related services identified in the Act are speech pathology and audiology,
psychological services, physical and occupational therapy, recreation, and medical and counseling
services, except that such medical services shall be for diagnostic and evaluation purposes only.
1401(17).
11. The dissent, finding that the standard of the courts below seems to reflect the congressional
purpose of the Act, post, at 218, concludes that our answer to this question is not a satisfactory one.
Post, at 216. Presumably, the dissent also agrees with the District Courts conclusion that it has been
left entirely to the courts and the hearing officers to give content to the requirement of an appropriate
education. 483 F.Supp., at 533. It thus seems that the dissent would give the courts carte blanche to
impose upon the States whatever burden their various judgments indicate should be imposed. Indeed,
the dissent clearly characterizes the requirement of an appropriate education as open-ended, noting
that if there are limits not evident from the face of the statute on what may be considered an
appropriate education, they must be found in the purpose of the statute or its legislative history.
Post, at 213. Not only are we unable to find any suggestion from the face of the statute that the
requirement of an appropriate education was to be limitless, but we also view the dissents approach
as contrary to the fundamental proposition that Congress, when exercising its spending power, can
impose no burden upon the States unless it does so unambiguously. See infra, at 204, n. 26.
No one can doubt that this would have been an easier case if Congress had seen fit to provide a more
comprehensive statutory definition of the phrase free appropriate public education. But Congress did
not do so, and our problem is to construe what Congress has written. After all, Congress expresses
its purpose by words. It is for us to ascertain neither to add nor to subtract, neither to delete nor to
distort. 62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951). We would be less than faithful

149

to our obligation to construe what Congress has written if in this case we were to disregard the
statutory language and legislative history of the Act by concluding that Congress had imposed upon
the States a burden of unspecified proportions and weight, to be revealed only through case-by-case
adjudication in the courts.
12. See H. R. Rep., at 10; Note, The Education of All Handicapped Children Act of 1975, 10 U.
Mich. J. L. Ref. 110, 119 (1976).
13. See, e.g., 121 Cong. Rec. 19494 (1975) (remarks of Sen. Javits) (all too often, our handicapped
citizens have been denied the opportunity to receive an adequate education); id., at 19502 (remarks of
Sen. Cranston) (millions of handicapped children . . . are largely excluded from the educational
opportunities that we give to our other children); id., at 23708 (remarks of Rep. Mink)
(handicapped children . . . are denied access to public schools because of a lack of trained
personnel).
14. Similarly, the Senate Report states that it was an [i]ncreased awareness of the educational needs
of handicapped children and landmark court decisions establishing the right to education for
handicapped children [that] pointed to the necessity of an expanded federal fiscal role. S.Rep., at 5.
See also H.R.Rep., at 2-3.
15. The only substantive standard which can be implied from these cases comports with the standard
implicit in the Act. PARC states that each child must receive access to a free public program of
education and training appropriate to his learning capacities, 334 F.Supp., at 1258 (emphasis added),
and that further state action is required when it appears that the needs of the mentally retarded child
are not being adequately served, id., at 1266. (Emphasis added.) Mills also speaks in terms of
adequate educational services, 348 F.Supp., at 878, and sets a realistic standard of providing some
educational services to each child when every need cannot be met.
If sufficient funds are not available to finance all of the services and programs that
are needed and desirable in the system then the available funds must be expended
equitably in such a manner that no child is entirely excluded from a publicly
supported education consistent with his needs and ability to benefit therefrom. The
inadequacies of the District of Columbia Public School System whether occasioned by
insufficient funding or administrative inefficiency, certainly cannot be permitted to
bear more heavily on the exceptional or handicapped child than on the normal
child. Id., at 876.
16. Like the Act, PARC required the State to identify, locate, [and] evaluate handicapped children,
334 F.Supp., at 1267, to create for each child an individual educational program, id., at 1265, and to
hold a hearing on any change in educational assignment, id., at 1266. Mills also required the
preparation of an individual educational program for each child. In addition, Mills permitted the
childs parents to inspect records relevant to the childs education, to obtain an independent
educational evaluation of the child, to object to the IEP and receive a hearing before an independent
hearing officer, to be represented by counsel at the hearing, and to have the right to confront and crossexamine adverse witnesses, all of which are also permitted by the Act. 348 F.Supp., at 879-881. Like
the Act, Mills also required that the education of handicapped children be conducted pursuant to an
overall plan prepared by the District of Columbia, and established a policy of educating handicapped
children with nonhandicapped children whenever possible. Ibid.
17. See S. Rep., at 6-7; H. R. Rep., at 3-4.
18. The 1974 statute incorporated the major principles of the right to education cases, by [adding]
important new provisions to the Education of the Handicapped Act which require the States to:
establish a goal of providing full educational opportunities to all handicapped children; provide
procedures for insuring that handicapped children and their parents or guardians are guaranteed
procedural safeguards in decisions regarding identification, evaluation, and educational placement of

150

handicapped children; establish procedures to insure that, to the maximum extent appropriate,
handicapped children... are educated with children who are not handicapped;... and, establish
procedures to insure that testing and evaluation materials and procedures utilized for the purposes of
classification and placement of handicapped children will be selected and administered so as not to be
racially or culturally discriminatory. S. Rep., at 8.
The House Report explains that the Act simply incorporated these purposes of the 1974 statute: the
Act was intended primarily to amend... the Education of the Handicapped Act in order to provide
permanent authorization and a comprehensive mechanism which will insure that those provisions
enacted during the 93rd Congress [the 1974 statute] will result in maximum benefits for handicapped
children and their families. H.R. Rep., at 5. Thus, the 1974 statutes purpose of providing
handicapped children access to a public education became the purpose of the Act.
19. These statistics appear repeatedly throughout the legislative history of the Act, demonstrating a
virtual consensus among legislators that 3.9 million handicapped children were receiving an
appropriate education in 1975. See, e.g., 121 Cong. Rec. 19486 (1975) (remarks of Sen. Williams);
id., at 19504 (remarks of Sen. Schweicker); id., at 23702 (remarks of Rep. Madden); ibid. (remarks of
Rep. Brademas); id., at 23709 (remarks of Rep. Minish); id., at 37024 (remarks of Rep. Brademas);
id., at 37027 (remarks of Rep. Gude); id., at 37417 (remarks of Sen. Javits); id., at 37420 (remarks of
Sen. Hathaway).
20. Senator Randolph stated: [O]nly 55 percent of the school-aged handicapped children and 22
percent of the pre-school-aged handicapped children are receiving special educational services.
Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and
Public Welfare, 94th Cong., 1st Sess., 1 (1975). Although the figures differ slightly in various parts of
the legislative history, the general thrust of congressional calculations was that roughly one-half of the
handicapped children in the United States were not receiving specialized educational services, and
thus were not served. See, e.g., 121 Cong. Rec. 19494 (1975) (remarks of Sen. Javits) (only 50
percent of the Nations handicapped children received proper education services); id., at 19504
(remarks of Sen. Humphrey) ([almost] 3 million handicapped children, while in school, receive none
of the special services that they require in order to make education a meaningful experience); id., at
23706 (remarks of Rep. Quie) (only 55 percent [of handicapped children] were receiving a public
education); id., at 23709 (remarks of Rep. Biaggi) ([over] 3 million [handicapped] children in this
country are receiving either below par education or none at all). Statements similar to those
appearing in the text, which equate served as it appears in the Senate Report to receiving special
educational services, appear throughout the legislative history. See, e.g., id., at 19492 (remarks of
Sen. Williams); id., at 19494 (remarks of Sen. Javits); id., at 19496 (remarks of Sen. Stone); id., at
19504-19505 (remarks of Sen. Humphrey); id., at 23703 (remarks of Rep. Brademas); Hearings on
H.R. 7217 before the Subcommittee on Select Education of the House Committee on Education and
Labor, 94th Cong., 1st Sess., 91, 150, 153 (1975); Hearings on H.R. 4199 before the Select
Subcommittee on Education of the House Committee on Education and Labor, 93d Cong., 1st Sess.,
130, 139 (1973). See also 34 CFR 300.343 (1981).
21. In seeking to read more into the Act than its language or legislative history will permit, the United
States focuses upon the word appropriate, arguing that the statutory definitions do not adequately
explain what [it means]. Brief for United States as Amicus Curiae 13. Whatever Congress meant by
an appropriate education, it is clear that it did not mean a potential-maximizing education.
The term as used in reference to educating the handicapped appears to have originated in the PARC
decision, where the District Court required that handicapped children be provided with education and
training appropriate to [their] learning capacities. 334 F.Supp. at 1258. The word appears again in the
Mills decision, the District Court at one point referring to the need for an appropriate educational
program, 348 F.Supp. at 879, and at another point speaking of a "suitable publicly-supported
education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F.
Supp. at 1266; 348 F. Supp. at 878.

151

The use of appropriate in the language of the Act, although by no means definitive, suggests that
Congress used the word as much to describe the settings in which handicapped children should be
educated as to prescribe the substantive content or supportive services of their education. For
example, 1412(5) requires that handicapped children be educated in classrooms with
nonhandicapped children to the maximum extent appropriate. Similarly, 1401(19) provides that,
whenever appropriate, handicapped children should attend and participate in the meeting at which
their IEP is drafted. In addition, the definition of free appropriate public education itself states that
instruction given handicapped children should be at an appropriate preschool, elementary, or
secondary school level. 1401(18)(C). The Acts use of the word appropriate thus seems to
reflect Congress recognition that some settings simply are not suitable environments for the
participation of some handicapped children. At the very least, these statutory uses of the word refute
the contention that Congress used appropriate as a term of art which concisely expresses the
standard found by the lower courts.
22. See also 121 Cong. Rec. 19492 (1975) (remarks of Sen. Williams); id., at 19504 (remarks of Sen.
Humphrey).
23. This view is supported by the congressional intention, frequently expressed in the legislative
history, that handicapped children be enabled to achieve a reasonable degree of self-sufficiency. After
referring to statistics showing that many handicapped children were excluded from public education,
the Senate Report states: The long range implications of these statistics are that public agencies and
taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons
as dependents and in a minimally acceptable lifestyle. With proper education services, many would be
able to become productive citizens, contributing to society instead of being forced to remain burdens.
Others, through such services, would increase their independence, thus reducing their dependence on
society. S.Rep., at 9.
See also H.R.Rep., at 11. Similarly, one of the principal Senate sponsors of the Act stated that
providing appropriate educational services now means that many of these individuals will be able to
become a contributing part of our society, and they will not have to depend on subsistence payments
from public funds. 121 Cong. Rec. 19492 (1975) (remarks of Sen. Williams). See also id., at 25541
(remarks of Rep. Harkin); id., at 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of
Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams).
The desire to provide handicapped children with an attainable degree of personal independence
obviously anticipated that state educational programs would confer educational benefits upon such
children. But at the same time, the goal of achieving some degree of self-sufficiency in most cases is a
good deal more modest than the potential-maximizing goal adopted by the lower courts.
Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that selfsufficiency was itself the substantive standard which Congress imposed upon the States. Because
many mildly handicapped children will achieve self-sufficiency without state assistance while
personal independence for the severely handicapped may be an unreachable goal, self-sufficiency as
a substantive standard is at once an inadequate protection and an overly demanding requirement. We
thus view these references in the legislative history as evidence of Congress intention that the services
provided handicapped children be educationally beneficial, whatever the nature or severity of their
handicap.
24. Title 20 U.S.C. 1412(5) requires that participating States establish procedures to assure that, to
the maximum extent appropriate, handicapped children, including children in public or private
institutions or other care facilities, are educated with children who are not handicapped, and that
special classes, separate schooling, or other removal of handicapped children from the regular
educational environment occurs only when the nature or severity of the handicap is such that education
in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

152

25. 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 free appropriate public education. In this
case, however, we find Amys academic progress, when considered with the special services and
professional consideration accorded by the Furnace Woods school administrators, to be dispositive.
26. In defending the decisions of the District Court and the Court of Appeals, respondents and the
United States rely upon isolated statements in the legislative history concerning the achievement of
maximum potential, see H.R.Rep., at 13, as support for their contention that Congress intended to
impose greater substantive requirements than we have found. These statements, however, are too thin
a reed on which to base an interpretation of the Act which disregards both its language and the balance
of its legislative history. Passing references and isolated phrases are not controlling when analyzing a
legislative history. Department of State v. Washington Post Co., 456 U.S. 595, 600 (1982).
Moreover, even were we to agree that these statements evince a congressional intent to maximize each
childs potential, we could not hold that Congress had successfully imposed that burden upon the
States.
[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for
federal funds, the States agree to comply with federally imposed conditions. The legitimacy of
Congress power to legislate under the spending power thus rests on whether the State voluntarily and
knowingly accepts the terms of the contract.... Accordingly, if Congress intends to impose a
condition on the grant of federal moneys, it must do so unambiguously. Pennhurst State School v.
Halderman, 451 U.S. 1, 17 (1981) (footnote omitted).
As already demonstrated, the Act and its history impose no requirements on the States like those
imposed by the District Court and the Court of Appeals. A fortiori Congress has not done so
unambiguously, as required in the valid exercise of its spending power.
27. This inquiry will require a court not only to satisfy itself that the State has adopted the state plan,
policies, and assurances required by the Act, but also to determine that the State has created an IEP for
the child in question which conforms with the requirements of 1401(19).
28. When the handicapped child is being educated in the regular classrooms of a public school
system, the achievement of passing marks and advancement from grade to grade will be one important
factor in determining educational benefit. See Part III, supra.
29. In this case, for example, both the state hearing officer and the District Court were presented with
evidence as to the best method for educating the deaf, a question long debated among scholars. See
Large, Special Problems of the Deaf Under the Education for All Handicapped Children Act of 1975,
58 Wash. U. L. Q. 213, 229 (1980). The District Court accepted the testimony of respondents experts
that there was a trend supported by studies showing the greater degree of success of students brought
up in deaf households using [the method of communication used by the Rowleys]. 483 F.Supp., at
535.
30. It is clear that Congress was aware of the States traditional role in the formulation and execution
of educational policy. Historically, the States have had the primary responsibility for the education
of children at the elementary and secondary level. 121 Cong.Rec. 19498 (1975) (remarks of Sen.
Dole). See also Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (By and large, public education in
our Nation is committed to the control of state and local authorities).
32. Because the District Court declined to reach respondents contention that petitioners had failed to
comply with the Acts procedural requirements in developing Amys IEP, 483 F. Supp., at 533, n. 8,
the case must be remanded for further proceedings consistent with this opinion.

153

organized way, possesses poor visual


memory, often misperceives the world
around him, and pays excessive attention to
small details. His disability inhibits social
interaction with peers and impedes academic
progress.
Daniel attended the Portland, Maine
public schools as a special education student
through the eighth grade. While he advanced
from year to year, his attainments fell
steadily behind those of his peers. His
progress slowed to a crawl during the 198990 and 1990-91 school years. By July 1991,
Daniel had completed the eighth grade;
nevertheless, his reading and mathematical
calculation scores were at roughly a sixthgrade level and his score in applied
mathematics was at a second-grade level.
Daniel's eighth-grade year (1990-91)
was interrupted by a one-month midwinter
hospital stay, during which treating
professionals illuminated the nature and
extent of his cognitive disability. That July,
Daniel's parents placed him in a summer
program at Eagle Hill, a private school in
Massachusetts. They also contacted the
Cleveland Clinic and arranged to have
Daniel undergo a series of additional
educational, neurological, and psychological
examinations. Relying in part on the new
information generated through the Lenns'
efforts, the Portland School Committee
(Portland) shifted gears, scrapped several of
its earlier (unsuccessful) approaches, and
proposed an IEP for Daniel's ninth-grade
education
that
contained
several
innovations. Nevertheless, Daniel's parents
rejected the public-school-based program,
unilaterally enrolled Daniel as a full-time
residential student at Eagle Hill, [2] and
requested a hearing on the IEP's adequacy.
After pondering testimony from
eighteen witnesses and reviewing numerous
exhibits, the state hearing officer concluded
that Portland's IEP for the 1991-92 school
year was "reasonably calculated to be of
significant educational benefit in an
environment which is much less restrictive
than Eagle Hill." Accordingly, he rejected
the Lenns' remonstrance. The federal district

Page 1083
998 F.2d 1083 (1st Cir. 1993)
Daniel LENN, etc., et al., Plaintiffs,
Appellants,
v.
PORTLAND SCHOOL COMMITTEE,
et al., Defendants, Appellees.
No. 93-1123.
United States Court of Appeals, First
Circuit
July 15, 1993
Heard June 8, 1993.
Page 1084
Richard L. O'Meara, with whom
Murray, Plumb & Murray, Portland, ME,
was on brief, for plaintiffs, appellants.
Eric R. Herlan, Portland, ME, with
whom Peter H. Stewart, Asst. Atty. Gen.,
Augusta, ME, and Drummond Woodsum
Plimpton & MacMahon, Portland, ME, were
on consolidated brief, for defendants,
appellees.
Before TORRUELLA, SELYA and
BOUDIN, Circuit Judges.
Page 1085
SELYA, Circuit Judge.
This appeal features a controversy
between the parents of a handicapped child
and a local school committee. Despite the
parents' protests, a state hearing officer
declared the school committee's 1991-92
individualized education program (IEP)
appropriate for the child's needs and in
compliance with federal law. The United
States District Court for the District of
Maine upheld the finding. We affirm.
I. BACKGROUND
Daniel Lenn, a minor, is handicapped
within the meaning of the Individuals with
Disabilities Education Act (IDEA), 20
U.S.C. 1400-1485 (1988 & Supp.III
1991). [1] Daniel has a severe, non-verbal
learning disability connected with the brain's
right hemisphere. While his verbal IQ test
scores are average to low average, Daniel
has difficulty interpreting non-verbal
messages, such as facial cues. He has a short
attention span, lacks the ability to intake,
process, or retrieve information in an

154

court upheld the agency determination. This


appeal ensued. [3]
II. STATUTORY OVERVIEW
We start our substantive discussion by
parsing the statutory scheme and describing
how, and to what extent, parents or
guardians displeased by a school board's
response to a child's handicap may seek
judicial review of an IEP.
Page 1086
A
To qualify for federal funding under the
IDEA, a state must offer "all children with
disabilities ... a free appropriate public
education." 20 U.S.C. 1400(c), 1412(1).
In this context, appropriateness requires that
the instructional plan be custom tailored to
address the handicapped child's "unique
needs," 20 U.S.C. 1400(c), in a way
"reasonably calculated to enable the child to
receive educational benefits." Board of
Educ. v. Rowley, 458 U.S. 176, 207, 102
S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982);
accord Amann v. Stow Sch. Sys., 982 F.2d
644, 647 (1st Cir.1992); Roland M. v.
Concord Sch. Comm., 910 F.2d 983, 987
(1st Cir.1990), cert. denied, --- U.S. ----, 111
S.Ct. 1122, 113 L.Ed.2d 230 (1991).
Because the IEP--a written document
detailing the student's current educational
level, the short-term and long-term goals of
the educational plan, the specific services to
be offered (including transition services),
and a set of objective criteria for subsequent
evaluation, see 20 U.S.C. 1401(a)(20); 34
C.F.R. 300.346 (1992)--comprises the
centerpiece of a state's IDEA-compelled
response to a particular child's handicap, the
critical inquiry in a case of this genre is
"whether a proposed IEP is adequate and
appropriate for a particular child at a given
point in time." Burlington v. Department of
Educ., 736 F.2d 773, 788 (1st Cir.1984),
aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85
L.Ed.2d 385 (1985).
The IDEA does not promise perfect
solutions to the vexing problems posed by
the existence of learning disabilities in
children and adolescents. The Act sets more
modest goals: it emphasizes an appropriate,
rather than an ideal, education; it requires an

adequate, rather than an optimal, IEP.


Appropriateness and adequacy are terms of
moderation. It follows that, although an IEP
must afford some educational benefit to the
handicapped child, the benefit conferred
need not reach the highest attainable level or
even the level needed to maximize the
child's potential. See Rowley, 458 U.S. at
198, 102 S.Ct. at 3046-47; Roland M., 910
F.2d at 992.
The IDEA also articulates a preference
for mainstreaming. See 20 U.S.C. 1412(5)
(requiring states to educate handicapped and
non-handicapped children together "to the
maximum extent appropriate"). Translated
into practical application, this preference
signifies that a student "who would make
educational progress in a day program" is
not entitled to a residential placement even
if the latter "would more nearly enable the
child to reach his or her full potential."
Abrahamson v. Hershman, 701 F.2d 223,
227 (1st Cir.1983); accord Hampton Sch.
Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st
Cir.1992). And, moreover, when the bias in
favor of mainstreaming is married to the
concepts of appropriateness and adequacy, it
becomes apparent that an IEP which places
a pupil in a regular public school program
will ordinarily pass academic muster as long
as it is "reasonably calculated to enable the
child to achieve passing marks and advance
from grade to grade." Rowley, 458 U.S. at
204, 102 S.Ct. at 3049.
B
A parent or guardian may challenge an
IEP's adequacy by demanding a due process
hearing before the state educational agency.
See 20 U.S.C. 1415(b)(2), 1415(c). If the
agency approves the IEP, the parent or
guardian may seek further review in either
state or federal court. See id. at 1415(e)(2).
The relevant statutory provision requires the
forum court to mull the administrative
record, take additional evidence under
certain circumstances, and "base[ ] its
decision on the preponderance of the
evidence." Id. While the IDEA envisions
judicial review, the statute "is by no means
an invitation to the courts to substitute their
own notions of sound educational policy for

155

those of the school authorities which they


review." Rowley, 458 U.S. at 206, 102 S.Ct.
at 3051. Rather, the law contemplates an
intermediate standard of review on the trialcourt level--a standard which, because it is
characterized by independence of judgment,
requires a more critical appraisal of the
agency determination than clear-error
review entails, but which, nevertheless, falls
well short of complete de novo review. See
Roland M., 910 F.2d at 989; Colin K. v.
Schmidt, 715 F.2d 1, 5 (1st Cir.1983).
Page 1087
In the course of this independent
review, the administrative proceedings must
be accorded "due weight." Rowley, 458 U.S.
at 206, 102 S.Ct. at 3051; see also Colin K.,
715 F.2d at 5. Although the exact quantum
of weight is subject to the district judge's
exercise of informed discretion, see
Hampton, 976 F.2d at 52; G.D. v.
Westmoreland Sch. Dist., 930 F.2d 942, 946
(1st Cir.1991), the judge is not at liberty
either to turn a blind eye to administrative
findings or to discard them without sound
reason. See Burlington, 736 F.2d at 792
("The court, in recognition of the expertise
of the administrative agency, must consider
the findings carefully and endeavor to
respond to the hearing officer's resolution of
each material issue."). In the end, the
judicial function at the trial-court level is
"one of involved oversight," Roland M., 910
F.2d at 989; and in the course of that
oversight, the persuasiveness of a particular
administrative finding, or the lack thereof, is
likely to tell the tale.
C
Determining the adequacy of an IEP is
a fact-intensive exercise. Consistent with
this verity, the governing standard for
appellate review in an IDEA case is firmly
settled:
[I]n the absence of a mistake of law, the
court of appeals should accept a district
court's resolution of questions anent
adequacy and appropriateness of an IEP so
long as the court's conclusions are not
clearly erroneous on the record as a whole.
Id. at 990-91. The clear-error hurdle is,
of course, quite high. See, e.g., Cumpiano v.

Banco Santander Puerto Rico, 902 F.2d 148,


152 (1st Cir.1990) (holding that, under a
regime of clear-error review, an appellate
court "ought not to upset findings of fact or
conclusions drawn therefrom unless, on the
whole of the record, [the appellate judges]
form a strong, unyielding belief that a
mistake has been made"). Even in precincts
where the clearly erroneous standard
obtains, however, a trial court's rulings of
law are reviewed de novo. See LeBlanc v.
B.G.T. Corp., 992 F.2d 394, 396 (1st
Cir.1993); Dedham Water Co. v.
Cumberland Farms Dairy, Inc., 972 F.2d
453, 457 (1st Cir.1992).
III. CLAIMED ERRORS OF LAW
In an effort to sidestep clear-error
review and take shelter in the lee of a more
accommodating standard, the Lenns
attribute two errors of law to the court
below. They contend that the court (1)
applied the wrong legal yardstick in taking
the measure of the hearing officer's findings;
and (2) failed sufficiently to address each of
Daniel's identified educational needs in
determining the adequacy of Portland's
proposed IEP. We discuss these contentions
seriatim.
A
Appellants' flagship claim is that the
lower court affirmed the hearing officer's
decision without conducting the independent
evidentiary review that the IDEA requires.
The claim founders: the record below
contains all the earmarks of a suitably
deferential, yet suitably independent,
judicial inquiry.
The linchpin of this conclusion is the
district court's opinion. In it, Judge Brody
explains a reviewing court's duty, canvasses
the pertinent authorities, and acknowledges
the relationship between the hearing officer's
findings and the district court's oversight
function, concluding that "while [the
district] court must make an independent
ruling, [its] review must be something short
of de novo." Lenn v. Portland Sch. Comm.,
No. 92-0011-P-H, slip op. at 6, 1992 WL
510895 (D.Me. Dec. 14, 1992) (D.Ct.Op.).
The court's discussion could hardly be more
pointed or more accurate.

156

In the face of this pellucid prose,


appellants have an uphill battle. They argue
that, although the district judge gave lip
service to the correct standard, he actually
viewed the evidence through a much more
deferential glass. We recognize that actions
sometimes speak louder than words. Thus, a
trial court cannot satisfy its oversight
obligation in an IDEA case by reciting the
catechism of independent review and then
failing to practice what it preaches. But
when, as now, a trial court delineates the
proper rule of decision, citing book and
verse, the burden of demonstrating that the
court is merely mouthing empty platitudes
rests with the
Page 1088
party who mounts the accusation. This is a
heavy burden; it cannot be carried by
perfervid rhetoric or glib wordplay. To
prevail on such a theory, the accuser must
offer solid indications that the district court
in fact strayed from the straight and narrow.
After all, an appellate tribunal ought not
lightly assume that a federal trial judge is
indulging in the adjudicatory equivalent of a
shell game.
In this instance, we think the accusation
that the judge said one thing, but did
another, is unfounded. The Lenns' most
touted point is their asseveration that the
district court expressly invoked the clearerror standard when it noted that a court is
"not confined to the hearing officer's
decision if [it] find[s] clear error." D.Ct.Op.
at 10. Based primarily on this remark, [4]
appellants invite us to disregard the court's
professed allegiance to the correct standard
of review. We decline the invitation.
First and foremost, we simply cannot
credit appellants' argument that this isolated
reference
indicates
a
wholesale
abandonment of the principles of
independent review. We think it is far more
likely, all things considered, that the
reference to "clear error" represents simply
an infelicitous choice of phrase. Indeed, a
close perusal of the record makes manifest
the depth of judicial involvement and
provides clinching evidence that the district
judge utilized the approved level of review.

The transcript reveals that the judge took a


hands-on approach to the decisional process.
Instead of limiting his perscrutation to the
administrative record, he conducted what
amounted to a mini-trial, hearing testimony
from two witnesses regarding Daniel's
educational needs and receiving newly
emergent
documentation
chronicling
Daniel's progress at Eagle Hill. The judge
then carefully scrutinized all the evidence,
new and old, and drew his own conclusions
from it. This is the very stuff from which
independent review is fashioned.
We have said enough. The law does not
require district courts to be precise to the
point of pedantry. Consequently, an
appellate court must not hesitate to excuse
an awkward locution and give a busy trial
judge a bit of breathing room. If using the
wrong word or phrase constituted grounds
for reversal in every case, much too high a
premium would be placed on sheer
literalism. We have regularly refused to
exact that premium. See, e.g., Roland M.,
910 F.2d at 991 n. 4 (disregarding district
court's "infelicitous" choice of terminology
where "the context, and other statements in
the court's memorandum" made plain that
the court fully understood the operative legal
principle); Collins v. Marina-Martinez, 894
F.2d 474, 477 n. 4 (1st Cir.1990) (similar);
Desfosses v. Wallace Energy, Inc., 836 F.2d
22, 30 (1st Cir.1987) (similar); United States
v. Kobrosky, 711 F.2d 449, 456 (1st
Cir.1983) (similar); see also Clauson v.
Smith, 823 F.2d 660, 663 n. 3 (1st Cir.1987)
("We have held before, and today reaffirm,
that if '[a] reading of the colloquy and
decision as a whole ... indicates that, despite
some loose use of language, the proper ...
standard was applied,' we will not reverse on
the basis of what amounts to a lapsus
linguae.") (citation omitted); cf. Hampton,
976 F.2d at 54 (rejecting, on a burden of
proof issue, appellants' "contention that the
district court actually did something other
than that which it said it was doing"). So
here. Mindful that pettifoggery, for its own
sake, benefits no one, we will not disregard
the totality of the circumstances in a

157

headlong rush to elevate formalism over


substance.
We add, moreover, that even if Judge
Brody used the challenged terminology in a
purposeful manner, we would not reverse.
The "clear error" reference appears in a
paragraph in which, after restating the
hearing officer's key findings--that the 199192
Page 1089
IEP offered Daniel a major change in
services and that the new mix was
reasonably calculated to bestow a significant
educational benefit on him--the judge
acknowledged his duty to afford the
administrative proceeding due weight. [5] A
reference at this juncture to clear error is not
inappropriate since the precise degree of
deference attributable to a hearing officer's
subsidiary findings of fact in an IDEA case
ultimately rests within the trial court's
discretion. See, e.g., Hampton, 976 F.2d at
52; Westmoreland, 930 F.2d at 946;
Burlington, 736 F.2d at 792. That the district
court may have afforded particular
administrative findings substantial respect-even deference on a par with clearly
erroneous review--would not comprise
reversible error so long as the court made an
independent ruling as to the IEP's adequacy
based on a preponderance of all the
evidence, including the hearing officer's
duly weighted findings.
This criterion was satisfied. The
opinion as a whole shows conclusively that
the
judge
made
an
independent
determination concerning the adequacy of
Portland's IEP, throwing all the available
evidence into the pot. Among other things,
Judge Brody specifically discussed the
testimony of Daniel's teachers in Portland,
the testimony of the Cleveland Clinic's
independent evaluators, and Daniel's
standardized test scores. D.Ct.Op. at 11. He
also cited additional record evidence that
buttressed the hearing officer's evaluation of
Daniel's past progress in the Portland public
schools and the likelihood of future
educational benefits should the 1991-92 IEP
be implemented. Id. at 10. Last, but surely
not least, the judge applied the proper

burden of proof, concluding that the Lenns


had not "proven [their case] by a
preponderance of the evidence." Id. [6]
It strains credulity to assume, in these
circumstances, that the district court's lonely
reference to "clear error" heralds an
intention to disregard a standard of review
explicitly described in the court's opinion
and indelibly etched upon its pages. Hence,
we find no warping of the standard of
review. We hasten to add, however, that
even if the controversial phrase represents
more than a slip of the district court's pen--a
supposition that we deem unsubstantiated-the reference, by itself, does not call into
question the court's proper performance of
its oversight function.
B
Appellants next assert that the district
court must "determine separately for each
area of identified educational need ...
whether, by a preponderance of the
evidence, [an IEP] addresses that need"
sufficiently. Appellants' Reply Brief at 11.
Building on this premise, appellants then
conclude that the court below emasculated
the requirement by failing to consider
"separately"
and
"directly"
whether
Portland's IEP addressed Daniel's nonacademic needs in a meaningfully beneficial
way. We disagree with both the premise and
the conclusion.
Admittedly, an IEP is designed as a
package. It must target "all of a child's
special needs," Burlington, 736 F.2d at 788
(emphasis supplied), whether they be
academic, physical, emotional, or social. See
Roland M., 910 F.2d at 992 (explaining that
"purely academic progress ... is not the only
indici[um] of educational benefit"); Timothy
W. v. Rochester, N.H. Sch. Dist., 875 F.2d
954, 970 (1st Cir.) (observing that
"education" under the Act is broadly
defined), cert. denied,
Page 1090
Y493 U.S. 983, 110 S.Ct. 519, 107 L.Ed.2d
520 (1989); U.S. Dep't of Educ., Notice of
Policy Guidance, 57 Fed.Reg. 49,274 at
49,275 (1992) (stating that an IEP must
address "the full range of the child's needs").
Because a one-dimensional view of an IEP

158

would afford too narrow a foundation for a


determination that the program is reasonably
calculated to provide "effective results" and
"demonstrable improvement" in the various
"educational and personal skills identified as
special needs," Burlington, 736 F.2d at 788,
a district court's determination that an IEP
complies with the Act necessarily involves a
host of subsidiary determinations.
Be that as it may, appellants' legal
formulation distorts the Act's requirements.
The Act does not mandate, nor has any court
held it to require, that the district judge must
consider each unique need in isolation and
make a separate finding regarding the
preponderance of the evidence in each and
every identified area. Such a requirement
would serve merely to balkanize the concept
of educational benefit and to burden the
district courts without producing any
offsetting advantages. We hold that no such
requirement exists. In the last analysis, what
matters is not whether the district judge
makes a series of segregable findings, but
whether the judge is cognizant of all the
child's special needs and considers the IEP's
offerings as a unitary whole, taking those
special needs into proper account.
The record also belies appellants' selfserving suggestion that the district court
assessed Daniel's academic needs in a
vacuum. A trial court charged with
evaluating the adequacy of an IEP cannot be
said to have committed legal error as long as
(1) it does not overlook or misconstrue
evidence of record, and (2) its overall
decision is based upon a supportable finding
that the program described in the IEP is
reasonably calculated to address the
handicapped child's education-related needs,
both academic and non-academic. The
district court's finding in this case fits
comfortably within that rubric. We explain
briefly.
The
district
court
explicitly
acknowledged "Daniel's self-esteem and
social skills needs" and took pains to limn
the "wide range of after-school support
services" proposed by Portland to address
those needs. D.Ct.Op. at 8. In considering
the likely impact of these services, the court

focused on Portland's plan to provide a


social skills facilitator and opined that,
although hiring a facilitator might not be the
best mechanism for addressing Daniel's
needs, "the ideal" is not "the legal standard
under [the] IDEA." Id. at 10; see also id. at
12. The court observed that Portland's
program would "enable Daniel to remain in
his home community and interact daily with
non-disabled peers," id. at 10, thus
furthering his social development. [7]
Finally, the judge mentioned that while "the
goals for Daniel's social and organizational
skill development would be more useful if
they could be objectively measured," id. at
11 n. 2, this deficiency does not undermine
the IEP.
Based on these, and other comments, it
is clear beyond hope of contradiction that
Portland's ability to address Daniel's nonacademic needs informed the district court's
overall determination that the IEP comports
with the Act's requirements. No more is
exigible.
IV. WEIGHT OF THE EVIDENCE
Appellants' final assignment of error
posits that the district court blundered in
Page 1091
concluding that Portland's IEP would
provide Daniel with an appropriate public
education. We discern no clear error. To the
contrary, the record fully sustains a finding
that Portland's IEP is adequate and
appropriate to ensure the requisite degree of
educational benefit.
On this score, appellants' cardinal
contention is that Portland's IEP fails to take
account of Daniel's inadequate social skills.
We demur. The record reflects that the IEP
forthrightly addresses this area of critical
need, offering Daniel an array of afterschool socialization services. For example,
Daniel would spend three hours a day, three
days a week, with a social skills facilitator,
who would encourage and oversee his
involvement
in
extracurricular
and
community-based activities. The facilitator
would work to hone Daniel's skills in
relating to non-disabled peers in a real-world
milieu. [8] On the remaining school days,
Daniel would receive social skills

159

programming
in
more
structured
environments, spending one afternoon at a
one-on-one counseling session with a
doctorate-level psychologist and the other in
the company of handicapped peers at a
group counseling session devoted to selfesteem issues. Thus, while Portland's IEP
may not contain the precise programs that
the parents prefer, it embodies a substantial,
suitably diverse socialization component.
On the academic side, the IEP places
Daniel in a small, special education class for
English (with a student/teacher ratio of
eight-to-three) and four mainstream
educational courses (ranging in size from
fifteen to eighteen students per class). In the
mainstream classes (at least three of which
would be taught or co-taught by a special
educator), Daniel would study Western
civilization, mathematics, [9] science, and
an elective. The special English class would
occupy the first period of every day and
would prepare Daniel organizationally for
the remainder of the day. A small group
session held during the last period would
help Daniel synthesize the day's lessons,
hone his organizational skills, and teach him
homework strategies. Portland also offered
(1) personalized instruction in customtailored learning techniques, on a daily
basis, to assist Daniel in mastering the
curriculum; and (2) a home/school
coordinator to work once a week with
Daniel's mother to synthesize home and
institutional instruction.
Under federal law, Portland's IEP
package must assure Daniel a "basic floor of
[educational] opportunity." Rowley, 458
U.S. at 201, 102 S.Ct. at 3048 (internal
quotation marks omitted). The finding that
Portland's proposal at least reaches this floor
cannot be faulted. The school committee
tendered a rigorous program, to be
administered by a highly experienced and
well-credentialed team, catering to the full
range of Daniel's needs through a variety of
mechanisms. [10] The academic schedule,
with its mix of mainstream courses, smallclass instruction, and private programming
in compensatory skills, furnished abundant
reason for the hearing officer and the court

below to find that the IEP would likely


achieve measured success. [11]
Page 1092
The IEP's non-academic component--which
includes numerous one-on-one and smallgroup services geared toward fostering selfesteem, enhancing socialization skills,
developing organizational abilities, and
perfecting homework techniques--furnishes
a satisfactory predicate for a similar finding
in respect to non-academic needs.
In short, Portland's IEP provides
"personalized instruction with sufficient
support services to permit [Daniel] to benefit
educationally from that instruction."
Rowley, 458 U.S. at 203, 102 S.Ct. at 3049.
What is more, it allows Daniel to live at
home with supportive parents, to be
educated with non-disabled peers, and to
interact regularly with the members of his
community. [12] It follows inexorably that
the
district
court's
findings
of
appropriateness and adequacy comfortably
survive clear-error review.
V. CONCLUSION
We need go no further. [13] The trial
court correctly discerned the relevant legal
principles and applied them to the task at
hand. Its conclusion that Portland's proposed
1991-92 IEP meets Daniel's needs is
supported by the record. Finding no
significant error of law or fact, we affirm the
judgment below.
Affirmed.
------------------Notes:
[1]In their complaint, the plaintiffs also
invoke section 504 of the Rehabilitation Act,
29 U.S.C. 794 (1988). Concluding that the
sweep of the two statutes is identical for
purposes of this case, the parties have
briefed and argued their points solely with
reference to the IDEA. We assume arguendo
that the parties' assessment is accurate.
Hence, we analyze the assigned errors under
the IDEA.
[2]Daniel is still in residence at Eagle Hill,
albeit at considerable expense to the Lenns.
[3]Daniel Lenn and his parents, Stephen and
Eileen Lenn, plaintiffs below, are appellants
in this court. Portland and the Maine

160

Department of Education, defendants below,


appear as appellees. In view of the
community of interest between the school
committee and the state agency, we treat the
appeal as if Portland were the sole appellee.
[4]The district court also wrote that it found
"ample evidence in the record" to support
the hearing officer's decision. D.Ct.Op. at
10. Appellants argue that this statement
manifests an abandonment of the
preponderance-of-the-evidence test. This
argument proves nothing more than
appellants' penchant for grasping at straws-especially since the context makes clear that
the lower court applied the proper test;
indeed, in the very same paragraph of its
opinion, the court used the phrase
"preponderance of the evidence." Id. We
will neither confine district courts to the rote
recitation of buzzwords nor penalize them
for relieving the tedium of opinion writing
by the occasional employment of artful
synonyms.
[5]The court wrote: "While we are not
confined to the hearing officer's decision if
we find clear error, we are constrained in
that we cannot impose our view of
preferable educational methods upon the
state." D.Ct.Op. at 10.
[6]While the Lenns grudgingly acknowledge
this reference, they maintain that the court
erred by requiring them to prove that only
Eagle Hill will provide Daniel with an
appropriate education when, in fact, their
burden was merely to prove the
inappropriateness of Portland's IEP. On
balance, we do not believe it can fairly be
said that the court misapprehended the
contours of the issue. Throughout its pages,
the district court's opinion is geared toward
determining whether "the proposed IEP was
reasonably calculated to enable Daniel to
receive educational benefits." D.Ct.Op. at
10. Indeed, the court pointedly wrote that
"[a]lthough the Eagle Hill residential
program may well be the ideal educational
environment for Daniel, that is not the legal
standard under [the] IDEA." Id.
This specific disclaimer sounds the death
knell for appellants' argument.

[7]We do not accept appellants' hypothesis


that the mainstream nature of a proposed
placement can never enter into the primary
analysis of an IEP's adequacy. When a child,
like Daniel, demonstrates a particular need
for learning how to interact with nondisabled peers, a mainstream placement will
almost inevitably help to address that need.
Such an integral aspect of an IEP package
cannot be ignored when judging the
program's
overall
adequacy
and
appropriateness. The Third Circuit, which
recently reaffirmed the special nature of the
educational benefits that mainstream
programs confer, apparently shares this
view. See Oberti v. Board of Educ., 995
F.2d 1204, 1216 (3d Cir.1993) (observing
that, in assessing the educational benefit of
placing a handicapped child with nonhandicapped peers, "the court must pay
special attention to those unique benefits the
child may obtain from integration in a
regular classroom ..., i.e., the development
of social and communication skills from
interaction with nondisabled peers").
[8]To be sure, there is room for principled
disagreement about the efficacy of a social
skills facilitator. Portland's witnesses and
plaintiffs'
experts
expressed
widely
divergent views on this topic. But, judges
are not especially well-equipped to choose
between various educational methodologies.
See Rowley, 458 U.S. at 207-08, 102 S.Ct.
at 3051-52. Where, as here, there is
satisfactory record support for the
appropriateness of the particular approach
selected by the school department and
approved by the state education agency, a
reviewing court should not meddle. See id.;
see also Roland M., 910 F.2d at 992
(warning that "courts should be loathe to
intrude very far into interstitial details or to
become embroiled in captious disputes as to
the precise efficacy of different instructional
programs").
[9]The mainstream math class contemplates
individual instruction geared to each
student's level and needs--an especially
important feature given the nature of
Daniel's handicap and the problems he has

161

encountered in dealing with applied


mathematics.
[10]Appellants criticize the IEP for offering
no services geared toward physical
education or health management needs. In
fact, the IEP affords Daniel an
individualized physical education program
as well as a choice of extracurricular athletic
activities. Since the record fails to
demonstrate that Daniel suffers an infirmity
in motor coordination or personal hygiene
that would require specially designed
programs, no more is required.
[11]Significantly, teachers who had
previously taught Daniel in large,
mainstream classes testified that he
participated in class activities, did well, felt
good about his work, and achieved passing
grades.
[12]This mainstream approach, which places
Daniel in "the least restrictive environment"

appropriate to his needs, 34 C.F.R.


300.552(d) (1992), is the preferred choice
under the Act. See 20 U.S.C. 1412(5); see
also Rowley, 458 U.S. at 202, 102 S.Ct. at
3048-49.
[13]Appellants' brief is larded with claims
that a fundamentally flawed process created
substantive infirmities in Portland's IEP.
However, in the district court, appellants
stipulated to the absence of any disputed
procedural issues. Because these procedural
claims have not been properly preserved,
they need not be addressed in this venue.
See United States v. Slade, 980 F.2d 27, 31
(1st Cir.1992) (discussing raise-or-waive
rule); Hampton, 976 F.2d at 53-54 (refusing
to consider claims not articulated to the
district court).
-----------------

162

Sutton public school system, which each


year developed an individualized education
program (" IEP" ) for him, as required by the
IDEA. In 2005, dissatisfied with the services
D.B. was receiving and, in particular, with
D.B.'s 2005 IEP, D.B.'s parents removed
him from the Sutton school system and
enrolled him in a private learning center. In
response, the Sutton school system sought a
determination from an independent hearing
officer (" IHO" ) of the Massachusetts
Bureau of Special Education Appeals ("
BSEA" ) that D.B.'s 2005 IEP complied
with the IDEA. D.B. and his parents sought
the opposite determination, as well as
reimbursement for the costs of D.B.'s private
education.
After the IHO ruled for the Sutton
school system, D.B. and his parents sought
judicial review of the IHO's decision by
filing a lawsuit in Massachusetts state court,
which was later removed to the United
States District Court for the District of
Massachusetts. The district court upheld the
IHO's decision in a summary judgment
ruling. This timely appeal followed.
D.B. and his parents argue that the
district court erred by affirming the ruling of
the IHO that she could determine the
compliance of D.B.'s 2005 IEP with the
IDEA without first determining D.B.'s
potential for learning and self-sufficiency.
They also argue that they raised triable
claims under the First Amendment, the
Rehabilitation Act of 1973 (" Rehabilitation
Act" ), Titles II and V of the Americans with
Disabilities Act (" ADA" ), and 42 U.S.C.
1983 and 1985. Appellees are the Sutton
School District; the Sutton School
Committee; Cecilia DiBella, the Sutton
Superintendent of Schools; Kirsten Esposito,
the former Sutton Director of Special
Education;
and
the
Massachusetts
Department of Education.
Finding no error in the district court's
entry of summary judgment against
appellants, we affirm.
I.
A. Factual Background
D.B. was born in September 1996 and
now is fifteen years old. As a result of

Page 26
675 F.3d 26 (1st Cir. 2012)
D.B., a minor, by his next friend and
mother ELIZABETH B.; Elizabeth B.;
David B., Plaintiffs, Appellants,
v.
Kirsten ESPOSITO, both individually
and in her role as former Director of
Special Education for the Sutton School
District, f/k/a Kirsten Brunsell; Cecilia
DiBella, both individually and in her role
as Superintendent of Schools for the
Sutton School District; Sutton School
District; Sutton School Committee;
Massachusetts Department of Education,
Defendants, Appellees.
No. 10-2184.
United States Court of Appeals, First
Circuit.
March 23, 2012
Heard June 6, 2011.
Page 27
[Copyrighted Material Omitted]
Page 28
David R. Bohanan for appellant.
Page 29
David S. Lawless and Regina Williams
Tate, with whom Nancy Frankel Pelletier,
Robinson Donovan, P.C., and Murphy,
Hesse, Toomey & Lehane, LLP were on
brief, for appellees Kirsten Esposito, Cecilia
DiBella, Sutton School District, and Sutton
School Committee.
Julie B. Goldman, Assistant Attorney
General, with whom Martha Coakley,
Attorney General, was on brief, for appellee
Massachusetts Department of Education.
Before LYNCH, Chief Judge, LIPEZ
and THOMPSON, Circuit Judges.
LIPEZ, Circuit Judge.
This case requires us to examine the
rights of a disabled child under the
Individuals with Disabilities Education Act
(" IDEA" ), 20 U.S.C. 1400-1491, and to
assess whether the child and his parents
have raised triable discrimination or
retaliation claims under other provisions of
federal law.
D.B. is a disabled child who lives with
his parents in Sutton, Massachusetts. From
1999 until 2005, D.B. was a student in the

163

violent seizures during his infancy, D.B. has


experienced
significant
developmental
delays. He has been diagnosed with verbal
apraxia, which is a motor speech disorder,
and with dysarthria, which is a weakening of
the speech-producing muscles. There is no
dispute that D.B. is disabled and that his
disability affects not only his speech but also
his expressive and receptive communication,
reading, focus, and overall cognition.
Page 30
D.B. began receiving specialized
services to address his disability during his
infancy. These services continued after he
entered the Sutton public school system in
the fall of 1999, at which time he received
his first annual IEP— a written
document describing his development and
laying out goals and services for him.
Although D.B. was then three years old, his
cognitive skills were equivalent to those of a
twelve- to eighteen-month-old. He followed
simple one-step directions and could imitate
certain sounds, but he was essentially
nonverbal and had difficulty sorting items.
Despite making some developmental
progress during the 1999-2000 school year,
he remained nonverbal.
During the summer of 2000, D.B.'s
parents enrolled him in an intensive,
supplemental speech and language program.
Encouraged by D.B.'s progress in the
supplemental program, his parents pressed
the Sutton school system to incorporate
additional services into D.B.'s curriculum.
As a result, during the 2000-2001 school
year, D.B.'s speech therapy sessions became
more frequent, he received a one-on-one
aide, and he was introduced to sign language
and the augmentative Picture Exchange
Communication System (" PECS" ). D.B.
learned to produce ten consonant sounds and
some word approximations, sign and gesture
with some effectiveness, and use the PECS
to convey basic messages. Overall, his
communication, motor skills, and social
skills improved measurably.
During the 2001-2002 school year,
D.B. was placed in a preschool classroom
with fourteen children, one teacher, and one
paraprofessional, as well as D.B.'s one-on-

one aide. Every week, he received five


speech therapy sessions, two occupational
therapy sessions, and one physical therapy
session. These sessions proved useful. An
evaluation conducted by a speech
pathologist in late 2001 reveals that D.B.
could produce sounds approximating twelve
words, sign about twenty-five words,
gesture yes or no, and use the PECS to make
choices but not to express feelings or call for
attention. However, progress reports suggest
that D.B. had trouble learning to operate the
DynaMyte
3100,
an
augmentative
communication device.[1]
D.B. entered kindergarten in the fall of
2002, when he was nearly six years old. In
the mornings, pursuant to his 2002 IEP, he
received one-on-one academic tutoring and
attended various therapy sessions. In the
afternoons, he rejoined his kindergarten
classmates for lunch, recess, rest, and play.
Despite making some developmental
progress, D.B. still lagged far behind his
classmates in important ways. For example,
D.B. remained in diapers throughout his
time in the Sutton school system. Carrying
rubber gloves and pull-up diapers, his oneon-one aide always accompanied him to the
bathroom past other children, who could
deduce that D.B. was not toilet trained. D.B.
also was unable to begin cultivating foreign
language skills like his classmates.
A multidimensional evaluation
conducted in the winter of 2002 revealed
that D.B., then age six, displayed the
neuropsychological
development
and
linguistic abilities of a two- or three-yearold, and the gross motor skills of a three-or
four-year-old. However, the evaluation also
revealed that D.B.'s communication and
focus had improved. He was using
approximately eighty signs, could identify
six capital letters and three written words,
and appeared comfortable with his
classmates.
Page 31
By June 2003, D.B. could follow two-step
directions and could identify basic shapes,
eight written words, and the letters in his
name. He spent nine weeks during the
summer of 2003 in supplemental speech

164

therapy with a licensed therapist, Amy


Kulcsar, and returned to kindergarten in the
fall. Kulcsar continued to work with D.B.
outside of school.
In January 2004, D.B.'s parents met
with various representatives from the Sutton
school system to discuss D.B.'s 2004 IEP,
which was scheduled to be implemented in
February 2004. D.B. could then identify all
twenty-six capital letters and twenty-four
lower case letters, albeit inconsistently, and
could make most long vowel sounds and
some consonant sounds. However, he often
required prompting and still had difficulty
focusing. Although the 2004 IEP did not
recommend additional services, D.B.'s
parents requested that the school system pay
for D.B.'s ongoing supplemental speech
therapy with Kulcsar. After an initial denial,
an agreement was reached that provided for
the school system's funding of Kulcsar's
services during the upcoming summer, and
the 2004 IEP went into effect.
In the summer of 2004, D.B.'s parents
enrolled him in a six-week course at the
Lindamood-Bell Learning Center, a private
facility offering intensive language and
literacy tutorials to disabled students. D.B.'s
progress, however, was slow. Also in the
summer of 2004, D.B.'s parents received a
letter from Kirsten Esposito, who was then
the Director of Special Education for the
Sutton school system. The letter summarized
D.B.'s 2004 IEP and described " how
[D.B.'s] daily routines [would] be
implemented" when school resumed in the
fall. The letter instructed D.B.'s parents to "
drop [D.B.] off in the main entrance of the
[school] and pick him up in the auditorium
with the other families." Previously, D.B.'s
mother, Elizabeth, had accompanied D.B. to
his classroom each morning.
In the fall of 2004, D.B. advanced to
first grade. One morning early in the school
year, D.B.'s one-on-one aide met Elizabeth
and D.B. at the school's main entrance and
reiterated the drop-off instructions in
Esposito's letter. Not wishing to start a fight
in front of D.B., Elizabeth returned to her
car
and
observed
other
parents
accompanying their children into the school.

Shortly thereafter, D.B.'s father, David,


responded to Esposito's letter, stating that he
and Elizabeth felt " singled out" by
Esposito's drop-off instructions. Esposito
replied that she had never " indicated that
[Elizabeth] was not wanted on the school
premises" and that her drop-off instructions
were intended to facilitate " a smooth
transition into [the school] year."
During the 2004-2005 school year,
D.B. continued to receive therapy and oneon-one academic tutoring, but he spent more
time with his classmates than he had in
kindergarten. He also underwent an
evaluation conducted by a speech
pathologist, Teresa Dooley-Smith, who
opined that D.B. communicated most
effectively with sign language and struggled
with the DynaMyte 3100. Dooley-Smith
also noted that D.B. was a good candidate
for a multi-sensory, structured learning
program, like the course at the LindamoodBell Learning Center.
After receiving Dooley-Smith's
evaluation, representatives of the Sutton
school system met with D.B.'s parents on
three occasions to discuss D.B.'s 2005 IEP,
which was scheduled to be implemented in
February 2005. D.B. then knew over one
hundred words and used twenty-seven
regularly; spoke phrases of two to four
words; followed simple directions; could
enunciate fifteen consonant sounds; was
more focused; and could identify seven
Page 32
written words and the numerals 0 through
15. Although the 2005 IEP kept in place
D.B.'s therapy and tutoring, it also, in line
with Dooley-Smith's evaluation, provided
for a multi-sensory, structured learning
program— the Sutton school system's
language-based resource program. Like
D.B., the other students in this program were
disabled. Most had less significant
developmental delays than D.B.
The 2005 IEP never went into effect.
Instead, in February 2005, David sent
Esposito a nine-page letter describing his
concerns with the 2005 IEP and with the
Sutton school system. Among these

165

concerns was the behavior of one of D.B.'s


therapists:
[The therapist] implicitly called [Elizabeth]
a liar when [Elizabeth] told her that [D.B.]
was saying particular words in a natural
environment.... [The therapist] attempted to
have [D.B.] repeat the words on demand....
Anyone with any knowledge of severe
apraxia would know that a severely apraxic
child would not deliver a word under
pressure and on demand. Indeed, some
people to whom we have related this
incident have stated that this was child
abuse.
Esposito placed David's letter in D.B.'s
file after redacting the paragraph relating to
the therapist's behavior. She then e-mailed
the Sutton school system's attorney for legal
advice, referring to David's letter as "
defamatory and libelous" and explaining that
her redaction was intended to shield the
therapist from David's accusations. Esposito
placed a copy of her e-mail alongside
David's letter in D.B.'s file.
Shortly thereafter, in March 2005,
D.B.'s parents removed D.B. from the
Sutton public school system and enrolled
him in the Lindamood-Bell Learning Center.
B. Procedural Background
1. Bureau of Special Education
Appeals
In March 2005, as a result of D.B.'s
removal from public school, the Sutton
school system invoked its right to an
administrative due process hearing before
the BSEA, claiming that the 2005 IEP was
adequate insofar as it would have provided
D.B. with a free appropriate public
education (" FAPE" ) as required by the
IDEA and, relatedly, that it was not required
to reimburse D.B.'s parents for tuition costs
at the Lindamood-Bell Learning Center.
D.B.'s parents counterclaimed that they were
entitled to reimbursement because the 2005
IEP was inadequate. They also claimed that
the Sutton school system had discriminated
against D.B. on the basis of his disability
and had violated privacy laws by publicly
disclosing D.B.'s confidential information.
A BSEA due process hearing was held
over eight days between June 28, 2006, and

October 12, 2006. During the hearing, the


IHO received over three hundred exhibits
and heard testimony from sixteen witnesses,
including D.B.'s parents. On March 26,
2007, the IHO issued a lengthy decision in
favor of the Sutton school system. In the
decision, the IHO noted that " the IDEA
does not require [school] districts to
maximize a student's potential, but rather to
assure access to a public education and the
opportunity for meaningful educational
benefit." The IHO also observed that some
courts have held that the meaningfulness of
a benefit " should be measured in light of the
student's individual potential." However,
due to the severity of D.B.'s disabilities, the
IHO found that D.B.'s potential for learning
and self-sufficiency could not be
determined. Nevertheless, the IHO found
that there was ample evidence that, while a
student in the Sutton school system, D.B.
had made
Page 33
" slow but measurable progress in all
identified areas of need, generally meeting
most or all of his IEP goals," and that the
2005 IEP would have continued the one-onone tutorials and therapy sessions from
which D.B. had benefitted previously.
Accordingly, the IHO concluded that the
2005 IEP was adequate.
2. District Court
Appellants sought review of the IHO's
decision in the Massachusetts state court.
After the suit was timely removed to the
United States District Court for the District
of Massachusetts, appellants filed a tencount amended complaint, the final count of
which raised their IDEA claim. The first
four counts raised discrimination and
retaliation claims under the Rehabilitation
Act and the ADA. The next four counts
raised a retaliation claim under the First
Amendment pursuant to 1983 and reraised appellants' IDEA claim and
discrimination claims pursuant to 1983
and 1985. The ninth count raised a due
process claim under the Fourteenth
Amendment. The Sutton School District, the
Sutton School Committee, Esposito, and
DiBella were named in all ten counts. The

166

Massachusetts Department of Education was


named only in the tenth count.
Appellees filed an unsuccessful motion
to dismiss the amended complaint. Both
sides then filed cross-motions for summary
judgment on Count 10, and appellees
followed up with a motion for summary
judgment on Counts 1-9. The district court
bifurcated
the
summary
judgment
proceedings, ruling on Count 10 in
September 2009, and Counts 1-9 in
September 2010.
In considering the IDEA claim raised
in Count 10, the district court addressed the
first issue presented here on appeal-whether
it was error for the IHO to conclude that the
2005 IEP complied with the IDEA without
first determining D.B.'s potential for
learning and self-sufficiency. The court
noted that, due to the complexity of D.B.'s
disability, his potential could not be "
ascertained with any substantial degree of
confidence." Still, the court found that D.B.
had received some meaningful educational
benefit from the Sutton school system. The
court also found that this benefit, " even if
less than optimal, was likely to continue
under the [2005] IEP," and held that the
continued benefit " would have been
sufficient to satisfy the IDEA." Accordingly,
the court granted appellees' motion for
summary judgment on Count 10.
In considering Counts 1-9, the district
court relied heavily on its earlier disposition
of Count 10. It interpreted the discrimination
claims in Counts 1 and 3, and the 1983
and 1985 claims in Counts 5, 6, and 8, as
disguised IDEA claims nominally brought
under other provisions of federal law.
Having already established that no IDEA
violation had occurred, it denied these
claims on that basis. In contrast, the court
interpreted the retaliation claims in Counts
2, 4, and 7 as non-IDEA claims and
scrutinized them carefully, ultimately
concluding that they were insufficiently
supported by evidence to justify a trial. The
court also noted that appellants had
consented to the dismissal of the due process
claim in Count 9. Accordingly, the court

granted appellees' motion for summary


judgment on Counts 1-9.
This appeal followed.
II.
We structure our consideration of
appellants' claims as the district court did,
beginning with the IDEA claim raised in
Count 10 and then turning to the remaining
claims.
Page 34
A. The IDEA Claim
1. Statutory Framework
" Congress designed the IDEA as part
of an effort to help states provide
educational services to disabled children."
C.G. ex rel. A.S. v. Five Town Cmty. Sch.
Dist., 513 F.3d 279, 284 (1st Cir.2008); see
also Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 52, 126 S.Ct. 528, 163 L.Ed.2d 387
(2005). [2] The IDEA aims to prepare
children with disabilities for independent
living and a reasonable measure of selfsufficiency where possible. See 20 U.S.C.
1400(c)(1), (d)(1)(A); Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 201 n. 23, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982).
To that end, a state receiving federal
funding under the IDEA must offer a FAPE
to every disabled child within its
jurisdiction. See 20 U.S.C. 1412(a)(1)(A).
" A FAPE encompasses special education
and support services provided free of
charge." C.G., 513 F.3d at 284 (citing 20
U.S.C. 1401(9)). " If a school system is
unable to furnish a disabled child with a
FAPE through a public school placement, it
may be obliged to subsidize the child in a
private program." Id.
The " primary vehicle" for delivery of
a FAPE is an IEP. Lessard v. WiltonLyndeborough Coop. Sch. Dist. ( Lessard I
), 518 F.3d 18, 23 (1st Cir.2008); see also
D.S. v. Bayonne Bd. of Educ., 602 F.3d 553,
557 (3d Cir.2010) (" The IEP is ... the
centerpiece of the IDEA's system for
delivering education to disabled children."
(internal quotation marks omitted)). An IEP
must be " individually designed" to suit a
particular child, Rowley, 458 U.S. at 201,
102 S.Ct. 3034, and must include, " at a bare

167

minimum, the child's present level of


educational attainment, the short- and longterm goals for his or her education, objective
criteria with which to measure progress
toward those goals, and the specific services
to be offered," Lessard I, 518 F.3d at 23
(citing 20 U.S.C. 1414(d)(1)(A)); see also
Schaffer, 546 U.S. at 53, 126 S.Ct. 528.
However, " the obligation to devise a
custom-tailored IEP does not imply that a
disabled child is entitled to the maximum
educational benefit possible." Lessard I, 518
F.3d at 23; see also Rowley, 458 U.S. at 198,
102 S.Ct. 3034; Lt. T.B. ex rel. N.B. v.
Warwick Sch. Comm., 361 F.3d 80, 83 (1st
Cir.2004). The Supreme Court has said that
an IEP must offer only " some educational
benefit" to a disabled child. Rowley, 458
U.S. at 200, 102 S.Ct. 3034. Thus, the IDEA
sets " modest goals: it emphasizes an
appropriate rather than an ideal, education; it
requires an adequate, rather than an optimal,
IEP." Lenn v. Portland Sch. Comm., 998
F.2d 1083, 1086 (1st Cir.1993). At the same
time, the IDEA calls for more than a trivial
educational benefit, in line with the intent of
Congress to establish a " federal basic floor
of meaningful, beneficial educational
opportunity." Town of Burlington v. Dep't of
Educ. of Mass., 736 F.2d 773, 789 (1st
Cir.1984). Hence, to comply with the IDEA,
an IEP must be reasonably calculated to
confer a meaningful educational benefit. See
D.S., 602 F.3d at 557 (" [T]he IEP must be
reasonably calculated to enable the child to
receive meaningful educational benefits...." )
(internal quotation marks omitted);
Page 35
D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist.,
430 F.3d 595, 598 (2d Cir.2005) (" A valid
IEP should provide for the opportunity for
more than trivial advancement ... such that
the door of public education is opened for a
disabled child in a meaningful way."
(internal quotation marks and citation
omitted)); Deal v. Hamilton Cnty. Bd. of
Educ., 392 F.3d 840, 862 (6th Cir.2004) ("
[T]he IDEA requires an IEP to confer a
meaningful educational benefit...." (internal
quotation marks omitted)).

To ensure the continued adequacy of a


child's IEP, the IDEA requires that it be
reevaluated annually through a collaborative
process that involves the child's parents and
educators. See 20 U.S.C. 1414(d);
Schaffer, 546 U.S. at 53, 126 S.Ct. 528;
Lessard I, 518 F.3d at 23; Me. Sch. Admin.
Dist. No. 35 v. Mr. R., 321 F.3d 9, 12 (1st
Cir.2003). If this process breaks down and
no consensus emerges, the child's parents
may challenge either the school system's
handling of the IEP process or the
substantive adequacy of the IEP itself by
demanding an administrative due process
hearing before a designated state educational
agency. See 20 U.S.C. 1415(f)(1)(A);
Lenn, 998 F.2d at 1086. A public school
system has essentially the same right if, for
example, it seeks to test the validity of a
proposed IEP or it wishes to challenge an
existing IEP as over-accommodating. See
Schaffer, 546 U.S. at 53, 126 S.Ct. 528;
Lessard v. Wilton-Lyndeborough Coop. Sch.
Dist. ( Lessard II ), 592 F.3d 267, 269 (1st
Cir.2010) (per curiam). The burden of
persuasion in the resulting hearing lies with
the party challenging the IEP. See Schaffer,
546 U.S. at 62, 126 S.Ct. 528.[3] Having
exhausted the IDEA's administrative due
process hearing procedures, " [e]ither side
may then appeal from the hearing officer's
final decision to either a federal or state
court of competent jurisdiction." Lessard I,
518 F.3d at 24; see also 20 U.S.C.
1415(i)(2)(A); C.G., 513 F.3d at 285.
2. The 2005 IEP
Appellants complained to the district
court that the IHO erred in concluding that
the 2005 IEP complied with the IDEA
without first determining D.B.'s potential for
learning and self-sufficiency. In light of that
alleged error, they argue to us that the
district court should not have upheld the
IHO's decision. They do not dispute that, as
the party challenging the 2005 IEP, they
bore the burden of persuasion in the
administrative due process hearing before
the IHO. See Schaffer, 546 U.S. at 62, 126
S.Ct. 528.
The standard applied by the district
court to its review of the IHO's decision

168

differs from the standard we apply to our


review of the district court's decision. See Lt.
T.B., 361 F.3d at 83. " [A] district court
reviews the administrative record, which
may be supplemented by additional
evidence from the parties, and makes an
Page 36
independent ruling based on the
preponderance of the evidence." Id. (internal
quotation marks omitted). However, " [t]hat
independence is tempered by the
requirement that the court give due weight
to the hearing officer's findings." Id.
(internal quotation marks omitted). As a
result, a district court's review " falls
somewhere between the highly deferential
clear-error standard and the non-deferential
de novo standard." Lessard I, 518 F.3d at
24. We have characterized this intermediate
level of review as " one of involved
oversight." Lenn, 998 F.2d at 1087 (internal
quotation marks omitted).
Our review of the district court's order
is more traditional. We examine the record
as a whole and " review the district court's
answers to questions of law de novo and its
findings of fact for clear error." C.G., 513
F.3d at 284; see also Lessard II, 592 F.3d at
269; Lenn, 998 F.2d at 1087. Whether an
IEP is adequate is a mixed question of law
and fact, and our degree of deference
depends
on
whether
a
particular
determination is dominated by law or fact.
See C.G., 513 F.3d at 284.
The appeal from the summary
judgment entered on the IDEA claim raised
in Count 10 requires us to resolve both a
legal issue and a closely related factual one,
as well as a mixed question of law and fact.
We begin our discussion with the legal
issue-whether a determination as to a child's
potential for learning and self-sufficiency
must precede a determination that the child's
IEP complies with the IDEA.
a. The Legal Issue
In Polk v. Central Susquehanna
Intermediate Unit 16, the Third Circuit held
that the educational benefit of a child's IEP "
must be gauged in relation to the child's
potential." 853 F.2d 171, 185 (3d Cir.1988);
see also Shore Reg'l High Sch. Bd. of Educ.

v. P.S. ex rel. P.S., 381 F.3d 194, 198 (3d


Cir.2004) (" The IEP must be ' reasonably
calculated' to enable the child to receive '
meaningful educational benefits' in light of
the student's ' intellectual potential.' "
(quoting Polk, 853 F.2d at 181)). As the
Sixth Circuit subsequently explained, there
is some intuitive appeal to this view:
children of different abilities are capable of
different achievements, and " [o]nly by
considering an individual child's capabilities
and potentialities may a court determine
whether an educational benefit provided to
that
child
allows
for
meaningful
advancement." Deal, 392 F.3d at 864. We
have intimated as much ourselves, citing
Polk for the proposition that " levels of
progress must be judged with respect to the
potential of the particular child," Lessard I,
518 F.3d at 29, and we recognize that the
BSEA has incorporated this view into its
proceedings, see, e.g., In re Fall River Pub.
Sch., 11 Mass. Spec. Educ. Rep. 242, 254
(BSEA 05-5383) (2005) (considering child's
potential in assessing IEP). In most cases, an
assessment of a child's potential will be a
useful tool for evaluating the adequacy of
his or her IEP.
Developmental disability takes many
forms, however. It is not always feasible to
determine a disabled child's potential for
learning and self-sufficiency with any
precision, particularly where the child's
disability significantly impairs his or her
capacity for communication. In that
situation, even without a complete
understanding of the upper limits of the
child's abilities, there can still be an
assessment of the likelihood that the IEP
will confer a meaningful educational benefit
by measurably advancing the child toward
the goal of increased learning and
independence. If an IEP is reasonably
calculated to confer such a benefit, it
complies with the IDEA.
For example, if a child's potential is
unknowable, his or her IEP still could be
reasonably calculated to confer a meaningful
Page 37
educational benefit if it is closely modeled
on a previous IEP pursuant to which the

169

child made appreciable progress. See


Thompson R2-J Sch. Dist. v. Jeff P. ex rel.
Luke P., 540 F.3d 1143, 1153 (10th
Cir.2008). Of course, previous success does
not guarantee future success. Cf. Rome Sch.
Comm. v. Mrs. B., 247 F.3d 29, 32 (1st
Cir.2001) (" [T]he IDEA recognizes that
children's needs change over time, and it
thus requires annual evaluation and
development of an IEP for each school
year." ). Nevertheless, if the two IEPs are
substantially similar in design, that
similarity provides a reasonable basis for
assessing the likelihood of future progress.
See Jeff P., 540 F.3d at 1153 (" Such past
progress is, of course, not dispositive of the
controlling question whether, going forward,
the [new] IEP was reasonably calculated to
confer some educational benefit, but it does
strongly suggest that, modeled on prior IEPs
that had succeeded in generating some
progress, the [new] IEP was reasonably
calculated to continue that trend." ).
Accordingly, we agree with the district court
that a determination as to a child's potential
for learning and self-sufficiency does not
have to precede a determination that the
child's IEP complies with the IDEA.
b. The Factual Issue
The factual issue, then, is whether
there was any clear error in the district
court's finding that D.B.'s potential was
unknowable. Echoing the IHO's view that
D.B.'s " baseline cognitive abilities are the
subject of debate and have been difficult to
assess because of his communication
disorders and difficulty with attention," the
district court found that " [a]ssessing D.B.'s
capabilities presents a significant, perhaps
impossible, challenge" and that D.B.'s
potential for learning and self-sufficiency "
simply cannot be ascertained with any
substantial degree of confidence." The
district court took particular care to
document the relevant evidence, focusing on
the difficulties associated with testing D.B.
For example, the court cited Dooley-Smith's
observation that D.B.'s " cognitive levels are
not accurately known at this time," a
Lindamood-Bell Learning Center staff
member's comment that " it was very

difficult ... to gauge [D.B.'s] potential in


terms of his language skills," and an
independent evaluator's warning that " [i]n
light of [D.B.'s] difficulties, the test results
... may not accurately represent his cognitive
potential." The court also referred to
statements by Marsha Chaskelson and
Shelly Velleman— two witnesses
called by D.B.'s parents at the BSEA
hearing—
highlighting
the
indeterminacy of D.B.'s potential.
Taken
together,
this
evidence
precludes any judgment by us that the
district court clearly erred in finding that
D.B.'s potential for learning and selfsufficiency was unknowable.
c. The Mixed Question
We turn now to the mixed question of
law and fact, which is whether the 2005 IEP
complied with the IDEA because it was
reasonably calculated to confer a meaningful
educational benefit. The IHO's opinion as to
the adequacy of the 2005 IEP was based on
findings that D.B.'s previous IEPs had
resulted in meaningful advancement, and
that the 2005 IEP kept in place the therapy
and tutoring services offered by the previous
IEPs, while supplementing those services
with the multi-sensory, structured learning
program recommended by Dooley-Smith:
[D.B.'s] progress was meaningful. Despite
enormous challenges, [D.B.] developed
from a child who did not speak at all and
only had access to a few signs to a child who
could communicate many of his wants and
needs via sign, spoken
Page 38
words, and emerging use of augmentative
communication, who was developing prereading skills, whose physical skills had
improved enormously. There is no reason to
believe that [D.B.] would not have made
continued, and likely more rapid progress in
the newly-proposed program.
The district court also looked to D.B.'s
progress under his previous IEPs and "
agree[d] with the IHO that this progress,
even if less than optimal, was likely to
continue under the new IEP and would have
been sufficient to satisfy the IDEA."

170

It was not error for the IHO and the


district court to conclude retrospectively that
D.B.'s previous IEPs had resulted in
meaningful educational benefits. While in
the Sutton school system, D.B. had
developed from a nonverbal and unfocused
child into a " total communicator" who, by
the time the 2005 IEP was scheduled to be
implemented, knew over one hundred
words, spoke short phrases, followed simple
directions, was more focused, and could
identify seven written words and the
numerals 0 through 15. Even without
knowing the upper limit of D.B.'s potential
for learning and self-sufficiency, we have no
trouble concluding that these achievements
were meaningful for him, and advanced him
measurably toward the goal of increased
learning and independence. See R.P. ex rel.
C.P. v. Prescott Unified Sch. Dist., 631 F.3d
1117, 1123 (9th Cir.2011) (upholding
district court's conclusion that IEP delivered
meaningful benefit on analogous facts).[4] It
also was not error to conclude prospectively
that, since D.B.'s previous IEPs had
conferred meaningful educational benefits,
the 2005 IEP was reasonably calculated to
do the same, having kept in place, and even
supplemented, the services offered by the
previous IEPs. See Jeff P., 540 F.3d at 1153.
Accordingly, we affirm the district court's
grant of summary judgment on the IDEA
claim raised in Count 10.
B. The Remaining Claims
Appellants' remaining claims are
divisible into three categories. We discuss
them accordingly, reviewing the district
court's grant of summary judgment de novo
and drawing all reasonable inferences in
appellants' favor. See Corté s-Rivera
v. Dep't of Corr. & Rehab., 626 F.3d 21, 26
(1st Cir.2010). Counts 1 and 3 raise
discrimination
claims
under
the
Rehabilitation Act and Title II of the ADA.
Counts 2, 4, and 7 raise retaliation claims
under the Rehabilitation Act, Title V of the
ADA, and the First Amendment. Counts 5,
6, and 8 repeat appellants' IDEA claim and
discrimination claims pursuant to 1983
and 1985.

All of these claims implicate the


interplay between the IDEA and other
sources of law. In Diaz-Fonseca v. Puerto
Rico, we held that reconstituted IDEA
claims cannot be brought under other federal
statutes in an attempt to secure remedies that
are unavailable under the IDEA. See 451
F.3d 13, 29 (1st Cir.2006) (" [W]here the
underlying claim is one of
Page 39
violation of the IDEA, plaintiffs may not
use 1983— or any other federal
statute for that matter— in an attempt
to evade the limited remedial structure of the
IDEA." ). However, we also made clear that
" the IDEA does not restrict rights and
remedies that were already independently
available through other sources of law." Id.
(citing 20 U.S.C. 1415( l )). Thus,
plaintiffs cannot disguise an IDEA claim in
other garb " [w]here the essence of the claim
is one stated under the IDEA for denial of
FAPE," id. at 19, but are not otherwise
barred from bringing a non-IDEA claim
alongside an IDEA claim, even if there is
some overlap between the two claims.[5]
1. Counts 1 and 3
The discrimination claims in this case
are brought under the Rehabilitation Act and
the ADA, both of which contain provisions
prohibiting discrimination against a disabled
person on the basis of his or her disability.
See Calero-Cerezo v. U.S. Dep't of Justice,
355 F.3d 6, 19 (1st Cir.2004). The
Rehabilitation Act applies to federal
agencies and recipients of federal funding,
see 29 U.S.C. 794(a); Title II of the ADA
applies to state and local governments, as
well as private employers with over fifteen
employees, see 42 U.S.C. 12132; CaleroCerezo, 355 F.3d at 19.[6]
The claims themselves are easy
enough to describe. Appellants complain
that the Sutton school system discriminated
against D.B. by (1) requiring that he develop
foreign language skills for which he was
unsuited, (2) misdiagnosing his potential in
order to mask missteps in his education, (3)
forcing him to use the DynaMyte 3100
despite his obvious struggles with it, (4)
failing to accommodate his lack of toilet

171

training, and (5) exposing him to ridicule by


permitting his one-on-one aide to
accompany him past other children to the
bathroom carrying rubber gloves and pull-up
diapers.[7]
The district court understood these
claims to be no different than the IDEA
claim raised in Count 10: " Although they
purport to be independent claims, it is
Page 40
clear that they are coextensive with, based
upon rights created by, and seek relief no
different from, the IDEA claim." Having
already determined that there had been no
IDEA violation, the district court denied
these claims, too.
Although the district court's rejection
of the discrimination claims was correct, its
explanation of the relationship between the
IDEA claim and the discrimination claims
was
not.
Certainly,
appellants'
discrimination complaints overlap with the
IDEA claim raised in Count 10, insofar as
they invoke either the substance or the
implementation of the 2005 IEP. In essence,
appellants are complaining that D.B. was
discriminatorily denied a FAPE. However,
because the IDEA " is simply not an antidiscrimination statute," Ellenberg v. N.M.
Military Inst., 478 F.3d 1262, 1281 (10th
Cir.2007), a discrimination claim under the
Rehabilitation Act or the ADA involving a
denial of a FAPE is not coextensive with an
IDEA claim. See Miller v. Bd. of Educ. of
Albuquerque Pub. Sch., 565 F.3d 1232,
1245-46 (10th Cir.2009); Mark H. v.
Lemahieu, 513 F.3d 922, 925 (9th Cir.2008).
To prevail on an IDEA claim, a plaintiff
must show that he or she has a qualifying
disability and has been denied a FAPE. To
prevail on a discrimination claim under the
Rehabilitation Act or the ADA involving a
denial of a FAPE, a plaintiff must make an
additional showing that the denial resulted
from a disability-based animus. See Miller,
565 F.3d at 1246; cf. Lesley v. Hee Man
Chie, 250 F.3d 47, 53 (1st Cir.2001)
(articulating elements of Rehabilitation Act
discrimination
claim);
Parker
v.
Universidad de P.R., 225 F.3d 1, 5 (1st

Cir.2000) (articulating elements of ADA


discrimination claim).
Even so understood, appellants'
discrimination claims fail. The district court
agreed with the IHO that there was no denial
of a FAPE. We have now affirmed that
ruling, which necessarily precludes any
claim that there was a discriminatory denial
of a FAPE.[8]
2. Counts 2, 4, and 7
Counts 2 and 4 raise retaliation claims
under the Rehabilitation Act and Title V of
the ADA, and Count 7 raises a retaliation
claim under the First Amendment pursuant
to 1983. Both the Rehabilitation Act,
through its implementing regulations, see 28
C.F.R. 42.503(b)(1)(vii), and the ADA,
see 42 U.S.C. 12203(a), prohibit
retaliation against any person, whether
disabled or not, for opposing disabilitybased discrimination made unlawful by
those statutes.[9] A plaintiff need not
succeed
Page 41
on a disability discrimination claim in order
to assert a claim for retaliation. See
Colón-Fontnez v. Municipality of
San Juan, 660 F.3d 17, 36 (1st Cir.2011).
The First Amendment, of course, also
prohibits retaliation for protected conduct.
See
Gonzlez-Droz
v.
GonzlezColón, 660 F.3d 1, 16 (1st
Cir.2011); Powell v. Alexander, 391 F.3d 1,
16 (1st Cir.2004) (" Claims of retaliation for
the exercise of First Amendment rights are
cognizable under 1983." ).
Like their discrimination claims,
appellants' retaliation claims overlap, in part,
with their IDEA claim. However, the
retaliation claims " rest on improper
retaliatory intent, are by no means mirrors of
the IDEA, and are not within the rationale of
Diaz-Fonseca. " Ramrez-Senda ex rel.
M.M.R.-Z. v. Puerto Rico, 528 F.3d 9, 15
(1st Cir.2008).
a. The Rehabilitation Act and ADA
Claims
The standard for retaliation claims
under the Rehabilitation Act is the same as
the standard under the ADA. See Reinhardt
v. Albuquerque Pub. Sch. Bd. of Educ., 595

172

F.3d 1126, 1131 (10th Cir.2010). To make


out a prima facie case of retaliation under
the familiar burden-shifting framework
articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), a plaintiff must
show that (1) he or she engaged in protected
conduct, (2) he or she was subjected to an
adverse action by the defendant, and (3)
there was a causal connection between the
protected conduct and the adverse action.
See Carreras v. Sajo, Garca & Partners,
596 F.3d 25, 35 (1st Cir.2010); Reinhardt,
595 F.3d at 1131; Quiles-Quiles v.
Henderson, 439 F.3d 1, 8 (1st Cir.2006).
Once a plaintiff makes such a showing, the
burden shifts to the defendant to articulate a
legitimate, non-retaliatory explanation for
the adverse action. See Carreras, 596 F.3d
at 36. If the defendant does so, the burden
shifts back to the plaintiff to show that the
proffered
legitimate
explanation
is
pretextual, meaning that the defendant was
motivated by a retaliatory animus. See id.
The general thrust of appellants'
claims is that the Sutton school system
retaliated against them for advocating on
behalf of D.B.'s right under the
Rehabilitation Act and the ADA to be free
from disability-based discrimination in the
provision of a FAPE. Such advocacy plainly
constitutes protected conduct under these
statutes. See Reinhardt, 595 F.3d at 1132 ("
[A]ttempting to protect the rights of special
education students constitutes protected
activity under the Rehabilitation Act." );
Barker v. Riverside Cnty. Office of Educ.,
584 F.3d 821, 826 (9th Cir.2009) (holding
that advocacy on behalf of disabled students
on issues related to their civil rights is
protected activity under the Rehabilitation
Act and the ADA); Weixel v. Bd. of Educ. of
New York, 287 F.3d 138, 149 (2d Cir.2002)
(holding
that
seeking
reasonable
accommodation for disabled student's
disability is protected activity under the
Rehabilitation Act and ADA).
Moreover, we assume without
deciding, as we have done in other cases,
see, e.g., Martinez-Burgos v. Guayama
Corp., 656 F.3d 7, 13 (1st Cir.2011), that the

school system subjected appellants to a


number of adverse actions. An adverse
action is one that might well dissuade a
reasonable person from making or
supporting a charge of discrimination. See
Colón-Fontnez, 660 F.3d at 36-37;
Reinhardt, 595 F.3d at 1133. The actions
appellants cite as adverse include
downplaying D.B.'s potential for learning
and self-sufficiency;
Page 42
failing to timely apprise appellants of a June
22, 2005 meeting concerning D.B.'s 2005
IEP; misstating narrative accounts of
meetings concerning the 2005 IEP; failing
on one occasion to respond to a letter from
appellants; refusing to incorporate the
Lindamood-Bell
Learning
Center
curriculum into the 2005 IEP; preventing
D.B.'s parents from escorting D.B. to his
classroom; and placing in D.B.'s file for any
school system employee to see a copy of the
letter in which his father criticized D.B.'s
therapist, which had been redacted in such a
way as to blur its meaning.
We also assume without deciding that
appellants have shown a causal connection
between their protected conduct and these
actions. All of the relevant events in this
case took place within a condensed time
frame. We have said that close temporal
proximity between protected conduct and an
adverse action sometimes " may suffice for a
prima facie case of retaliation." Carreras,
596 F.3d at 38; see also Quiles-Quiles, 439
F.3d at 8-9.
In response to appellants' prima facie
case of retaliation, the school system must
articulate a legitimate, non-retaliatory
explanation for its actions. See Carreras,
596 F.3d at 36. Most of the adverse actions
in appellants' litany involve either the
substantive adequacy of D.B.'s 2005 IEP or
the school system's handling of the IEP
process. The school system has explained
that the contents of the 2005 IEP reflect a
careful pedagogic assessment of the services
necessary to provide D.B. with a FAPE
under the IDEA. For example, the decision
not to incorporate the Lindamood-Bell
Learning Center curriculum into the 2005

173

IEP was made because the school system's


own multi-sensory, structured learning
program was thought to be sufficient to meet
D.B.'s educational needs. The school system
also has explained that its conduct of the IEP
process, which anticipates a vigorous
dialogue, conformed to the IDEA's
procedural requirements and reflected a
good-faith effort to collaborate with
appellants. For example, the failure to timely
apprise appellants of the June 22, 2005
meeting concerning the 2005 IEP was the
result of an oversight involving the school
system's attorneys, and notice was mailed to
appellants on June 17, 2005, once the
oversight was discovered.
Compliance with the IDEA does not
necessarily disprove a claim under the
Rehabilitation Act or the ADA that a school
system retaliated against a disabled student,
or the student's family, for advocating on
behalf of the student's right to be free from
disability-based discrimination in the
provision of a FAPE. For example, a school
system that is compliant with the IDEA
might retaliate against a disabled student by
withholding
additional
services
or
accommodations the student otherwise
would have received. A school system also
might retaliate by making the process of
designing the student's curriculum unusually
contentious. However, in the face of a
school system's compliance with the IDEA,
as in this case, a plaintiff who asserts that
the content of an IEP or the conduct of an
IEP process was retaliatory must show
evidence of something more than a
disappointing IEP or the predictable backand-forth associated with the IEP process in
order to survive summary judgment.
Appellants have not done so, and thus have
not shown that the school system's
legitimate, non-retaliatory explanations for
its actions were pretextual. Accordingly, no
reasonable fact finder could find in their
favor on their Rehabilitation Act and ADA
retaliation claims.[10]
Page 43
.

The impassioned advocacy of D.B.'s


parents on D.B.'s behalf is laudable and
understandable. They have done much to
advance their son's development. However,
appellees complied with the IDEA, and
appellants have not raised any triable nonIDEA claims. Accordingly, we must affirm
the district court's entry of summary
judgment in appellees' favor on all counts.
Each party shall bear its own costs.
So ordered.
LYNCH, Chief Judge, concurring.
--------Notes:
[1] A DynaMyte 3100 user inputs his or her
message by touching images on a screen.
The device then " speaks" the message with
a digital voice.
[2] Congress first passed the IDEA in 1970
as part of the Education of the Handicapped
Act and amended it substantially in the
Education for All Handicapped Children Act
of 1975, see Schaffer, 546 U.S. at 51-52,
126 S.Ct. 528, finally restyling it as the
IDEA in 1990, see Doe v. Boston Public
Sch., 358 F.3d 20, 23 n. 2 (1st Cir.2004).
[3] Until 2005, we joined most other circuits
in holding that " the school district always
bears the burden in the due process hearing
of showing that its proposed IEP is
adequate." Lt. T.B., 361 F.3d at 82 n. 1. In
2005, though, the Supreme Court decided
Schaffer, which clarified that " [t]he burden
of proof in an administrative hearing
challenging an IEP is properly placed upon
the party seeking relief." 546 U.S. at 62, 126
S.Ct. 528. We understand this to mean that a
school system does not incur the burden of
proof merely by preemptively seeking an
administrative determination that a proposed
IEP would comply with the IDEA, as in this
case. In that instance, the school system is
defending the adequacy of the IEP, not
challenging it. See id. (" [T]he rule applies
with equal effect to school districts: If they
seek to challenge an IEP, they will in turn
bear the burden of persuasion before an
ALJ." (emphasis added)). However, if a
school system challenges an existing IEP as
over-accommodating,
the
burden
presumably lies with the school system.

III.

174

[4] Like D.B., the disabled child in R.P. "


didn't progress at a constant, linear rate in all
areas. But he did progress." 631 F.3d at
1123. The court found this progress to be
meaningful:
When he began school, he could name some
objects and a few pictures, had a short
attention span and ran from adults. By the
end of the 2005-06 school year, he could say
many words and form phrases to express a
complete thought. He had learned to respond
to the word " no" and to listen to adults. He
was able to drink from a cup without
assistance and to put things away. He was
becoming skilled at figuring out puzzles and
his coloring skills had improved. He could
wash his hands independently and assist in
pulling up his pants. Id.
[5] Like an IDEA claim, a non-IDEA claim
that seeks relief also available under the
IDEA must be exhausted administratively
through the IDEA's due process hearing
procedures before it can be brought in a civil
action in state or federal court. See 20
U.S.C. 1415( l ); see also Rose v. Yeaw,
214 F.3d 206, 209-11 (1st Cir.2000); Weber
v. Cranston Sch. Comm., 212 F.3d 41, 49-53
(1st Cir.2000). However, no party has
addressed the applicability vel non of this
exhaustion requirement to appellants' nonIDEA claims, and we decline to do so sua
sponte.
[6] The Rehabilitation Act provides in
relevant part: " No otherwise qualified
individual with a disability ... shall, solely
by reason of her or his disability, be
excluded from the participation in, be denied
the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance." 29
U.S.C. 794. Title II of the ADA provides
that " no qualified individual with a
disability shall, by reason of such disability,
be excluded from participation in or be
denied the benefits of the services,
programs, or activities of a public entity, or
be subjected to discrimination by any such
entity." 42 U.S.C. 12132.
[7] Appellants also complain on appeal that
the school system posted D.B.'s private
medical information on a public wall at his

school and did not address his social


alienation. Because these complaints were
not made to the district court, we will not
consider them. See CoxCom, Inc. v. Chaffee,
536 F.3d 101, 109 n. 10 (1st Cir.2008) ("
[A]ny argument not made before the district
court will not be reviewed on appeal." ). In
addition, we will not consider the many
allegations of discrimination in the amended
complaint that have not been pursued on
appeal. See Baybank-Middlesex v. Ralar
Distrib., Inc., 69 F.3d 1200, 1203 n. 5 (1st
Cir.1995) (" We will not consider potentially
applicable arguments that are not squarely
presented in a party's appellate brief." ).
[8] Nevertheless, it is important to
understand that Diaz-Fonseca does not bar a
plaintiff from bringing a discrimination
claim based on a denial of a FAPE in
conjunction with an IDEA claim, because
the discrimination claim involves the
additional element of disability-based
animus. As such, the discrimination claim
does not " turn[ ] entirely on the rights
created by statute in the IDEA." DiazFonseca, 451 F.3d at 29. To read DiazFonseca otherwise conflates two causes of
action merely because they share some
common elements, and undercuts the
IDEA's explicit caveat that it does not
restrict or limit the rights, procedures, and
remedies available under the Rehabilitation
Act or the ADA. See 20 U.S.C. 1415( l );
Mark H., 513 F.3d at 934 (" Congress has
clearly expressed its intent that remedies be
available under ... the Rehabilitation Act for
acts that also violate the IDEA." ).
[9] The regulations implementing the
Rehabilitation Act make it unlawful to "
[i]ntimidate or retaliate against any
individual, whether handicapped or not, for
the purpose of interfering with any right
secured by [the Rehabilitation Act]." 28
C.F.R. 42.503(b)(1)(vii). Title V of the
ADA provides: " No person shall
discriminate against any individual because
such individual has opposed any act or
practice made unlawful by this chapter or
because such individual made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or

175

hearing under this chapter." 42 U.S.C.


12203(a).
[10] Appellants also have alleged two
adverse actions not involving either the
substantive adequacy of the 2005 IEP or the
conduct of the IEP process. These actions
are the prevention of D.B.'s parents from
escorting D.B. to his classroom, and the
redaction and inclusion in D.B.'s file of the
letter in which his father criticized D.B.'s
therapist. Neither strengthens appellants'
retaliation claims. The school system has
explained that it asked D.B.'s parents not to
accompany D.B. to his classroom in order to
ease his transition back to school and to
maintain close control over his schedule. It
also has explained that the letter from D.B.'s
father was redacted to protect D.B.'s
therapist from the letter's accusations and to
ameliorate the letter's " negativity and
suggestive implications," which were not
thought to serve D.B.'s interests. A plaintiff
" can establish pretext ' by showing
weaknesses,
implausibilities,
inconsistencies,
incoherencies,
or

contradictions in the ... proffered legitimate


reasons such that a factfinder could infer
that the [defendant] did not act for the
asserted non-[retaliatory] reasons.' "
Carreras, 596 F.3d at 37 (quoting SantiagoRamos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 56 (1st Cir.2000)). Appellants
have failed to make any such showing,
relying instead only on speculation and
conclusory allegations. See Vives v. Fajardo,
472 F.3d 19, 21 (1st Cir.2007) (" Even in
retaliation cases, ' where elusive concepts
such as motive or intent are at issue,
summary judgment is appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and
unsupported speculation.' " ) (quoting Benoit
v. Technical Mfg. Corp., 331 F.3d 166, 173
(1st Cir.2003)).
[11] Under the First Amendment, an adverse
action is an action that would deter a
reasonably hardy person from exercising his
or her constitutional rights. See Barton v.
Clancy, 632 F.3d 9, 29 (1st Cir.2011).
---------

176

SPECIAL EDUCATION DUE PROCESS


HEARING DECISION
Parent v. Portland
May 31, 1997

CASE NO. 97.022


COUNSEL FOR THE PARENT: Richard OMeara, Esq.
COUNSEL FOR THE SCHOOL: Eric Herlan, Esq.
HEARING OFFICER: Carol B. Lenna
THIS HEARING WAS HELD AND THE DECISION WRITTEN PURSUANT TO TITLE 20A, MRSA, 7207, et. seq., 20 USC, 1415 et. seq., AND IMPLEMENTING REGULATIONS.
On January 29, 1997, the Department of Education received a request for a Due Process Hearing
from the parent, on behalf of his student. The family resides in Portland, Maine. The student
currently attends a self-contained special education program at the Hall School in Portland.
The Pre-hearing Conference convened on February 28, 1997. The hearing in this matter was
initially scheduled for March 7, 1997. Schools attorney requested an extension due to a
conflicting hearing previously scheduled. There was no objection from parents attorney. The
Hearing convened on March 27, 28, and April 17. Three hundred and seventy documents were
entered into the record. Documents, which were jointly entered by the parties, are numbered 1 340. Additional documents entered by the parents are numbered P. 1 - P4, P. 16 - P.31.
Ten witnesses gave testimony at the hearing. Late on the last day of hearing, the parents wished
to recall a witness for rebuttal who was unavailable that day. Rather than reconvene the parties
for one rebuttal witness, it was agreed that rebuttal testimony by this witness would be provided
by deposition. The Hearing Officer instructed the parents to provide the rebuttal deposition to the
school and the Hearing Officer by April 29. The parties waived oral closing statements and
requested an opportunity to submit written summations. The record remained open until May 12
for that purpose. At the request of the schools attorney, and with no objection from the parents
attorney, an extension for closing briefs was granted until May 18, 1997.
Following is the decision in this matter.
97.022
Page 2
I. Preliminary Statement
The student is a x year old student who is identified as eligible for special education services
under the category of multi handicapped. Student has been diagnosed with a Pervasive
developmental disorder and a child with a disability on the Autism spectrum. Although student

177

demonstrates some behavior characteristics of children with autism, there has been no definitive
diagnosis of autism. Student also has a seizure disorder, which appears to be controlled by
medication.
The student currently is placed in a self-contained classroom for multi handicapped children with
significant language deficits located in the Hall School a public elementary school. Students
program focuses on increasing academic readiness skills and decreasing interfering behaviors.
Student also receives speech and language instruction, physical therapy and occupational therapy
from therapists who work with student within the classroom. Time with non-disabled peers is
structured both in and out of the classroom. There is no specific program methodology
employed in the classroom. Teachers describe the program as a language based curriculum using
a variety of behavioral methods.
The student entered the Hall program in September 1994 from a local preschool program which
uses an applied behavioral analysis or ABA approach.22 Since that time the parents have made
repeated requests to the school to employ the methodology used by the preschool. The parents
state that the ABA program was highly successful for the student. They claim that students rate
of progress while in the public school has slowed, and in some areas regressed. They argue that
the IEPs written for the student since 1994 do not comply with regulations and have not been
appropriate to meet students needs. They are requesting that the school establish and train staff
to begin a program, which is based on the ABA methodology.
The school argues that the student is well placed in students current program. They point out
that the staff working with the student have extensive experience and expertise working with
students with similar needs. The program, in the schools opinion, offers the student the intensity
required to meet students needs while offering student the opportunity to interact with nondisabled peers. They state that the approach favored by the parent is unnecessarily restrictive.
The school argues that the student has made progress while in the public school program. They
contend that the program is reasonably
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calculated to provide the student with educational benefit in the least restrictive environment and
therefore the methodology employed in the classroom is left to the discretion of the school.
II. Allegations of Procedural Violations
1. Failure of the school to develop an initial IEP which was the basis for educational
programming and placement. [MSER, Section 9.1]
2. Failure of the school to develop an IEP for the 1994-95, 1995-96 and 1996-97 school years
which includes all the components required, specifically 1) a statement of students present level
of performance, 2) annual educational goals, 3) short term instructional objectives leading to each
22

Throughout the hearing the teaching method used by the preschool the student attended in
1993-94 (and that preferred by the parent) was referred to interchangeably by the parties as
applied behavioral analysis, discrete trial therapy, the May Center approach, and Lovaas/style
method to describe an intensive intervention method used to teach autistic children which is based
on the principle of operant conditioning. This decision will use the term applied behavioral
analysis or ABA only.

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annual goal, and 4) a section describing the appropriate objective criteria...for


determining...whether or not short term instructional objectives are being achieved. [Id., Section
9.3]
III. Issues for Hearing
1. Were the student's IEP's for the 1994-95, 1995-96, and 1996-97 school years reasonably
calculated to provide student with educational benefit in the least restrictive educational
environment.
2. If not, are the parents entitled to compensatory education including an IEP based on the ABA
methodology with staff trained in this methodology?
IV. Findings of Fact
1. The student has a history of delays in social, communication, motor, and adaptive skill
development. In addition, student has a history of a generalized seizure disorder which has
impacted on students ability to communicate effectively and has probably altered the natural
sleep/wake cycle. Student exhibits a number of significant autistic features, including deficits in
communication abilities, stereotypic and repetitive patterns of behavior, restricted quantity and
quality of social interaction. Oral expression is limited. Student communicates through a mixture
of signing, vocalizations and gestures. Student is toilet trained reliably for urination at school on
a timed toileting program. Student does not remain accident free while outside of school.
Student has mastered a pincer grasp and uses it in reliability in picking up small objects. Student
wears a brace to assist student in walking with a heel-toe gait. Student has recently learned to
ride a tricycle. Student does not play interactively with peers, but is observed to make frequent
eye contact and vocalizations towards them. (Ex. 332, P. 2; Testimony: Parent, Vitali)

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2. In October 1993 the parents contacted the school to inform the special services department of
the student's approaching need for services from the school given her upcoming x birthday.
(Exhibit 229)
3. An initial special education referral was made by the school November 23, 1993. During the
winter of 1993 and spring of 1994 the parents and school had several meetings regarding the
student's current preschool program and students service needs. (Ex. 148, 150, 151, 152, 223,
225, 226, 228)
4. On May 9, 1994 an initial PET meeting was convened. Parents, school staff and staff from the
student's preschool program attended. Minutes indicate the purpose of the meeting [was] to
review the student's history, present skill levels and determine students needs. The PET
determined that the student required a full day, self-contained special education program to
address needs in the areas of Communication, social/attending, gross and fine motor/sensory
integration, self-care (including toileting), leisure/play, group activities, readiness/academics,
[and] reduction of inappropriate behaviors. (Ex. 141)

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5. An IEP also dated May 9, 1994 states that special education services will be self-contained
and that students annual educational goal is to [i]ncrease skills in the area of: communication,
self-care, readiness, socialization, gross and fine motor. Under the short term objectives section
of the document is written. To be determined in the fall 1994 PET. (Ex. 143-145)
6. The student continued in students preschool program through the summer of 1994. On the
first day of school, in September, student began to attend the self-contained special education
class for multi handicapped students at the Hall school. On October 12, 1994, the PET met for
the second time. The stated purpose of the meeting was to share progress to date, review
specialist reports and establish IEP goals specific to students needs. Diagnostic reports from the
special education teacher, occupational therapist, physical therapist, speech therapist and the
inclusion teacher were presented to the meeting. The student closeout report from the student's
preschool was also given to the team. The PET determinations list OT, PT, APE,
speech/language among others. An IEP was developed that date. Annual goals and short-term
objectives are written in the document. (Ex. 112, 114, 125, 126, 128, 135, 138, 153)
7. In November 1994, and in March 1995, the students special education teacher compiled
narrative progress reports regarding the student's progress over the year. Much of the same
information is included in the two reports, but differences noted from November to March are
that the student's need for adult support to follow through with directions/task completion has
decreased gradually. Student answers yes/no to questions with increasing consistency. Students
overall participation has shown an increase. Students overall eye contact has improved.
Behavioral incidences are significantly reduced from the Fall semester. The teacher summarizes
the March report by saying that
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the student has made gradual gains in all developmental areas. The balance of the November and
March summary paragraph are the same, except that the teacher notes that the student
demonstrates regression when not in the program or when the structure and routine is removed.
(Ex. 103, 107)
8. A progress summary report dated August 1995, describes the students participation and
progress in the summer program. The report notes that the student's vocalizations and word
approximation attempts have increase [sic] and continues to be encouraged to use sign with
students vocalizations. Student is able to choose students full name from a group of
names...Students gait is improving.... At free play...student remains at a parallel play level...[the
student]'s eye contact and communicative interactions continue to increase...Student is able to
undress independently with some assistance...Dressing has improved, but is often interfered with
by distractibility and non-compliance...[the student] remains on a time toileting program of
arrival, after snack, and before and after water time without incident...At meal times [the student]
required supervision to reduce stuffing her mouth and to pace students drinking. (Ex. 97)
9. In November 1995 the PET met for the annual review. In addition to the school staff and the
parents, Ms. Christine Manley, the Director of the student's previous preschool program attended
at the request of the parents. The parents presented a memorandum to the PET in which they
analyzed their observations of the student's progress and/or regression in the various skill areas
since beginning at Hall school. The minutes note that [f]ollowing the PET meeting Ms. Manley
submitted a copy of her 11-16-95 observation at Hall School. [The parent] submitted a
memorandum regarding [the student]'s progress...[The parents] will meet...with [the principal and

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speech therapist] to discuss these matters further. Neither the memo or classroom observation
were discussed at the meeting and did not play a role in the development of the IEP. (Exhibit 63,
80, 89; Testimony Parent)
10. In the 1995-96 IEP Present Level of Educational Performance is described as pervasive
developmental delays in all developmental/educational performance areas. The annual
educational goals of the IEP state [the student] will continue to develop academic readiness skills,
will continue to gain independence in the area of self care skills, will continue to improve
language skills so that the student may utilize and participate in her educational program, will
continue to acquire and consistently exhibit appropriate school behaviors... [will d]evelop...and
maintain...the...physical potential for independence in all educationally related tasks, and finally
will improve fine motor...skills...in order to enhance students academic progress. Objectives are
written for each of these goals. Each objective states that certain expected behaviors will have
been achieved by 11/96. (Ex. 65-72, see also P-18)
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11. A narrative progress report dated March 1996 was compiled by the special education teacher.
The teacher notes that the student is encouraged to expand students signed utterances and to pair
them with vocalizations. The student still requires redirection and/or verbal cues to remain
attending. [P]articipation and performance vary.... She is using some eye contact with peers.
Student has improved in sitting upright in students chair...student copies a horizontal and vertical
line after one or two initial practices. Student demonstrates good effort and motivation in PT.,
students gait and coordination continue to need work. An Extended Year Service Report dated
August 1996 gives a list of the activities the student participated in during the extended year
services but gives no progress information. (Ex. 57, 51)
12. The PET met on November 1 and again on November 26, 1996 to discuss the student's 199697 IEP. In preparation for this meeting a diagnostic report based on teacher observation was
compiled by the special education teacher, occupational therapy, language therapist, and physical
therapist. A memorandum of their observations of the student's progress was prepared by the
parents. Minutes of the meeting, and a transcript from the parents taping of the meeting, indicate
that there was lack of consensus on the IEP goals and objectives and measurement of progress.
The parents agreed with school staff that the student appeared to be making progress in some
areas, but again expressed their concern that the student had failed to make progress in certain
areas, and had regressed in others. After much discussion the IEP was modified by adding one
objective which states that [g]iven a timed toileting program, [the student] will pair a signed
verbal request when going to the bathroom.
Parents again stated their preference for the ABA method of instruction and asked the school to
begin such a program. The PET deferred this decision to discussions between administrative staff
and the parents. (Ex. 47, 43, 40, 37, 35, 22, 20)
13. In the fall of 1994, 1995, and 1996 the teaching staff completed a Battelle Developmental
Inventory on the student. Raw scores and age equivalent scores are given for each of five major
domains: personal-social, adaptive, motor, communicative, and cognitive; and a total score for all
domains collectively. Results show that the student exhibited growth in all domains, although
rate of growth decreased in all domains from 1995 to 1996. Total growth over the three years

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was 15 months, with 9 months growth the first year and 6 months the second. Teachers testified
that they feel the Battelle assessments give an accurate reflection of the student's level of
development. (Ex. 339, P. 16; Testimony: Vitali, James)
14. The school and the parents kept in frequent contact about the student's daily events through
use of a parent-teacher notebook. A general description of the student's day or evening/weekend
was shared, as well as events of notice. The parents related over 17
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incidents of toileting accidents during out of school time. The notebook covers the period
September 1996-January 1997. (Ex. 266-323)
15. The student's special education teacher, students physical therapist, and students current
and past speech therapist all testified at the hearing. Each gave clear observations of the student's
needs and concrete examples of progress student has made. (Testimony Vitali, Hansen, James,
Clifford)
16. Both of the student's parents testified. Each gave clear descriptions of the student's skill
acquisition while at students preschool program. Each gave concrete examples of areas where
they have observed the student to have limited progress or regression. (Testimony parents)
V. Conclusions
Did the school comply with procedures set forth in law?
1. Did the school fail to develop an initial IEP, which was the basis for educational programming
and placement?
[T]he Maine Special Education Regulations are intended to implement the State's obligations
under the federal Individuals with Disabilities Education Act [IDEA]...and implementing
regulations. (MSER, Section 1.1) These regulations and Maine law (Title 20-A, Chapters 301,
302) entitles all school-age students with disabilities to [a]...free appropriate public
education...[T]he education deemed appropriate for him/her must be defined in a written
Individualized Education Program (IEP). The IEP is the basis for educational programming and
placement of the student with a disability. (Id., 9.1)
In the fall of 1993, almost a full year before the student reached school-age x, students parents
contacted the school to notify them that their student, a student with substantial disabilities, would
be entering the special education system in the fall of 1994. The school responded by meeting
with the family and initiating a referral to the PET in November 1993. Correspondence between
the family and the school continued into the spring of 1994. On May 9, 1994 the first PET
meeting convened. The minutes of this meeting are brief, but a list of the student's current
educational performance is given in the minutes, as well as a list of students needs in broad skill
areas. An IEP document was generated that date which states that the student will receive 16 1/2
hours a week of special education instruction in a self-contained program, with supportive
services to be determined in fall Pet. One annual education goal is contained in the IEP. It states
[i]ncrease skills in area of: communication, self-care, readiness, socialization, gross and fine
motor.

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One short-term objective is contained in the IEP. It states [d]ecrease inappropriate behavior - to
be determined in fall 1994 PET. No other objectives are written. The fall PET did not convene
until October 12, 1994, a full 6 weeks after the beginning of school. During that interim the
student, for all practical purposes, had no IEP. The annual goal given in the May IEP is not
individualized to the student's needs, but could easily be used to describe every entering
kindergarten child during the 1994-95 school year. There are no short-term objectives as required
by regulations.
Evidence makes it clear that the school and the parent began the student's tenure in public school
with a disagreement over methodology, and that this discussion at the May PET very likely
interfered with any consensus over the detail to be included in the IEP. However, the school was
aware almost a year before the student was to enter school of her upcoming need for service.
They were aware of students needs through information from students preschool instructor,
relevant evaluations and an observation of student by the school in the early spring. Even
without consensus of the detail required in the IEP the school had an obligation, at the very least,
to define the education deemed appropriate and to then use this as the basis for educational
programming and placement. If they were unable to achieve this in May, it was their
responsibility to complete the process prior to October. The IEP document developed in May
does not comply with regulations which require that there be a plan in place prior to placement.
The IEP lacks specific goal statements which are individualized for the student, and IEP
objectives which must be written before placement. (34 CFR, Part 300, Notice of Interpretations,
II. IEP Requirements, Q. 42)
2. Did the school fail to develop IEPs for the 1994-95, 1995-96, and 1996-97 school years, which
include components required, specifically?
1) a statement of students present level of performance, 2) annual educational goals, 3) short term
instructional objectives leading to each annual goal, and 4) a section describing the appropriate
objective... criteria...for determining...whether or not short term instructional objectives are being
achieved?
The guarantee of equal educational opportunity entitles each student with a disability in the State
to be provided with a free appropriate public education. This education includes special
education and supportive services which...[a]re appropriate to the special needs of the student as
defined in an individualized education program. (MSER, Section 1.3) Each Individualized
Education Program shall contain the following components: ...a section identifying the student's
present level of educational performance; ...[a] section describing the annual educational goals
that the student may reasonably be expected to achieve during the effective dates of the [IEP]
with the addition of special education and supportive services; ...[a] section describing the shortterm instructional objectives leading to each annual educational goal; ...[a] section describing the
appropriate objective criteria,
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evaluation procedures and schedule for determining...whether or not the short term instructional
objectives are being achieved... (MSER, Section 9.3, (A), (B), (C), (H)
No further interpretation of what each of these components is intended to mean in a child's
program is explained in state law and regulations, however, a detailed analysis of congressional
intent in regards to the various components and construct of the IEP is given in Appendix C of the
federal regulations. (See 34 CFR, Part 300, Questions 36-60) Each of the items above is
discussed individually in reference to these interpretations.
[D]eterminations about the content of the statement [of the child's present levels of educational
performance] are matters that are left to the discretion of participants in the IEP meetings.
However, the statement should accurately describe the effect of the child's disability on the child
performance in any area of education that is affected... (Q. 36. Emphasis added.) The present
levels of educational performance in each of the student's IEP for 1994, 1995, and 1996
respectively state that: [the student] has significant delays in the areas of language, fine and gross
motor skills; the student] has pervasive developmental delays in all developmental educational
performance areas; and [the student] continues to demonstrate pervasive developmental delays in
all areas. While these statements give a sense of the degree of the student's disability, they do not
appear to meet the intent that this section of the IEP give the reader an accurate description of the
effect this will have on the student's performance. That the student has a pervasive
developmental delay does not describe students present performance in self-care,
communication, academic readiness nor gross and fine motor skills. Without a clear statement of
where student begins the year, it is not clear how annual goals and short-term objectives will
result in growth.
[A]nnual goals and short term instructional objectives...provide a mechanism for
determining...whether the anticipated outcomes for the child are being met...whether the
placement and services are appropriate to the child's special learning needs...[and provide] a way
for the child's teacher(s) and parents to be able to track progress...(Q. 37) The annual goals...are
statements that describe what a child with a disability can reasonably be expected to accomplish
within a twelve month period . (Q. 38. Emphasis added.) In each of the IEPs under review the
annual goals sections contain broad statements relating to the various skill areas being addressed,
e.g., [the student] Will continue to acquire and consistently exhibit appropriate school behaviors
in all school settings; [the student] will continue to gain independence in the area of self-care
skills; [the student] will continue to develop academic readiness skills. While these statements do
reflect discussions at the IEP Meeting as the broad areas in which the student requires
interventions, as statements of annual goals they do not comply with the standard in that they do
not provide a descriptive statement of what might be expected as an outcome in each of these
areas for the year. Again, it is difficult to assess progress if there are not specific annual
benchmarks.
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Short term instructional objectives...are measurable, intermediate steps between the present levels
of educational performance...and the annual goals...The objectives are developed based on a
logical breakdown of the major components of the annual goals, and can serve as milestones for
measuring progress toward meeting the goals. [O]bjectives are used to ...describe what a given
child is expected to accomplish within a particular area within some specified time period,
and..To determine the extent that the child is progressing toward those accomplishments... IEP
objectives provide general benchmarks for determining progress...over an extended period of time
(e.g., an entire

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school quarter or semester). (Q. 39) The evaluation procedures and schedules...must be...clearly
linked to the objectives. (Q. 54)
In each of the student's IEP all objectives are written with an annual end date. They are in fact
more closely related to an annual educational goal than a short-term instructional objective. They
are not written in such a way as to serve as milestones for measuring progress. In the 1996 IEP a
typical objective under the goal develop academic readiness skills states that [g]iven a variety of
instructional activities, [the student] will match upper/lower case letters with 100% accuracy as
measured by periodic review by 11/97. The entering skill level under this objective is not known,
nor is the projected skill level. Is student to know all upper and lower case letters at 100%
accuracy, or 100% of selected letters? If only some, which ones? It is impossible to know from
reading the objective what criteria is expected for the student to have met the objective.
The student's teachers give good descriptions of skills that the student has and they make clear
statements of the progress they have observed. However, during the three years in the program,
there is not a description of where student begins the year. The goals are not stated terms of
expected annual outcomes. And because the objectives are not written in measurable terms it
cannot be concluded that the student has made progress toward meeting the goals and objectives
in students IEP. It is entirely possible that the student has continue[d] to develop academic
readiness skills. But regulations require that that goals be individualized to the student's needs for
academic readiness and stated in such a way that it is clear to the reader if, or what, progress has
been made toward that end. In order to make that determination objectives must make clear the
steps, which will lead, to meeting the goal.
Some objectives do list a means for measurement other than observation, such as [g]iven
counting activities, [the student] will give a requested number of objects to match a numeral 1-10
consistently as measured by periodic charting by 11/97. Again, however, it is not clear if the
student is expected to match objects to all numerals 1-10, or selected numerals, and with what
levels of proficiency. Charts relating to this or other objectives were not entered into evidence
(parents testified that they were not aware that such charts had been done) so it cannot be
concluded that progress has objectively been measured toward meeting these objectives.
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There is an over-reliance on anecdotal descriptions by the school without any clear milestones to
indicate gains or lack of gains. The school may be tracking progress based on objective
measurement, but this was not evident. This is not meant to say that the parents preference for
the level of charting in the ABA method is required. Rather that the school must clearly show if
and to what extent, a child has, moved from the starting point in an IEP objective. Teacher
observation is a valid tool in determining progress, but it must be coupled with some more
objective form of displaying that progress.
The one objective measure that the school has used over the last three years is the Battelle
Developmental Inventory. This teacher scored assessment is based on observed skill acquisition
of the student in five component categories: cognitive, communication, motor, adaptive, and
personal-social. The school points to this document as concrete proof that the student has made
progress while in students present program. That is true, but the rate of growth has decreased
over the three year period, in the most dramatic instance a 2 month growth over the past year in
receptive language, a relative area of strength for [the student]. (See Ex. 41)

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In this case the annual use of a Battelle Developmental Inventory is certainly one instrument
which can be used to meet this standard. However, it must be tied to some annual expectation,
and a series of short-term statements which staff will employ to try to
meet that expectation. In this case the student's stated age equivalent scores showed a significant
decrease in rate of growth from 1995 to 1996. Yet, there is no indication that this information
was used to alter the approach or significantly alter the stated goals and objectives or teaching
approach from one IEP to the next.
The reporting procedure employed by the school is to give a narrative report on a quarterly basis.
These reports do not go through each objective, but give a general overview of the student's
progress that quarter. A reading of these reports from November 1994 through the most recent on
in March 1996 gives the reader the impression that the student has acquired some skills and has
increased students ability to participate in the classroom. It is also clear from reading the reports
and listening to students teachers testimony at the hearing that these professionals have a good
sense of the student and feel strongly that the student has made progress over the past three years.
According to the learning strategist who worked with the student for two years the staff met
continuously to plan and update activities. Teaching themes and concepts were predetermined
and planned across all activities and progress toward goals were determined within that context.
She used the example of a fall theme, which used apple paired with the color red and other such
teaching activities, which followed the theme.
However, nowhere in the file was evidence presented to determine, within such a context what
the student was expected to learn or if the student gained the concepts being taught. If such
teaching activity expanded the students repertoire of concepts, that information is not given in a
quantitative fashion. Sorting/matching, quantitative concepts,
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same/different, recognition of letter and related objects, recognition of numerals and matching to
same number of items are all activities that the student has apparently been involved in over the
past three years in students academic readiness. Documentation of concrete growth in these
areas is not given in the documents, nor apparently do parents feel that they received this
information. In contrast it is clear from the material from the student's preschool program exactly
what skills the student has acquired and to what level of proficiency and reliability. This is not to
say that the regulations require this level of specificity and record keeping. But somewhere in
between is a place where goals and
objectives provide a mechanism for determining whether the anticipated outcomes for the child
are being met (i.e., whether the child is progressing in the special education program).
3. Did the school include the parent as a member of the PET?
This issue was not raised as a procedural violation by the parents. The parents were in attendance
at every PET and from the record actively participated in the discussions. The made their
preference for a program using the ABA methodology known, and requested that the school
employ this methodology for the student. The school was under no obligation to adopt this
methodology. Questions of methodology are clearly left to the school.
However, [e]ach Pupil Evaluation Team shall include the following members...the student's
parent(s)... (MSER, Section 8.6) (Emphasis added) Congress sought to protect individual
children by providing for parental involvement in the development Of...the child's individual
education program (Rowley. 3051) ... [IDEA] emphasizes the participation of the parents in

186

developing the child's educational program and assessing its effectiveness. (Town of Burlington
v. DOE, Commonwealth of Massachusetts, 471 US 359, 367-68 (1985)
In November 1995 the parents took time to write and present to the PET a detailed and cogent
memo of their observations and impressions of the student's progress. While it may have been
tied to a request for ABA methodology does not make it any less valid than observations of the
student's progress by other team members. To have not allowed the PET to review and use the
information for consideration by the PET in determining programming goals and objectives is in
violation of the intent of parent participation in the process.
There is no indication that this information or the subsequent progress memo prepared by the
parent in November 1996 resulted in any consideration by the PET of the student's IEP goals and
objectives. The only exception is the addition of an objective in the 1996 IEP that [g]iven a timed
toileting program [the student] will pair a signed verbal request when going to the bathroom.
This is a curious addition since an earlier objective in the same IEP states that [g]iven a timed
toileting program [the student] will maintain students
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success by remaining accident free 100% of the time... Coupled with the fact that the student has
achieved students accident free timed toileting objective since early in 1995 and that the parents
have voiced repeated concerns about students toileting regression at home it is difficult to
conclude that the school has seen the parent as an equal participant in the process.
Were the student's IEP's for 1994-95, 1995-96, and 1996-97 reasonably calculated to provide the
student with educational benefit in the least restrictive environment?
[An] inquiry [regarding the appropriateness of a student's program]...brought under [IDEA] is
twofold. First, has the [school] complied with the procedures set forth in the Act? And second, is
the individualized educational program developed through the act's procedures reasonably
calculated to enable the child to receive educational benefits? (Board of Education v. Rowley,
102 S. Ct. 3034, 3051 (1982)
While much of this hearing was spent arguing the preference of the ABA methodology in
teaching autistic children, I make no decision about the relative merits of the ABA method over
any other method, nor does special education law. Rather, what this hearing must decide is
whether the school failed to comply with procedures to develop its program for the student. Once
a court determines that the requirements of the [law] have been met questions of methodology are
for resolution by the states. (Id. 3052)
Preferences for one instructional approach over another could easily mire parents and schools into
lengthy legal and philosophical battles well beyond reason at the risk of a child's program. It is
for this reason that the courts have deferred the methodology question to schools. However, in
having this control over methodology, schools have a responsibility and obligation to document
progress and lack of progress made by the student using the methodology they have chosen.
Short-term objectives tied to the selected methodology must have standards of measure to make
this determination. It is not enough when there is a disagreement over methodology for schools
to simply assert by teacher observation that progress toward the stated objectives are being met. I
cannot conclude from the evidence that the IEP developed by the school complied with
procedures for the reasons discussed earlier.

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[T]he importance Congress attached to...procedural safeguards cannot be gain said. It seems...no
exaggeration... that Congress placed every bit as much emphasis upon compliance with
procedures...as it did upon the measurement of the resulting IEP against a substantive standard.
This is not an issue of IEP form over substance. It is impossible to tell on an annual basis or from
one year to the next from these documents if the student has made progress. If one relies only on
the Battelle Inventory, there is progress but it has decreased dramatically from 1994-95 to 199596. If one relies only on observed progress the school convincingly cites specific areas where
growth has occurred and the parent cites equally convincingly specific areas where a lack of
growth or regression has
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occurred. In the absence of solid, reliable objective data conclusions regarding growth or lack of
growth cannot be determined with certainty. Therefore no conclusions that the student's program
has afforded students educational benefit can be made.
The staff at the Hall school present themselves as highly professional experienced teachers. I
have no doubt that the classroom is a well-run positive environment for the students there.
However, the regulations governing the special education process make clear that the procedures
for describing and evaluating such a program for each child are equally important to the activities,
which occur there. The parents are entitled to know
what outcomes are expected and how those outcomes will be assessed on an annual basis. That
has not occurred in this case.
An IEP is the foundation of a child's special education program. As much care in its development
must be present as in the development of the day to day instruction. How can we know if
progress is made if we are unsure what progress we hoped to make. There must be a beginning
before we can know if we've arrived. Because the school hasn't proved that progress occurred, it
cannot be concluded that the program afforded the student with educational benefit. In the
absence of such benefit, the parents are entitled to the methodology they prefer.
VI. Order
The school shall convene a PET within 45 calendar days of the receipt of this decision to develop
an IEP for the student which states present levels of educational performance, annual educational
goals, and short-term instructional objectives with objective measurement criteria. Further the
school shall have in place by September trained staff which can deliver this IEP using the ABA
methodology or find an appropriate program to which the student can be tuitioned. This order to
provide the student with ABA methodology is in effect for one year only. The PET shall
reconvene in September 1998 to develop and IEP which determines placement for the student for
the 1998-99 school year.
Carol B. Lenna
Hearing Officer

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STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
August 3, 2001
Case # 01.135, Student v. Caribou School Department
REPRESENTING THE STUDENT AND THE FAMILY : Richard OMeara, Esq.
REPRESENTING THE SCHOOL:
HEARING OFFICER:

Eric Herlan, Esq.

Lynne A. Williams, J.D., Ph.D.

This hearing was held and the decision written pursuant to Title 20-A, MRSA, 7202 et. seq., and
20 U.S.C. 1415 et. seq., and accompanying regulations.
The hearing was requested by student and his parents, on May 21, 2001. The student, whose date
of birth is dob, is xx years old and an adult student under the Individuals with Disabilities
Education Act. He resides with his mother and father and his siblings, in Caribou, Maine. The
student graduated from Caribou High School in June 2001, and until that time was eligible for
special education services under the category of Emotional Disability.
The parties held a prehearing conference call on June 22, 2001, to clarify the issues for
hearing. Documents and witness lists were exchanged in a timely manner. The student entered
70 pages of documents. The school department entered 338 pages of documents. Ten witnesses
testified. Both parties submitted closing, written arguments, with attached case law.
I. Preliminary Statement
This case involves a xx year-old male student, who graduated with a general diploma from
Caribou High School in June 2001. Prior to that time, student was eligible for special education
services under the category of Emotional Disability. Student was fully mainstreamed with the
exception of attendance in a supported study hall.
The student requested this hearing. It is his contention that the school department failed to
develop and deliver an appropriate set of transition services to student, resulting in students lack
of preparation for his post secondary educational career, and a denial of a free appropriate public
education.
The school department denies this contention, and argues that students high school IEPs and
transition plans were appropriate and were implemented.
II. Prehearing Motions
[The hearing officer rejected statute of limitations defenses]

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III. Issues to Be Decided by the Hearing

Did the Caribou School Department commit procedural violations in the conduct of its
transition planning for student, during the period from the beginning of the 1997-1998
school year, through the 2000-2001 school year?

Did the Caribou School Department fail to provide student with a free appropriate
public education by virtue of providing student with IEPs during the 1997-1998 school
year that were substantively inappropriate due to their insufficient scope of services and
their failure to meet the transition planning and services requirements of the IDEA, 20
U.S.C. 1401(a)(30), 1414(d)(1)(A)(vii), and its implementing federal and state
regulations?

Did the Caribou School Department fail to provide student with a free appropriate
public education by virtue of providing student with IEPs during the 1998-1999 school
year that were substantively inappropriate due to their insufficient scope of services and
their failure to meet the transition planning and services requirements of the IDEA, 20
U.S.C. 1401(a)(30), 1414(d)(1)(A)(vii), and its implementing federal and state
regulations?

Did the Caribou School Department fail to provide student with a free appropriate
public education by virtue of providing student with IEPs during the 1999-2000 school
year that were substantively inappropriate due to their insufficient scope of services and
their failure to meet the transition planning and services requirements of the IDEA, 20
U.S.C. 1401(a)(30), 1414(d)(1)(A)(vii), and its implementing federal and state
regulations?

Did the Caribou School Department fail to provide student with a free appropriate
public education by virtue of providing student with IEPs during the 2000-2001 school
year that were substantively inappropriate due to their insufficient scope of services and
their failure to meet the transition planning and services requirements of the IDEA, 20
U.S.C. 1401(a)(30), 1414(d)(1)(A)(vii), and its implementing federal and state
regulations?
IV. Findings of Fact

1. Students date of birth is dob. (Exhibit: H4)


2. Student had an early history of seizure activity. (Testimony: Mother)
3. Student was determined to be eligible for special education services during his pre-school
years, due to significant deficits in auditory memory and auditory processing and tactile
defensiveness. Beginning at age 2, student received speech and language therapy and
occupational therapy through Childrens [sic] Developmental Services (CDS). (Testimony:
Mother)
4. Student attended a regular education kindergarten and a pre-first program, and began first
grade in Belfast. In the middle of first grade, students family moved to Frenchville, where
he received special educational services within the classroom. At this time, the school

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department in Frenchville completed a speech and language and an occupational therapy


evaluation. (Exhibits: S249-252, S253-258; Testimony: Mother)
5. At the beginning of students second grade year, the family moved to Caribou and student
entered the Caribou School District. He received speech and language services but the family
was informed that no occupational therapy services were available. Student continued to
receive speech and language services through the 1991-1992 school year, his third grade
year.(Exhibits: S157-171; Testimony: Mother)
6. The Caribou School Department dismissed student from special education for his fourth
grade year (1992 - 1993) but he did continue to receive Chapter One services. (Exhibits:
S149; Testimony: Mother)
7. During students fifth grade year (1993-1994), student exhibited few, if any, academic
problems, continued to receive Chapter One assistance, and had a good year at
school. (Testimony: Mother)
8. During students sixth grade year (1994 - 1995), student began to exhibit social problems and
some behavioral issues. On October 17, 1994, student was referred by at least one of his
teachers for a special education assessment, due to emotional and behavioral issues. (Exhibit:
S146; Testimony: Mother)
9. A partial Woodcock Johnson Cognitive and Achievement Battery, as well as emotional and
behavioral problems scales, were administered to student in November 1994. The Woodcock
Johnson testing showed average to low average intelligence, with no significant discrepancy
between ability and achievement. At a PET meeting held on December 5, 1994, student was
found to be eligible for special education services under the category of Emotional
Disability/Behavioral Impairment. The IEP developed at this meeting, dated December 1994,
stated, [student] needs a small group setting to establish more developmentally appropriate
skills in behavior, communication, socialization and academics. It further noted, under
Present Level of Performance, that students grade levels, according to a CTBS administered
when student was in grade 5-7, ranged from 3-4 for Total Reading, to 5-8 for Total
Math. Students placement was to be Behavior for 40 minutes per week, and students
goals and objectives included completing and passing in assignments, asking questions when
having difficulties, refraining from inappropriate behavior when others are inappropriate,
participating in group discussions appropriately and developing friendships. Progress
towards these goals and objectives was to be measured by grades and teacher
observations. Despite the fact that student was now classified as eligible for special
education under the category of Emotional Disability/ Behavioral Impairment, no behavior
plan was developed for student. (Exhibit: S26-29, S126-129, S131-141, S142-143, S144145; Testimony: Mother)
10. Student continued to receive the same services, and to have similar goals and objectives,
throughout the 1995-1996 and 1996-1997 school years, his seventh and eighth grade
years. (Exhibits: S89-123; Testimony: Mother)
11. On April 7, 1997, a brief PET meeting was held in order to develop students IEP for his high
school freshman year (1997-1998). At this 15-minute PET meeting, it was agreed that
student would receive resource study hall during ninth grade. Despite the fact that student
was xx years old at that time, there was no discussion of transition planning. (Exhibits: S8588; Testimony: Mother, R. Umphrey, D. Bosse)

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12. During spring 1997, a course listing was sent home to the family, so that student could
choose his courses for the 1997-1998 school year. After initial choices were made, student
was required to get signatures from his current teachers, supporting his course
choices. Student initially chose Academic English and Physical Science, but his middle
school teachers refused to sign off on those choices, even though the course description for
ninth grade Physical Science states that [a]ll 9th graders are required to take this course.
The family was unaware that they could overrule the recommendations of these teachers, and
acquiesced to the recommendation that student take Physics and Chemistry in Agriculture
and Technical English. At the time, the family was unaware that Physics and Chemistry in
Agriculture was not a lab science. (Exhibit: S315; Testimony: Mother)
13. The PET minutes and the IEP dated April 7, 1997, listed resource study hall as students sole
service. This consisted of 3.75 hours per week attendance in a classroom with approximately
seven other students, which was staffed by an Educational Technician III. The IEP also
included a list of modifications submitted by students eighth grade teacher, in which she
noted that [h]e is very reserved, so it is helpful if teacher checks in with [him]
periodically. (Exhibit: S85-88; Testimony: Denise Bosse)
14. In March 1998, student turned xx years old, and still had no transition plan included as part of
his IEP. (Testimony: Mother)
15. On May 14, 1998, a PET meeting was held and an IEP developed for the 1998-1999 school
year, students sophomore year. Student was not invited, nor did he attend, this PET meeting,
even though he was xx years old at the time. The IEP that was developed was identical to the
prior years IEP in terms of services and goals and objectives. There was no consideration of
present levels of performance. The transition plan, forwarded to the family after the meeting,
included vague descriptions of transition services, such as discuss future career plans with
guidance (Functional Vocational Section), and is responsible at home for chores
(Employment Section). There was no mention of how student could meet college entrance
requirements, or how he might be assisted to improve his social and self-advocacy skills, two
areas of weakness for student, and ones that would likely be problematic as he transitioned
into post secondary life. (Exhibit: S78- 83; Testimony: Mother, Student)
16. In February 1999, the school department conducted students triennial evaluation. Woodcock
Johnson Cognitive and Achievement Batteries were administered and again no significant
discrepancy was found between students ability and achievement levels. However, although
written language had historically been students weakest skill area, no written language
component was administered at this time, which Mr. Umphrey termed a mistake. Student
also received an inexplicable drop in his score on the subtest of visual-auditory memory, from
103 in 1995 to 62 in 1999, but there was no follow-up testing to try to determine the reason
for the large drop. (Exhibit: S72-76; Testimony: R. Umphrey)
17. A PET meeting was held on May 28, 1999, when student was xx years old, to develop an IEP
for students final year at Caribou High School. Student was invited to, and did, attend this
meeting. At this time, he informed the team that he would like to go to college and pursue a
career in law enforcement, although when she completed the IEP form, Ms. Bosse incorrectly
stated that student wants to go to a technical college after graduation. The parents
questioned whether students science coursework would meet the requirements for college
entrance. At the mothers insistence, it was agreed that student would take Biology II, his
first lab science, during the upcoming year. No one from the guidance office was present at

192

this meeting, and except for the brief discussion about lab science, there was no discussion of
transition planning for student. Nor was there any discussion of the recent Woodcock
Johnson testing, or discussion regarding the large drop in students Visual-Auditory score.
(Exhibit: S61, P62-66; S97, A76; Testimony: Mother)
18. About a month after the May 1999 meeting, the family was mailed a transition plan for
student, although the contents of this plan had not been discussed at the May 1999
meeting. The plan fails to address in any way students desire to attend a college law
enforcement program, and only includes a statement that student should receive a drivers
license and should take the APTICOM, a vocational battery, for future program
planning. The Instructional section of the plan states that student will be in regular classes
with a supportive study hall. (Exhibit: S65; Testimony: Mother)
19. On May 24, 2000, a PET meeting was held in order to develop an IEP for the 2000-2001
school year, students senior year. Student was neither invited to, nor did he attend, this
meeting; nor was there a special education administrator present at the meeting, although Mr.
Umphrey stated that Ms. Bougie, a guidance counselor, served as the administrator at the
meeting. Ms. Bougie admitted at the hearing that she has received little training regarding
IDEA transition planning, and is not a special educator. There was no substantive discussion
of transition planning at this meeting no discussion of preparation for college admittance,
career plans, or any explanation or discussion of students results on the Choices Career
Aptitude Survey which he had been administered on May 16, 2000. The Transition Plan,
subsequently received by the family, is similar to its predecessors in its vagueness, lack of
actual services that relate to transition goals, and lack of family input. (Exhibits: S53-58, P2133; Testimony: R. Umphrey, J. Bougie, Student, Mother)
20. On August 5, 2000, student met with Judy Bougie for a Senior Planning interview. At this
meeting, students senior year course schedule was reviewed, as well as his future
plans. Student informed Ms. Bougie that he had plans to attend a four year college in a law
enforcement program, and she made a notation to this effect on the form completed at that
meeting. However, even knowing students future plans, Ms. Bougie failed to inform student
that his failure to take a second lab course (he had not registered for one for his senior year),
and his four years of Technical English, as opposed to Academic English, might be a bar to
admission to a four-year college program. Ms. Bougie did suggest to student that he meet
with her for assistance in completing college applications, but student failed to do
so. (Exhibit: S4; Testimony: J. Bougie)
21. During students senior year, the 2000-2001 school year, student was enrolled in a three
credit Law Enforcement class. This was a hands-on course, designed to expose those
students interested in a career in law enforcement to the realities of law enforcement
work. The course was considered by its instructor, Stephen Michaud, to be mainly academic,
and included report writing, participation in mock trials and debates and crime scene
investigations. The academic nature of the class differed from that of many of the other
vocational courses offered at Caribou High School. Student received an 89 in the class and,
according to Mr. Michaud, he might have received an even higher grade if he had participated
more, students biggest problem being his poor social skills and reluctance to speak out in
class. Mr. Michaud wrote a positive letter of recommendation in support of students
application for admission to the Law Enforcement Program at the University of Maine at
Presque Isle (UMPI). (Testimony: S. Michaud)

193

22. In February 2001, with the assistance of his family, student completed and submitted an
application for admission to the law enforcement program at UMPI. (Testimony: Mother)
23. In March 2001, student received a letter from Brian Manter, Director of Admission at UMPI,
informing him that on the basis of his previous academic record, he was being denied
admission. The letter suggested that student gain additional academic preparation by
enrolling in non-degree coursework, and pass those courses with a C or better, prior to
reapplying for admission. (Exhibit: P54)
24. Students mother called Mr. Manter, after receiving the above letter and Mr. Manter
intimated to her that it was students failure to take two lab sciences and Academic English
that was a prime contributor to the rejection of his application to UMPI. Mr. Manter further
reiterated his suggestion that student enroll in the non-degree courses during the fall
semester. In a subsequent letter, Lorelei Locke, UMPI Director of Advising, invited student
to register for non-degree coursework during the fall 2001 semester, and noted that students
taking non-degree courses were ineligible for financial aid. (Exhibit: P55; Testimony:
Mother)
25. On May 17, 2001, the family sent a letter to Mr. Umphrey, expressing their dissatisfaction
with the services student had received, and requesting relief, and on May 21, 2001, the
student and family filed for due process. Mediation was declined by the school
department. (Exhibits: S2, H4-7)
26. After student had been denied admission to UMPI, and after the due process request had been
filed, Mr. Umphrey telephoned Mr. Manter and requested that he prepare a letter detailing the
reasons for students failure to be admitted to UMPI. In a letter dated June 7, 2001, and
addressed To Whom it May Concern, Mr. Manter references the admission standards
included in the UMPI catalogue, and noted that it would be an exception to the rule to admit a
student who had taken only Technical English courses in high school. (Exhibit: S1)
27. As suggested by Mr. Manter and Ms. Locke, student has registered for the UMPI non-degree
student testing, to be held in August 2001, and will then register for and attend three
appropriate non-degree courses during the fall 2001 semester. The cost of these courses is
approximately $1068, plus additional expenses for fees, books and travel expenditures.
(Testimony: Father)
28. In early June 2001, student graduated from Caribou High School. (Testimony: Mother)
29. On June 11 and June 12, 2001, Francoise Paradis, Ed.D., conducted a psychological
evaluation of student, at the request of the family. Student received the following scores on
the Wechsler Adult Intelligence Scale III (WAIS III): Verbal IQ - 95, Performance IQ - 84,
Full Scale IQ - 90. Verbal Comprehension, Perceptual Organization and Working Memory
subtest scores were all in the mid-90s. However, students Processing Speed score was 71.
On the Wechsler Individual Achievement Test (WIAT), student scored 87 in Reading, 94 in
Mathematics, 98 in Language and 78 in Written Expression. On the WIAT subtests, his
scores ranged from 84 to 108, with the exception of the Written Language subtest score,
which was 76. Dr. Paradis concludes that while students verbal intelligence is within the
average range, his hands-on intelligence is in the low average range primarily because of
significant weaknesses in processing speed, and deficits in sensory integration that were not
remediated [sic] over time. She further noted that on the WIAT, students low score in
Written Expression was again explained by his deficits in sensory integration. Dr. Paradis

194

recommended an occupational therapy (OT) evaluation, to assess his sensory motor deficits; a
speech and language (S and L) evaluation, to determine whether therapy could improve his
articulation problems; modifications and accommodations in his college classes, including the
provision of class notes; tutorial services in English; editorial assistance with his papers and
reports; extra time on exams; and grading based on content rather than technical writing.
(Exhibit: P1-8; Testimony: F. Paradis)
30. Dr. Paradis also administered a Minnesota Multiphasic Inventory (MMPI) to student, who
scored within the normal range in all areas except for social introversion. Dr. Paradis
assessment of students demeanor and nature is that he lacks any sort of assertiveness and it
would be very difficult for him to ask for what he might need within the school setting. She
notes that the record indicates that he would just take whatever was given to him, rather than
advocate for what he needed. (Exhibit: P1-8; Testimony: F. Paradis)
31. Per Dr. Paradis recommendation, a Speech and Language evaluation of student was
completed by Velda Buckingham, with a report dated June 27, 2001. Ms. Buckingham
administered the Test of Auditory Perceptual Skills (TAPS), and student scored significantly
below his chronological age on all subtests, getting a 4-3 Language Age (LA) on Auditory
Word Memory, 7-6 on Auditory Sentence Memory, 8-7 on Auditory Number Memory Forward, 10-4 on Auditory Number Memory - Reversed, and 11-5 on Auditory
Processing. Student was xx years, xx months old at the time of the testing. Although, as Mr.
Umphrey pointed out, the TAPS is not normed for tests takers over the age of 12, students
scores are at least suggestive that his language ages in these areas are significantly below his
chronological age. Prior to this time, on April 11, 2001, the school department conducted a
speech and language evaluation of student. This evaluation included an oral/motor and voice
articulation observation, reporting of a hearing screening and the administration of the
Screening Test for Auditory Processing Disorders (SCAN). The observations were normal,
and all of students scores on the SCAN were within average range, except for his score of 8
on the Competing Words Subtest, which was low average. (Exhibit: P68-70, S50;
Testimony: R. Umphrey)
32. As recommended, an OT evaluation was completed by Timothy L. Cyr, OTR/L. In his
report, dated June 29, 2001, Mr. Cyr found deficits similar to those found by Dr. Paradis, and
supported her recommendations. He did not, however, make any recommendation for OT
services. (Exhibit: P56-67)
33. In her testimony, the mother noted that most, if not all, of the costs of the recently completed
IEEs, by Dr. Paradis, Mr. Cyr and Ms. Buckingham, would likely be covered by the familys
insurance. (Testimony: Mother)
V.

Conclusions

The Supreme Court has instructed us that the first question to be addressed when considering the
appropriateness of an IEP, and consequently the placement and program offered to a student, is
whether the school has complied with the procedures set forth in the Act, Bd. of Educ. v.
Rowley, 458 U.S. 176, 206 (1982), including the requirement that transition planning be
conducted. The IDEA requires that a students IEP must include, beginning at age 16 (or
younger, if determined appropriate by the IEP team), a statement of needed transition services for
the child, including, when appropriate, a statement of the interagency responsibilities or any
needed linkages. 20 U.S.C. 1414(d)(1)(A)(vii)(II); 34 C.F.R. 300.347
(b)(2); M.S.E.R. 5.13 (1999).

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The Caribou School Department failed to meet the procedural requirements of the IDEA, and
Maine Special Education Regulations, on a number of fronts. No consideration was given to
whether it would have been appropriate to begin students transition planning prior to his 16th
birthday. Considering how the placement of student on a non-academic track began even prior to
the beginning of his high school freshman year, it would have been appropriate to at least
consider whether such tracking meshed with students college and career goals and whether those
goals were realistic.
Nor was transition planning begun prior to students 16th birthday, as required by the IDEA and
accompanying federal and state regulations. The first transition plan which the family received
was dated June 1998, three months after students xx birthday, and this plan was not developed or
even discussed at the May 1998 PET meeting. The first time the parents and student saw it was
weeks after the PET meeting. Nor was there any PET discussion of any of students future
transition plans, nor did there appear to be any PET member, with the exception of Mr. Umphrey,
who was trained in, and knowledgeable about, the IDEA requirements regarding transition
planning.
By not encouraging full, or at least some, PET discussion of the needs of the student regarding
transition planning, the school department failed to meet its duty to involve the family
meaningfully in the transition planning process. Likewise, they failed to involve student in his
own planning. Student was sporadically invited to attend PET meetings, and did attend those to
which he had been invited. The Choices career survey was twice administered to him, per IDEA
requirements, but the meaning of his scores was never explained to him, nor was there any
discussion of the results at a PET meeting. Student received no advice or assistance to insure that
his coursework was appropriate for his future plans. Student had often been identified as a boy
who was socially introverted and a loner (by his mother), hesitant to ask questions (by his middle
school teacher, who recommended that teachers frequently check in with him), and reluctant to
involve himself in class discussions or speak out in class (by Mr. Michaud). Yet, this student had
been basically set adrift, and expected to determine his own needs, assess his own college and
career plans, choose his own courses and, from age fourteen on, just when the schools
responsibility regarding transition planning begins, be his own advocate.
In its closing memorandum, the school department relies on the recently decided Bell v.
Education in the Unorganized Territories, Civ. No. 00-160-B-S. (D. Me. March 27, 2001) The
department argues that the question at hand is not whether the school followed all procedural
requirements regarding transition planning, but whether the resulting transition plans were
reasonably calculated to confer on student some benefit in his transition from high school to
adulthood, clearly employing the language used to assess the appropriateness of IEPs. However,
while there may have been procedural flaws in the transition planning for the student in Bell,
consisting in the fact that the Bell students transition plan remained unchanged for two years, the
transition plans, and accompanying services, provided to that student were comprehensive, or in
the language of federal law, a coordinated set of activities for a student, designed within an
outcome-oriented process.... 34 C.F.R. 300.29. In Bell, the students transition plans included
current performance levels, goals, objectives, and the programs and services to be provided to
enable student to meet those goals and objections. The district court found that although there
were procedural flaws, the student received educational benefit, since the necessary transition
planning was accomplished by parents, school personnel, and others. Bell, slip op. at 14-15.
Likewise, the facts in this case can be distinguished from those in Sch. Admin. Dist. No. 1, 25
IDELR 1256 (Me. SEA 1997). In that case, the guidance counselor had worked on an ongoing

196

basis with the student, and provided her information regarding post secondary school entrance
requirements, had periodically reviewed students course schedule in light of her future plans and
had administered career inventories to student and discussed the results with her.
Congress has instructed us that school districts must promote educational resources for children
with disabilities through....educational experiences that prepare them for later educational
challenges and employment. H.R. Rep. No. 105-95 at 82 (1997); S. Rep. No. 105-17 at 4
(1997). Since this is a results-oriented mandate, it is true that a school may meet these
Congressional goals while technically committing procedural violations. However, in the
presence of procedural errors, IEPs must be strictly scrutinized to determine whether those
procedural inadequacies compromised the pupils right to a an appropriate
education, seriously hampered the parents opportunity to participate in the
formulation process, or caused a deprivation of education benefits
Roland M. v. Concord School Committee, 910 F.2d 983, 994 (1st Cir. 1990)
We must look then at whether the school departments procedural errors resulted in any, or all, of
these crucial impacts. The department failed to inform parents about the role of transition
planning, and about the requirement that transition planning be an outcome oriented process
requiring a coordinated set of activities designed to assist student in reaching his post secondary
goals. Nor did the department inform the parents about their ultimate authority over the selection
of students classes. Transition planning was never discussed at students PET meetings, and the
transition plans were developed outside of the PET process and forwarded to the family at a later
time. It is very difficult at this time for the school department to convincingly argue that the
family bore the responsibility for not choosing appropriate coursework, or for not objecting to
transition plans at an earlier time, when they were effectively shut out of the transition planning
process, with their opportunity to participate in the transition planning effectively hampered.
The school department argues that these procedural violations still may be overcome, if the
student received benefit from his IEPs and consequently from the transition planning process.
Student did not, however, receive such benefit, unless one considers as the sole criteria for
educational benefit the fact that student graduated from Caribou High School with a general
diploma. Transition planning, particularly for a student who intends to go on to college, must be
much more than graduation. There was no evidence to suggest that student would be unable to
handle college work, and his most recent cognitive evaluation, by Dr. Paradis, places student in
the low end of the average range on cognitive ability. In her testimony, Dr. Paradis concurred
that she believed that student would be able to successfully handle college level academic
work. Mr. Michaud, students law enforcement teacher at Caribou High School, believed in
students capability enough to write him a letter recommending his admission to UMPI.
It is true that in his senior year student did participate in the three-credit law enforcement course,
a course in which he received one of his higher grades, an 89. This course exposed student to the
realities of a career in law enforcement, and enabled him to make an informed decision about
pursuing this career choice. Developing and making a course like this available to students
interested in a related career is one part of a successful transition planning process. However, it is
only one part. The other part is giving the student the knowledge, tools and skills necessary to
make that career choice a reality. This is what the school department failed to do.
It was the duty of the PET to ensure that students IEPs included outcome-oriented transition
plans, offering appropriate services to meet the goals and objectives laid out in the plans. Since
the IEPs for the four school years in question, 1997-1998, 1998-1999, 1999-2000 and 2000-2001,
failed to include appropriate transition plans, and there was no de facto delivery of transition

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services to student outside of the PET process, the four IEPs are deemed substantively
inappropriate under the IDEA and its implementing federal and state regulations.
It is true that the IDEA does not require school departments to guarantee a specific outcome,
whether that outcome is a high SAT score, a good job or admission to a specific, or for that
matter any, college. M.S.E.R. 10.1 (1999); See Fort Bend Indep. Sch. Dist., 34 IDELR 111
(Tx. SEA 2000) However, what they are required to do is to identify and provide those services
that would prepare the student to have a realistic chance at achieving their goal or to provide
sufficient guidance to assist the student in modifying his/her goal. The Caribou School
Department did not meet this mandate.
VI.

Decision

Taking into account the students current educational status and needs and based on the
deficiencies in students high school IEPs, due to the school departments failure to engage in
outcome-based transition planning as required by the IDEA, it is an appropriate remedy to award
some level of compensatory educational services, and reimbursement for independent educational
evaluations, as requested by the student. See Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184,
188, 189 (1st Cir. 1993).
VII. Order
1. The Caribou School Department is ordered to pay the tuition for student to attend three nondegree classes at UMPI during the fall 2001 semester. Such tuition will cease at the end of
the fall 2001 semester, whether or not student is subsequently admitted into a degree program
at UMPI.
2. The Caribou School Department is ordered to either provide one-hour per week of tutorial
services in English, or to reimburse the parents for the reasonable expenses of such services,
upon submission of receipts. Such services will be delivered throughout the fall 2001 UMPI
semester, not to continue after the completion of the fall semester.
3. The Caribou School Department is ordered to reimburse the family for the cost of the June
2001 independent educational evaluations, including the psychological evaluation completed
by Dr. Francoise Paradis, the OT evaluation completed by Timothy Cyr and the Speech and
Language evaluation completed by Velda Buckingham. Such reimbursement shall cover the
cost of the evaluations less any costs borne by the familys insurance company, unless
insurance payment of such costs will count against a lifetime cap in insurance benefits to the
family.
4. The Caribou School Department is ordered to bear the incidental costs of students attendance
at the fall UMPI non-degree semester, including the costs of fees, books and supplies, upon
submission of receipts, and mileage costs at the prevailing state mileage rate.
5. Proof of compliance with this order shall be submitted to the hearing officer as well as to the
Due Process Coordinator. Proof of compliance shall include a copy of the paid tuition bill, a
copy of IEE reimbursement checks given to the family, a copy of expense reimbursement
checks given to the family, and a tutorial log covering the period of the fall UMPI semester.

198

_________________________________
Lynne A. Williams, J.D., Ph.D.
Hearing Officer

______________________
Date

199

Greenbush, Maine. At the time briefs were


filed in this case, James was eleven years
old. James has a learning disability that
qualifies him for special education services
under IDEA.
James attended the Helen S. Dunn
School (hereinafter "Dunn"), a public school
serving kindergarten through eighth grade
children in Greenbush. The conflicts that
give rise to this case reached a critical stage
in March of 1994, James's third grade year.
It was in March when James's parents
requested that their son be removed from the
Greenbush school. They believed the
administration, teachers, students, and even
James's bus driver were harassing their son
to an extent that the environment at Dunn
could not provide James with an adequate
education.
The school did not agree that James
should be transferred to a different school,
however, it did give James special tutoring
in the superintendent's office until further
evaluation of James's special needs could be
undertaken. James's tutoring continued for
the remainder of the 1994 school year. A
new
individualized
education
plan
(hereinafter "IEP") was developed for
James's fourth grade year at Dunn. In late
August or early September 1994, James's
parents took him out of Dunn in favor of a
home schooling curriculum. In March 1995,
the Kings informed Greenbush that James
no longer was being home schooled and
again requested that James be allowed to
attend a different public school. The parents
asked that James attend the East Corinth
school system, which is approximately thirty
miles away from Greenbush. Greenbush
again denied the parents' request.
Defendants
next
requested
an
administrative due process hearing as
provided under IDEA. In preparation for this
hearing, Greenbush developed a new IEP for
James's 1995-1996 school year. Under the
new plan, James would remain at Dunn.
This new IEP also called for a combination
of special education services as well as
participation in the regular fifth grade
curriculum with James's peers, who are not

Page 934
949 F.Supp. 934 (D.Me. 1996)
GREENBUSH SCHOOL COMMITTEE,
Plaintiff,
v.
MR. AND MRS. K, on their own behalf
and on behalf of their minor son, JK,and
Wayne L. Mowatt, in his official capacity
as
Commissioner
of
the Maine
Department of Education, Defendants.
Civil No. 95-199-B.
United States District Court, D. Maine.
Dec. 30, 1996
Page 935
[Copyrighted Material Omitted]
Page 936
Eric Herlan, Drummond, Woodsum,
Plimpton & MacMahon, Portland, ME, for
Plaintiff.
Cindy and James King, Greenbush,
ME, pro se.
Dennis M. Doiron, Attorney General's
Office, Augusta, ME, for Defendant
Mowatt.
ORDER AND MEMORANDUM OF
DECISION
BRODY, District Judge.
Plaintiff, the Greenbush School
Committee
(hereinafter
"Greenbush"),
challenges the decision of the Education
Hearing Officer (hereinafter "Hearing
Officer") as to the proper placement of the
Defendant, James King III, and names
Wayne Mowatt, the Commissioner of the
Maine Department of Education as a
Defendant. Plaintiff asserts that the Hearing
Officer exceeded his authority and thus
violated the Individuals with Disabilities
Education Act (hereinafter "IDEA" or "the
Act"), 20 U.S.C. 1400-1491, and Maine
law, 20-A M.R.S.A. 7001-8101.
In accordance with the appropriate
standard of review, the Court affirms the
decision of the Hearing Officer. The State
Defendant is dismissed from the case.
I. Background
This case involves the education of
Defendant, James King III (hereinafter
"James"), the son of Defendants Cindy and
James King. The Defendants reside in

200

learning
disabled.
The
plan
also
implemented the talents of Dr. Norman
Worgull, a psychologist who evaluated
James's special needs and apparently had
obtained the respect and confidence of the
King family. Dr. Worgull was to serve as a
liaison between the King family and the
school. Greenbush also developed a
complaint process through which the school
would investigate any incidents arising
between James and his peers or teachers.
Greenbush argued before the Hearing
Officer, and continues to argue here, that
turnover in Dunn personnel, including the
principal of the school, with whom the
Kings had significant disagreements, makes
it more likely that the Kings and the school
can work cooperatively to educate James.
Greenbush also was willing to provide the
Kings with the enrollment lists for Dunn's
two fifth grade
Page 937
classes and allow the parents to choose
which class James would attend. This was
an attempt by the school to minimize
James's contact with the students who were
harassing him.
The due process hearing was held on
July 17 and July 28, 1995. The issue for
hearing was "[c]an James King III receive
an appropriate education in the Greenbush
School Department." Hearing Officer
Decision, slip op. at 3. The Hearing Officer
concluded that even with the changes in
Dunn's staff, the long standing negative
feelings that the Kings have toward the
school will "negate the beneficial effects of
[James's] educational program if it is
implemented" at Greenbush in the Dunn
building. Id. at 4-5.
I am left to conclude that [James] must have
his IEP implemented at a location other than
Helen S. Dunn School as my focus must be
to ensure that [James] receives an education
which is of benefit to him.
Id. at 5.
The Hearing Officer ordered that
Greenbush implement James's 1995/1996
IEP at a school other than Dunn. Choice of
the new school was left to the discretion of
the Greenbush administration, however,

Greenbush was required to consider three


factors in making the new placement: first,
the time and distance which James must
travel; second, the availability of existing
transportation; and third, the willingness of
the receiving building and school
department. Id. The Hearing Officer's
decision also allowed Greenbush to end the
new placement at any time if it feels that
parental support for the new placement
deteriorates to the point where the benefit to
James's education is lost. Id. If Greenbush
determines that such parental support no
longer exists, James must return to Dunn. Id.
Greenbush filed this case challenging
the Hearing Officer's determination. During
the pendency of this action, Greenbush has
complied with the Hearing Officer's Order
as required by law. SeeSchool Committee of
the Town of Burlington v. Department of
Education for the Commonwealth of
Massachusetts, 471 U.S. 359, 371-372, 105
S.Ct. 1996, 2003-2004, 85 L.Ed.2d 385
(1985).
In addition to the Kings, Greenbush
named
Wayne
L.
Mowatt,
the
Commissioner of the Maine Department of
Education, as a Defendant in this action.
Greenbush claims the joinder of the
Department of Education is necessary on the
unlikely contingency that the local education
agency is unable to carry out the Court's
Order. The Department of Education claims
that it should be dismissed from the case
because the state has taken no action against
Plaintiff for which relief can be granted, and
there is no basis for injunctive relief against
the state. The Department of Education
claims that it is required by the State's
enforcement obligations under IDEA to
implement the Court's Order. The
Department of Education also argues that
the Hearing Officer's determination was
proper.
II. Standard of Review
The Court's review of the Hearing
Officer's decision in this case falls between
de novo and clear error review.
.
III. Due Process Hearing
A. Legal Background

201

Should it wish to qualify for federal


funding under IDEA, a state must provide
all children with disabilities a "free
appropriate public education." 20 U.S.C.
1400(c), 1412(1). Such "appropriate"
education must be one that is tailored to
meet the specific child's "unique needs" in a
way "reasonably calculated to enable the
child to receive educational benefits." 20
U.S.C. 1400(c); Rowley, 458 U.S. at 206207, 102 S.Ct. at 3051. In addition, the
public education required under the law
must be implemented in the least restrictive
educational environment. See 20 U.S.C.
1412(5) (B).
The curriculum for providing a
disabled child's public education under the
Act is developed annually by a team of
people familiar with the child's special
educational needs. Based on input from
various sources, including evaluations of the
child's disability and recommendations from
both teachers and parents, this team
develops an annual IEP for the student. Id.
1401(a) (20), 1414(a) (1) (A), 1414(a)
(5). In Maine, the team delegated
responsibility to develop a student's IEP is
referred to as the pupil evaluation team
(hereinafter "PET"). See Me. Dep't of Educ.
Reg. ch. 101, 1.4 (April 1996).
Parents who disagree with the PET's
IEP for their child have a right under the Act
to an administrative hearing to determine if
the IEP is appropriate for their student. See
20 U.S.C. 1415(b) (2), 1415(c). If the
parents or the school desires, the Act
provides a right of action to challenge the
administrative hearing in either state or
federal court. Seeid. 1415(e) (2).
B. Hearing Officer's Authority
Under Law
The Supreme Court's Rowley decision
set forth a two part test to determine whether
a student is receiving an appropriate free
public education under IDEA. A hearing
officer must scrutinize a child's IEP to
determine whether it meets the requirements
of this test:
First, has the state complied with the
procedures set forth in the Act? And second,
is the individualized educational program

developed through the Act's procedures


reasonably calculated to enable the child to
receive educational benefits.
Rowley, 458 U.S. at 206-207, 102 S.Ct. at
3051. It is uncontested that the Hearing
Officer's determination complied with all
procedures applicable under federal and
state law. The controversy is whether the
administrative determination correctly found
that James's IEP was not reasonably
calculated to enable James to receive
educational benefits.
In assessing the IEP this Court is
guided by the First Circuit's Lenn decision.
The IDEA does not promise perfect
solutions to the vexing problems posed by
the existence of learning disabilities in
children
Page 939
and adolescents. The Act sets more modest
goals: it emphasizes an appropriate, rather
than an ideal, education; it requires an
adequate, rather than an optimal, IEP.... [A]n
IEP must afford some educational benefit to
the handicapped child, the benefit conferred
need not reach the highest attainable level or
even the level needed to maximize the
child's potential.
Lenn, 998 F.2d at 1086 (citing Rowley, 458
U.S. at 198, 102 S.Ct. at 3046-3047; Roland
M., 910 F.2d at 992). Greenbush's IEP does
not have to provide James with the best
possible education but, rather, one that is
reasonably calculated to provide him with an
educational benefit.
The Act also has a preference for
mainstreaming disabled students. A student's
IEP should be targeted to achieve the child's
education in the least restrictive setting. See
20 U.S.C. 1412(5) (B); Roland M., 910
F.2d at 992-993 ("Mainstreaming may not
be ignored, even to fulfill substantive
educational criteria."). In keeping with the
mainstreaming
preference
IDEA's
regulations require that public schools
ensure that the placement of a disabled child
"[i]s as close as possible to the child's
home." 34 C.F.R. 300.552(a) (3).
Whenever possible, the child should be
"educated in the school that he or she would
attend if nondisabled." Id. 300.552(c). The

202

default placement for a student under the


Act is his or her local school, however, an
IEP can override this default in situations
where the student would not receive an
educational benefit at the local school. A
hearing officer is guided by these competing
concerns in his review of a child's proposed
IEP.
C. Parental Hostility
The Hearing Officer in this case
concluded that James's parents' hostility
toward Greenbush would negate any
educational benefits which James would
otherwise receive if he remained enrolled at
Dunn. See Hearing Officer Decision, slip op.
at 4-5. Although there are certain findings of
fact in the determination which indicate that
James's tenure at Greenbush was difficult
for the child, the Kings' hostility and distrust
of Greenbush was clearly the determining
factor for the Hearing Officer's order that
James spend his 1995/1996 school year at a
different school. The decision states that the
parents' "negative feelings seem to me to
have taken on a life of their own and appear
little influenced by factual information." Id.
at 4.
Greenbush argues that it was improper
for the Hearing Officer to consider the
Kings' hostility toward James's local school
in analyzing the educational benefits that the
child would receive under his IEP. [1] In
summary, Plaintiff's argument is that the
Hearing Officer's decision allows parents a
veto over their child's placement within the
school system. Plaintiff correctly states that
under both federal and Maine law a team
approach is used to determine the specific
needs of the disabled child, and parental
preferences should not trump team
decisionmaking. See, e.g., 20 U.S.C.
1401(a) (20); Me. Dep't of Educ. Reg. ch.
101, 8.1-8.24 (April 1996). Although
parents are allowed recourse through the
hearing process and the courts if they
disagree with the PET team curriculum for
their child, deference is accorded the
judgment of educators when determining the
appropriate program for a disabled student.
E.g.,Rowley, 458 U.S. at 207, 102 S.Ct. at
3051
("[P]rimary
responsibility
for

formulating the education to be accorded a


handicapped child, and for choosing the
educational method most suitable to the
child's needs, was left by the Act to state and
local educational agencies in cooperation
with the parents or guardian of the child.").
Page 940
Greenbush asserts that the Hearing
Officer's decision gives parents the power to
circumvent this rule. It argues that any
parent involved in a due process hearing that
finds its way into federal court pursuant to
IDEA's dispute settlement provisions feels
strongly that his or her child's IEP is
improper and is probably very angry with
the school system. Greenbush claims that
the Hearing Officer's decision, if taken to its
logical extreme, requires decisions in favor
of all angry parents who request due process
hearings for their children. See Plaintiff's
Memorandum of Law at 27 (June 18, 1996).
Parents clearly do not have the right
under IDEA to determine the content of
their child's curriculum. SeeLachman v.
Illinois State Board of Education, 852 F.2d
290, 297 (7th Cir. 1988), cert. denied, 488
U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327
(1988); Brougham by Brougham, 823
F.Supp. at 16; Petersen v. Hastings Public
Schools,
831
F.Supp.
742,
750
(D.Neb.1993), aff'd, 31 F.3d 705 (8th Cir.
1994); Dreher v. Amphitheater Unified
School District, 797 F.Supp. 753, 756
(D.Ariz.1992), aff'd, 22 F.3d 228 (9th Cir.
1994). Neither the U.S. Congress nor the
Maine Legislature has authorized parents to
send their children to the school of their
choice at the public's expense. [2]
Greenbush believes that the Hearing
Officer's decision gives parents who are
angry with their school system greater rights
than parents who reject their local public
school for other reasons, such as
philosophical or religious differences.
Plaintiff's arguments face two difficult
hurdles: first, the facts of this case as set
forth in the Hearing Officer's decision and,
second, the Seventh Circuit's Board of
Education of Community Consolidated
School District opinion.
1. The Facts

203

After hours of testimony and review of


nearly 100 exhibits, the Hearing Officer
determined that the parties had reached a
point where James could no longer receive
any educational benefit from attending
Dunn. See Hearing Officer Decision, slip op.
at 4-5. The Hearing Officer clearly knew,
and indicated in his determination, that the
proper focus of his inquiry under the law
was assuring that James receives an
education that is beneficial to him. Seeid. at
5 ("[M]y focus must be to ensure that
[James] receives as education which is of
benefit to him."). Greenbush argues that
because of changes in the Greenbush staff
and
other
special
considerations
incorporated into James's IEP, James could
have received educational benefit at Dunn.
However,
the
Hearing
Officer's
determination to the contrary on this point is
supported by the record.
The Kings continue to have feelings of
great animosity toward the Greenbush
school system, which, despite certain special
considerations and accommodations made
by the school system, would continue to
hamper significantly James's education at
Dunn. The Hearing Officer took the changes
in Dunn's staff, as well as Greenbush's new
complaint procedures and all other
accommodations made by Greenbush, into
account in his determination and reached the
proper conclusion. James was clearly having
a difficult time at Dunn. All parties agree
that he was exhibiting behavioral
difficulties, and one need only read the
testimony before the Hearing Officer to
conclude that all three Kings strongly
believe that James was unfairly ostracized
and persecuted by his peers and educators at
Dunn. The Hearing Officer's decision that
the Kings' hostility toward the school
prevented James from receiving an
education that is of benefit to him is
supported by the record.
2. The Law
Since the facts on the record from the
due process hearing support the Hearing
Officer's decision, the question becomes:
can parental hostility be a proper basis to
invalidate a child's IEP and order a school

system to send the child to another school?


The Seventh Circuit's Board of Education of
Community Consolidated School District
decision
Page 941
deals with this issue. [3] In Board of
Education of Community Consolidated
School District, two hearing officers [4] and
the district court determined that the
extremely adversarial relationship between
the parents and the school district
condemned the disabled child to an
unsatisfactory education unless he was
placed in a school other than the school
designated by his IEP. Board of Education
of Community Consolidated School District,
938 F.2d at 714, 716. Just as Greenbush did
here, the school board appealed the use of
parental hostility as a rationale for
determining that a disabled child could not
receive educational benefit at his assigned
school.
The Seventh Circuit held, over one
dissent, that parental anger can be an
appropriate basis to invalidate a child's
placement.
The sole legal requirement is that the IEP be
designed to serve the educational interests of
the child. The [IDEA] does not limit the
factors that can be considered in judging the
likely impact of the IEP on the child so long
as they bear on the question of educational
benefits. In this case the district court made
a factual finding that the parents' attitudes
were severe enough to doom any attempt to
educate Adam at [the school assigned him
by his IEP.] This finding had obvious and
direct relevance to any assessment of the
probable benefit to Adam of [his]
placement.
Id. at 716. The school district in Board of
Education of Community Consolidated
School District made arguments almost
identical to Greenbush's.
The plaintiff school district here exhorts us
not to adopt a position that will "reward"
parents for aberrant or distasteful behavior.
Under [IDEA,] however, our concern is not
rewarding or punishing parents. The
appropriate concern is finding a program

204

which will be of educational benefit to the


child.
Id. at 717. The Seventh Circuit effectively
isolates one of the flaws in Greenbush's
argument. Greenbush claims that the
Hearing Officer unfairly focused on James's
parents. This is not true. He focused on the
effect that the parents' hostility would have
on James if he remained at Dunn. The focus
was, and should be, on the child. Hearing
officers and courts are not called upon to
assign blame to the respective parties in
order to determine who is more at fault for
the conflict. Our responsibilities under the
Act are, fortunately, much less complicated.
Focusing on the child, we must determine
whether his or her IEP and school placement
offer educational benefit. If not, the plan
does not satisfy the requirements of IDEA or
the Supreme Court's Rowley decision.
Greenbush's argument that the Hearing
Officer's decision gives parents veto power
over their child's placement or that angry
parents have more rights regarding their
child's placement than do others ignores the
Hearing Officer's important and significant
role in the due process hearing. The Board
of Education of Community Consolidated
School District court effectively answers
this concern.
[W]e do not share the school district's
concern that under our ruling parents will be
able to feign opposition to obtain their
preferred placement. Our ruling does
nothing to alter the ability of hearing
officers to make credibility determinations
in the first instance. Hearing officers are best
positioned to assess whether a family's
hostility is manufactured or whether parental
attitudes pose a real threat to the success of
the proposed IEP.
Id. at 718.
Greenbush argues that the Seventh
Circuit decision was wrong under the law.
For the
Page 942
reasons discussed above, this Court feels
that Board of Education of Community
Consolidated School District accurately
reflects the law under IDEA.

Greenbush also attempts to distinguish


the Board of Education of Community
Consolidated School District case from the
situation before the Court here. The student
in the Seventh Circuit case was having such
significant behavioral problems that people
could not control him and his grades were
on a downward spiral. In this case, there is
evidence on the record of the due process
hearing that indicates that James's grades
were good and that he was testing well.
Also, although he did have some behavioral
problems at school, he certainly was
controllable unlike the child in Board of
Education of Community Consolidated
School District. [5] For many of the same
reasons discussed in section III.C.1, above,
the Court declines to overrule the Hearing
Officer's findings on this point. The
evidence on the record regarding the
animosity between the Kings and Greenbush
and its effect on James's education clearly
supports, by a preponderance of the
evidence, the Hearing Officer's decision.
D. James's Anxiety and Fears
The focus of IDEA is on children with
disabilities. The purpose of the Act is
"meeting the educational needs of children
with disabilities." 20 U.S.C. 1400(b) (9),
1400(c). The students individualized
program under the law is to be:
developed in any meeting by a
representative of the local government
agency, ... the teacher, the parents or
guardian of such child, and, whenever
appropriate, such child.
Id. at 1401(a) (20). Although the Hearing
Officer understood that the focus of his
review of James's IEP was on whether the
educational program benefited James, he did
not find that James's fears of attending Dunn
prevented the child from any educational
benefit at the school. The Hearing Officer
did find that James felt the students and staff
were mean to him and that a significant
conflict continues to exist between the King
family and Greenbush. See Hearing Officer
Decision, slip op. at 4. However, he also
found the James's negative feelings about
Greenbush are not, alone, strong enough to

205

prevent the child from benefitting from his


education at Dunn. Id.
Given the Act's clear mandate to focus
all decision making--by the PET, the
Hearing Officer, and the Court--on the
educational benefit conferred on the
disabled child, the Court carefully examined
James's testimony from the due process
hearing, as well as the testimony of others
regarding James's feelings about Dunn. The
child clearly has significant anxieties about
returning to Dunn. He recounts incidents
where Dunn teachers, administrators, and
his peers harassed him. See, e.g., Due
Process Hearing Transcript (hereinafter
"Transcript") at 33. Among the incidents
that he recounts is a situation where the
principal and a teacher carried him out of a
classroom, threw him around, and held him
down on the floor. Id. at 40. In another,
James states that he was forced to clean off a
urinal after another child had used it, a task
which obviously was not normally assigned
to students. [6] Id. at 37, 39. At one point
during his direct examination about the
abuse he suffered at the hands of his
classmates, a recess was taken because
James began to cry. See Transcript at 36.
Page 943
Plaintiff correctly states that the Court
must strictly avoid the clear error standard
of review. The Court can hear new evidence
from the parties and make additional
findings of fact in making an "independent
ruling based on the preponderance of the
evidence." Roland M., 910 F.2d at 989. The
Court is, however, also aware that the
Hearing Officer is in the best position to
analyze the facts of this case and that the
Court's review is not de novo. In this case,
particularly given the clear mandate of the
Act to focus all decision making on the
educational benefit to be afforded the child,
James's testimony was not given sufficient
weight by the Hearing Officer. This is not a
child who simply does not like his school or
his peers. James has a gripping fear that
accompanies him throughout his day at
Dunn. The Court finds that James's fear of
the Dunn school would prevent him from

receiving an educational benefit if his IEP


were implemented at that school.
This fact, in addition to the Hearing
Officer's finding regarding the extent of the
Kings' hostility toward Greenbush, mandates
affirmance of the Hearing Officer's decision.
IV. State Department of Education
Given the Court's determination in this
case and for the reasons set forth in section I
of the Memorandum of Law of Defendant
Wayne L. Mowatt, Commissioner of the
Maine Department of Education, Defendant
Wayne L. Mowatt is dismissed as an
unnecessary party to this action.
V. Conclusion
The Court finds the Hearing Officer's
decision to be reasonable and balanced. Not
only is the additional cost kept to a
minimum by the short distance that James is
bussed to his new school, but the Hearing
Officer created specific incentives for the
Kings to work amicably with James's new
school, and, to a certain extent, with
Greenbush. If Greenbush feels that "parental
support for the new placement has
deteriorated to a point where the benefit of
the 'new' placement has been lost" it may
end James's placement. Hearing Officer
Decision, slip op. at 5.
The Hearing Officer's decision is
reasonable, supported by the evidence, and
therefore, AFFIRMED.
SO ORDERED.
--------Notes:
[1] Greenbush also argues that the Hearing
Officer's decision should be invalidated
because there was no finding of fact that
James's IEP was inappropriate under the
law. Greenbush claims the fact that the
Hearing Officer ordered implementation of
James's IEP, without edit, at a different
school proves that the IEP was reasonably
calculated to provide James with educational
benefit. Greenbush states that "the absence
of dispute on the content of the IEP should
have led to a decision for Greenbush."
Plaintiff's Memorandum of Law at 11 (June
18, 1996).
Plaintiff's argument ignores a key factor.
James's IEP called for his enrollment at

206

Dunn.
In
the
Hearing
Officer's
determination, this was the critical flaw of
the plan. The conclusion of the
administrative decision is that James cannot
receive educational benefit if he attends
Dunn for the 1995/1996 school year. The
Hearing Officer made a finding attesting to
this fact.
[2] There is one school choice option in
Maine. In certain circumstances, parents
may chose to send their children to the
math-science school in Limestone, Maine.
See 20-A M.R.S.A. 8201-8202. This fact,
however, is not relevant to the Court's
decision here.
[3] This is the only case cited by the parties
dealing with use of parental hostility to
warrant alternative placement of children
under the Act. Board of Education of
Community Consolidated School District
deals with the Education of the Handicapped
Act, 20 U.S.C. 1400, et seq., however, the
1990 amendments to the Education of the
Handicapped Act renamed the Act to its
current name, IDEA.
[4] In Illinois, there is a right of appeal from
the first hearing officer's decision to the state
educational agency, hence, the parents in
Board of Education of Community

Consolidated School District had two


administrative hearings prior to federal court
review.
[5] Plaintiffs state that "James on occasion
demonstrated challenging behaviors during
his 1993-94 school year." Plaintiff's
Memorandum of Law at 2 (June 18, 1996).
[6] Plaintiff implies that James made up this
story, stating that it was "disproved by all
other witnesses who addressed the issue."
Plaintiff's Memorandum of Law at 14 n. 8
(June 18, 1996). The Court does not dismiss
James's statements so quickly. The child
clearly knew the importance of the due
process hearing, which was an adversarial
proceeding with numerous adults examining
and cross-examining him. He was, in fact,
administered an oath. Transcript at 32.
Despite the intimidating setting of the due
process hearing, James recounted the urinal
incident on two occasions. Even if the Court
were to assume that James lied, which it
does not, the fact that he would lie, twice, in
such a setting itself would be very telling.
Any child who would make up such a story
in this situation must be dealing with a
consuming fear, a fear which severely
curtails his education.
---------

207

AMERICAN ARBITRATION ASSOCIATION

In the Matter of the Arbitration Between MSAD #29 EDUCATORS' ASSOCIATION


-andMSAD #29 BOARD OF DIRECTORS
A.A.A. Case No. 1139-1027-06
Date issued: June 8, 2007
Grievance: [TEACHER], Suspension
Arbitrator: Timothy J. Buckalew
Appearances: Nancy Hudak, MEA UniServe Director, for MSAD #29 Educators'
Association (Association); S.C. Badger, Esq., for the MSAD #29 Board of Directors
(Board)
Preliminary Statement
The Association and Board appeared before me at in Houlton, Maine on
November 6, December 4, 2006 and March 20, 2007 for a hearing conducted under the
rules and auspices of the American Arbitration Association. The following Decision and
Award is based on the evidence adduced at the hearing, the parties' collective bargaining
agreement, and arguments made in post-hearing memoranda received on or before May
2, 2007.
Issues
The parties agreed that this grievance presents the following issues for arbitration:
1. Did the Board violate the collective bargaining agreement when it suspended the
Grievant without pay for 30 days, required a risk assessment by a clinical
psychologist as a condition of reinstatement, and issued a focused assistance
plan?
2. If so, what remedy is permitted by the terms of the collective bargaining
agreement?

208

Relevant Facts
On December 22, 2005, Stephen Fitzpatrick, Superintendent of Schools, notified
the grievant, [TEACHER], a special education teacher with nearly thirty years teaching
experience, that she was to be suspended for thirty days, be required to undergo a risk
assessment focusing on anger management, and participate in a "focused assistance
centering on classroom learning/working environment." The alleged grounds for the
suspension and other corrective actions was stated as" ... abuse of a special education
student on December 8, 2005 ...," as set out in investigative findings attached to the
suspension letter. More specifically, as alleged in the attached findings, Fitzpatrick
claimed that following an investigation, he had concluded that [TEACHER] had
restrained the head and pinched the nostrils of [STUDENT], a severely disabled,
wheelchair-bound fourteen year old male student in an effort to use behavior
modification techniques to restrain [STUDENT] who in an agitated state was vocalizing,
thrashing about in his wheelchair, and blowing mucus from his nose. Fitzpatrick alleged
that the incident had been witnessed by [WITNESS 1] and [WITNESS 2], two students
passing [TEACHER]s class room, and by Kim Miller, [STUDENT]'s one-on-one Ed
Tech, and that [TEACHER] may have engaged [STUDENT] in anger, that the methods
she used were professionally inappropriate, and that she knew or should have known that
restraining [STUDENT]'s head and pinching his nostrils were not part of [STUDENT]' s
Individual Education Plan (IEP) and were not sanctioned by the District.
The Association and [TEACHER] filed a timely grievance alleging that
[TEACHER] had been suspended without just cause in violation of the contract, notably
Article 6, Teacher Rights, Article 7, Protection of Teachers, and Article 8, Teacher
Evaluation/Personnel Files. The written grievance filed on January 9, 2006, alleged that
the investigation of allegations of abuse was defective and asked that she be made whole
for lost wages, benefits and that her personnel file be purged of any reference to the
discipline. The grievance was denied and advanced to a Level III Grievance review by
the District School Board on March 2, 2006. The Board denied the grievance in writing,
stating in relevant part: 1) the investigation was conducted fairly and thoroughly
following a complaint from a student who observed her interaction with [STUDENT] on
December 9 and included interviews with the student witnesses, Miller and herself; 2) the
evidence supported the findings that she had physically restrained [STUDENT] by
forcing his head into his lap and pinching his nostrils; 3) those actions amounted to
behavior modification intended to control [STUDENT], were not sanctioned by his IEP
and "were made while in a heightened state of agitation, generated by anger and desire to
control the student and not from concern for his well- being or safety. There was no
legitimate justification for you to physically restrain this student."
The Board dismissed the Associations' objections that [TEACHER] should not be
punished because she was not forewarned that her actions could result in discipline,
209

stating, it is well established that a teacher may not physically restrain a special
education student for the purposes of behavior modification absent a behavior
modification plan created through the student's IEP."
The Board concluded that [TEACHER]s actions were not intended to protect
others. [STUDENT] was in his wheelchair which had a headrest to prevent his injury, no
student or staff were in close proximity when he became agitated, and his discharge of
mucus could not harm himself or others.
Likewise, the Board found the investigation conducted prior to the charges to be
adequate and consistent with the collective bargaining agreement and also rejected the
Association's claim that the discipline imposed was disproportionate to the alleged
misconduct, finding, "In our judgement your suspension was warranted in light [sic] that
you knew your conduct was wrong, that it was performed in anger, and it was inflicted
upon one of our most vulnerable students."
The Association filed a timely appeal to final, binding arbitration.
The evidence, fairly considered and summarized for purposes of economy, shows
the following.
On December 9, 2005, a student, [WITNESS 1], reported to Principal Marty
Bouchard to that he was passing the special education room the previous day and had
heard [STUDENT] moaning and screaming. He looked in and observed "an older lady"
pushing [STUDENT]s head down to his lap, and that she was slapping [STUDENT] on
his arms, yelling that he "had to go to the bathroom now." At the hearing he testified that
[TEACHER] was not calm, but appeared angry and when she saw him at the door, she
gave him what he called, "the death stare." He spoke with his friend [WITNESS 2] who
said he had observed the scene around the same time. Neither student reported the
incident that day, but the following morning [WITNESS 1] went to the office of the
Principal and told him what he had seen.
Bouchard assigned Assistant Principal Michael Kenney to investigate [WITNESS
1]'s charges. When interviewed that day, [WITNESS 1] repeated the allegations and
identified [TEACHER] as the female who was yelling at [STUDENT], holding his head
down and slapping his arms. He told Kenney that Millar and his friend [WITNESS 2]
had observed the incident. Kenney interviewed [WITNESS 2] who told in large measure
confirmed [WITNESS 1]'s story.
Kenney interviewed [TEACHER] the same day in the presence of her Association
representative. He told her that two students had reported that she had been abusive to a
boy in a wheelchair. [TEACHER] told Kenney that [STUDENT] had been wheeling his
wheelchair out of the exercise room when balked, and began throwing his head against
the headrest of the wheelchair and blowing mucus from his nose. She told Kenney that
she had pushed his head forward to prevent him from injuring himself and had pinched
210

his nostrils to prevent him from ejecting mucus on her and others, noting that no one
would want to be around [STUDENT] if he engaged in such behavior. When [WITNESS
2] was identified as one of the students who observed the incident, [TEACHER] told
Kenney that he had filed a complaint against her three years earlier and that she had been
reprimanded for charges that were not true at the time.
Kenney interviewed Millar on December 9. She recounted the events leading up
to the incident. She had been working with [STUDENT] since the start of the school
year and was responsible for his physical therapy, and had been trained in specific
techniques required by his IEP and consistent with his limited verbal ability, visual
disabilities, and cognitive status. On the day of the incident [STUDENT] had finished
physical therapy and had been placed back in his wheelchair. One of the goals of his IEP
was to encourage independent use of the wheelchair, a goal not always accepted readily
by [STUDENT] who would sometimes balk at wheeling himself around in the classroom
and halls. Sometimes his resistance would be accompanied by increased vocalizations,
head banging, and "digging" (attempting to scratch) at himself and staff, and throwing
small objects that he can get his hands on. On the day in question, Millar gave him the
verbal cue to propel himself in the wheelchair, but he stopped wheeling himself just as
his wheelchair was in the doorway between the rooms, refused to go forward and became
agitated, including banging his head on the wheelchair headrest and vocalizing. Millar
told Kenney that [TEACHER] came over from paperwork she was doing and restrained
[STUDENT]' s head by pushing down toward his lap which caused him to become more
vocal, to blow mucus from his nose, and to swing his hands around to "dig" or throw
something. When he started blowing mucus, [TEACHER] pinched his nose and started
telling him "no" and that "he should go to the bathroom like he was asked." She told
Kenney that [TEACHER] was not in control of her emotions at the time and had become
upset at [STUDENT] for similar behavior in the past. At the hearing, Millar testified that
her voice was "matter of fact, to the point, but she would have been intimidated if she
were in his shoes" and that she did not seem to be in control of her emotions and used
more force than necessary to control [STUDENT] in her opinion. She told Kenney that
[STUDENT] did not have a "behavioral plan" to manage his outbursts, but that she had
learned techniques to calm him down from talking to therapists who had worked with
him in prior years and from reading his IEP's. She told Kenney that she did not feel
threatened by [STUDENT]'s acting out and had learned that he would calm down if she
"encouraged" him backed off if he was thrashing and blowing mucus.
Kenney contacted Marion Gartley, Director of Special Education for the District.
He asked if the reported conduct was consistent with [STUDENT]'s IEP. Gartley told
that holding his head down and pinching his nose would require a behavior plan in his
IEP and [TEACHER] had only recently rejected developing a plan. Gartley was also
concerned that [TEACHER] seemed to be angry and had restrained [STUDENT] when
she was angry. Gartley referred Kenney to Terri Charest, a special education teacher
211

who had worked with behaviorally difficult students. Charest told Kenney that she had in
fact worked with [STUDENT] several years before and that when he thrashed, banged
his head, or blew mucus, she would speak calmly to him, distract him with music or
failing all else, move his wheelchair to the side of the room until he calmed down. She
also told Kenney that vocalizing, moving his body around rapidly and blowing mucus
might be [STUDENT]'s only means of communicating.
Kenney interviewed [TEACHER] again on December 13, again with her
Association representative present. [TEACHER] explained that she thought she had not
held his head down, but had placed her hand on his neck and head and was guiding his
head as it traveled up and down. She acknowledged that restraining his head and
pinching his nose was not part of his IEP but she "made it up," and while she might not
use these techniques in front of [STUDENT]'s father, she would on her own children.
Kenney interviewed Millar and both students again on December 14, and according to his
testimony and investigative report, both [WITNESS 1] and [WITNESS 2] stated and
illustrated that [TEACHER] was not guiding [STUDENT]'s head, but was pushing and
shoving his head downward. Millar confirmed her statements made in her previous
interview and illustrated how [TEACHER] had held [STUDENT]'s head down toward
his lap, which caused him to blow mucus which provoked [TEACHER] to say, "no, no,
you're not going to act like this."
Superintendent Fitzpatrick informed [TEACHER] by letter on December 13 that
she would be interviewed the following day and that she was on notice that "said meeting
could adversely affect your employment and is for the purpose of placing you on
administrative leave with pay pending completion of the investigation and a formal
complaint against you regarding alleged physical abuse of a student."
On December 14, Fitzpatrick conducted a third interview of [TEACHER], with a
representative of the Association attending. According to the notes of the meeting,
[TEACHER] told Fitzpatrick that [STUDENT] had a "temper tantrum" after his exercise
period and that she had intervened to restrain him from hurting himself by banging his
head on his headrest and that she had pinched his nose and said "no" and that "he has
these temper tantrums often and needs to be restrained so that he does not hurt himself of
others." She also acknowledged pulling his hands away from his head when
[TEACHER] told Fitzpatrick she had spoken to Charest and Lisa Harmon, his previous
Ed. Tech. when he was transitioning to the high school and had attended his first pupil
evaluation team meeting before school started. She acknowledged that Millar was his
one-on-one aide but she felt things were getting out of hand on December 9.
Documents submitted by the parties regarding [STUDENT]'s educational
evaluations and PET's are relevant to understanding the expectations that had developed
during [STUDENT]'s schooling regarding his behaviors. On August 31, 2005, at the
beginning of the 2005-2006 school year, [TEACHER], Gartley, Millar and
212

[STUDENT]'s occupational speech and physical therapists met with [STUDENT]'s father
to discuss plans for carrying out his IEP for the upcoming school year. During the
meeting, [STUDENT]'s physical, speech and cognitive limits were discussed at length
and adaptations needed to accommodate him in the classroom were considered. Minutes
of the meeting prepared by [TEACHER] show that "behavioral interventions" were
considered by the group but determined not to be needed. The record shows that
[TEACHER] attended a PET for [STUDENT] in June 2004, with Gartley, Charest (his
then Special Education Teacher), [STUDENT]'s father and his speech, occupational and
physical therapists to review [STUDENT]'s IEP at the start of his last year in junior high
school, and to prepare his transition to the senior high where he would be in
[TEACHER]'s classroom. His one-on-one Ed Tech at the time, Lisa Harmon, prepared an
extensive portfolio of [STUDENT]'s skills, habits, needs, etc., and a video of a "day at
school" with [STUDENT] to help teachers, staff and students work with him at the high
school. Notes of the meeting show that substantial component of the meeting was a
discussion of [STUDENT]'s behaviors which were characterized by his speech therapist
as his means of communication and that those who would be dealing with him would
have to have "'calm persistence, not negative consequences. For example, [STUDENT] is
very sensitive to noises. When he covers his ears, this is because he is trying to reduce the
noise. When he covers his ears, this is because he is trying to reduce the noise." After one
visit to the school, Harmon wrote a lengthy complaint to Gartley regarding
[TEACHER]'s apparent disinterest in the strategies used at his previous school and how
her attitude and conditions in her classroom would make it difficult to transition to high
school.
Gartley testified that she believed that [TEACHER] knew about classroom
management techniques used by other teachers and ed techs because she had attended
PET meetings planning for his transition to the high school. She testified that in her
opinion holding [STUDENT]'s head down and pinching his nose to prevent head banging
and mucus blowing were not consistent with the past management techniques and that
these behaviors were best understood as [STUDENT]' s method of communicating. His
attempts to "dig" staff and himself; banging his head against his chair and blowing mucus
were not considered dangers to himself or others and were managed by speaking calmly,
placing a pillow behind his head, or in the case of blowing mucus, turning his wheelchair
in a direction away from staff and students. [TEACHER], like other special education
teachers had received MANDT training on managing aggressive students. Gartley
testified that teachers are taught to avoid situations that might require restraint of
students, and to de-escalate conflict. Gartley testified that no reasonable teacher would
have engaged in the types of restraint [TEACHER] imposed on [STUDENT] on
December 8, 2005-holding his head down would cause him to panic and increase, not
decrease, his agitation; pinching his nose to prevent him from blowing mucus would also
be perceived as a threat by [STUDENT]. Laurine Wilson, called by the Association,
213

testified that she had [STUDENT] several years before when he was just beginning
public school and that he had similar behaviors then. She would protect other students
from his scratching by putting his hands on the tray on his wheelchair, and would put
something soft between his head and the headrest when he banged his head. She
testified that did not use the restraint methods allegedly used by [TEACHER].
[TEACHER] testified that on December 8 she was working at her desk when
Millar escorted [STUDENT] back into the room from the adjacent exercise room. She
testified that Millar was encouraging him to wheel himself to the toilet, but that
[STUDENT] was vocalizing and very noisy. She left her desk and came over to
[STUDENT] who was refusing to wheel himself, thrashing and trying to dig. Because
Millar was behind him and could not get around the bookcase to intervene, she decided to
help. She states that she took his hand and placed it back toward him several times and
[STUDENT] started blowing mucus. She said "no" and "pinched his nose" or touched
his nose to cue him to stop blowing mucus and put her hand behind his head to cue him
to stop banging his head on the headrest. She estimated that the entire episode took less
than fifteen seconds and while she acknowledges that [STUDENT] responded by
resisting her hand on his head, she denied that she pushed his head into his lap or that she
held his nose to prevent him from blowing mucus, contrary to what Millar told Kenney
when interviewed and at the hearing. She testified that she had not tried this technique
prior to December 8, and would normally back off if he was digging or banging his head,
but could not do so in this case because she was there was a desk behind her blocking her
in. She regarded his vocalizations, digging and head banging as behaviors that were
impairing his acceptability in school because ordinarily he would be removed from the
class room when he acted out.
[TEACHER] testified that [STUDENT] was originally to have been placed in her
room the prior year when he transitioned from his previous school. She was aware of his
vocalizations and "digging" from conversations with his previous ed techs and teachers,
including one who reported that she had gotten an infection from being scratched by
[STUDENT], and she "knew behaviors came along with him." She did not seek a
behavioral plan for [STUDENT] at the August PET because the father's interest was in
developing [STUDENT]'s communication skills. She had students who were more
difficult than [STUDENT] during her teaching career and she did not deem [STUDENT]
a good candidate for a behavioral plan because of severe cognitive limitations and lack of
verbal ability. According to [TEACHER], there are "can't" and "won't" kids; "can't"
students, like [STUDENT], whose behaviors can't be changed by behavior plans because
of their limitations, and "won't" students who can change their behavior, but "won't" and
who can benefit from a behavior intervention plan.

214

Relevant Contract Provisions.


ARTICLE 6 TEACHER RIGHTS
A.

PROCEDURE FOR DISCIPLNARY HEARING

Whenever any unit member is required to appear before the Superintendent,


Board or any committee or member thereof in a formal disciplinary hearing concerning
any matter which could adversely affect the continuation of that unit member in his
office, he shall be given prior written notice of the reasons for such meetings or interview
and shall be entitled to have a representative of the Association present to advise him and
represent him during such meeting or interview. Any suspension of a unit member
pending a hearing on the charges shall be with pay.
B.

COMPLAINTS/INVESTIGATIONS

1.
Complaints against any unit member(s) shall be investigated by the
Superintendent of Schools or designee in a timely manner.
2.
The unit member(s) shall be notified of the complaint and given an
opportunity to respond to and/or rebut such complaint prior to the completion of the
investigation and shall have the right to be represented by the Association at any
meetings or conferences regarding such complaints.
3.
If the investigation determines that the complaints or allegations are
unsubstantiated, no records pertaining to these matters shall be placed in the unit
member's personnel file, and the matters shall not be used in any evaluation or other
consideration relating to the unit member's employment.
4.
In any event no complaint will be used in the evaluation of unit member(s)
or other consideration unless the complainant is identified at the time of the complaint
and the complaint is timely investigated.
5.
Prompt oral notice shall be given 10 the unit member(s) of the final
decision regarding the complaint, the written notice shall also be given writing five (5)
days after the effective date thereof. A copy shall be forwarded to the President of the
Association at the time of the written notification to the employee.
6.
Any suspension of a unit member(s) prior to the completion of any
investigation of a complaint against the unit member(s) shall be with pay. (Refer to
Article 8, Section C.)
C.

JUST CAUSE
215

1.
No unit member on continuing contract shall be disciplined, reprimanded,
reduced in rank or compensation, or deprived of any professional advantage including
dismissal or non-renewal of contract, without just cause. Any such action asserted by the
Board, or any agent or representative thereof, shall be subject to the grievance procedure
herein set forth before such action becoming final. By way of clarification, this just cause
provision does not apply to coaching or other extracurricular positions, which are
understood to be annual appointments only.
2.
Any retired teacher who is hired or rehired by the Board may be hired as a
probationary teacher pursuant to 20 A.M.S.R.A. & 13201 for up to a two year
probationary period.

ARTICLE 7 PROTECTION OF TEACHERS


A. Unit members shall not be required to work under unsafe or hazardous conditions
provided by the Board, but nothing herein shall be construed to mean that unit members
shall not act reasonably in the public interest in case of emergency, lack of obedience on
the part of students, or other situations in which there might be some danger to the life,
physical well-being of students, other unit members or to the property of the school
district at all times.
Positions of the Parties/Discussion
Article 6 (C) 1 of the parties' collective bargaining agreement protects unit
members on continuing contracts from being disciplined, dismissed or non-renewed
without just cause, and provides for the arbitrations of disputes over such questions.
Sections A and B of the same article require the employer to give unit members written
notice of formal disciplinary hearings "concerning any matter which could adversely
affect the continuation of a member in his office," recognize the right to have an
Association representative present for such meetings and interviews, and also provides
for certain due process protections during the investigation of complaints or allegations
against unit members.
The question posed by this grievance is whether the Board complied with the
contract and suspended [TEACHER] for just cause. The parties' agreement does not
define just cause, but the common understanding of arbitrators is that to sustain discipline
against an employee protected by a just cause provision the employer: 1) must produce
persuasive evidence that the employee did the act (or failed to act); 2) in violation of
reasonable rules of conduct or performance standards; 3) that the employee knew, or
should have known, that their conduct violated such rules or standards; 4) that the
employee was treated fairly and afforded due process during the disciplinary process; 5)
216

that the discipline imposed was corrective, when appropriate, and reasonably
proportionate to the seriousness or frequency of the offense. The Board argues that the
facts evinced at the hearing show there was just cause to suspend [TEACHER] for
physically restraining [STUDENT] by pushing his head into his lap, pinching his nostrils
and verbally rebuking him actions that she knew or should have known, were
inconsistent with [STUDENT]'s IEP, and basic standards of professional conduct.
Although denied by [TEACHER], the Board argues that the testimony of Miller,
[WITNESS 1], eyewitnesses to the incident, is credible conclusive evidence that
[TEACHER] was guilty of the complained of actions.
Evidence of Misconduct in violation of rules or standards. [WITNESS 1] reported that
he saw the teacher "pushing" [STUDENT]'s head down. Likewise, Miller told Kenney
that [TEACHER] was holding his head down with enough force to prevent it from
coming back to the headrest. [TEACHER]'s version of her conduct was inconsistent and
not credible. The Arbitrator should reject the attempt to discredit [WITNESS 2]'s
testimony on the grounds that he harbored animus toward her because of prior conflicts.
The Board did not rely solely on [WITNESS 2]'s reports, but interviewed [WITNESS 1],
who brought the incident to the attention of the school's Principal and also Miller, both of
whom had no reason to fabricate or exaggerate their observations. After reviewing the
evidence as a whole, I find that it was unlikely that [WITNESS 2] actually witnessed the
events he reported to Kenney, but that [WITNESS 1]'s and Miller's testimony was
credible, consistent and sufficiently detailed to support the charges as detailed below.
The Association argues that what the students and Miller observed was
[TEACHER] using reasonable methods to control [STUDENT]'s disruptive behavior by
preventing him from banging his head, flailing his arms, and blowing mucus on himself.
The Association argues that the method she used was exaggerated by the student who
witnessed the scene and if not comprehended by [STUDENT]'s IEP, the fault lies with
Gartley who knew about [STUDENT]'s disruptive behaviors but signed off on an IEP at
the beginning of the school year which did not include any directions on how to cope
with [STUDENT]'s disruptive and dangerous conduct. The Association does not
disavow the fact that [TEACHER] used methods to restrain [STUDENT] not in his IEP,
but it argues that it is inherently unfair and contrary to just cause to charge [TEACHER]
for using prudent means to prevent [STUDENT] from hurting himself and others where
the school system has failed its legal responsibility to develop interventions to cope with
behaviors that were interfering with his learning. I find that this method of restraining
[STUDENT] was not part of his IEP and was inconsistent with techniques for managing
his behaviors that were well known to [TEACHER] by her own admission. Her
testimony shows that she opted not to pursue behavioral interventions at the first PET
meeting in August 2005 despite having observed [STUDENT] in her classroom in May
2004 when planning for his transition to high school was underway and in another
217

teacher's classroom the prior year and she did not deny actual knowledge of his
behavioral problems. She knew from talking to his previous Ed Tech that he had a
problem with scratching staff when he was upset. She knew that his vocalizing and
thrashing were managed by use of distractors, removing him from proximity to other
students and speaking quietly to him. [TEACHER] testified that when she worked
directly with [STUDENT] when Miller was absent, she used the same techniques for
coping with [STUDENT]'s outbursts and would remove him from the classroom when he
thrashed about, banged his head or blew mucus. She did not disavow shared
responsibility for developing and implementing [STUDENT]'s education plan and
acknowledged she could have raised the need for a behavior plan if she thought it was
appropriate. [TEACHER] testified that the father's main interest at the meeting was
improving [STUDENT]'s ability to communicate and implied that she did not want to
raise another issue at the PET. She also stated that in her experience behavioral plans did
not work with nonverbal students and were ''impossible" to get for students.
The Association's argument that [TEACHER]'s use of unapproved aversive
techniques was reasonable because there was no behavioral plan and/or she was unaware
of the methods being used by other teachers and staff must be rejected as unsupported by
the weight of the evidence. I also find that because of her prior experience with
[STUDENT] and knowledge of his IEP and accepted techniques for managing or
mitigating his objectionable conduct, [TEACHER] knew and understood that nonaversive techniques were used exclusively in managing his behavior. There is evidence
that [TEACHER] did not have full confidence that those techniques were useful or would
aid [STUDENT]'s successful integration into the school or his ability to improve his life
skills. Gartley and Fitzpatrick testified that use of aversive behavior modification
techniques to control a developmentally disabled student was inappropriate and
inconsistent with current special education standards and teaching, as well as being
inconsistent with State education regulations (C.33, 5). Nonrestrictive methods that
were designed to accommodate [STUDENT]'s mental status appear to have been
successful and account for the lack of extended discussion of behavioral issues at the
August PET. There is no doubt that the restraining [STUDENT] in the fashion described
by Miller and the student caused him psychological distress and exacerbated his
behaviors, and fell below the standards acceptable to the Board.
Pinching [STUDENT]'s Nose. The Board concluded that [TEACHER] had pinched
[STUDENT]'s nose to prevent him from blowing mucus which occurred when
[STUDENT] became more agitated after [TEACHER] attempted to restrain his head. At
the hearing, [TEACHER] offered various versions of this behavior asserting that she did
not pinch [STUDENT]'s nostrils, but rather touched him on the nose in a non restraining
manner to cue him to stop blowing mucus. In prediscipline interviews with Kenney and
Fitzpatrick, [TEACHER] described her own behavior as "pinching" [STUDENT]'s
218

nostrils with the intention of stopping him from blowing mucus. Miller testified that the
grievant pinched his nose shut after he became agitated when she tried to restrain his
head and then started blowing mucus and increased the volume of his vocalizations a
known behavioral reaction of [STUDENT] when he was frustrated or angry. While
pinching his nose, [TEACHER] used a stern, intimidating voice and repeatedly said "no,
no, no" while telling him to go to the bathroom as directed.
As with restraining [STUDENT]'s head, the Association does not deny that the
action occurred, but argues that without a behavioral intervention plan, [TEACHER] took
prudent steps to prevent [STUDENT] from ejecting mucus on himself, staff, and other
students. That nasal mucus contains germs and is a potentially infectious bodily fluid is
demonstrated by the "Universal Precautions" guidelines published by the State of Maine
(Association Ex 1) requiring employers to have a training program and management plan
for handling bodily fluids, including saliva and nasal discharges. The Association argues
that the Board entirely ignored the dangers posed by [STUDENT]'s conduct, and
accepted the Superintendent's conclusion that [STUDENT]'s actions did not create a risk
of harm where the plain facts and common sense would compel a teacher to take steps to
minimize the risks [STUDENT] posed to others. Without a behavioral plan, the
Association concludes that [TEACHER] acted properly to prevent on minimize staff and
student exposure to [STUDENT]'s bodily fluids.
As noted above, this argument rests on assumptions at odds with the evidence:
[TEACHER] had experience with [STUDENT]'s behavioral issues when he visited her
classroom for transition planning; she sat on the team reviewing his IEP at the start of the
school year and was given full opportunity to propose a behavioral plan consistent with
his educational needs but opted not to because of her conclusion that [STUDENT]'s
mental limits made a behavioral plan unworkable; and crucially, she had used the same
non-aversive techniques as other teachers and staff to manage [STUDENT]'s
objectionable behaviors prior to December 8. There is no evidence that prior to
December 8 [TEACHER] deemed [STUDENT]'s behaviors sufficiently threatening to his
health or that of others to warrant a formal behavior intervention plan and the
Association's suggestion that her actions should be excused because of her concerns
about communicable diseases, etc. is simply misplaced. As with the decision to restrain
[STUDENT]'s head, the objective of pinching his nose (while repeating "no, no, no") was
to apply aversive techniques to induce cooperation or at least submission, and this
conduct also failed to meet the standards of the State, Board and was not respectful of
[STUDENT]'s person and dignity.
Due process and a Fair Investigation
In addition to the argument that the grievant lacked notice that she could be
disciplined for her conduct toward [STUDENT], addressed fully above, the Association
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argues that the school's investigation of the charges was unfair and that Kenney's
questioning of [TEACHER] violated contractual protections because she was not
provided "prior written notice" required by Article 6.A. According to the Association,
Kenney, who did not have any special education experience, naively accepted the
allegations of [WITNESS 1] and [WITNESS 2], and proceeded with the investigation
based on a distorted understanding of the facts which he never tested once he read
[STUDENT]'s IEP and assumed that [TEACHER]'s actions were inappropriate and
unreasonable because the IEP was silent on how to manage his behavior.
My reading of the facts related to the investigation of [WITNESS 1]'s charges
does not support the Association's conclusions.

[Arbitrator explains conclusion]


Progressive Discipline
The Board argues that a thirty-day suspension was appropriate because
[TEACHER] is a highly trained veteran teacher and her actions violated basic standards
of professional conduct. She acted in anger and exercised poor judgement and chose to
ignore strategies that worked for [STUDENT] and elected to use techniques that caused
[STUDENT] pain, distress and ignored his right to be treated with dignity and respect.
The Board argues the evidence introduced by the Association in an attempt to show that
[TEACHER] was punished more severely than a probationary teacher charged with
mistreating his own child misses the mark because while that teacher was placed on
administrative leave until the end of the year, his contract was not renewed, in effect
terminating his employment with the Board. The Association presented evidence
regarding the case of Teacher Two, a probationary special education teacher, who had an
altercation with his high school aged son resulting in the teacher placing a submission
hold of some sort on the son and physically forcing him to the ground while demanding
that the boy stop resisting. An Ed Tech who witnessed this and other incidents between
the father and son, reported what she observed to Principal Bouchard who told her he
would investigate. After a week without being contacted, she reported the incident to the
President of the Association. The investigation was reopened and ultimately the
probationary teacher was reprimanded. After review of the reprimand, Superintendent
Fitzpatrick replaced the reprimand with an administrative paid suspension for the balance
of the school year and the teacher's contract was not reviewed although he was paid
through the end of the contract year. The Association points to disparities in treatment of
the two teachers: [TEACHER] was accused of abusing [STUDENT] for restraining his
220

head and holding his nose while the second teacher was only reprimanded initially when
it was apparent he had intentionally caused his son physical pain. The Association argues
that the Board and school system have acted capriciously and arbitrarily and there was no
justification for the wildly disparate punishment given [TEACHER], whose conduct
toward [STUDENT] was arguably a reasonable approach to student endangering himself
and others, compared to that issued Teacher Two who indisputably abused his son in
class.
I have considered the Association's argument alleging disparate treatment and I
am not persuaded that management's differential treatment of the two incidents is
evidence of bias, animus or arbitrariness. As I understand the facts surrounding the two
incidents, it is apparent that there were differences in the initial approach the school took
toward the allegations made against the probationary teacher. It appears that there was
some reluctance to pursue those allegations because while they occurred on school
property, the teacher/student relationship was confounded by the parent/child element
which may account for the principal's lack of zeal in pursuing the complaint of the
teacher's aide. More to the point, the school system's decision to place the teacher on a
paid leave and to not renew his contract does not strike me as a comparison favorable to
the Association's case. Had the end result been simply reprimand for Teacher Two the
Association's case would certainly be stronger, but where in the end, Teacher Two's
employment ended, the argument for disparate treatment fails.
With respect to the degree of discipline imposed, the Board's explanation for its
decision not to follow strictly principles of progressive discipline is reasonable. While I
would not agree that only a lengthy suspension would be sufficient deterrent to prevent
similar misconduct, the Board's decision is not unreasonable or unrelated to the need for
consistent, coherent enforcement of rules. Throughout the discussion of the grievant's
conduct the Board focused exclusively on her lack of judgement and state of mind when
she restrained [STUDENT]. ("In our judgement your suspension was warranted in light
of the fact that you knew your conduct was wrong, that it was performed in anger, and it
was inflicted upon one of our most vulnerable students."-March 15, 2006, Board of
Directors Level III Grievance Answer, Joint Ex. 3) The Board also appears to have
reacted strongly because of its conclusion that as a veteran special education teacher,
[TEACHER] had long experience working with the state's special education laws and
regulations. She also knew and understood that [STUDENT] had a range of behaviors
that were managed essentially by passive techniques and that other teachers and staff had
successfully incorporated him into their classrooms and carried out his educational
program without aversive techniques. I am persuaded that this was an isolated incident
and an unfortunate blemish on a long career of service to students needing special
education services. I believe that even without a lengthy and costly suspension it would
be highly unlikely that the grievant would engage in similar conduct, however I do not
find that the Board acted in haste or for purely punitive reasons unrelated to its goal of
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providing a safe educational environment for all pupils in the district. Because the
suspension, and other corrective measures, were reasonably related to the educational
goals of the district, comparable to discipline issued in similar cases and were invoked for
corrective reasons, I decline to disturb the degree of discipline imposed on [TEACHER].
In summary, for the reasons stated above I find there is persuasive evidence that
the grievant unnecessarily and impulsively used aversive behavior modification
techniques ascribed to her by the Board. There is convincing evidence that [TEACHER]
knew that the methods she used were not prescribed by the student's IEP and were
inconsistent with the understanding that the behaviors she sought to stop were part of the
student's limited communication skills and his disability, as well as being prohibited
under State education laws absent a written IEP. The investigation of the charges was
comprehensive, conducted openly and with the grievant's fore knowledge of the charges
and possible consequences were she found to have acted as described. The suspension
was imposed after consideration of the facts surrounding the incident, the gravity of her
conduct toward the student and was not excessive in light of the Board's need to enforce
its rules and those of the State. Based on all evidence and after careful consideration of
the contract and arguments, I find there was just cause to suspend [TEACHER], to order
her to undergo a risk assessment and a focused assistance program. Accordingly, the
grievance must be denied.

Award
The grievance is denied.
Respectfully submitted,

Timothy J. Buckalew, Esq.

222

OBERTI v. BOARD OF EDUCATION


OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT
United States Court of Appeals, Third Circuit
995 F.2d 1204 (3rd Cir. 1993)

Frank L. Laski (argued), Penolope A. Boyd, Public Interest Law Center of Philadelphia,
Philadelphia, PA, for appellees.
Thomas J. Murphy (argued), Marlton, N.J., for appellants.
BECKER, Circuit Judge, delivered the opinion of the Court, in which Judges Greenberg
and Weis joined.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400-1485
(formerly the Education for All Handicapped Children Act), provides that states receiving
funding under the Act must ensure that children with disabilities are educated in regular
classrooms with nondisabled children to the maximum extent appropriate. 20 U.S.C.
1412(5)(B). Plaintiff-appellee Rafael Oberti is an eight year old child with Downs syndrome
who was removed from the regular classroom by defendant-appellant Clementon School District
Board of Education (the School District) and placed in a segregated special education class. In
this appeal, we are asked by the School District to review the district courts decision in favor of
Rafael and his co-plaintiff parents Carlos and Jeanne Oberti concerning Rafaels right under
IDEA to be educated in a regular classroom with nondisabled classmates. This court has not
previously had occasion to interpret or apply the mainstreaming requirement of IDEA (footnote
omitted).
We construe IDEAs mainstreaming requirement to prohibit a school from placing a child
with disabilities outside of a regular classroom if educating the child in the regular classroom,
with supplementary aids and support services, can be achieved satisfactorily. In addition, if
placement outside of a regular classroom is necessary for the child to receive educational benefit,
the school may still be violating IDEA if it has not made sufficient efforts to include the child in
school programs with nondisabled children whenever possible. We also hold that the school
bears the burden of proving compliance with the mainstreaming requirement of IDEA, regardless
of which party (the child and parents or the school) brought the claim under IDEA before the
district court.
Although our interpretation of IDEAs mainstreaming requirement differs somewhat
from that of the district court, we will affirm the decision of the district court that the School

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District has failed to comply with IDEA. More precisely, we will affirm the district courts order
that the School District design an appropriate education plan for Rafael Oberti in accordance with
IDEA, and we will remand for further proceedings consistent with this opinion. We do not reach
the question, decided by the district court in favor of Rafael and his parents Carlos and Jeanne
Oberti, whether 504 of the Rehabilitation Act also supports relief, since, in view of our decision
under IDEA, resolution of that issue is not necessary to the result.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Rafael Obertis educational history.
Rafael is an eight year old child with Downs syndrome, a genetic defect that severely
impairs his intellectual functioning and his ability to communicate. Now and throughout the
period in question, Rafael and his parents have lived within the Clementon School District, in
southern New Jersey. Prior to his entry into kindergarten, Rafael was evaluated in accordance
with federal and state law by the School Districts Child Study Team (the Team). See 20
U.S.C. 1412(c); N.J.A.C. 6:28-3.1 - 6:28-3.4. [2] Based on its evaluation, the Team
recommended to Rafaels parents that he be placed in a segregated special education class located
in another school district for the 1989-90 school year. The Obertis visited a number of special
classes recommended by the School District and found them all unacceptable. Thereafter the
Obertis and the School District came to an agreement that Rafael would attend a developmental
kindergarten class (for children not fully ready for kindergarten) at the Clementon Elementary
School (Rafaels neighborhood school) in the mornings, and a special education class in another
school district in the afternoons.
The Individualized Education Plan (IEP) developed by the School District for Rafael for
the 1989-90 school year, see 20 U.S.C. 1401(19), 1414(a)(5); N.J.A.C. 6:28-3.6; infra n.16,
assigned all of Rafaels academic goals to the afternoon special education class. In contrast, the
only goals for Rafael in the morning kindergarten class were to observe, model and socialize with
nondisabled children.
While Rafaels progress reports for the developmental kindergarten class show that he
made academic and social progress in that class during the year, Rafael experienced a number of
serious behavioral problems there, including repeated toileting accidents, temper tantrums,
crawling and hiding under furniture, and touching, hitting and spitting on other children. On
several occasions Rafael struck at and hit the teacher and the teachers aide. These problems
disrupted the class and frustrated the teacher, who consulted the school psychologist and other
members of the Child Study Team to discuss possible approaches to managing Rafaels behavior
problems. The teacher made some attempts to modify the curriculum for Rafael, but Rafaels IEP
provided no plan for addressing Rafaels behavior problems. Neither did the IEP provide for

224

special education consultation for the kindergarten teacher, or for communication between the
kindergarten teacher and the special education teacher. In March of 1990, the School District
finally obtained the assistance of an additional aide, which had been requested by the parents
much earlier in the school year, but the presence of the extra aide in the kindergarten class did
little to resolve the behavior problems. According to Rafaels progress reports for the afternoon
special education class, and as the district court found, Rafael did not experience similar behavior
problems in that class.
At the end of the 1989-90 school year, the Child Study Team proposed to place Rafael
for the following year in a segregated special education class for children classified as educable
mentally retarded. Since no such special education class existed within the Clementon School
District, Rafael would have to travel to a different district. The Teams decision was based both
on the behavioral problems Rafael experienced during the 1989-90 school year in the
developmental kindergarten class and on the Teams belief that Rafaels disabilities precluded
him from benefiting from education in a regular classroom at that time.
The Obertis objected to a segregated placement and requested that Rafael be placed in the
regular kindergarten class in the Clementon Elementary School. The School District refused, and
the Obertis sought relief by filing a request for a due process hearing. [3] The parties then agreed
to mediate their dispute, pursuant to New Jersey regulations, as an alternative to a due process
hearing. See N.J.A.C. 6:28-2.6. Through mediation, the Obertis and the School District came to
an agreement that for the 1990-91 school year Rafael would attend a special education class for
students labeled multiply handicapped in a public elementary school in the Winslow Township
School District (Winslow), approximately 45 minutes by bus from Rafaels home. As part of
the agreement, the School District promised to explore mainstreaming possibilities at the
Winslow school and to consider a future placement for Rafael in a regular classroom in the
Clementon Elementary School. [4] The special education class in Winslow that Rafael attended
during the 1990-91 school year was taught by an instructor and an instructional aide and included
nine children. Although Rafael initially exhibited some of the same behavioral problems he had
experienced in the Clementon kindergarten class, his behavior gradually improved: He became
toilet trained and his disruptiveness abated. Rafael also made academic progress. However, by
December of 1990, Rafaels parents found that the School District was making no plans to
mainstream Rafael. The Obertis also learned that Rafael had no meaningful contact with
nondisabled students at the Winslow school. [5]
* * *
C. The proceedings before the district court
* * *

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In May of 1992, the district court held a three-day bench trial, receiving new evidence
from both parties to supplement the state agency record. See 20 U.S.C. 1415(e)(2). [11] The
Obertis presented the testimony of two additional experts who had not testified in the
administrative proceedings: Dr. Lou Brown, a professor of special education at the University of
Wisconsin, and Amy Goldman, an expert in communication with children with developmental
disabilities.
Dr. Brown, who over the past twenty years has been a consultant to hundreds of school
districts throughout the country regarding the education of severely disabled children, interviewed
and evaluated Rafael on two occasions, and reviewed Rafaels educational records, as well as a
set of videotapes showing Rafael at age seven working with his mother, being taught by a
language professional, and participating in a Sunday school class with nondisabled children. Dr.
Brown testified that he saw no reason why Rafael could not be educated at that time in a regular
classroom with appropriate supplementary aids and services. He told the court that if such aids
and services were provided, he had no reason to believe that Rafael would be disruptive at that
time (more than two years after the experience in the Clementon kindergarten class). He also
stated that integrating Rafael in a regular class at his local school would enable Rafael to develop
social relationships with nondisabled students and to learn by imitating appropriate role models,
important benefits which could not be realized in a segregated, special education setting.
Dr. Brown outlined a number of commonly applied strategies which could be used, in
combination, by the School District to integrate Rafael in a regular classroom, including: (1)
modifying some of the curriculum to accommodate Rafaels different level of ability; (2)
modifying only Rafaels program so that he would perform a similar activity or exercise to that
performed by the whole class, but at a level appropriate to his ability; (3) parallel instruction,
i.e., having Rafael work separately within the classroom on an activity beneficial to him while the
rest of the class worked on an activity that Rafael could not benefit from; and (4) removing
Rafael from the classroom to receive some special instruction or services in a resource room,
completely apart from the class. Dr. Brown explained that with proper training, a regular teacher
would be able to apply these techniques and that, in spite of Rafaels severe intellectual disability,
a regular teacher with proper training would be able to communicate effectively with Rafael. Dr.
Brown also testified that many of the special educational techniques applied in the segregated
Winslow class could be provided for Rafael within a regular classroom.
Based on her evaluation of Rafael and her expertise in developing communication skills
for disabled children, Amy Goldman testified that the speech and language therapy Rafael needs
could be most effectively provided within a regular classroom; otherwise, she explained, a child
with Rafaels disabilities would have great difficulty importing the language skills taught in a
separate speech therapy session into the regular class environment, where those skills are most
needed. She testified that language and speech therapy could easily be provided by a therapist

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inside the regular class during ongoing instruction if the therapist were able to collaborate ahead
of time with the instructor regarding the upcoming lesson plans.
In addition, Dr. McGregor reaffirmed her prior opinion in the administrative proceedings
that placement in a regular classroom was not only feasible but preferable for Rafael, see supra
n.9. Further, she testified that, given the resources and expertise available to public schools in
New Jersey, the School District should be able to design an inclusive program for Rafael with
assistance from professionals who have experience integrating children with disabilities in regular
classes.
The Obertis also offered the videotape evidence that had been reviewed by Dr. Brown,
the testimony of Jeanne Oberti, [12] and the testimony of Joanne McKeon, the mother of a nine
year old child with Downs Syndrome who had been successfully mainstreamed in a regular
classroom.
To counter the Obertis experts, the School District offered Dr. Stanley Urban, a
professor of special education at Glassboro State College. After observing Rafael in a special
class for perceptually impaired children at the St. Lukes School (a private school that Rafael
attended for two months in the fall of 1991), observing Rafael for two hours in his home,
reviewing the programs available at the Clementon Elementary School, reviewing Rafaels
education records, and reviewing the written evaluations of the Obertis experts, Dr. Urban
testified that in his opinion Rafael could not be educated satisfactorily in a regular classroom, and
that the special education program at Winslow was appropriate for Rafael. [13]
More specifically, Dr. Urban testified that Rafaels behavior problems could not be
managed in a regular class, that a regular teacher would not be able to communicate with a child
of Rafaels ability level, and that it would be difficult if not impossible to adapt a first grade-level
curriculum to accommodate Rafael without adversely affecting the education of the other children
in the class. Dr. Urban, however, also stated that if Rafael did not have serious behavior
problems, integration in a regular classroom might be feasible.
The School District presented several additional witnesses, including the teacher and
teachers aide of a non-academic summer school class for elementary school children which
Rafael attended in the summer of 1991, and the teacher of the St. Lukes class, which Rafael
attended for two months in the fall of 1991. These witnesses recounted examples of Rafaels
disruptive behavior, including pushing and hitting other children, disobeying and running away
from the instructors, and throwing books.
In August of 1992, after reviewing all of this new evidence along with the evidence that
had been adduced at the administrative proceedings, the district court issued its decision, finding

227

that the School District had failed to establish by a preponderance of the evidence that Rafael
could not at that time be educated in a regular classroom with supplementary aids and services.
The court therefore concluded that the School District had violated IDEA. Oberti v. Board of
Educ. of Clementon School Dist., 801 F. Supp. 1392 (D.N.J. 1992) (Oberti II).
II. THE MAINSTREAMING REQUIREMENT OF IDEA
The Education for All Handicapped Children Act (IDEAs predecessor statute) was
enacted in 1975 in response to a Congressional finding that more than half of the children with
disabilities in the United States do not receive appropriate educational services. 20 U.S.C.
1400(b)(3); see also S. Rep. No. 168, 94th Cong., 1st Sess. 8 (1975), reprinted in 1975
U.S.C.C.A.N. 1425, 1432. The Act provides federal funds to participating states for the
education of children with disabilities. [15] As a condition of receiving these funds, states must
have in effect a policy that assures all children with disabilities the right to a free appropriate
public education. 20 U.S.C. 1412(1).
In Board of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d
690 (1982), the Supreme Court held that a free appropriate public education under the Act
consists of educational instruction specially designed to meet the unique needs of the
handicapped child, supported by such services as are necessary to permit the child to benefit
from the instruction. This court in turn interpreted Rowley to require the state to offer children
with disabilities individualized education programs that provide more than a trivial or de minimis
educational benefit. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 180-85
(3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989) (footnote
omitted). In addition to the free appropriate education requirement, IDEA provides that states
must establish
procedures to assure that, to the maximum extent appropriate,
children with disabilities are educated with children who are not
disabled, and that special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment
occurs only when the nature and severity of the disability is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily . . . .
20 U.S.C. 1412(5)(B). [17] As numerous courts have recognized, this provision sets
forth a strong congressional preference for integrating children with disabilities in regular
classrooms. See, e.g., Devries v. Fairfax County School Bd., 882 F.2d 876, 878 (4th Cir. 1989);
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989); A.W. v. Northwest R-1
School Dist., 813 F.2d 158, 162 (8th Cir. 1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th

228

Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 196, 78 L. Ed. 2d 171 (1983); Board of Educ.
Sacramento City Unified School Dist. v. Holland, 786 F. Supp. 874, 878 (E.D. Cal. 1992).
One of our principal tasks in this case is to provide standards for determining when a
schools decision to remove a child with disabilities from the regular classroom and to place the
child in a segregated environment violates IDEAs presumption in favor of mainstreaming. This
issue is particularly difficult in light of the apparent tension within the Act between the strong
preference for mainstreaming, 20 U.S.C. 1412(5)(B), and the requirement that schools provide
individualized programs tailored to the specific needs of each disabled child, 20 U.S.C. 1401,
1414(a)(5). See Daniel R.R., 874 F.2d at 1044; Greer v. Rome City School Dist., 950 F.2d 688,
695 (11th Cir. 1991). [18]
The key to resolving this tension appears to lie in the schools proper use of
supplementary aids and services, 20 U.S.C. 1412(5)(B), which may enable the school to
educate a child with disabilities for a majority of the time within a regular classroom, while at the
same time addressing that childs unique educational needs. We recognize, however, that
regular classes . . . will not provide an education that accounts for each childs particular needs
in every case. Daniel R.R., 874 F.2d at 1044; see also Devries, 882 F.2d at 878-80 (holding that
17 year old autistic student could not benefit from monitoring regular high school academic
classes and was appropriately placed at county vocational center).
We also recognize that in assuring that the requirements of the Act have been met,
courts must be careful to avoid imposing their view of preferable educational methods upon the
States. Rowley, 458 U.S. at 207, 102 S. Ct. at 3051. We are mindful that the Act leaves
questions of educational policy to state and local officials. Id. On the other hand, as the Supreme
Court recognized in Rowley, the Act specifically requires participating States to educate
handicapped children with nonhandicapped children whenever possible. Rowley, 458 U.S. at
202, 102 S. Ct. at 3049; see also Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 597, 98 L. Ed.
2d 686 (1988). [19] It is our duty to enforce that statutory requirement. See Polk, 853 F.2d at 184
(We do not read the Supreme Courts salutary warnings against interference with educational
methodology as an invitation to abdicate our obligation to enforce the statutory provisions [of the
Act].).
In Daniel R.R., the Fifth Circuit derived from the language of 20 U.S.C. 1412(5)(B) a
two-part test for determining whether a school is in compliance with IDEAs mainstreaming
requirement. First, the court must determine whether education in the regular classroom, with
the use of supplementary aids and services, can be achieved satisfactorily. 874 F.2d at 1048. [20]
Second, if the court finds that placement outside of a regular classroom is necessary for the child
to benefit educationally, then the court must decide whether the school has mainstreamed the
child to the maximum extent appropriate, i.e., whether the school has made efforts to include the

229

child in school programs with nondisabled children whenever possible. Id. We think this twopart test, which closely tracks the language of 1412(5)(B), is faithful to IDEAs directive that
children with disabilities be educated with nondisabled children to the maximum extent
appropriate, 20 U.S.C. 1412(5)(B), and to the Acts requirement that schools provide
individualized programs to account for each childs specific needs, 20 U.S.C. 1401,
1414(a)(5). See Greer, 950 F.2d at 696 (adopting the Daniel R.R. test); Liscio v. Woodland Hills
School Dist., 734 F. Supp. 689 (W.D. Pa. 1989) (same).
* * *
In applying the first part of the Daniel R.R. test, i.e., whether the child can be educated
satisfactorily in a regular classroom with supplementary aids and services, the court should
consider several factors. First, the court should look at the steps that the school has taken to try to
include the child in a regular classroom. See Greer, 950 F.2d at 696; Daniel R.R., 874 F.2d at
1048. As we have explained, the Act and its regulations require schools to provide
supplementary aids and services to enable children with disabilities to learn whenever possible in
a regular classroom. See 20 U.S.C. 1401(17), 1412(5)(B); 34 C.F.R. 300.551(b)(2). The
regulations specifically require school districts to provide a continuum of placements to meet the
needs of handicapped children. 34 C.F.R. 300.551(a). The continuum must make provision
for supplementary services (such as resource room [22] or itinerant instruction) to be provided in
conjunction with regular class placement. 34 C.F.R. 300.551(b).
Accordingly, the school must consider the whole range of supplemental aids and
services, including resource rooms and itinerant instruction, Greer, 950 F.2d at 696, speech and
language therapy, special education training for the regular teacher, behavior modification
programs, or any other available aids or services appropriate to the childs particular disabilities.
The school must also make efforts to modify the regular education program to accommodate a
disabled child. See 34 C.F.R. Part 300, App. C. Question 48. If the school has given no serious
consideration to including the child in a regular class with such supplementary aids and services
and to modifying the regular curriculum to accommodate the child, then it has most likely
violated the Acts mainstreaming directive. The Act does not permit states to make mere token
gestures to accommodate handicapped students; its requirement for modifying and supplementing
regular education is broad. Daniel R.R., 874 F.2d at 1048; see also Greer, 950 F.2d at 696.
A second factor courts should consider in determining whether a child with disabilities
can be included in a regular classroom is the comparison between the educational benefits the
child will receive in a regular classroom (with supplementary aids and services) and the benefits
the child will receive in the segregated, special education classroom. The court will have to rely
heavily in this regard on the testimony of educational experts. Nevertheless, in making this
comparison the court must pay special attention to those unique benefits the child may obtain

230

from integration in a regular classroom which cannot be achieved in a segregated environment,


i.