Filed: Jul. 16, 2012
Latest Update: Feb. 12, 2020
Summary: SEBASTIAN M.;services when he was three years old.Education., 675 F.3d at 34. 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.Philip school system were inappropriate for Sebastian.hearing officer.
United States Court of Appeals
For the First Circuit
No. 11-1489
SEBASTIAN M.; LISA M., as Legal Guardian and Parent;
MICHAEL M., as Legal Guardian and Parent,
Plaintiffs, Appellants,
v.
KING PHILIP REGIONAL SCHOOL DISTRICT;
MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION,
and its Bureau of Special Education Appeals,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin and Lipez, Circuit Judges,
and Smith,* District Judge.
D. Luray Wallace for appellants.
Regina Williams Tate for appellee King Philip Regional School
District.
Amy Spector for appellee Massachusetts Department of
Elementary and Secondary Education.
July 16, 2012
*
Of the District of Rhode Island, sitting by designation.
LIPEZ, Circuit Judge. This case involves a claim under
the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§§ 1400-1491, which requires that students with disabilities
receive a free appropriate public education ("FAPE") in the least
restrictive environment possible. See 20 U.S.C. § 1412(a)(1), (5).
Sebastian M. is a disabled young man with mental retardation who
was enrolled in a special education program run by the King Philip
Regional School District. When he was twenty years old, his
parents became dissatisfied with his public education and placed
him in a private residential facility. An administrative hearing
officer determined that Sebastian's parents were not entitled to
recover the costs of Sebastian's private education, and the federal
district court upheld that decision. See Sebastian M. v. King
Philip Reg'l Sch. Dist., 774 F. Supp. 2d 393, 408-09 (D. Mass.
2011). We affirm.
I.
We set forth the background facts as supportably found by
the district court. See Lessard v. Wilton-Lyndeborough Coop. Sch.
Dist., 518 F.3d 18, 21 (1st Cir. 2008); C.G. ex rel. A.S. v. Five
Town Cmty. Sch. Dist.,
513 F.3d 279, 282 (1st Cir. 2008).
Sebastian was born in 1986 and began receiving special education
services when he was three years old. These services continued
after he entered the King Philip public school system, which each
year developed an individualized education program ("IEP") for him,
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as required by the IDEA. See 20 U.S.C. § 1412(a)(4). In 1998,
when Sebastian was twelve, he was transferred to the Bi-County
Educational Collaborative ("BICO"), an organization established
pursuant to Mass. Gen. Laws ch. 40, § 4E, to attend to special
needs students from several public school districts. The King
Philip school system remained responsible for Sebastian's education
throughout his time at BICO and continued to develop his annual
IEPs in consultation with his parents and educators. At BICO,
Sebastian received vocational training through the Work Lab I, Work
Lab II, and Life Roles Transition programs. His work experiences
included assembling pizza boxes at a restaurant, performing light
janitorial work, stamping paychecks, and helping out at an autobody
shop. Sebastian also received instruction in basic mathematics and
personal hygiene, and he learned to use the Dial a Ride program to
reach his work sites.1
In 1998, Sebastian's first year at BICO, he displayed
"significant difficulties with several aspects of fine motor
functioning," according to an occupational therapy assessment. A
reevaluation conducted in the spring of 2002, when Sebastian was
sixteen, indicated that his "active upper extremity range of motion
and strength [we]re both within functional limits" and that he was
"progressing nicely" with typing skills. However, Sebastian
1
Dial a Ride is a community-based public transportation
service for elderly and disabled passengers.
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continued to demonstrate visual-motor and visual-spatial deficits,
as well as deficits in receptive language skills. His language
arts abilities were equivalent to a first- or second-grade level,
and he operated at a third-grade level in mathematics.
Progress reports for the 2002-2003, 2003-2004, and 2004-
2005 school years showed that Sebastian was making steady progress
pursuant to his IEPs. For example, in November 2003, Sebastian was
able to decode words at a fourth-grade level, and could write a
five- or six-sentence paragraph with the use of a graphic organizer
and teacher assistance. He was then seventeen years old. By June
2004, Sebastian was able to use inferential logic, with some
support, to predict outcomes and solve problems, and he was
"show[ing] improvement in his ability to sound out long, unfamiliar
words." He also was making strides in "counting out his [lunch]
money, and figuring out what change he should receive."
Evaluations conducted in May 2005 noted that Sebastian
had "a difficult time with both body and spatial awareness" and
that his "visual tracking of a moving manipulative [was] very
poor." However, Sebastian was comfortable using public
transportation to reach his work sites, scored at a fourth-grade
level in word recognition and computational skills, and had learned
to identify thirty-nine of forty "safety signs," such as "wet
paint" and "fire alarm." In addition, he had "demonstrated slight
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gains over previous testing" in receptive language skills and had
made a "two year jump in pragmatic language skills."
Despite these gains, Sebastian's parents became
frustrated by what they perceived as poor communication from BICO,
and they questioned why Sebastian was unable to replicate at home
the achievements described in his progress reports. They also
worried that Sebastian was not developing independent living skills
and that his increasingly aggressive behavior at home was
attributable to inadequate supervision at BICO.
After the 2004-2005 academic year, Sebastian's parents
began pressing the King Philip school system to remove Sebastian
from BICO and place him in a year-round residential program.
Beginning in June 2005, they rejected a series of IEPs proposed by
the school system that offered alternative accommodations, such as
increased emphasis on independent living skills, weekly
occupational therapy sessions, and after-school activities. When
negotiations broke down in December 2006, Sebastian's parents
notified the school system that they intended to unilaterally
withdraw Sebastian from BICO. On January 2, 2007, Sebastian began
attending the Cardinal Cushing School, a private residential
facility. Sebastian's parents then invoked their statutory right
to an administrative due process hearing before the Massachusetts
Bureau of Special Education Appeals ("BSEA"), see 20 U.S.C.
§ 1415(f)(1)(A), seeking reimbursement for the costs of Sebastian's
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private education, as well as compensatory services they claimed
were necessitated by the failures of the King Philip school system.
The school system answered that Sebastian's parents were not
entitled to the relief sought, because its proposed IEPs had
offered Sebastian a FAPE in the least restrictive environment
possible, as required by the IDEA.
A BSEA hearing was held over six days between September
18, 2008, and January 8, 2009. The administrative hearing officer
compiled a comprehensive record describing the nature of
Sebastian's disabilities and documenting his educational history.
On January 13, 2009, the hearing officer issued a lengthy decision
largely favorable to the school system. In the hearing officer's
view, the IEPs proposed by the school system complied with the IDEA
insofar as they were "reasonably calculated to permit [Sebastian]
to make meaningful progress." As a result, the school system had
no financial responsibility for Sebastian's private education. The
hearing officer explained, however, that the school system had not
consistently implemented Sebastian's previous IEPs and had, on
"more than an occasional number of times," assigned him tasks that
were too difficult for him to complete. Accordingly, the school
system had to offer Sebastian limited compensatory services in the
form of updated evaluations and a transition plan to guide his
eventual departure from the Cardinal Cushing School.
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Sebastian and his parents sought judicial review of the
hearing officer's decision by filing suit in the United States
District Court for the District of Massachusetts, see 20 U.S.C.
§ 1415(i)(2)(A), naming as defendants the King Philip school system
and the Massachusetts Department of Elementary and Secondary
Education. The school system did not appeal. After both sides
filed motions for summary judgment, the district court ruled
against Sebastian and his parents. See Sebastian M., 774 F. Supp.
2d at 408-09. Upholding the hearing officer's decision, the
district court noted that Sebastian had made meaningful progress at
BICO under his previous IEPs and likely would have continued to
make such progress if the proposed IEPs had been implemented. See
id. at 408. This appeal followed.
II.
A state receiving federal funds under the IDEA must offer
every disabled child within its jurisdiction a FAPE in the least
restrictive environment possible. See 20 U.S.C. § 1412(a)(1), (5).
If a state is unable to provide a disabled child with a FAPE
through a public school placement, it may be obliged to subsidize
the child in a private program. See D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 34 (1st Cir. 2012);
C.G., 513 F.3d at 284.
"The 'primary vehicle' for delivery of a FAPE is an IEP."
D.B., 675 F.3d at 34 (quoting
Lessard, 518 F.3d at 23). An IEP
must be custom-tailored to suit a particular child, see Bd. of
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Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
201 (1982), and must include, "at a bare minimum, the child's
present level of educational attainment, the short- and long-term
goals for his or her education, objective criteria with which to
measure progress toward those goals, and the specific services to
be offered,"
Lessard, 518 F.3d at 23. However, an IEP need not be
designed to furnish a disabled child with the maximum educational
benefit possible. See
D.B., 675 F.3d at 34. To comply with the
IDEA, an IEP need only be "reasonably calculated to confer a
meaningful educational benefit."
Id.
Parents who are dissatisfied with their child's IEP may
demand an administrative due process hearing before a designated
state educational agency. See 20 U.S.C. § 1415(f). In this case,
that agency is the BSEA. From there, an appeal of the
administrative hearing officer's final decision may be taken to
either a federal or state court of competent jurisdiction. See
id.
§ 1415(i)(2)(A); Lessard, 518 F.3d at 24.
We recently articulated the different standards that
apply to a federal district court's review of a hearing officer's
decision and our review of the district court's decision:
A district court reviews the administrative
record, which may be supplemented by
additional evidence from the parties, and
makes an independent ruling based on the
preponderance of the evidence. However, that
independence is tempered by the requirement
that the court give due weight to the hearing
officer's findings. As a result, a district
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court's review falls somewhere between the
highly deferential clear-error standard and
the non-deferential de novo standard. We have
characterized this intermediate level of
review as one of involved oversight.
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. 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.
D.B., 675 F.3d at 35-36 (citations, internal quotation marks, and
brackets omitted).
The application of these standards in the context of a
motion for summary judgment adds a layer of complexity. See Ross
v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 112-13 (D. Mass.
1999). As in other administrative appeals, a motion for summary
judgment in an IDEA case is simply a vehicle for deciding the
relevant issues, and the non-moving party is not entitled to the
usual inferences in its favor. See Lillbask ex rel. Mauclaire v.
Conn. Dep't of Educ.,
397 F.3d 77, 83 n.3 (2d Cir. 2005);
Capistrano Unified Sch. Dist. v. Wartenberg,
59 F.3d 884, 892 (9th
Cir. 1995) ("Though the parties may call the procedure a 'motion
for summary judgment' . . . the procedure is in substance an appeal
from an administrative determination, not a summary judgment.");
cf. Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32, 40 (1st
Cir. 2012) (describing summary judgment in context of ERISA case).
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Nor does the presence of disputed issues of fact preclude the award
of summary judgment. See Capistrano, 59 F.3d at 891-92.
However, "judicial review in IDEA cases differs
substantially from judicial review of other agency actions, in
which courts generally are confined to the administrative record
and are held to a highly deferential standard of review." Ojai
Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993);
see also Kerkam v. McKenzie,
862 F.2d 884, 887 (D.C. Cir. 1988)
("[T]he district court's authority under [the IDEA] to supplement
the record below with new evidence, as well as Congress's call for
a decision based on the 'preponderance of the evidence,' plainly
suggest less deference than is conventional [in other
administrative appeals]."). As a result, in an IDEA case, a
district court "essentially conduct[s] a bench trial based on a
stipulated record," Ojai, 4 F.3d at 1472, but must nevertheless
give due deference to the findings of the administrative hearing
officer, see
id. at 1471-72. We then review the district court's
ruling as we would following any other bench trial.
III.
The primary issue raised on appeal is whether the IEPs
proposed by the King Philip school system complied with the IDEA.
Sebastian and his parents challenge the district court's judgment
by focusing on two alleged errors by the hearing officer undetected
by the district court: (1) that the hearing officer did not give
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sufficient weight to their expert witnesses' testimony that the
proposed IEPs were unsuitable for Sebastian; and (2) that the
hearing officer's findings misstated the services available to
Sebastian at the Cardinal Cushing School, downplaying, for example,
the opportunities there for off-site vocational training. In light
of these errors, they argue, the district court should not have
upheld the hearing officer's ruling.
A. The Expert Witnesses
Two expert witnesses testified at the due process hearing
on behalf of Sebastian and his parents: Dr. Anne Marie Lasoski, a
neuropsychologist, and Marsha Stevens, an educational consultant.
Lasoski evaluated Sebastian in 1999 and 2006. In total, she spent
approximately eight hours with Sebastian. She also reviewed his
academic records and observed his performance at BICO on one
occasion. Lasoski did not, however, speak with Sebastian's
teachers or review his schoolwork. Stevens spent between ten and
twelve hours with Sebastian, starting after he enrolled at the
Cardinal Cushing School. However, she never conducted a formal
assessment of him or observed him at BICO. Both Lasoski and
Stevens expressed the view that the IEPs proposed by the King
Philip school system were inappropriate for Sebastian. In
particular, Lasoski testified that the proposed IEPs failed to
emphasize the development of independent living skills. Stevens
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testified that the IEPs were inadequate as to vocational training,
social skills, and "functional academics."
The hearing officer gave little weight to this testimony.
Instead, she credited the testimony of educators who had worked
directly with Sebastian at BICO and observed his daily progress
there over a number of years. All of these educators testified
that the proposed IEPs offered an appropriate combination of
services designed to permit Sebastian to achieve meaningful
educational progress, including counseling services, occupational
therapy, social skills training, and vocational training.
The valuation of expert testimony is precisely the sort
of first-instance administrative determination that is entitled to
judicial deference by the district court. See J.E.W. ex rel. J.W.
v. Fresno Unified Sch. Dist., 626 F.3d 431, 446 (9th Cir. 2010);
Strawn v. Mo. State Bd. of Educ.,
210 F.3d 954, 958 (8th Cir.
2000); cf.
Lessard, 518 F.3d at 24 ("Judges are not trained
pedagogues, and they must accord deference to the state agency's
application of its specialized knowledge."). The testimony offered
by Lasoski and Stevens was controverted by Sebastian's educators,
who interacted with him regularly. The administrative record makes
clear that Lasoski and Stevens spent relatively little time with
Sebastian. Moreover, Lasoski never consulted Sebastian's teachers
or reviewed his schoolwork. Stevens never formally evaluated
Sebastian or observed him at BICO. Given this record, it was
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entirely proper for the district court to give due deference to the
hearing officer's weighing of the testimony offered by Lasoski and
Stevens. There was nothing clearly erroneous in that
determination.
B. The Services Offered by the Cardinal Cushing School
The hearing officer found that the Cardinal Cushing
School was "too restrictive a program" for Sebastian. She added
that the school "has only one limited off-site vocational
experience," and has not "provided data collection for this off-
site work experience." In addition, she found that Sebastian did
not have an opportunity to use public transportation at the
Cardinal Cushing School.
Sebastian and his parents contend that these findings are
inconsistent with evidence in the administrative record. In making
this argument, they miss a larger point. The Supreme Court has
explained that a state must subsidize the costs of a disabled
child's private education only if the private school placement is
adequate and the public school placement is inadequate. See
Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S.
7, 15 (1993); see also Sch. Comm. of Town of Burlington v. Dep't of
Educ. of Mass.,
471 U.S. 359, 369-70 (1985); Mr. I. ex rel. L.I. v.
Me. Sch. Admin. Dist. No. 55,
480 F.3d 1, 23 (1st Cir. 2007).
Having discounted the testimony offered by Lasoski and Stevens that
the IEPs proposed by the King Philip school system were unsuitable
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for Sebastian, the hearing officer embraced the contrary view
espoused by Sebastian's educators that the proposed IEPs complied
with the IDEA. We have already decided that the district court did
not err in accepting this evaluation of expert testimony by the
hearing officer. This evaluation, in turn, was critical to the
hearing officer's finding, amply supported by the administrative
record, that Sebastian "made progress commensurate with his
ability" under his previous IEPs and likely "would have made more
progress if the [King Philip school system] had been permitted
. . . to implement the additional goals and objectives and services
proposed on the rejected IEPs." See D.B., 675 F.3d at 38 ("It
. . . was not error to conclude prospectively that, since [the
student's] previous IEPs had conferred meaningful educational
benefits, the [proposed] IEP was reasonably calculated to do the
same, having kept in place, and even supplemented, the services
offered by the previous IEPs.").
Therefore, Sebastian's public school placement at BICO
was adequate, and the services available to him at the Cardinal
Cushing School -- the alternative placement chosen by his parents
-- were immaterial to the outcome of this case. Even if the
hearing officer's findings as to those services were inconsistent
with the record evidence (and we do not suggest that they were),
there was no reversible error.
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IV.
As noted above, a district court must independently
examine the administrative record in reviewing a hearing officer's
ruling. See D.B., 675 F.3d at 35-36. Sebastian and his parents
argue that the district court committed a legal error by failing to
discharge this responsibility and instead relying "almost
exclusively" on the hearing officer's factual findings. They note
that the district court cited extensively to the hearing officer's
findings in laying out the background of this case.
There is no basis for this claim of error. Because
"[d]etermining the adequacy of an IEP is a fact-intensive
exercise," Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st
Cir. 1993), the district court described the background of this
case in considerable detail. In so doing, it cited the hearing
officer's findings. However, the district court also referred
throughout its decision to the administrative record. See, e.g.,
Sebastian M.,
774 F. Supp. 2d at 406 ("[T]he administrative record
was comprehensive and provided a more-than-sufficient basis for the
Hearing Officer's findings."); id. at 407 ("[T]he administrative
record makes clear that transition planning was discussed at all of
Sebastian's team meetings.");
id. ("[T]he record indicates that
Sebastian did, in fact, make some progress."). The district court
fulfilled its responsibility to review the administrative record in
reviewing the hearing officer's ruling.
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The judgment of the district court is affirmed. Each
party shall bear its own costs.
So ordered.
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